Appendix F

Interests on Tla’amin Lands

 
Appendix F-1

Interests on Former Sliammon Indian Reserves to be Replaced on the Effective Date

Part 1: Certificates of Possession and Other Interests under the Indian Act or Sliammon First Nation Land Code

Note: the Parties will update the Appendices before the Effective Date.

¹ CP – Certificate of Possession.

 
Appendix F-1

Interests on Former Sliammon Indian Reserves to be Replaced on the Effective Date

Part 2: Klahanie Interests

Note: the Parties will update the Appendices before the Effective Date.

 
Appendix F-1

Interests on Former Sliammon Indian Reserves to be Replaced on the Effective Date

Part 3: Southview Interests

Note: the Parties will update the Appendices before the Effective Date.

 
Appendix F-1

Interests on Former Sliammon Indian Reserves to be Replaced on the Effective Date

Part 4: Public Utility Distribution Works and Other Interests

Note: the Parties will update the Appendices before the Effective Date.

 
Appendix F-2

Interests on Former Provincial Crown Land to be Replaced on the Effective Date

Part 1: Public Utility Distribution Works

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-2

Interests on Former Provincial Crown Land to be Replaced on the Effective Date

Part 2: Permits to Occupy Provincial Crown Land Associated with Water Licences

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-2

Interests on Former Provincial Crown Land to be Replaced on the Effective Date

Part 3: Licences of Occupation for Pit Toilet Purposes Associated with Float Home Tenures¹

Note: The Parties will update the Appendices before the Effective Date.

¹ Float home tenures located in Powell Lake will not form part of Tla’amin Lands.

² Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-3

Interests to Continue in Accordance with Provincial Law

Part 1: Licence of Occupation Issued Under the Land Act¹

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-3

Interests to Continue in Accordance with Provincial Law

Part 2: Subsurface Tenure Issued Under the Mineral Tenure Act¹

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-3

Interests to Continue in Accordance with Provincial Law

Part 3: Licences Issued Under the Water Act¹

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-3

Interests to Continue in Accordance with Provincial Law

Part 4: Guide Outfitter Certificates Issued Under the Wildlife Act¹

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-4

Interests to be Created on the Effective Date

Part 1: Float Home Tenures¹ Requiring Tla’amin Nation Upland Owner Consent

Note: The Parties will update the Appendices before the Effective Date.

¹ Float home tenures located in Powell Lake will not form part of Tla’amin Lands.

² Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-4

Part 2
Float Home Tenures

 
Appendix F-4

Interests to be Created on the Effective Date

Part 3: Shellfish Aquaculture Tenures¹ Requiring Licences to Occupy Tla’amin Lands

Note: The Parties will update the Appendices before the Effective Date.

¹ Shellfish aquaculture tenures will not form part of Tla’amin Lands.

² Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-4

Interests to be Created on the Effective Date

Part 4: Shellfish Aquaculture Tenures¹ Requiring Tla’amin Nation Upland Owner Consent

Note: The Parties will update the Appendices before the Effective Date.

¹ Shellfish aquaculture tenures will not form part of Tla’amin Lands.

² Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-4

Interests to be Created on the Effective Date

Part 5: Existing Tenure Requiring Private Road Easement Over Tla’amin Lands

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations.

 
Appendix F-4

Interests to be Created on the Effective Date

Part 6: Fee Simple Properties Requiring Private Road Easements Over Tla’amin Lands

Note: The Parties will update the Appendices before the Effective Date.

 
Appendix F-4

Interests to be Created on the Effective Date

Part 7: Public Utility Distribution Works

Note: The Parties will update the Appendices before the Effective Date.

 
Appendix F-4

Interests to be Created on Effective Date

Part 8: Forest Research Plots

Note: The Parties will update the Appendices before the Effective Date.

¹ Ministry of Forests, Lands and Natural Resource Operations

 
Appendix F-4

Part 9
Forest Research Plots

 
Appendix F-5

Applicable Forms of Documents for Granting Interests

Document 1. Form A for Granting Tla’amin Nation Fee Simple Interest

 
Appendix F-5

Applicable Forms of Documents for Granting Interests

Document 2. Distribution Right of Way for British Columbia Hydro and Power Authority and TELUS Communications Inc.

TERMS OF INSTRUMENT – PART 2

STANDARD CHARGE TERMS
(Tla’amin RIGHT OF WAY – DISTRIBUTION)

Filed by: British Columbia Hydro and Power Authority

These Filed Terms are deemed to be included in and form part of every Agreement which incorporates these Filed Terms by an election on the General Instrument.

WHEREAS:

A The Grantor, Canada and British Columbia have entered into a Final Agreement as hereinafter defined.

B In accordance with the Final Agreement, the Grantor wishes to provide the grants, as herein provided, to each of Hydro and TELUS with respect to the Grantor's Lands as hereinafter defined.

C The statutory rights of way herein granted are necessary for the operation and maintenance of Hydro's and TELUS's undertakings.

NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the premises and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties, the parties hereto covenant and agree as follows:

DEFINITIONS

1.1  In this Agreement:

(a) "Affiliate" will have the meaning ascribed to it in the Business Corporations Act, S.B.C. 2002, c. 57, as amended or replaced from time to time and, in the case of TELUS, includes an affiliate (as defined in that Act) of TELUS and any partnership or other unincorporated association in which TELUS or any affiliate (as defined in that Act) of TELUS has a controlling interest;

(b) "Agreement" means the General Instrument and the Filed Terms and all schedules attached to either of them;

(c) "Area of the Works" means those portions of the Lands located within six (6) metres of either side of the center of the alignment of the Works and includes the Right of Way Area;

(d) "Effective Date" means the date upon which the Final Agreement will take effect;

(e) "Environment" means all the components of the earth including, without limitation, all layers of the atmosphere, air, land (including, without limitation, all underground spaces and cavities and all lands submerged under water), soil, water (including, without limitation, surface and underground water), organic and inorganic matter and living organisms, the interacting natural systems that include the foregoing and all other external conditions or influences under which humans, animals and plants live or are developed;

(f) "Excluded Right of Way Area" means any right of way area or corridor that is not part of the Lands but in whole or in part passes through the Lands or is adjacent to such Lands;

(g) "Filed Terms" means these filed standard charge terms;

(h) "Final Agreement" means the Tla’amin Final Agreement among the Grantor, Canada and British Columbia;

(i) "General Instrument" means the Form C General Instrument – Part 1 which refers to these Filed Terms and any other pages attached thereto;

(j) "Grantor" means the person named as the transferor in item 5 of the General Instrument;

(k) "Hydro" means British Columbia Hydro and Power Authority;

(l) "Lands" means the lands and premises as are legally described in item 2 of the General Instrument;

(m) "Right of Way Area" means those portions of the Lands more particularly described in Section 3 of this Agreement, as may be modified under this Agreement;

(n) "TELUS" means TELUS Communications Inc.; and

(o) "Works" means:

(i) as it relates to the rights and responsibilities of Hydro, all things and components, using any type of technology from time to time, necessary or convenient for the purposes of transmitting and distributing electricity and for the purpose of telecommunications, including: poles, towers, antennae (except for monopole free standing antennae), guy wires, brackets, crossarms, insulators, above ground or underground transformers, anchors, attachments, lines, access nodes and cables, including underground or fibre optic cables, underground conduits, lines and pipes of every kind, cabinets, all ancillary appliances and fittings, reasonably required associated protective installations and related works such as fencing for safety or security, devices and identifying colours for aircraft warning, and utility services for the operation of any of the foregoing;

(ii) as it relates to the rights and responsibilities of TELUS, all things and components, using any type of technology from time to time, necessary or convenient for the purpose of telecommunications, including: poles, towers, guy wires, brackets, crossarms, insulators, transformers, anchors, attachments, lines, access nodes and cables, including fibre optic cables, in whole or in part and underground conduits, lines and pipes of every kind, underground cables, including fibre optic cables, together with all ancillary appliances, fittings and cabinets and above ground or underground equipment shelters.

1.2  With respect to any obligation on the part of Hydro or TELUS under this Agreement, any reference to Hydro or TELUS includes their respective servants, officers, employees, agents, contractors, sub-contractors, invitees, licensees, successors, permitted assigns, and those for whom either or both of them is responsible in law.

GRANT OF RIGHT OF WAY

2.1  The Grantor grants over the Lands separately to each of Hydro and TELUS and their respective employees, representatives, contractors, agents, licensees, successors and assigns, for so long as required, the uninterrupted right, liberty and right of way to:

(a) use the Right of Way Area as follows:

(i) excavate for, construct, install, erect, abandon, replace, extend, upgrade, operate, maintain, alter, remove and repair the Works on, over, in, under, across and through the Right of Way Area; and

(ii) clear the Right of Way Area and keep it cleared (including pruning or removal) of any trees or growth at any time located therein;

(b) use the Area of the Works as follows:

(i) enter, work, pass and repass upon, on, and along the Area of the Works;

(ii) maintain, repair, replace and use trails, roads, lanes, and bridges on the Area of the Works including, in addition, any portions reasonably required adjacent to the Area of the Works for the sake of continuity, with or without equipment, machinery and materials to such extent as may reasonably be required by Hydro or TELUS in relation to this Agreement

(iii) clear the Area of the Works and keep it cleared of all or any part of any obstruction, improvement or other matter which, in the reasonable opinion of Hydro or TELUS, does or might interfere with or endanger the Works, disrupt service to Hydro's or TELUS's customers, or pose a hazard to persons or property in relation to the Works; and

(iv) clear the Area of the Works and keep it cleared (including pruning or removal) of all or any part of any trees or growth which do or might, in the opinion of Hydro or TELUS, interfere with or endanger the Works, disrupt service to Hydro's or TELUS's customers, or pose a hazard to persons or property in relation to the Works;

(c) to enjoy further rights as follows:

(i) Hydro and TELUS may, with the prior approval of the Grantor and any party with a registered interest in the affected areas, such approval not to be unreasonably withheld, delayed or conditioned, cut trees or growth outside the Area of the Works, if in the reasonable opinion of Hydro or TELUS such trees or growth might interfere with or endanger the Works (whether on or off the Lands) or pose a hazard to persons or property in relation to the Works;

(ii) Hydro and TELUS may pass and repass over, and maintain, repair replace and use, all roads, lanes and bridges on the Lands outside of the Area of the Works with or without equipment, machinery and materials to such extent as may reasonably be required by Hydro or TELUS in relation to this Agreement;

(iii) if there are no suitable roads, lanes or bridges under paragraph 2.1 (c) (ii), Hydro and TELUS may either:

A. construct, maintain, repair, replace and pass and repass over roads, lanes or bridges on the Lands; or

B. pass and repass over the Lands elsewhere than on roads, lanes and bridges, with or without equipment, machinery and materials to such extent as may reasonably be required by Hydro or TELUS in relation to this Agreement, subject to prior approval of the route by the Grantor, such approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Hydro and TELUS do not require such approval if there is an emergency or a reasonably apprehended emergency or for the determination of electricity consumption, but will act reasonably and report to the Grantor the purpose and extent of the access as soon as practicable;

(iv) to conduct vegetation management upon the Area of the Works, such as the planting of vegetation compatible with the undertakings of Hydro or TELUS, and the application of herbicides and pesticides with the consent of the Grantor, provided that Hydro and TELUS will not conduct any aerial application of herbicides or pesticides on the Lands;

(v) to install, maintain and use gates in all fences which are now or hereafter shall be on the Right of Way Area and in fences affecting access to the Area of the Works;

(vi) to ground any structures, installation or things, by whomsoever owned, from time to time situated anywhere on the Right of Way Area or adjacent Lands where, in the reasonable opinion of Hydro and TELUS, such grounding will eliminate or reduce hazards to persons or property in relation to the Works;

(vii) Hydro and TELUS may enter onto the Lands outside the Area of the Works for the purpose of undertaking works to protect any Works located within the Lands or within an Excluded Right of Way Area or to protect persons or property that may be at risk from such Works, provided that:

A. Hydro or TELUS will before commencing such works deliver to the Grantor for approval a written work plan describing the proposed work on the Lands;

B. the Grantor will not unreasonably withhold, condition or delay approval of such work plan, and shall take into consideration the effect of the proposed work, the cost of the proposed work compared to the cost of alternate solutions and the extent of the risk of not undertaking the work. If Hydro or TELUS, as the case may be, and the Grantor cannot agree on a work plan requested by Hydro or TELUS within 30 days of receipt by the Grantor of the proposed work plan, then either party may refer the disagreement to dispute resolution under section 18 of this Agreement;

C. Hydro or TELUS, as the case may be, will pay compensation for any damage to the Lands resulting from the implementation of the work plan;

D. if Hydro or TELUS, as the case may be, determines in its reasonable judgment that an emergency situation exists or there are imminent safety concerns, Hydro and TELUS may, without approval of the Grantor, undertake works and take such steps on the Lands as are reasonably required to be taken immediately in order to protect the Works, or to protect persons or property that may be at risk from the Works, and in that event Hydro or TELUS will as soon as reasonably possible thereafter notify the Grantor; and

(d) generally, do all such other acts or things as may reasonably be necessary or incidental to the business of Hydro or TELUS in connection with any of the above.

