2.1 Consolidate land under a single administration system

Issue

The Northwest Territories Lands Act and Commissioner’s Land Act provide the authority to transfer land or a category of land between the two regimes.^[1] However, there are limits to the authority to transfer where “existing interests” may be affected.

Background

Certain land administration issues arising from devolution may be addressed by using the transfer authorities to consolidate lands for similar use or within geographic areas under a single administration system. For example, most of the lands in and around communities are Commissioner’s Land. However, there are some communities made up mostly of Territorial Lands that were not transferred to the GNWT before devolution. Similarly, some parcels of Territorial Lands exist within communities largely made up of Commissioner’s Land. As a result there can be inconsistencies in land administration within community areas, for example different lease rents, as well as terms and conditions between leaseholders.

Although the Northwest Territories Lands Act and Commissioner’s Land Act provide the authority to transfer land between regimes, the authority is limited. The Northwest Territories Lands Act and Commissioner’s Land Act provide that an interest existing at the time of an order transferring land to the other system continues unaffected by the order and shall be respected and administered “as if the order had not been made.”^[2] In essence, where land is transferred between regimes, existing interests continue under the original land regime until they expire or are surrendered and replaced under the new lands systems.

Recommended Action

• Clarify that where land is transferred from one regime to the other:
  • existing interests continue unaffected
  • there is sufficient authority to administer existing interests set out in land tenure instruments under the “new” regime

Rationale

The recommended action will help to ensure that leaseholders maintain their rights and interests while providing consistency, clarity and transparency in land administration and decision-making.

The recommended action will help to achieve the following goals:

• improve clarity with respect to legislative authority
• minimize operational challenges in land administration
• provide clarity and transparency to land users

2.2 Reserve land for government use

Issue

The provisions in the Northwest Territories Lands Act and Commissioner’s Land Act differ relating to authorities to set apart and appropriate or reserve land for public purposes. Further, the Northwest Territories Lands Act and Commissioner’s Land Act set out different procedures and approvals required for various government uses of land.

Background

The Commissioner’s Land Act provides that the Commissioner may set apart and reserve land for “public and other purposes.”^[3] The Northwest Territories Lands Act provides that the Commissioner in Executive Council may set apart and appropriate Territorial Lands for sites of places of public worship, burial grounds, schools, market places, jails, court houses, town halls, public parks or gardens, hospitals, harbours, landings, bridge sites, airports, landing fields, railway stations, town-sites, historic sites or “for other public purposes.”^[4]  The difference in language can present uncertainty about authorities to set apart and reserve land for government or public purposes.

Pursuant to the Northwest Territories Lands Act, even temporary uses of Territorial Lands by a department of the GNWT, for example a water stream gauge, require the approval of the Executive Council. The Commissioner’s Land Act does not require approval of the Executive Council for GNWT use of land. 

Recommended Action

• Propose to harmonize authorities in the two acts to set apart and reserve land for government and public purposes.
• Clarify that Territorial and Commissioner’s Land may be made available for GNWT and other government’s internal use for the purposes of program and service delivery.

Rationale

The recommended action will help to establish clear enabling authority and consistency for regulations and associated policy respecting land reserves on Commissioner’s and Territorial Lands, and ensure that GNWT departments and other governments have timely access to public lands for programs and services. Internal policies may need to be developed to clarify administrative requirements and procedures.

The recommended action will help to achieve the following goals:

• align provisions in the Northwest Territories Lands Act and Commissioner’s Land Act
• enhance consistency in the application the Northwest Territories Lands Act and Commissioner’s Land Act
• minimize operational challenges in land administration

[1]     See section 53 of the Northwest Territories Lands Act and section 2 of the Commissioner’s Land Act.

[2]     See section 53(4) of the Northwest Territories Lands Act and section 2(4) of the Commissioner’s Land Act. See also section 3.27 of the Devolution Agreement which provides that an “Existing Interest shall continue in full force and effect unless the holder of the Existing Interest and the GNWT agree that the Existing Interest be cancelled and replaced by a right or interest provided by the GNWT.” 

[3]     See section 4 of the Commissioner’s Land Act.

[4]     See section 19(b) of the Northwest Territories Lands Act.