Rights of Access Subject to Consent or Order
Marginal note:Access order
42. (1) Subject to subsection (2), on application by a person who has a right of access described in section 1 of Schedule II, the Board shall make an access order establishing terms and conditions for the exercise of the right.
(2) The Board shall not make an access order in respect of a right of access described in any of paragraphs 1(a) to (d), (f), (g), (i) and (k) of Schedule II unless the applicant satisfies the Board that the applicant reasonably requires access and that access across Crown land is not practicable and reasonable.
Marginal note:Terms and conditions
43. (1) The Board may include in an access order made under subsection 42(1) in respect of a right of access
(a) terms and conditions respecting any of the following matters, namely,
(i) the times when the right may be exercised,
(ii) the giving of notice,
(iii) limitations on the location in which the right may be exercised and on routes of access,
(iv) limitations on the number of persons exercising the right,
(v) limitations on the activities that may be carried on and on the equipment that may be used,
(vi) subject to any regulations made under paragraph 78(c), the giving of security in the form of a letter of credit, guarantee or indemnity bond or insurance or any other form satisfactory to the Board and the purposes for which the security is given,
(vii) the payment of the entry fee, in the amount established by the rules of the Board, to the Yukon first nation and, in the case of an interim access order, to any affected interest holder designated by the Board,
(viii) the payment of compensation for the exercise of the right and any damages resulting from that exercise to the Yukon first nation and, in the case of an interim access order, to any affected interest holder designated by the Board,
(ix) abandonment and restoration work, and
(x) the right of a Yukon first nation to verify, by inspection or otherwise, whether the other terms and conditions have been complied with; and
(b) any other terms and conditions that the Board considers appropriate for reducing any conflict between the exercise of that right and the use and peaceful enjoyment of the settlement land by the Yukon first nation and, in the case of an interim access order, any affected interest holder designated by the Board.
Marginal note:Designation of route
(2) When making an access order that designates a route of access, the Board shall designate a route that is least harmful to the interests of the Yukon first nation while being reasonably suitable to the needs of the applicant.
Marginal note:Parameter of entry fee
(3) The Board may, in respect of an access order, provide for the payment of only one entry fee to each Yukon first nation whose settlement land is the subject of the order, whether or not the order is amended.
Marginal note:Payment of entry fee where interim access order
(4) If the Board provides for the payment of an entry fee under an interim access order,
(a) the entry fee shall be allocated by the Board among the Yukon first nation and any affected interest holders designated by the Board; and
(b) no additional entry fee is payable on the issuance of an order finalizing the interim access order.
Marginal note:Restriction for Government and public utility access
(5) The Board may not provide for the payment of the entry fee or compensation, other than compensation for significant damage, in respect of the exercise of a right of access described in paragraph 1(c) or (d) of Schedule II.
Marginal note:Definition of “significant damage”
(6) For the purposes of subsection (5), “significant damage” does not include necessary alteration of settlement land or watercourses required to maintain transportation corridors referred to in paragraph 1(c) of Schedule II.
Marginal note:Compensation factors
(7) In determining the amount of compensation, the Board may consider such factors as it considers appropriate and, without limiting the generality of the foregoing, shall consider
(a) the market value of the settlement land;
(b) any loss of, or interference with, the use of the land and any loss of opportunity in connection therewith;
(c) any impact on the fish and wildlife, and their habitat, on the land;
(d) in all cases, any impact on fish and wildlife harvesting on the land and, in the case of Tetlit Gwich’in Yukon land described in Annex B of the Transboundary Agreement, on the gathering of plants on the land;
(e) any nuisance, including that caused by noise, or inconvenience or any damage to the land that may be caused by the applicant in exercising the right of access;
(f) any cultural or other special value of the land to the Yukon first nation;
(g) any expenses associated with the implementation of the order, including monitoring and inspection expenses;
(h) any impact on other settlement land of the Yukon first nation; and
(i) any compensation paid or payable to the same person by or pursuant to another authority for the exercise of the right of access or for any damages resulting from that exercise.
Marginal note:Compensation factors
(8) The Board shall not
(a) decrease the amount of compensation on account of any reversionary interest remaining in the Yukon first nation or of any entry fee payable; or
(b) increase the amount of compensation on account of any aboriginal claim, right, title or interest or of the value of mines and minerals on or under category B settlement land or fee simple settlement land.
(9) The Board may require compensation to be paid by one lump sum payment or by periodic payments of equal or different amounts and may require the payment of interest, at a rate to be determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.
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