RIGHT OF WAY AREA

3.1  The Right of Way Area consists of:

(a) all portions of the Lands reasonably required for the following:

(i) those Works existing at the date of this Agreement;

(ii) any additional Works constructed adjacent to, along the sides of or across any roads, lanes or bridges from time to time existing on or through the Lands;

(iii) any additional Works that provide service to any lands adjacent to any roads, lanes, or bridges from time to time existing on or through the Lands;

(iv) any additional Works that provide service to any lands or customers where the landowners of any intervening parcels consent to the installation of any such Works; and

(b) any such other portions of the Lands as may from time to time be consented to in writing by the Grantor, or by any delegate appointed by the Grantor.

3.2  Hydro and TELUS agree to provide the Grantor on request with an updated sketch of the Works from time to time, if the Works have been extended in the previous calendar year, unless such information is available to the Grantor on-line. The Parties confirm that this Agreement, and all of its terms and provisions, shall apply to such new works in their entirety.

3.3  Nothing in this Part 3.0 is intended to affect the rights of Hydro or TELUS to make arrangements directly with a person in legal possession of any lands for the construction, operation and maintenance of the Works and all matters incidental thereto.

NON-EXCLUSIVE USE

4.1  Notwithstanding anything else in this Agreement, Hydro and TELUS acknowledge and agree that:

(a) this Agreement does not grant a fee simple interest in the Lands, but rather grants a non-exclusive use over the Area of the Works; and

(b) subject to the rights granted to Hydro and TELUS in this Agreement, the Grantor may grant to third parties other interests on the Area of the Works, provided that any such grant of other interests shall not compromise or, by action of the Grantor or the grantee, damage, disrupt, adversely affect or interfere with the use by Hydro and TELUS of the Works or Area of the Works.

PROTECTION OF THE ENVIRONMENT

5.1  Hydro and TELUS will undertake activities permitted under this Agreement having regard for the impact on the Environment, and will take prudent measures to minimize any danger or disruption to the Environment. Hydro and TELUS, as the case may be, will remediate damage they respectively may cause to the Environment in accordance with applicable provincial or federal environmental legislation.

COVENANTS OF HYDRO AND TELUS

6.1  Hydro and TELUS each covenant separately with the Grantor to:

(a) pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged to the account of Hydro or TELUS, as the case may be, which relate to the Right of Way Area and which Hydro or TELUS is liable to pay;

(b) keep the portions of the Lands used by Hydro or TELUS under this Agreement in a safe, clean and sanitary condition to the extent the condition relates to the use or occupation by Hydro or TELUS of such Lands, as the case may be, provided that Hydro and TELUS have no obligation to keep any roads within the Area of the Works suitable for use by anyone except Hydro and TELUS;

(c) bury and maintain all underground works as may be required so as not to unduly interfere with the drainage of the Lands;

(d) if any human remains, burial pit or grave are unearthed or discovered on the Lands by either Hydro or TELUS immediately notify the Grantor, cease any further activity that could affected the site until permitted by the Grantor to resume activity and take such reasonable steps and precautions to protect the site as may be directed by the Grantor;

(e) if any artifact is unearthed or discovered on the Lands by either Hydro or TELUS, immediately notify the Grantor, cease any further activity that could affect the site until permitted by the Grantor to resume activity, and take such reasonable steps and precautions to protect the site as may be directed by the Grantor. At the request of the Grantor, Hydro or TELUS, as the case may be, will deliver such artifact to a location on the Lands as directed by the Grantor, at the expense of the Grantor if such expense is significant;

(f) not bury debris or rubbish of any kind on the Lands in excavations or backfill, and to remove shoring and similar temporary structures as backfilling proceeds; and

(g) not commit or suffer any willful or voluntary waste, spoil or destruction on the Right of Way Area, or do or suffer to be done thereon anything that may be or become a nuisance to the Grantor, except to the extent required by Hydro or TELUS, acting reasonably, to exercise the rights granted under this Agreement.

NEW WORKS CONSTRUCTED BY HYDRO OR TELUS

7.1  Prior to undertaking construction on the Lands of any new Works which are not alterations, extensions or additions to existing Works, Hydro or TELUS, as the case may be, will deliver to the Grantor for prior approval, a sketch plan showing with reasonable accuracy the location of such new Works, which approval will not be unreasonably withheld, delayed or conditioned.

RELOCATION OF HYDRO AND TELUS WORKS DUE TO CHANGE

8.1  If a material change occurs to the Lands, such as erosion, which for any reason makes the continued use of any portion of the Right of Way Area or an Excluded Right of Way Area unsuitable for any of the Works, then the Grantor will, at no cost to Hydro and TELUS, consent to the relocation and replacement of such Works to a new location on the Lands, as follows:

(a) Hydro or TELUS, as the case may be, will, before undertaking any work, deliver a sketch plan to the Grantor indicating the contemplated relocation of the Works for approval by the Grantor, which approval will not be unreasonably withheld, delayed or conditioned;

(b) Hydro or TELUS, as the case may be, will take into account any likely material effect of the relocated Works on adjacent lands, and the Grantor will take into account the cost efficiencies of the location selected by Hydro or TELUS for the relocated Works in relation to alternative locations;

(c) the relocated Works will be covered by the terms and conditions of this Agreement; and

(d) subject to the foregoing, the cost of such relocation will be borne by Hydro or TELUS, as the case may be.

RELOCATION OF HYDRO WORKS AT THE REQUEST OF THE GRANTOR

9.1  If the Grantor requires a portion of the Right of Way Area for other purposes, then upon written request by the Grantor, Hydro will relocate any Works in the Right of Way Area to a new location on the Lands, provided that:

(a) the new location is, in the reasonable opinion of Hydro, suitable for use for the relocated Works considering construction, maintenance and operation, and cost factors;

(b) the Grantor gives Hydro reasonable notice to permit proper design, planning and construction of the Works to be relocated;

(c) before any relocation, the Grantor has paid the reasonable costs and expenses of the relocation, including costs of design, supervision and construction as estimated by Hydro, with appropriate adjustments made, based on actuals, after the relocation is complete; and

(d) the relocated Hydro Works will be covered by the terms and conditions of this Agreement.

RELOCATION OF TELUS WORKS AT THE REQUEST OF THE GRANTOR

10.1  If the Grantor requires a portion of the Right of Way Area for other purposes, then upon written request by the Grantor, TELUS will relocate any Works in the Right of Way Area to a new location on the Lands, provided that:

(a) the new location is, in the reasonable opinion of TELUS, suitable for use for the relocated Works considering construction, maintenance and operation, and cost factors;

(b) the Grantor gives TELUS reasonable notice to permit proper design, planning and construction of the Works to be relocated;

(c) before any relocation, the Grantor has paid the reasonable costs and expenses of the relocation as estimated by TELUS, including costs of design, supervision and construction with appropriate adjustments made, based on actuals, after the relocation is complete; and

(d) the relocated TELUS Works will be covered by the terms and conditions of this Agreement.

FENCING

11.0  With the exception of transformer stations and equipment shelters, Hydro and TELUS will not fence the Area of the Works without the prior consent of the Grantor, which consent will not be unreasonably withheld, delayed or conditioned.

INSPECTIONS

12.1  It will be lawful for the Grantor at all reasonable times to enter upon the Right of Way Area for the purposes of visually inspecting the Right of Way Area and the Works, or carrying out tests, surveys and inspections at its own expense that do not interfere with the Works. If the Grantor requires access to any Area of the Works that has been fenced off or enclosed, the Grantor will notify Hydro and TELUS, who will provide such safe access as may be reasonably required by the Grantor for a visual inspection.

RESTORATION

13.1  When a portion of the Right of Way Area is no longer required for the Works, Hydro or TELUS, as the case may be, will restore the ground surface of the affected portion of the Right of Way Area, as near as is reasonably practicable to its condition prior to the installation of the Works, including the removal of any above ground Works, underground transformers and, where practicable and at the request of the Grantor, any cables located within underground ducts in such portion of the Right of Way Area.

13.2  This Section will survive the expiration or any termination of this Agreement.

REMOVAL OF WORKS

14.1  If certain Works are no longer required by Hydro and TELUS under this Agreement:

(a) Hydro or TELUS, as the case may be, may, subject to the consent of the Grantor, abandon the Works and transfer to the Grantor all ownership, right and interest in the whole or part of the Works. If the consent of the Grantor is not obtained within one year after the date of the expiration of this Agreement, Hydro or TELUS, as the case may be, will remove the above ground Works, underground transformers and, where practicable and at the request of the Grantor, any cables located within underground ducts as soon as reasonably possible in the circumstances; and

(b) Hydro or TELUS, as the case may be, will decommission any roads created by either Hydro or TELUS pursuant to paragraph 2.1 (c) (ii), which are no longer required in relation to such Works, unless the Grantor requests otherwise.

14.2  Hydro will remain liable for any environmental damage to the Lands arising from any below ground Works that remain on or in the Right of Way Area after the expiration of this Agreement, except that if the Grantor uses or authorizes the use of the remaining below ground Works for any purpose, then Hydro will not be liable for any environmental damage caused by the Grantor's use, or authorized use.

14.3  TELUS will remain liable for any environmental damage to the Lands arising from any below ground Works that remain on or in the Right of Way Area after the expiration of this Agreement, except that if the Grantor uses or authorizes the use of the remaining below ground Works for any purpose, then TELUS will not be liable for any environmental damage caused by the Grantor's use, or authorized use.

14.4  Sections 14, 14.2 and 14.3 will survive the expiration or any termination of this Agreement.

COVENANTS OF THE GRANTOR

15.1  The Grantor covenants with Hydro and TELUS that:

(a) Hydro and TELUS shall and may peaceably enjoy and hold the rights granted in this Agreement without interruption, disturbance, molestation or hindrance whatsoever from the Grantor or any other person lawfully claiming from or under the Grantor, provided however that nothing in this section 15 shall limit the Grantor's right of inspection pursuant to section 12;

(b) the Grantor will not permit or make, place, erect, operate, use or maintain any building, structure, foundation, pavement, excavation, well, pile of material, fill, obstruction, equipment, thing or inflammable substance, or plant any growth upon the Area of the Works, if any such action or thing, in the reasonable opinion of Hydro or TELUS:

(i) may interfere with or endanger the Works or any part thereof or the installation, operation, maintenance, removal or replacement of the Works or any part thereof;

(ii) may obstruct access to the Works or any part thereof by those authorized by Hydro or TELUS; or

(iii) may by its operation, use, maintenance or existence on the Area of the Works create or increase any hazard to persons or property in relation to the Works;

(c) the Grantor will not carry out blasting or aerial logging operations on or adjacent to the Area of the Works without prior written permission from Hydro and TELUS, which permission will not be unreasonably withheld, conditioned or delayed; and

(d) the Grantor will not diminish or increase the ground elevation in the Area of the Works by any method, including piling any material or creating any excavation, drain, or ditch in the Area of the Works, unless permission in writing from Hydro and TELUS has first been received, which permission will not be unreasonably withheld, conditioned or delayed.

COMPENSATION FOR DAMAGES

16.1  Hydro and TELUS covenant with the Grantor that if, contrary to the terms of this Agreement, they damage any structures, buildings, fixtures, improvements, or chattels, or damage any crops, merchantable timber, livestock, drains, ditches, culverts, fences, trails, bridges, or roads on the Lands, or contaminate the Lands in the exercise of its vegetation management under paragraph 2.1 (c) (vi), and such damage is not caused as a result of the Grantor's breach of the terms of this Agreement or the negligence or willful act of the Grantor or its contractors, agents or permittees, then Hydro or TELUS, as the case may be, will:

(a) compensate the Grantor for such damages, to the extent caused by Hydro or TELUS;

(b) compensate the Grantor for and remediate the Lands from such contamination, to the extent caused by Hydro; or

(c) within a reasonable period of time, repair in a good and workman-like manner any damaged structure, building or improvement, as closely as is practicable to its condition immediately prior to the damage.

16.2  Despite section16, Hydro and TELUS covenant with the Grantor to pay compensation to the Grantor, in accordance with generally accepted principles of timber valuation, for any merchantable timber cut or damaged by Hydro or TELUS on the Lands outside of the Area of the Works and the parties agree that, on payment, title to any such timber will vest in Hydro or TELUS, as the case may be. The parties agree that title to any timber cut within the Area of the Works will not pass to Hydro or TELUS, as the case may be, until removed from the Reserve or converted to wood chips.

INDEMNITY

17.1  Hydro will at all times save harmless and indemnify and keep indemnified the Grantor from and against all claims, demands, actions, suits or other legal proceedings by whomsoever made or brought against the Grantor by reason of or arising out of:

(a) any breach, violation or non-performance by Hydro of any of Hydro's covenants, conditions or obligations under this Agreement; and

(b) any act or omission on the part of Hydro in respect of or in relation to its Works including the construction, maintenance, operation or decommissioning of its Works and the exercise of vegetation management pursuant to paragraph 2.1 (c) (vi) herein, but only to the extent any such matter is found to be the responsibility of Hydro and was not contributed to by the negligence, breach, violation or non-performance of the Grantor, and not for any matters based on nuisance or the rule in Rylands v. Fletcher unless Hydro was negligent.

17.2  TELUS will at all times save harmless and indemnify and keep indemnified the Grantor from and against all claims, demands, actions, suits or other legal proceedings by whomsoever made or brought against the Grantor by reason of or arising out of:

(a) any breach, violation or non-performance by TELUS of any of TELUS's covenants, conditions or obligations under this Agreement; or

(b) any act or omission on the part of TELUS in respect of or in relation to its Works including the construction, maintenance, operation or decommissioning of its Works, but only to the extent any such matter is found to be the responsibility of TELUS and was not contributed to by the negligence, breach, violation or non-performance of the Grantor.

DISPUTE RESOLUTION

18.1  Any dispute arising out of or in connection with this Agreement will be resolved as follows:

(a) the parties will attempt to resolve disputes by negotiations, including timely disclosure of all relevant facts, information and documents;

(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;

(c) if the dispute is not resolved within 30 days of the notice to mediate under subsection (b) or any further period of time agreed to by the parties, then, on the agreement of the parties, the dispute may be referred to a single arbitrator for final resolution in accordance with the provisions of the British Columbia Commercial Arbitration Act. If the parties do not agree to arbitration, then any party may refer the matter to a court of competent jurisdiction; except that it is not incompatible with this subsection for a party to apply to a court of competent jurisdiction at any time for interim or conservatory relief and for the court to grant that relief; and

(d) for the purposes of this section 18, Hydro and TELUS will only be considered as one party where the dispute arises between the Grantor, on the one hand, and Hydro and TELUS jointly, on the other.

RUNS WITH THE LAND

19.1  This Agreement runs with and binds the Lands to the extent necessary to give full force and effect to this Agreement.

ASSIGNMENT

20.1  This Agreement:

(a) may not be assigned in part or in whole or otherwise transferred without the prior written consent of the Grantor, which consent will not be unreasonably withheld, conditioned or delayed; but

(b) may be assigned or otherwise transferred to an Affiliate without consent.

20.2  During any time that TELUS carries on business as a telecommunications services provider in a partnership controlled by TELUS or one of its Affiliates, TELUS may allow that partnership and its members to exercise any of the rights granted to TELUS in this Agreement, provided that TELUS ensures that the partnership and its members comply with TELUS's obligations in this Agreement. For greater certainty, TELUS shall remain fully liable for all of its obligations under this Agreement in such circumstances.

20.3  Hydro and TELUS's rights hereunder may be exercised by their respective employees, officers, representatives, contractors, subcontractors, agents, invitees, and licensees. For greater certainty, Hydro or TELUS, as the case may be, remains fully liable for all of its obligations in this Agreement despite the exercise of such rights by such other persons.

NOTICE

21.1  Whenever it is required or permitted that notice or demand be given by any party to the other, the same will be in writing and will be forwarded to the following addresses:

21.2  If any question arises as to the date on which such notice was communicated to any party, it will be deemed to have been given on the earlier of:

(a) if it was delivered personally or by courier, on the next business day;

(b) if it was sent by fax, on the next business day; or

(c) if it was sent by mail, on the sixth day after the notice was mailed.

In the event of postal disruption or an anticipated postal disruption, notices may not be given by mail.

21.3  A change of address by any party may be given to the others in accordance with this provision.

GENERAL

22.1  A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.

22.2  No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.

22.3  The terms and provisions of this Agreement will extend to, be binding upon and enure to the benefit of the parties and their respective successors and permitted assigns.

22.4  The parties agree that this Agreement will be registered in the provincial Land Title Office. At the request of any party to this Agreement, all parties will cooperate in executing any documents or plans required to accomplish the registration of this Agreement and to preserve the substance and priority of this Agreement in relation to those portions of the Lands affected by this Agreement.

22.5  Hydro or TELUS may grant licences respecting their rights under this Agreement to anyone, in whole or in part, without the prior written consent of the Grantor provided that no licence will act as a release of any of Hydro's or TELUS's obligations set out in this Agreement.

22.6  A delegate appointed by the Grantor may provide Hydro and TELUS with all commentary, authorizations and approvals required pursuant to this Agreement including without limitation, all commentary, authorizations or approvals required in relation to sketch plans, access to the Area of the Works, and relocations or replacements of any Works.

22.7  This Agreement may not be amended except by written agreement signed by all parties to this Agreement.

22.8  Nothing in this Agreement shall be interpreted or construed to limit or restrict any rights that Hydro or TELUS may enjoy by virtue of the Final Agreement.

INTERPRETATION

23.1  In this Agreement:

(a) all schedules attached to these Filed Terms or the General Instrument form an integral part of this Agreement;

(b) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of this Agreement;

(c) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination; and

(d) any reference to a statute includes any regulations made pursuant to that statute and, unless otherwise expressly provided herein, includes a reference to all amendments made thereto and in force from time to time and any statute or regulation that may be passed which has the effect of supplementing or superseding that statute or those regulations.

END OF DOCUMENT

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 3. Distribution Right of Way for Shaw Cablesystems Limited

1.0 Definitions

In this Agreement the following terms will have the respective meanings ascribed to them as set forth below:

"Affiliate" will have the meaning ascribed to it in the Canada Business Corporations Act, as amended or replaced from time to time;

"Agreement" means this agreement and all schedules attached hereto as may be amended from time to time in accordance with the terms of this Agreement;

"Artifact" means any object created by, traded to, commissioned by or given as a gift to a Tla’amin individual or Tla’amin community, or that originated from a Tla’amin community, and that has past and ongoing importance to Tla’amin culture or spiritual practices, but does not include any object traded to, commissioned by or given as a gift to another aboriginal group or person;

"Authority" means any Tla’amin, federal, provincial, or other governmental or local governmental authority having jurisdiction;

"Facilities" means the works, including conduits, cables, pipes, transformers, poles, valves, meters, drainage facilities, communication transmission facilities, retransmission facilities, electrical energy transmission facilities, fibre optic cross connection equipment, sac boxes and other storage facilities, equipment and apparatus associated therewith all of which is owned and/or operated by Shaw and is necessary or convenient for the purpose of Shaw's telecommunication transmission business all of which may be located under, over, in, across, on and/or through the Permit Area, by any facility, apparatus or other thing that is usual or is capable of being used for telecommunication transmissions, including, without limitation, any wire, cable, radio, optical or other electromagnetic system, but not including poles or other equipment owned by a third party service provider or licensee of the Lands;

"Hazardous Substances" means any distinguishable kind of substance, material or thing or combination of substances, materials or things which could cause an adverse effect on, or which is dangerous or detrimental or potentially dangerous or detrimental to any part of the environment, including a substance, material or thing included in or containing components included in the definition or meaning or any variation of any such term, or any term of similar meaning or intent, in any environmental law or which is regulated under any environmental law governing the Permit Area;

"Lands" has the meaning set out in Schedule A hereof;

"Laws" means all statutes, regulations, bylaws, and lawful requirements of any Authority;

"Permit Area" means that portion of the Lands where Shaw Facilities are located as of the date of this Agreement, more particularly described in Schedule "B" of this Agreement;

"Permit Rights" means those rights, privileges, licenses, liberties and permits granted to and held by Shaw as set out in section 2.1 of this Agreement;

With respect to any obligation and/or right on the part of Shaw under this Agreement, any reference to Shaw includes its servants, officers, employees, agents, contractors, sub-contractors, invitees, licensees, successor, permitted assigns, and those for whom it is responsible in law; provided that such parties are acting within the scope of their authority under direction from Shaw.

Words in the singular include the plural and words in the plural include the singular and the masculine includes the feminine and neuter where the context so requires.

2.0 GRANT

2.1  Tla’amin hereby grants Shaw the right, privilege, license, liberty and permit on a non-exclusive basis over the Permit Area commencing on the date first written above and continuing so long as any of the Permit Rights are required by Shaw:

(a) to use the Permit Area as follows:

(i) to construct, install, remove, operate, maintain, repair and replace the Facilities under, over, in, on and through the Permit Area for the purpose of Shaw's telecommunication business and undertaking;

(b) generally, to do all such other acts or things in the Permit Area as may be reasonably necessary or incidental to the business of Shaw in connection with the foregoing, but does not include the right to:

(i) place upon the Permit Area any permanent buildings, storage facilities or any similar permanent improvement not described in the definition of Facilities, without the prior written consent of Tla’amin, which consent shall not be unreasonably withheld or delayed;

(ii) excavate, drill, install or erect, or permit to be excavated, drilled, installed or erected upon or under the Permit Area, any pit, well, foundation, pavement, building or other structure or installation not in the definition of Facilities, without the prior written consent of Tla’amin, which consent shall not be unreasonably withheld or delayed;

(c) to pass and repass over existing roads on the Lands outside of the Permit Area as may reasonably be needed by Shaw for access to and from the Permit Area, PROVIDED THAT:

(i) if no road is available to Shaw to access the Permit Area another access route may be obtained, subject to prior approval by Tla’amin, which approval is not to be unreasonably withheld or delayed; and

(ii) if no road is available to access the Permit Area and Shaw's access is necessary due to an emergency situation regarding the Facilities, Shaw may use such other access route without the prior approval of Tla’amin, provided that it notify Tla’amin of such access after the emergency situation has been rectified.

(d) to trim, cut back or remove any trees or shrubs in the Permit Area which because of overhanging branches or extensive root growth causes or are likely to cause interference with the Facilities or with their installation, operation, maintenance, or removal. Reasonable care shall be taken by Shaw to avoid unnecessary damage to trees, shrubs, grasses or plants located within the Permit Area and in no case shall Shaw employ the use of herbicides or pesticides on Tla’amin Lands without the consent of Tla’amin . Shaw will notify Tla’amin before cutting any trees or large branches and Tla’amin has the exclusive right to determine whether any resulting timber shall be either chipped, given to Tla’amin members or Elders, or otherwise disposed of.

3.0 NATURE OF PERMIT RIGHTS

3.1  Shaw and Tla’amin mutually covenant and agree that the rights granted to Shaw hereunder are of the nature of an interest in the Permit Areas and does not and will not be deemed to grant, convey or confer on Shaw any right in rem or any estate in the land of or title to the Permit Area.

4.0 CONSTRUCTION AND OWNERSHIP OF FACILITIES

4.1  Shaw shall, at its own expense, as soon as reasonably possible after the construction of the Facilities and at all times thereafter, remove all surplus soil and debris and do all grading, repair and replacements and perform such other work which is necessary to restore the Permit Area to the same or similar state and condition in which it was prior to the construction, operation, maintenance, repair or renewal of the Facilities to the satisfaction of Tla’amin, acting reasonably. Shaw shall be responsible for any damage it causes to the property of Tla’amin in respect of the Permit Area or the Lands in any manner caused by anything done or omitted to be done by Shaw in the exercise or enjoyment of the Permit Rights granted herein.

4.2  Notwithstanding any rule of law or equity to the contrary, the Facilities shall at all times remain the property of Shaw, notwithstanding that the Facilities may be annexed or affixed to the Permit Area. At the termination of this Agreement, or when a portion of the Facilities is no longer required by Shaw, Shaw may remove the Facilities and shall repair any damage caused as a result of such removal thereof.

5.0 NON-EXCLUSIVE USE AND NON-INTERFERENCE

5.1  Notwithstanding anything else in this Agreement, Shaw acknowledges and agrees that:

(a) this Agreement does not grant a fee simple in the Lands but rather grants a non-exclusive licence to use the Permit Area; and

(b) subject to the Permit Rights, Tla’amin may grant other interests on the Permit Area.

5.2  Notwithstanding anything else contained in this Agreement to the contrary, Tla’amin acknowledges and agrees that it shall not do or permit to be done any act or thing, which may, as reasonably determined by Shaw, damage the Facilities or interfere with Shaw's use and operation of the Facilities.

6.0 TAXES AND LEVIES

6.1  Shaw will pay all charges, taxes, rates and assessments by an Authority and which are lawfully payable by Shaw in respect of the Facilities.

7.0 LAWS AND STANDARDS

7.1  Shaw will, at its own expense, promptly observe, perform, execute and comply with all applicable Laws of any Authority having proper jurisdiction concerning the Facilities constructed within the Permit Area or any activities of Shaw on the Lands under this Agreement.

8.0 ENVIRONMENT

8.1  Should the Facilities or any action by Shaw on the Permit Area pursuant to this Agreement contribute to any detrimental environmental changes for which remedial action is necessary in accordance with regulations and standards established by applicable Tla’amin, federal and/or provincial legislation, Shaw will immediately undertake, at its own cost, the required remedial action to the extent of its contribution.

8.2  Shaw acknowledges and agrees that, notwithstanding any rule of law to the contrary, any Hazardous Substances, which are located, stored or incorporated in or on the Permit Area or any part of the Lands as a result of any action or inaction on behalf of Shaw will remain the sole and exclusive property of Shaw and will not become the property of Tla’amin regardless of any degree of affixation of the Hazardous Substances to the Permit Area or the Lands. This section will survive the expiration or earlier termination of this Agreement, save only that, to the extent that the performance of any obligation pertaining to it requires access to or entry upon the Permit Area after the expiration or earlier termination of this Agreement, Shaw will have entry and access to the Permit Area.

8.3  Notwithstanding any provision contained hereunder to the contrary, Shaw shall not be responsible for any Hazardous Substances that are or were present in or on the Permit Area and/or the Lands prior to the work by or on behalf of Shaw with respect to its Facilities or if such Hazardous Substance was brought by any person for whom Shaw is not responsible for at law.

9.0 DEBRIS REMOVAL

9.1  Shaw will remove all garbage and debris deposited by it from or at the Permit Area as construction of the Facilities progresses and will maintain the Permit Area free and clear of garbage and debris.

10.0 ARTIFACTS AND SURVEY MONUMENTS

10.1  Shaw will immediately notify Tla’amin of any Artifact or human remains unearthed or discovered by it in the course of its operations on or at the Permit Area and will cease any further activity that could affect the site until permitted by Tla’amin to resume activity, so as to avoid any and all further damage, injury or destruction to such Artifact or remains, ensuring the preservation of the same. Tla’amin retains the exclusive right to take possession of said Artifact and move or relocate it as Tla’amin deems appropriate. If the human remains turn out to be Tla’amin ancestral remains, Tla’amin retains the exclusive right to remove or re-bury the remains according to Tla’amin laws and traditions.

10.2  Shaw will ensure that all legal control survey monuments are protected and not disturbed, damaged or destroyed during any construction or maintenance which is undertaken by it or on its behalf on the Permit Area. Should any monuments be disturbed, damaged or destroyed, Shaw, at its own expense, will replace such monuments by a duly qualified Land Surveyor to the satisfaction of Tla’amin, acting reasonably.

11.0 FENCING AND USE OF THE PERMIT AREA

11.1  Shaw will not fence the Permit Area, without the prior consent of Tla’amin .

11.2  Tla’amin will not:

(a) make, place, erect or maintain any building, structure, excavation, pile of material or obstruction or plant any growth on the Permit Area which, in the reasonable opinion of Shaw might interfere with or endanger the construction, operation, maintenance or removal of the Facilities or might obstruct access by Shaw to the Facilities; or

(b) do any act or thing which might, in the reasonable opinion of Shaw interfere with or damage the Facilities or create or increase any hazards to persons.

12.0 INSPECTIONS

12.1  Shaw will keep the Facilities in good repair and it will be lawful for Tla’amin at all reasonable times to enter upon the Permit Area for the purposes of examining the Permit Area and the Facilities.

13.0 INSURANCE

13.1  Shaw shall, at its own expense, obtain and maintain insurance, or provide reasonable evidence of insurance, in the amount of not less than Five Million Dollars ($5,000,000.00) for each occurrence against claims for personal injury, death, property damage and loss which may arise under this Agreement, including, but not limited to, the construction, maintenance or operation of the Facilities or any act or omission of Shaw.

13.2  All insurance policies will be on the following terms:

(a) Tla’amin shall be an additional insured;

(b) the policy will contain an agreement by the insurer that it will not cancel or alter the policy without first giving Tla’amin at least thirty (30) days prior written notice; and

(c) the policy will include protective liability for acts performed by Shaw and/or its contractors or their subcontractors, employer's liability (or contingent employer's liability where workers' compensation insurance applies), and unlicensed and specially licensed vehicle liability coverage.

13.3  Shaw, including its contractors and sub-contractors, shall make and maintain all required workers' compensation insurance payments.

14.0 NUISANCE

14.1  Where, as a result of any act or omission by Shaw relative to this Agreement, a nuisance exists, Tla’amin may, by written notice, order Shaw to abate the nuisance. If Shaw fails to do so within a reasonable time, Tla’amin may take whatever steps may be necessary to abate the nuisance and Shaw will be liable for the direct cost thereof; PROVIDED, however, that the existence or the use of the Facilities on the Permit Area will not constitute a nuisance.

15.0 QUIET ENJOYMENT

15.1  Subject to performing and observing all the covenants and conditions on its part to be performed and observed, Shaw will peaceably hold and enjoy the Permit Rights without hindrance, molestation or interruption on the part of Tla’amin .

16.0 ASSIGNMENT

16.1  This Agreement and the Permit Rights may:

(a) not be assigned or otherwise transferred without the prior written consent of Tla’amin which consent will not be unreasonably withheld or delayed; and

(b) be assigned or otherwise transferred to an Affiliate or to a purchaser of all or substantially all of Shaw's assets located in the Permit Area,

provided that the assignment or transfer to an assignee who is the purchaser of all or substantially all of Shaw's assets located on the Permit Area agree in writing to assume all of Shaw obligations under this Agreement effective as of the assignment date.

17.0 INDEMNITY AND INTEREST

17.1  Each party (the "Indemnifying Party") agrees that it shall be liable to the other party, its officers, employees, servants and agents (collectively, the "Indemnified Party") for all losses, costs, expenses (including all reasonable legal and other professional fees and disbursements) and damages whatsoever which the Indemnified Party may suffer, sustain, pay or incur and shall indemnify and hold harmless the Indemnified Party from and against all actions, proceedings, claims and demands whatsoever which may be brought or made against the Indemnified Party or suffered or incurred by the Indemnified Party, by reason of any damage to property, including property of Indemnified Party, or injury, including injury resulting in death, to persons, including the employees, servants, agents, licensees and invitees of the Indemnified Party, whether in contract, tort or otherwise, by reason of or arising out of or attributable to any act or omission of the Indemnifying Party under this Agreement and/or relating to the Lands and the Permit Area except where any losses, costs, expenses (including all reasonable legal and other professional fees and disbursements) and damages are due to the wrongful act, omission, default or negligence of the Indemnified Party and/or by those for whom it is in law responsible.

17.2  Notwithstanding any provision contained in this Agreement to the contrary, neither party shall be liable to the other party in any way for indirect or consequential losses or damages, or damages for pure economic loss, howsoever caused or contributed to or in connection with this Agreement.

18.0 BREACH

18.1  If Shaw fails to perform or observe any material covenant contained in this Agreement, Tla’amin will be entitled to give Shaw notice of breach of covenant and if Shaw fails to rectify the breach to the reasonable satisfaction of Tla’amin within ninety (90) days of receipt of such notice, or if the breach is one which cannot reasonably be remedied within ninety (90) days, within such further period as Shaw may request and Tla’amin may approve, such approval not to be unreasonably withheld or delayed, it will be lawful for Tla’amin to authorize the rectification of such breach in any manner Tla’amin deems appropriate at the sole expense of Shaw which expense will be expeditiously paid to Tla’amin upon demand.

19.0 DISPUTE RESOLUTION

19.1  The parties shall attempt to settle any dispute arising out of or pursuant to this Agreement through good-faith negotiations among the parties.

19.2  Failing a negotiated agreement, the parties may then refer the matter to mediation, arbitration or other alternative to court dispute resolution mechanisms by mutual written consent. Absent such consent or failing the resolution of the matter through these means, the matter may be referred to a court or regulatory authority of competent jurisdiction.

19.3  During any stages in this dispute resolution process, the parties will continue to perform their obligations under this Agreement.

19.4  Any resolution of the dispute will be in accordance with the applicable Laws of Tla’amin and the Province of British Columbia.

20.0 WAIVER

20.1  No waiver on behalf of any party of any breach will take place or be binding unless it is expressed in writing and any waiver will not be deemed to be a general waiver or to limit or affect the rights of any such party with respect to any other future breach.

21.0 NOTICE

21.1  Any notice or demand required or permitted to be given hereunder or any tender or delivery of documents may be sufficiently given by personal delivery or by facsimile or other electronic transmission (receipt confirmed) to the parties at the following addresses:

21.2  Any notice may also be given by prepaid registered mail and such notice shall be effective on the third day following the date of mailing, except in the event that there is a disruption in postal services at the date of mailing in which case notice may be effected by courier or by personal delivery or a facsimile transmission as stated above. Any notice so given shall be deemed to have been received on the date on which is was delivered in person or, if transmitted by facsimile, on the date it was transmitted. Tla’amin and Shaw may change their respective addresses by notice in writing to each other.

22.0 GENERAL

22.1  The headings are included only for convenience and do not form part of the covenants, provisos and agreements.

22.2  This Agreement will be binding upon and enure to the benefit of the parties hereto and their respective heirs, successors, and permitted assigns and this Agreement will be binding upon any residents, users, or occupiers of any portion of the Permit Area from time to time.

22.3  This Agreement shall be governed by and construed in accordance with the applicable Laws of Tla’amin and the Laws of Canada and the Province of British Columbia.

22.4  The terms and conditions herein set forth constitute the entire agreement between the parties with respect to the subject matter and shall supersede any and all prior agreements, undertakings, representations and communications between the parties. No modification of this Agreement shall be binding unless made in writing and properly executed by each of the parties hereto.

SCHEDULE "A"

Tla’amin is the owner of certain lands in British Columbia as more particularly shown in Appendix A of the Tla’amin Final Agreement entered into between Tla’amin, Canada and British Columbia.

SCHEDULE "B"

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 4. Permit to Occupy Tla’amin Lands

The holder of Conditional Water Licence [#] (the "Water Licence") granted by the Province of British Columbia and dated for reference [date] whose licence authorizes the diversion of water from [name of creek or river], is hereby authorized to occupy Tla’amin Lands by constructing, maintaining and operating on Tla’amin Lands the works authorized under the Water Licence and any licences which may be issued in substitution thereof.

(a) The portion of Tla’amin Lands authorized to be occupied under this permit is [description of the lands] the location of which is shown approximately on the plan attached to the Water Licence.

(b) The approximate dimensions of the Tla’amin Lands authorized to be occupied under this permit are [ x ] feet in length and [x] feet in width having an area of [x] for a pipeline.

(c) The permittee may damage, cut or cut and remove from Tla’amin Lands any timber necessary to permit the construction, maintenance and operation of the works authorized under the Water Licence. Prior to damaging, cutting, or removing any timber on or from Tla’amin Lands, the permittee will apply for and obtain a licence authorizing the activity from Tla’amin Nation which may include terms and conditions for the disposition of the timber. The amount of compensation payable to the Tla’amin Nation in respect of trees, including merchantable or young growth, damaged, cut or removed on or from Tla’amin Lands by the permittee, will be the sum or sums fixed by Tla’amin Nation, which will not exceed fair market value.

(d) This permit is issued and accepted on the understanding that the permittee will pay annual fees to Tla’amin Nation in the amount that would be payable under the Water Act and Regulations with respect to a Permit to Occupy Crown Land located on similar Crown land. Such fees are payable in advance on the date this permit is issued and on each anniversary of the date this permit is issued.

(e) This permit is appurtenant to the land, mine or undertaking to which the Water Licence is appurtenant.

(f) This permit will become void if the Water Licence with respect to which this permit is issued should terminate, be abandoned or cancelled, or amended so as to render this permit unnecessary.

(g) This permit is issued and accepted on the understanding that the permittee will indemnify and save harmless Tla’amin Nation for all loss, damage to works, cost or expense suffered by the permittee by reason of the Tla’amin Lands or any portion thereof being submerged or damaged by erosion or otherwise affected by flooding.

(h) The holder of this permit will not be entitled to compensation if Tla’amin Nation grants permits to other persons to occupy the Tla’amin Lands affected by this permit.

(i) In the event of a dispute at any time with respect to the area or boundaries of the Tla’amin Lands affected by this permit, the holder will, at its own expense, have the land surveyed by a duly qualified surveyor.

..............................................................
SIGNED on behalf of Tla’amin Nation
by a duly authorized representative
on [insert month, day, year]

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 5. Licence to Occupy Tla’amin Lands for Pit Toilet Purposes

THIS AGREEMENT is dated for reference [insert month, day, year]

BETWEEN:

Tla’amin NATION of

ADDRESS

(the "Owner")

AND:

TENURE HOLDER of

ADDRESS

(the "Licensee")

The parties agree as follows:

ARTICLE 1 – DEFINITIONS

1.1  In this Agreement,

"Agreement" means this licence of occupation and any schedules attached hereto;

"Commencement Date" means [Effective Date];

"Fees" means the fees set out in Article 3;

"Float Home Tenure" means the licence of occupation granted by the Province of British Columbia to the Licensee, dated for reference • and numbered •, which grants to the Licensee the right to use certain portions of the foreshore or the bed of Powell Lake and fronting on the Land for floating cabin and pit toilet purposes;

"Improvements" includes anything made, constructed, erected, built, altered, repaired or added to, in, on or under the Land, and attached to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunneling, filling, grading or ditching of, in, on or under the Land;

"Land" means that part or those parts of the following described land shown outlined by bold line on the schedule attached to this Agreement entitled "Legal Description Schedule":

Note: Legal description to be included here if legal description is available, if not Lands will be defined by the illustration.

Ex.: THAT PARCEL OR TRACT OF LAND IN THE VICINITY OF POWELL LAKE, GROUP 1, NEW WESTMINSTER DISTRICT, CONTAINING...

"Realty Taxes" means all taxes, rates, levies, duties, charges and assessments levied or charged, at any time, by any government authority having jurisdiction which relate to the Land, the Improvements or both of them and which the Licensee is liable to pay under applicable laws;

"Security" means the security referred to in Section 5.1, as replaced or supplemented in accordance with Section 5.4; and

"Term" means the period of time set out in Section 2.2.

ARTICLE 2 – GRANT, TERM AND RENEWAL

2.1  On the terms and conditions of this Agreement, the Owner hereby grants to the Licensee a licence to occupy the Land for pit toilet purposes related or necessarily incidental to the purposes authorized and approved in the Float Home Tenure

2.1  The term of this Agreement commences on the Commencement Date and terminates on the [insert term – e.g. tenth (10)] anniversary of that date, or such earlier date provided for in this Agreement.

2.2  If the Licensee is not then in default under this Agreement, the Licensee may renew this Agreement for successive terms of [insert term e.g. (10) years each]. The Licensee may exercise each of its options to renew by delivering to the Owner written notice at least [insert number] days prior to the expiry of the Term or the then existing renewal term, as the case may be, or earlier, if the Licensee so chooses, that the Licensee will exercise its next following option to renew. Each renewal term will be upon the terms and conditions of this Agreement.

ARTICLE 3 – FEES

3.1  The Licensee will pay to the Owner:

(a) for the term of this Agreement, Fees equal to the amount payable under the existing policies of the Province of British Columbia with respect to the payment of fees for purposes related to a tenure located on similar Crown land, payable in advance on the Commencement Date; and

(b) for each renewal Term, Fees equal to the greater of:

(i) the Fees for the immediately preceding Term or renewal term, as the case may be; or

(ii) the amount which would be payable on that date under the then existing policies of the Province of British Columbia with respect to the payment of fees for purposes related to an existing tenure located on similar Crown land.

ARTICLE 4 – COVENANTS

4.1  The Licensee covenants with the Owner:

(a) to pay, when due,

(i) the Fees due at the address set out in Article 8,

(ii) the Realty Taxes, and

(iii) all charges for electricity, gas, water and other utilities supplied to the Land for use by the Licensee;

(b) to observe, abide by and comply with

(i) all applicable laws, bylaws, orders, directions, ordinances and regulations of any government authority having jurisdiction in any way affecting the Licensee's use or occupation of the Land or the Improvements, and

(ii) the provisions of this Agreement;

(c) to keep the Land and the Improvements in a safe, clean and sanitary condition satisfactory to the Owner, and at the Owner's written request, rectify any failure to comply with such a covenant by making the Land and the Improvements safe, clean and sanitary;

(d) not to commit any wilful or voluntary waste, spoil or destruction on the Land or do anything on the Land that may be or become a nuisance or annoyance to an owner or occupier of land in the vicinity of the Land;

(e) to use and occupy the Land only in accordance with and for the purposes set out in Section 2.1;

(f) not construct, place or affix any Improvements on or to the Land except as necessary for the purposes set out in Section 2.1;

(g) not to interfere with the activities of any other person to enter on and use the Land under a prior or subsequent licence granted by the Owner;

(h) not cut or remove timber on or from the Land without the prior written consent of the Owner;

(i) dispose of raw sewage and refuse only in accordance with the requirements and regulations of appropriate federal and provincial agencies;

(j) store bulk hazardous petroleum products and other toxic substances in accordance with the provisions of the Environmental Management Act;

(k) to permit the Owner, or its representatives, to enter on the Land at any time to inspect the Land and the Improvements;

(l) to indemnify and save the Owner harmless against all claims, actions, causes of action, losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of

(i) any breach, violation or non-performance of a provision of this Agreement by the Licensee, and

(ii) any personal injury, bodily injury (including death) or property damage occurring or happening on or off the Land by virtue of the Licensee's occupation of the Land,

and the amount of all such losses, damages, costs and liabilities will be payable to the Owner immediately upon demand;

(m) on the termination of this Agreement,

(i) peaceably quit and deliver to the Owner possession of the Land;

(ii) remove from the Land any Improvements that the Owner, in writing, directs or permits the Licensee to remove, other than any Improvement permitted to be placed on or made to the Land under another disposition;

(iii) restore the surface of the Land as nearly as may reasonably be possible to the same condition as it was on the Commencement Date; and

(iv) to the extent reasonable, ensure slope stability and prevention of seepage,

and to the extent necessary, this covenant will survive the termination of this Agreement;

(n) to effect, and keep in force during the Term, insurance protecting the Owner and the Licensee (without any rights of cross-claim or subrogation against the Owner) against claims for personal injury, death, property damage or third party or public liability claims arising from any accident or occurrence on the Land to an amount not less than ONE MILLION DOLLARS ($1,000,000);

(o) notwithstanding sub-section (l), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that sub-section be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to sub-section (l) to be changed to the amount specified by the Owner, acting reasonably, in the notice and delivery to the Owner with a written confirmation of the change;

(p) to provide a certificate or evidence of insurance upon request by the Owner; and

(q) to immediately notify the Owner if the Licensee discovers any human remains, burial pit, grave or artifacts on or under the Land, to cease any further activities that could affect the site until permitted by the Owner to resume activities and take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Owner.

4.2  The Owner will not do anything on the Land that will interfere materially with the Improvements or the Licensee's use of the Improvements, or that creates a public hazard.

ARTICLE 5 – SECURITY

5.1  The sum of [insert amount] and all rights, privileges, benefits and interests accruing thereto shall be delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this licence and will be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed.

5.2  If the Licensee defaults in the performance of any of its obligations hereunder, the Owner may, in its sole discretion, sell, call in and convert the Security, or any part of it, and such Security will be deemed to have been absolutely forfeited to the Owner.

5.3  The rights of the Owner under this Article will be deemed to continue in full force and effect notwithstanding the expiry or earlier cancellation of this Licence.

5.4  Notwithstanding the amount of the Security stated to be required under Section 5.1 the Owner may, acting reasonably, from time to time by notice to the Licensee, demand the amount to be changed to that specified in a notice and the Licensee will, within 60 days of such notice, change the Security to that specified and provide the Owner with evidence of the change.

ARTICLE 6 – ASSIGNMENT

6.1  The Licensee will not assign this licence or sublicence any part of the Land, without the prior written consent of the Owner, which consent will not be unreasonably withheld.

ARTICLE 7 – TERMINATION

7.1  The Licensee further covenants and agrees with the Owner that:

(a) if the Licensee

(i) defaults in the payment of any money payable by the Licensee under this Agreement, or

(ii) fails to observe, abide by and comply with the provisions of this Agreement (other than the payment of any money payable by the Licensee under this Agreement);

and the Licensee's default or failure continues for 60 days after the Owner gives written notice of the default or failure to the Licensee;

(b) if the Licensee fails to make diligent use of the Land for the purposes set out in this Agreement, and such failure continues for 180 days after the Owner gives written notice of the failure to the Licensee;

(c) if the Licensee

(i) becomes insolvent or makes an assignment for the general benefit of its creditors,

(ii) commits an act which entitles a person to take action under the Bankruptcy and Insolvency Act (Canada) or a bankruptcy petition is filed or presented against the Licensee or/the Licensee consents to the filing of the petition or a decree is entered by a court of competent jurisdiction adjudging the Licensee bankrupt under any law relating to bankruptcy or insolvency, or

(iii) voluntarily enters into an arrangement with its creditors; or

(d) if the Float Home Tenure expires or is otherwise terminated;

this Agreement will, at the Owner's option and with or without entry, terminate and the Licensee's right to use and occupy the Land will cease.

7.2  If the condition complained of (other than the payment of any money payable by the Licensee under this Agreement) reasonably requires more time to cure than 60 days, the Licensee will be deemed to have complied with the remedying of it if the Licensee commences remedying or curing the condition within 60 days and diligently completes the same.

7.3  The Licensee will make no claim for compensation, in damages or otherwise, upon the lawful termination of this Agreement under Section 7.1.

ARTICLE 8 – NOTICE

8.1  Any notice required to be given by either party to the other will be deemed to be given if mailed by prepaid registered mail in Canada or delivered to the address of the other at the addresses specified for each on the first page of this Agreement, or at such other address as a party may, from time to time, direct in writing, and any such notice will be deemed to have been received if delivered, on the day of delivery, and if mailed, 7 days after the time of mailing, except in the case of mail interruption in which case actual receipt is required.

8.2  In order to expedite the delivery of any notice required to be given by either party to the other, a concurrent facsimile copy of any notice will, where possible, be provided to the other party but nothing in this section, and specifically the lack of delivery of a facsimile copy of any notice, will affect the deemed delivery provided in Section 8.1.

8.3  The delivery of all money payable to the Owner under this Agreement will be effected by hand, courier or prepaid regular mail to the address specified above, or by any other payment procedure agreed to by the parties, such deliveries to be effective on actual receipt.

ARTICLE 9 – DISPUTE RESOLUTION

9.1  Any dispute arising out of or in connection with this Agreement will be resolved as follows:

(a) the parties will attempt to resolve disputes by negotiations, including timely disclosure of all relevant facts, information and documents;

(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;

(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to a court of competent jurisdiction;

except that it is not incompatible with this paragraph for a party to apply to a court at any time for interim or conservatory relief, and for the court to grant that relief.

ARTICLE 10 – MISCELLANEOUS

10.1  No provision of this Agreement will be considered to have been waived unless the waiver is in writing, and a waiver of a breach of a provision of this Agreement will not be construed as or constitute a waiver of any further or other breach of the same or any other provision of this Agreement, and a consent or approval to any act requiring consent or approval will not waive or render unnecessary the requirement to obtain consent or approval to any subsequent same or similar act.

10.2  No remedy conferred upon or reserved to the Owner under this Agreement is exclusive of any other remedy in this Agreement or provided by law, but that remedy will be in addition to all other remedies in this Agreement or then existing at law, in equity or by statute.

10.3  This Agreement extends to, is binding upon and enures to the benefit of the parties, their heirs, executors, administrators, successors and permitted assigns.

10.4  Time is of the essence in this Agreement.

10.5  In this Agreement, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and the corporation.

10.6  The captions and headings contained in this Agreement are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the provisions herein.

10.7  If any section of this Agreement or any part of a section is found to be illegal or unenforceable, that part or section, as the case may be, shall be considered separate and severable and the remaining parts and sections of the Agreement shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.

10.8  This Agreement will be governed by and construed in accordance with the applicable laws of the Province of British Columbia and Canada.

The parties have executed this Agreement as of the date of reference of this Agreement.

SIGNED on behalf of Tla’amin NATION,

by a duly authorized representative

........................................................................ Authorized Signatory

SIGNED on behalf of TENURE HOLDER

by a duly authorized signatory

........................................................................ Authorized Signatory

Legal Description Schedule

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 6. Tla’amin Nation Upland Owner Consent

WHEREAS:

A.  Tla’amin is the [registered] owner in fee simple of the land located ........................................, legally described as [INSERT LEGAL DESCRIPTION] (the "Upland"); [Note: Insert Legal Description for area immediately adjacent to foreshore. If Upland is not in LTO then describe land as accurately as possible];

B.  British Columbia is the owner in fee simple of the parcel or tract of land being the foreshore fronting on the Upland and all land covered by water adjoining the Upland (the "Foreshore");

C.  The Upland and Foreshore are adjacent to each other and Tla’amin, as owner of the Upland, is entitled to exercise its riparian right of access to the Upland by crossing the Foreshore;

D.  British Columbia wishes to interfere with Tla’amin's riparian right of access to the Upland by authorizing, under an existing licence of occupation (the "Licence"), the use of the identified portions of the Foreshore for the purpose of constructing, using and maintaining a floating residential home for non-commercial use on the portion of the Foreshore shown outlined in bold on the attached Schedule "A" ("Float Home Area") pursuant to a licence dated for reference • and numbered•, which has a term expiring •; and

E.  Tla’amin is prepared to consent to such interference pursuant to the provisions set out below.

NOW THEREFORE THIS CONSENT WITNESSES that in consideration of the sum of ONE ($1.00) dollar and other good and valuable consideration, now paid by British Columbia to Tla’amin (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows:

1.  Tla’amin, as owner of the Upland, on the terms set forth herein, hereby consents to British Columbia, as owner of the Foreshore, and its servants, employees, agents, contractors, tenants, invitees, licensees and all those claiming through them, interfering, in accordance with the Licence, with Tla’amin's right, as owner of the Upland, to pass and repass over the Float Home Area to gain access to and from the Upland.

2.  Tla’amin acknowledges and agrees that the Consent hereby given entitles British Columbia to authorize its servants, employees, agents, contractors, tenants, invitees, licensees, and all those claiming through them, in accordance with the Licence (collectively, the "Float Home Area Users") to:

a) construct, erect, place, install, moor, maintain, replace, renovate and repair buildings, structures, works, improvements and chattels (collectively, the "Improvements") on all or any part of the Float Home Area which are reasonably necessary in connection with the purposes authorized and approved in the Licence, provided however that this Consent does not extend so far as to permit British Columbia to authorize the Float Home Area Users to alter or enlarge any Improvements existing on the Float Home Area on •, or to construct, erect, place, install or moor new Improvements on the Float Home Area after •, if such alteration, enlargement, construction, erection, placement, installation or mooring would materially interfere with reasonable access to the Upland; and

b) do all other acts within the Float Home Area, reasonably necessary or incidental to the purposes authorized and approved in connection with the Licence.

3.  Tla’amin or any of its successors or assigns, as the case may be, will give written notice of this Consent to any person to whom it proposes to dispose of any portion of the Upland which borders on the Foreshore, which notice will be received by that person prior to such disposition. Prior to or concurrently with such disposition, Tla’amin or any of its successors or assigns, as the case may be, will obtain a written ratification of this Consent by the transferee of such portion of the Upland in the same form as this Consent and will deliver an originally executed copy thereof to British Columbia. For the purposes of this paragraph, the word "dispose" means any transfer by any method to any person entitled to exercise a riparian right of access to the Upland.

4.  British Columbia covenants and agrees with Tla’amin that nothing in this Consent will be deemed or otherwise construed so as to permit British Columbia, its servants, employees, agents, contractors, tenants, invitees, licensees and all those claiming through them, to enter onto the Upland or to construct, place, erect or install any buildings, structures, improvements or works thereon.

5.  This Consent is effective from and after •, 201• ("Effective Date") until •, the end of any renewal term, or the earlier termination of Licence No. • in respect of the interference over the Float Home Area.

IN WITNESS WHEREOF, Tla’amin and British Columbia have duly executed this Consent as of the Effective Date.

Tla’amin NATION by its authorized signatory(ies)

........................................................................
Name:

........................................................................
Name:

HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA
as represented by the Minister of
Forests, Lands and Natural Resource Operations

........................................................................
Name

Schedule "A"

[Attach Plan of Float Home Area]

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 7. Licence to Occupy Tla’amin Lands for Purposes of Temporary Storage

THIS AGREEMENT is dated for reference [insert month, day, year]

BETWEEN:

Tla’amin NATION of

ADDRESS

(the "Owner")

AND:

TENURE HOLDER of

ADDRESS

(the "Licensee")

The parties agree as follows:

ARTICLE 1 – DEFINITIONS

1.1  In this Agreement,

"Agreement" means this licence of occupation and any schedules attached hereto;

"Aquaculture Tenure" means the licence of occupation granted by the Province of British Columbia to the Licensee, dated for reference • and numbered •, which grants to the Licensee the right to use certain portions of the foreshore covered by water and fronting on the Land for marine invertebrates aquaculture purposes;

"Commencement Date" means [Effective Date];

"Fees" means the fees set out in Article 3;

"Improvements" includes anything made, constructed, erected, built, altered, repaired or added to, in, on or under the Land, and attached to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunneling, filling, grading or ditching of, in, on or under the Land;

"Land" means that part or those parts of the following described land shown outlined by bold line on the schedule attached to this Agreement entitled "Legal Description Schedule":

Note: Legal description to be included here if available. If not then a drawing should be inserted.

"Realty Taxes" means all taxes, rates, levies, duties, charges and assessments levied or charged, at any time, by any government authority having jurisdiction which relate to the Land, the Improvements or both of them and which the Licensee is liable to pay under applicable laws;

"Security" means the security referred to in Section 5.1, as replaced or supplemented in accordance with Section 5.4; and

"Term" means the period of time set out in Section 2.2.

ARTICLE 2 – GRANT, TERM AND RENEWAL

2.1  On the terms and conditions of this Agreement, the Owner hereby grants to the Licensee a licence to occupy the Land only for purposes [OR for the following purposes] related or necessarily incidental to the purposes authorized and approved in the Aquaculture Tenure [list purposes e.g. temporary storage of equipment etc.]

2.2  The term of this Agreement commences on the Commencement Date and terminates on the [insert term – e.g. tenth (10)] anniversary of that date, or such earlier date provided for in this Agreement.

2.3  If the Licensee is not then in default under this Agreement, the Licensee may renew this Agreement for successive terms of [insert term e.g. (10) years each]. The Licensee may exercise each of its options to renew by delivering to the Owner written notice at least [insert number] days prior to the expiry of the Term or the then existing renewal term, as the case may be, or earlier, if the Licensee so chooses, that the Licensee will exercise its next following option to renew. Each renewal term will be upon the terms and conditions of this Agreement.

ARTICLE 3 – FEES

3.1  The Licensee will pay to the Owner:

(a) for the term of this Agreement, Fees equal to the amount payable under the existing policies of the Province of British Columbia with respect to the payment of fees for purposes related to a tenure located on similar Crown land, payable in advance on the Commencement Date; and

(b) for each renewal Term, Fees equal to the greater of:

(i) the Fees for the immediately preceding Term or renewal term, as the case may be; or

(ii) the amount which would be payable on that date under the then existing policies of the Province of British Columbia with respect to the payment of fees for purposes related to an existing tenure located on similar Crown land.

ARTICLE 4 – COVENANTS

4.1  The Licensee covenants with the Owner:

(a) to pay, when due,

(i) the Fees due at the address set out in Article 8,

(ii) the Realty Taxes, and

(iii) all charges for electricity, gas, water and other utilities supplied to the Land for use by the Licensee;

(b) to observe, abide by and comply with

(i) all applicable laws, bylaws, orders, directions, ordinances and regulations of any government authority having jurisdiction in any way affecting the Licensee's use or occupation of the Land or the Improvements, and

(ii) the provisions of this Agreement;

(c) to keep the Land and the Improvements in a safe, clean and sanitary condition satisfactory to the Owner, and at the Owner's written request, rectify any failure to comply with such a covenant by making the Land and the Improvements safe, clean and sanitary;

(d) not to commit any wilful or voluntary waste, spoil or destruction on the Land or do anything on the Land that may be or become a nuisance or annoyance to an owner or occupier of land in the vicinity of the Land;

(e) to use and occupy the Land only in accordance with and for the purposes set out in Section 2.1;

(f) not construct, place or affix any Improvements on or to the Land except as necessary for the purposes set out in Section 2.1;

(g) not to interfere with the activities of any other person to enter on and use the Land under a prior or subsequent licence granted by the Owner;

(h) not cut or remove timber on or from the Land without the prior written consent of the Owner;

(i) dispose of raw sewage and refuse only in accordance with the requirements and regulations of appropriate federal and provincial agencies;

(j) store bulk hazardous petroleum products and other toxic substances in accordance with the provisions of the Environmental Management Act;

(k) to permit the Owner, or its representatives, to enter on the Land at any time to inspect the Land and the Improvements;

(l) to indemnify and save the Owner harmless against all claims, actions, causes of action, losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of

(i) any breach, violation or non-performance of a provision of this Agreement by the Licensee, and

(ii) any personal injury, bodily injury (including death) or property damage occurring or happening on or off the Land by virtue of the Licensee's occupation of the Land,

and the amount of all such losses, damages, costs and liabilities will be payable to the Owner immediately upon demand;

(m) on the termination of this Agreement,

(i) peaceably quit and deliver to the Owner possession of the Land;

(ii) remove from the Land any Improvements that the Owner, in writing, directs or permits the Licensee to remove, other than any Improvement permitted to be placed on or made to the Land under another disposition, and

(iii) restore the surface of the Land as nearly as may reasonably be possible to the same condition as it was on the Commencement Date;

and to the extent necessary, this covenant will survive the termination of this Agreement;

(n) to effect, and keep in force during the Term, insurance protecting the Owner and the Licensee (without any rights of cross-claim or subrogation against the Owner) against claims for personal injury, death, property damage or third party or public liability claims arising from any accident or occurrence on the Land to an amount not less than ONE MILLION DOLLARS ($1,000,000);

(o) notwithstanding sub-section (l), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that sub-section be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to sub-section (l) to be changed to the amount specified by the Owner, acting reasonably, in the notice and delivery to the Owner with a written confirmation of the change;

(p) to provide a certificate or evidence of insurance upon request by the Owner; and

(q) to immediately notify the Owner if the Licensee discovers any human remains, burial pit, grave or artifacts on or under the Land, to cease any further activities that could affect the site until permitted by the Owner to resume activities and take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Owner.

4.2  The Owner will not do anything on the Land that will interfere materially with the Improvements or the Licensee's use of the Improvements, or that creates a public hazard.

ARTICLE 5 – SECURITY

5.1  The sum of [insert amount] and all rights, privileges, benefits and interests accruing thereto shall be delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this licence and will be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed.

5.2  If the Licensee defaults in the performance of any of its obligations hereunder, the Owner may, in its sole discretion, sell, call in and convert the Security, or any part of it, and such Security will be deemed to have been absolutely forfeited to the Owner.

5.3  The rights of the Owner under this Article will be deemed to continue in full force and effect notwithstanding the expiry or earlier cancellation of this Licence.

5.4  Notwithstanding the amount of the Security stated to be required under Section 5.1 the Owner may, acting reasonably, from time to time by notice to the Licensee, demand the amount to be changed to that specified in a notice and the Licensee will, within 60 days of such notice, change the Security to that specified and provide the Owner with evidence of the change.

ARTICLE 6 – ASSIGNMENT

6.1  The Licensee will not assign this licence or sublicence any part of the Land, without the prior written consent of the Owner, which consent will not be unreasonably withheld.

ARTICLE 7 – TERMINATION

7.1  The Licensee further covenants and agrees with the Owner that:

(a) if the Licensee

(i) defaults in the payment of any money payable by the Licensee under this Agreement, or

(ii) fails to observe, abide by and comply with the provisions of this Agreement (other than the payment of any money payable by the Licensee under this Agreement);

and the Licensee's default or failure continues for 60 days after the Owner gives written notice of the default or failure to the Licensee;

(b) if the Licensee fails to make diligent use of the Land for the purposes set out in this Agreement, and such failure continues for 180 days after the Owner gives written notice of the failure to the Licensee;

(c) if the Licensee

(i) becomes insolvent or makes an assignment for the general benefit of its creditors,

(ii) commits an act which entitles a person to take action under the Bankruptcy and Insolvency Act (Canada) or a bankruptcy petition is filed or presented against the Licensee or/the Licensee consents to the filing of the petition or a decree is entered by a court of competent jurisdiction adjudging the Licensee bankrupt under any law relating to bankruptcy or insolvency, or

(iii) voluntarily enters into an arrangement with its creditors; or

(d) if the Aquaculture Tenure expires or is otherwise terminated;

this Agreement will, at the Owner's option and with or without entry, terminate and the Licensee's right to use and occupy the Land will cease.

7.2  If the condition complained of (other than the payment of any money payable by the Licensee under this Agreement) reasonably requires more time to cure than 60 days, the Licensee will be deemed to have complied with the remedying of it if the Licensee commences remedying or curing the condition within 60 days and diligently completes the same.

7.3  The Licensee will make no claim for compensation, in damages or otherwise, upon the lawful termination of this Agreement under Section 7.1.

ARTICLE 8 – NOTICE

8.1  Any notice required to be given by either party to the other will be deemed to be given if mailed by prepaid registered mail in Canada or delivered to the address of the other at the addresses specified for each on the first page of this Licence, or at such other address as a party may, from time to time, direct in writing, and any such notice will be deemed to have been received if delivered, on the day of delivery, and if mailed, 7 days after the time of mailing, except in the case of mail interruption in which case actual receipt is required.

8.2  In order to expedite the delivery of any notice required to be given by either party to the other, a concurrent facsimile copy of any notice will, where possible, be provided to the other party but nothing in this section, and specifically the lack of delivery of a facsimile copy of any notice, will affect the deemed delivery provided in Section 8.1.

8.3  The delivery of all money payable to us under this Agreement will be effected by hand, courier or prepaid regular mail to the address specified above, or by any other payment procedure agreed to by the parties, such deliveries to be effective on actual receipt.

ARTICLE 9 – DISPUTE RESOLUTION

9.1  Any dispute arising out of or in connection with this Agreement will be resolved as follows:

(a) the parties will attempt to resolve disputes by negotiations, including timely disclosure of all relevant facts, information and documents;

(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;

(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to a court of competent jurisdiction;

except that it is not incompatible with this paragraph for a party to apply to a court at any time for interim or conservatory relief, and for the court to grant that relief.

ARTICLE 10 – MISCELLANEOUS

10.1  No provision of this Agreement will be considered to have been waived unless the waiver is in writing, and a waiver of a breach of a provision of this Agreement will not be construed as or constitute a waiver of any further or other breach of the same or any other provision of this Agreement, and a consent or approval to any act requiring consent or approval will not waive or render unnecessary the requirement to obtain consent or approval to any subsequent same or similar act.

10.2  No remedy conferred upon or reserved to the Owner under this Agreement is exclusive of any other remedy in this Agreement or provided by law, but that remedy will be in addition to all other remedies in this Agreement or then existing at law, in equity or by statute.

10.3  This Agreement extends to, is binding upon and enures to the benefit of the parties, their heirs, executors, administrators, successors and permitted assigns.

10.4  Time is of the essence in this Agreement.

10.5  In this Licence, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and the corporation.

10.6  The captions and headings contained in this Licence are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the provisions herein.

10.7  If any section of this Licence or any part of a section is found to be illegal or unenforceable, that part or section, as the case may be, shall be considered separate and severable and the remaining parts and sections of the Licence shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.

10.8  This Agreement will be governed by and construed in accordance with the applicable laws of the Province of British Columbia and Canada.

The parties have executed this Agreement as of the date of reference of this Agreement.

SIGNED on behalf of Tla’amin NATION,
by a duly authorized representative

........................................................................
Authorized Signatory

SIGNED on behalf of TENURE HOLDER
by a duly authorized signatory

........................................................................
Authorized Signatory

LEGAL DESCRIPTION SCHEDULE

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 8. Tla’amin Nation Upland Owner Consent

WHEREAS:

Tla’amin is the [registered] owner in fee simple of the land located ..................................., legally described as [INSERT LEGAL DESCRIPTION] (the "Upland"); [Note: Insert Legal Description for area immediately adjacent to foreshore. If Upland is not in LTO then describe land as accurately as possible];

A.  British Columbia is the owner in fee simple of the parcel or tract of land being the foreshore fronting on the Upland and all land covered by water adjoining the Upland (the "Foreshore");

B.  The Upland and Foreshore are adjacent to each other and Tla’amin, as owner of the Upland, is entitled to exercise its riparian right of access to the Upland by crossing the Foreshore;

C.  British Columbia wishes to interfere with Tla’amin's riparian right of access to the Upland by authorizing, under an existing licence of occupation (the "Licence"), the use of the identified portions of the Foreshore for marine invertebrates aquaculture purposes on the portion of the Foreshore shown outlined in bold on the attached Schedule "A" ("Aquaculture Area") pursuant to a licence dated for reference • and numbered •, which has a term expiring •; and

D.  Tla’amin is prepared to consent to such interference pursuant to the provisions set out below.

NOW THEREFORE THIS CONSENT WITNESSES that in consideration of the sum of ONE ($1.00) dollar and other good and valuable consideration, now paid by British Columbia to Tla’amin (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows:

1.  Tla’amin, as owner of the Upland, on the terms set forth herein, hereby consents to British Columbia, as owner of the Foreshore, and its servants, employees, agents, contractors, tenants, invitees, licensees and all those claiming through them, interfering, in accordance with the Licence, with Tla’amin's right, as owner of the Upland, to pass and repass over the Aquaculture Area to gain access to and from the Upland.

2.  Tla’amin acknowledges and agrees that the Consent hereby given entitles British Columbia to authorize its servants, employees, agents, contractors, tenants, invitees, licensees, and all those claiming through them, in accordance with the Licence (collectively, the "Aquaculture Area Users") to:

a) construct, erect, place, install, moor, maintain, replace, renovate and repair buildings, structures, works, improvements and chattels (collectively, the "Improvements") on all or any part of the Aquaculture Area which are reasonably necessary in connection with the purposes authorized and approved in the Licence, provided however that this Consent does not extend so far as to permit British Columbia to authorize the Aquaculture Area Users to alter or enlarge any Improvements existing on the Aquaculture Area on •, or to construct, erect, place, install or moor new Improvements on the Aquaculture Area after •, if such alteration, enlargement, construction, erection, placement, installation or mooring would materially interfere with reasonable access to the Upland; and

b) do all other acts within the Aquaculture Area, reasonably necessary or incidental to the purposes authorized and approved in connection with the Licence.

3.  Tla’amin or any of its successors or assigns, as the case may be, will give written notice of this Consent to any person to whom it proposes to dispose of any portion of the Upland which borders on the Foreshore, which notice will be received by that person prior to such disposition. Prior to or concurrently with such disposition, Tla’amin or any of its successors or assigns, as the case may be, will obtain a written ratification of this Consent by the transferee of such portion of the Upland in the same form as this Consent and will deliver an originally executed copy thereof to British Columbia. For the purposes of this paragraph, the word "dispose" means any transfer by any method to any person entitled to exercise a riparian right of access to the Upland.

4.  British Columbia covenants and agrees with Tla’amin that nothing in this Consent will be deemed or otherwise construed so as to permit British Columbia, its servants, employees, agents, contractors, tenants, invitees, licensees and all those claiming through them, to enter onto the Upland or to construct, place, erect or install any buildings, structures, improvements or works thereon.

5.  This Consent is effective from and after •, 201• ("Effective Date") until •, the end of any renewal term, or the earlier termination of Licence No. • in respect of the interference over the Aquaculture Area.

IN WITNESS WHEREOF, Tla’amin and British Columbia have duly executed this Consent as of the Effective Date.

Tla’amin NATION by its
authorized signatory(ies)

........................................................................
Name:

........................................................................
Name:

HER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF BRITISH COLUMBIA
as represented by the Minister of
Forests, Lands and Natural Resource Operations

........................................................................
Name:

Schedule "A"

[Attach Plan of Aquaculture Area]

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 9. Document for Grant of Private Road Easement

THIS AGREEMENT is dated [insert month, day, year].

BETWEEN:

Tla’amin NATION

(the "Owner")

AND:

•

(the "Grantee")

WHEREAS:

A.  The Grantee wishes an easement over the Servient Lands to provide access to the Grantee's Property.

B.  The Owner is willing to grant to the Grantee an easement over the Servient Lands to provide access to the Grantee's Property.

Therefore in consideration of the payment of the fee to be paid by the Grantee, and the Grantee's covenants as set out in this Agreement, the Owner and Grantee agree as follows:

1.  Definitions

"Grantee's Property" means the lands described in Schedule A attached to this Agreement.

"Easement Area" means that portion of the Servient Lands as described in Schedule B attached to this Agreement.

"Security" means the security for the performance of the Grantee's obligations as set out in paragraph 14 in the amount of [$xx].

"Servient Lands" means the lands described in Schedule A attached to this Agreement.

"Special Conditions" means the conditions, if any, set out in Schedule C attached to this Agreement.

2.  Rights and Privileges on Easement Area

By this Agreement the Owner grants to the Grantee, and its invitees, permittees, representatives, employees, and agents, their heirs, executors, administrators and assigns, in common with the Owner, the full, free and uninterrupted easement, right and liberty over the Easement Area to enter on and use the Easement Area for the purpose of constructing and maintaining (including trimming or removing trees and vegetation) a road and using the Easement Area as a road to give pedestrian and vehicular access to the Grantee's Property.

3.  Duration

This Easement is appurtenant to the Grantee's Property and passes with a conveyance or other disposition of the estate in fee simple of the Grantee's Property, and is binding on the Servient Lands, provided that the Owner and the Grantee agree that if the Servient Lands are subdivided, the Easement will not run with those parcels derived from the Servient Lands which do not include any part of the Easement Area, and the Easement will be deemed to be discharged from such parts.

4.  Modification of Easement

The parties agree that either party may register the Easement in accordance with the Land Title Act and upon request and preparation of a survey or plan showing the location of the Easement Area, the Owner and Grantee will enter into a modification of this Agreement or enter into a new agreement on the same terms as this Agreement so as to release the Easement from those portions of the Servient Lands that are not included within the registered plan; provided that the requesting party shall at its own cost, be responsible for the preparation of any survey or plan and registration of the applicable plan as well as discharges and agreements referred to in this Section.

5.  Limitation on Rights Granted

The Grantee acknowledges and agrees that the rights set forth in paragraph 2 are to be exercised only over those portions of the Servient Lands that contain the Easement Area and it will not unreasonably otherwise exercise or attempt to otherwise exercise its rights over the Servient Lands under paragraph 2.

6.  Annual Fee

The Grantee will pay the Owner an annual fee in advance in the amount of $xx as reasonably required to cover the Owner's costs of administering this Agreement.

7.  Covenant

The obligations of the Grantee in this Agreement constitute both contractual obligations and covenants under Section 219 of the Land Title Act in respect of the Grantee's Property and run with the Grantee's Property and bind successors in title.

8.  Non Exclusive Use

This Agreement will not entitle the Grantee to exclusive possession of the Easement Area and the Owner reserves the right to grant other dispositions of the Easement Area so long as the grant does not impair the Grantee's permitted use of the Easement Area.

9.  Covenants of the Grantee

The Grantee covenants with the Owner:

(a) to pay the annual fee as described in paragraph 6 at the address of the Owner set out above or at such other place as the Owner may specify under paragraph 16;

(b) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged which relate to the Easement Area or any of the Grantee's improvements on the Easement Area, which the Grantee is liable to pay;

(c) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent government authority, including an Owner government, in any way affecting the Easement Area and improvements situate thereon, or their use and occupation;

(d) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Easement Area or do or suffer to be done thereon by its invitees, permittees, representatives, employees, or agents, or anyone for whom the Grantee is responsible at law, anything that may be or becomes a nuisance;

(e) not to dump or bury debris or rubbish of any kind on the Easement Area;

(f) not to use hazardous petroleum products and other toxic substances in road maintenance activities in the Easement Area;

(g) not to apply herbicides or pesticides on the Easement Area without the consent of the Owner;

(h) to deliver to the Owner from time to time, upon demand, proof of insurance required under this Agreement, receipts or other evidence of payment of any taxes or charges owing, and other monetary obligations of the Grantee required to be observed by the Grantee pursuant to this Agreement;

(i) to indemnify and save harmless the Owner and the Owner's servants, employees and agents against all claims, actions, causes of action, losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:

(i) any breach, violation or non-performance of any covenant, condition or obligation under this Agreement by the Grantee; and

(ii) any personal injury, bodily injury (including death), or property damage occurring on or off the Servient Lands and arising out of the Grantee's use or occupation of the Easement Area under this Agreement,

and the Owner may add the amount of any such losses, damages, costs and liabilities to the fees payable under paragraph 6, and the amount added will be payable to the Owner immediately upon demand;

(j) in respect of the use of the Easement Area by the Grantee or anyone permitted by the Grantee to use the Easement area, to keep the Easement Area in a safe, clean and sanitary condition satisfactory to the Owner acting reasonably including, without limitation, maintaining and repairing any damage to the Easement Area caused by the Grantee's use under this Agreement, and to make safe, clean and sanitary any portion of the Easement Area or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Grantee;

(k) to permit the Owner or its authorized representative to enter upon the Easement Area at any time to examine its condition;

(l) to use and occupy the Easement Area in accordance with the provisions of this Agreement including the Special Conditions, if any, set out in Schedule C;

(m) on the expiration or at the earlier cancellation of this Agreement:

(i) to quit peaceably and deliver possession of the Easement Area to the Owner; and

(ii) if requested by the Owner to de-commission the road, including the removal of any structures or works on the Easement Area, and restore the surface of the Easement Area to the satisfaction of the Owner acting reasonably;

and all the Grantee's right, interest and estate in the Servient Lands will be absolutely forfeited to the Owner, and to the extent necessary, this covenant shall survive the expiration or cancellation of this Agreement;

(n) to obtain and keep in force insurance covering the Owner and the Grantee (without any rights of cross-claim or subrogation against the Owner) against claims for personal injury, death, property damage or third party or public liability claims arising from any accident or occurrence on the Easement Area to an amount not less than $1,000,000.00;

(o) notwithstanding subparagraph (l), the Owner may from time to time, acting reasonably, considering the amount of insurance a prudent owner would carry, require the Grantee to increase the amount of insurance and the Grantee will, within 60 days of receiving the request, obtain the required additional insurance and deliver to the Owner written confirmation of the change;

(p) to provide a certificate or evidence of insurance upon request by the Owner;

(q) not to interfere with the activities, works or other improvements of any other person who enters on or uses or occupies the Easement Area under a prior or subsequent right or interest granted by the Owner, or who is otherwise authorized by the Owner to enter on or use or occupy the Easement Area, in accordance with paragraph 8; and

(r) to immediately notify the Owner if the Grantee discovers any human remains, burial pit, grave or artifacts on or under the Land, to cease any further activities that could affect the site until permitted by the Owner to resume activities and take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Owner.

10.  Cancellation

Despite any other provision of this Agreement, this Agreement may be cancelled if the Grantee fails or refuses to observe or perform any term in this Agreement, and the failure continues after the Owner gives written notice of the failure to the Grantee for a period of:

(a) 30 days; or

(b) 150 days, if the failure because of its nature reasonably requires more than 30 days to cure, and provided that the Grantee proceeds diligently and continuously to cure the failure,

then the Owner may by further written notice to the Grantee cancel this Agreement and despite paragraph 9 (k), any improvements to the Easement Area will, at the discretion of the Owner, become the property of the Owner.

11.  Relocation of Easement Area

If the Owner requires the Easement Area for another purpose, the Owner may, on 180 days written notice to the Grantee and in consultation with the Grantee:

(a) at the Owner's cost locate and construct an alternate road providing access to the Grantee's Property to a standard at least equivalent to the original road;

(b) grant a replacement agreement for the alternate road on the same terms as this Agreement; and

(c) by further written notice to the Grantee cancel this Agreement;

and on cancellation the Grantee will quit peaceably and deliver possession of the Easement Area, except that the Grantee may, at its election, within 60 days of the cancellation, or such longer time as reasonably required, remove any fixtures from the Easement Area, but the Grantee will not be required to comply with paragraph 9 (k) (ii).

12.  Third Party Notice

The Owner will not dispose of, or agree to dispose of, the Servient Lands without first notifying any intended purchaser of the existence of this Agreement.

13.  Ownership of Timber

All timber on the Easement Area will remain the property of the Owner.

14.  Security

The Grantee will deliver the Security to the Owner within 30 days of the commencement of this Agreement, and in any event prior to the Grantee's use of the Easement Area, as security for the performance of the Grantee's obligations under this Agreement, and the following will apply:

(a) the Grantee will maintain the Security in full until the later of:

(i) the termination of this Agreement; or

(ii) the complete fulfillment of all of the Grantee's obligations under this Agreement;

(b) if the Grantee defaults in the performance of any of its obligations under this Agreement, the Owner may, in its sole election, draw on and use the Security to reimburse the Owner for all reasonable costs and expenses, including legal and other professional services costs if any, caused by or arising out of the Grantee's breach, and in the event of a call on the Security of the Grantee will, as a condition of the continuation of this Agreement, immediately pay to the Owner the amount of the draw so that the full amount of the Security is available.

The parties agree that the amount of the Security does not constitute a liquidated damages estimate of the Owner's damages if the Grantee breaches its obligations hereunder and the Owner reserves its right to claim for further damages.

15.  Disputes

Any dispute arising out of or in connection with this Agreement will be resolved as follows:

(a) the parties will attempt to resolve disputes by negotiations, including timely disclosure of all relevant facts, information and documents;

(b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;

(c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to a court of competent jurisdiction;

except that it is not incompatible with this paragraph for a party to apply to a court at any time for interim or conservatory relief, and for the court to grant that relief.

16.  Notice

If notice is required or permitted under this Agreement, the notice:

(a) must be in writing;

(b) must be delivered to the address set out above, or other address as specified in writing by a party; and

(c) may be given in one or more of the following ways:

(i) delivered personally or by courier, and it will be deemed received on the next business day;

(ii) delivered by fax, and it will be deemed received on the next business day; or

(iii) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following, except in the case of mail interruption in which case actual receipt is required.

17.  Waiver and Consent

A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.

18.  Remedies

No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.

19.  Enurement

The terms and provisions of this Agreement shall extend to, be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns.

20.  Entire Agreement

This Agreement constitutes the entire agreement between the parties and no understanding or agreement, oral or otherwise, exists between the parties with respect to the subject matter of this Agreement except as expressly set out in this Agreement and this Agreement may not be modified except by subsequent written agreement.

21.  Interpretation

In this Agreement:

(a) all attached schedules form an integral part of this Agreement;

(b) unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender, body politic and a corporation;

(c) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the Agreement;

(d) a reference to an enactment of British Columbia or of Canada will be deemed to include a reference to any subsequent amendments or replacements; and

(e) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination.

22.  Each party will, upon the request of the other, do or cause to be done all lawful acts necessary for the performance of the provisions of this Agreement.

23.  Wherever this Agreement provides that an action may be taken, a consent or approval must be obtained or a determination must be made, then the Owner or the Grantee, as the case may be, will act reasonably in taking such action, deciding whether to provide such consent or approval or making such determination; but where this Agreement states that the Owner or the Grantee have sole discretion to take an action, provide a consent or approval or make a determination, there will be no requirement to show reasonableness or to act reasonably in taking that action, providing that consent or approval or making that determination.

24.  If, due to a strike, lockout, labour dispute, act of God, inability to obtain labour or materials, law, ordinance, rule, regulation or order of a competent governmental authority, enemy or hostile action, civil commotion, fire or other casualty or any condition or case beyond the Grantee's reasonable control, other than normal weather conditions, the Grantee is delayed in performing any of its obligations under this Agreement, the time for the performance of that obligation will be extended by a period of time equal to the period of time of the delay so long as:

(a) the Grantee gives notice to the Owner within 30 days of the commencement of the delay setting forth the nature of the delay and an estimated time frame for the performance of its obligation; and

(b) the Grantee diligently attempts to remove the delay.

IN WITNESS WHEREOF the parties have duly executed this Agreement, as of the date first referred to above.

Tla’amin NATION

Per: ..........................................................

GRANTEE

•

Per: ..........................................................
(authorized signatory of Grantee)

Schedule "A"

[Description of Grantee's Property and Servient Lands]

Schedule "B"

[Attach Plan of Easement Area]

Schedule "C"

[Attach Special Conditions]

 
Appendix F-5

Applicable Forms of Documents for Granting Interests on the Effective Date

Document 10. Licence of Occupation for Forest Research Plots

THIS AGREEMENT made this ..................... day of ..............................., 20......

BETWEEN:

Tla’amin NATION
(the "Owner")

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the Minister of Forests, Lands and Natural Resource Operations
(the "Licensee")

Whereas the Owner has agreed to grant to the Licensee a licence to enter on and use that parcel of land (the "Land") located generally in the vicinity of ................................ and described in the Schedule attached, and entitled "Legal Description";

Now therefore in consideration of the fee to be paid by, and the covenants of, the Licensee, the parties agree as follows:

ARTICLE 1 – GRANT OF LICENCE

1.1  The Owner, on the terms set forth herein, hereby grants to the Licensee a licence to enter on and use the Land for the purpose of conducting forestry related studies, tests and experiments.

ARTICLE 2 – DURATION

2.1  The duration of the licence and the rights herein granted shall be for a term of ...... years commencing on .........................., 20...... (the "Commencement Date") unless cancelled in accordance with Article 6.

2.2  Notwithstanding anything to the contrary in this licence, so long as:

(a) the Licensee is not in default of any of the material terms or conditions of this licence; and

(b) the Licensee has given the Owner, not more than ...... days prior to the expiration of the term herein granted, notice in writing of the Licensee's wish to re-apply for a new licence to enter on and use the Land

the Owner may agree to offer a new licence to the Licensee by notice to the Licensee, in writing, on the terms and conditions determined by the Owner and contained in the notice. The Licensee shall have a period of 60 days from the date of receipt of the notice from the Owner to accept a new licence to enter on and use the Land by executing the new licence contained in the notice and delivering it to the Owner.

ARTICLE 3 – LICENCE FEE

3.1  The Licensee shall pay to the Owner a licence fee of $1.00 for the entire term.

ARTICLE 4 – COVENANTS OF THE LICENSEE

4.1  The Licensee covenants with the Owner:

(a) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged that relate to the Land or any of the Licensee's improvements thereon (the "Realty Taxes") that the Licensee is liable to pay;

(b) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent government authority in any way affecting the Land and improvements situate thereon, or their use and occupation;

(c) not to commit or suffer any willful or voluntary waste, spoil or destruction on the Land or do or suffer to be done thereon by its employees, contractors, agents, invitees or anyone for whom the Licensee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;

(d) to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (j), receipts or other evidence of payment of Realty Taxes, insurance premiums and other monetary obligations of the Licensee required to be observed by the Licensee pursuant to this licence;

(e) to indemnify and save harmless the Owner against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors arising out of:

(i) any breach, violation or non-performance of any covenant, condition or agreement in this licence by the Licensee, or

(ii) any personal injury, death or property damage arising out of the Licensee's use and occupation of the Land

and the amount of such losses, damages, costs and liabilities shall be payable to the Owner immediately;

(f) to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner acting reasonably, and to make safe, clean and sanitary any portion of the Land or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Licensee;

(g) to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;

(h) to use and occupy the Land in accordance with the provisions of this licence including those set forth in the schedule attached and entitled "Special Provisos";

(i) on the expiration or at the earlier cancellation of this licence:

(i) to quit peaceably and deliver possession of the Land to the Owner,

(ii) to remove from the Land all above-ground buildings, machinery, plant, equipment and apparatus and all other improvements to or things on the Land erected or placed on the Land by the Licensee, and

(iii) to restore the surface of the Land to the satisfaction of the Owner acting reasonably

and to the extent necessary, this covenant shall survive the expiration or cancellation of this licence;

(j) to effect, and keep in force during the term, insurance protecting the Owner and the Licensee (without any rights of cross-claim or subrogation against the Owner) against claims for personal injury, death, property damage or third party or public liability claims arising from any accident or occurrence on the Land to an amount not less than $1,000,000.00; except that so long as the Licensee is Her Majesty the Queen in right of the Province of British Columbia or a British Columbia crown corporation, the Owner will waive the requirements of this subsection on the delivery to the Owner of confirmation that the Licensee is self insured;

(k) notwithstanding subsection (j), the Owner may from time to time notify the Licensee that the amount of insurance posted by the Licensee pursuant to that subsection be changed and the Licensee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (j), to be changed to the amount specified by the Owner, acting reasonably, in the notice and deliver to the Owner written confirmation of the change, except that when the Licensee is self-insuring this section shall not apply; and

(l) not to interfere with the activities, works or other improvements of any other person who enters on or uses or occupies the Land under a subsequent right or interest granted by the Owner, or who is otherwise authorized by the Owner to enter on or use or occupy the Land, in accordance with Section 9.3.

ARTICLE 5 – ASSIGNMENT

5.1  The Licensee shall not assign this licence or grant a sublicence of any part of the Land without the prior written consent of the Owner, which consent shall not be unreasonably withheld.

5.2  Notwithstanding section 5.1, the Licensee may, without the prior written consent of the Owner, assign its interest in all or a part of the Land to a British Columbia crown corporation provided that the Licensee gives written notice of any such change at least 120 days prior to the next anniversary date of the term of this licence.

5.3  No assignment or sublicensing pursuant to sections 5.1 or 5.2, nor the Owner's consent thereto, will relieve the Licensee from the observance and performance of the Licensee's obligations contained in this licence.

ARTICLE 6 – CANCELLATION

6.1  If the Licensee fails to observe or perform any term contained herein, and such failure continues after the giving of the written notice by the Owner to the Licensee of the nature of the failure for a period of:

(a) 30 days; or

(b) 150 days, if the failure because of its nature would reasonably require more than 30 days to cure, and provided that the Licensee is proceeding diligently and continuously to cure the failure throughout;

then the Owner may cancel this licence and, notwithstanding subsection (i) of section 4.1, any fixtures to the Land shall become, at the discretion of the Owner, the property of the Owner.

6.2  If this licence is taken in execution or attachment by any person, or the Licensee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with his creditors, the Owner may, on 90 days written notice to the Licensee, cancel this licence and the rights herein granted.

6.3  If the Licensee ceases to use the Land for the purposes permitted herein and the Licensee does not recommence its use of the Land within 180 days of receipt of written notice from the Owner, the Owner may immediately cancel this licence and the rights herein granted.

6.4  The Licensee may deliver a written notice to the Owner cancelling this licence and thereafter the licence and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.

6.5  Notwithstanding subsection 4.1 (i), any building, machinery, plant, equipment and apparatus, or other improvements to the Land (collectively, the "Improvements") that remain unremoved from the Land:

(a) upon the cancellation of this licence pursuant to section 6.1, or section 6.4; or

(b) thirty days after the expiration or cancellation of this licence pursuant to section 6.2 or section 6.3 (provided that if further time is reasonably required because of the nature of the Improvements or because of other constraints beyond the control of the Licensee, including weather, and provided that the Licensee is proceeding diligently and continuously to remove such Improvements, the 30 day time for removal will be extended to 150 days after the expiration or cancellation of this licence)

shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.

6.6  If the Owner elects to assume ownership of any above-ground Improvements pursuant to section 6.5, the Owner may remove them from the Land and the Licensee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.

6.7  The rights of the Owner under section 6.5 and section 6.6 shall be deemed to survive the expiration or earlier cancellation of this licence.

ARTICLE 7 – SECURITY

7.1  The security in the sum of $1.00 and all rights, privileges, benefits and interests accruing thereto delivered by the Licensee to the Owner (herein called the "Security") to guarantee the performance of the Licensee's obligations under this licence shall be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed. So long as the Licensee is Her Majesty the Queen in right of the Province of British Columbia or a British Columbia crown corporation, the Owner will waive the requirements of this section.

7.2  If the Licensee defaults in the performance of any of its obligations hereunder, the Owner may, in its sole discretion, sell, call in and convert the Security, or any part of it, and such Security shall be deemed to have been absolutely forfeited to the Owner.

7.3  The rights of the Owner under this Article shall be deemed to continue in full force and effect notwithstanding the expiration or earlier cancellation of this licence.

7.4  Notwithstanding any amount of Security stated to be required under section 7.1 the Owner may, acting reasonably, from time to time by notice to the Licensee, demand the amount to be changed to that specified in a notice and the Licensee shall, within 60 days of such notice, change the Security to that specified and provide the Owner with evidence of the change, except that while Security is waived under section 7.1, this section shall not apply.

ARTICLE 8 – NOTICE

8.1  Whenever service of a notice or a document is required under this licence, the notice or documents shall be in writing and shall be deemed to have been served if delivered to, or if sent by prepaid registered mail addressed to, the Owner or the Licensee, as the case may be, at the addresses specified for each on the first page of this licence, and where service is by registered mail the notice or document shall be conclusively deemed to have been served on the eighth day after its deposit in a Canada Post office at any place in Canada. If there is a disruption in mail service caused by labour dispute, civil unrest or other events beyond the control of the parties, between mailing and actual receipt of such notice, the party sending such notice will re-send by courier, fax or other electronic means and such notice will only be effective if actually received.

8.2  Either party may, by notice in writing to the other, specify another address for service of notices under this licence and after another address has been specified under this section, notices shall be mailed to that address in accordance with this Article.

ARTICLE 9 – MISCELLANEOUS

9.1  No term, condition, covenant or other provision herein shall be considered to have been waived by the Owner unless such waiver is expressed in writing by the Owner. Any such waiver of any term, condition, covenant or other provision herein shall not be construed as or constitute a waiver of any further or other breach of the same or any other term, condition, covenant, or other provision and the consent or approval of the Owner to any act by the Licensee requiring the consent or approval of the Owner shall not be considered to waive or render unnecessary such consents or approvals to any subsequent similar act by the Licensee.

9.2  No remedy conferred upon or reserved to the Owner is exclusive of any other remedy herein or provided by law, but such remedy shall be cumulative and shall be in addition to any other remedy herein or hereafter existing at law, in equity, or by statute.

9.3  This licence shall not entitle the Licensee to exclusive possession of the Land and the Owner may, for any purpose, grant to others interests in the Land or rights to enter on or use or occupy the Land, or may otherwise authorize other persons to enter on or use or occupy the Land, so long as the grant or authorization does not materially affect the exercise of the Licensee's rights hereunder. The question of whether a grant materially affects the exercise of the Licensee's rights hereunder shall be determined by the Owner acting reasonably. If the Owner, by written instrument, grants a licence, right or interest to others to use or occupy the Land, such grant will contain a provision identical to subsection 4.1 (f) of this licence obligating the new grantee to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner.

9.4  The terms and provisions of this licence shall extend to, be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns.

9.5  Time is of the essence in this agreement.

ARTICLE 10 – DISPUTE RESOLUTION

10.1  In this Article, "dispute" means any dispute arising out of or in connection with this licence or in respect of any defined legal relationship associated with it or derived from it.

10.2  The parties agree to attempt to resolve all disputes by negotiations conducted in good faith and to provide timely disclosure of all relevant facts, information and documents to further those negotiations.

10.3  If a dispute is not settled through direct negotiations either party may request the British Columbia International Commercial Arbitration Centre (BCICAC) to appoint a mediator to conduct a mediation under its mediation rules of procedure.

10.4  If a dispute is not settled within 15 days of the appointment of the mediator or any further period of time agreed to by the parties, the dispute shall be referred to and finally resolved by arbitration before a single arbitrator under the arbitration rules of procedure of the BCICAC.

10.5  If the BCICAC is unavailable or unable to administer the mediation or arbitration of a dispute under its rules of procedure, the parties will select the rules of another institution.

ARTICLE 11 – INTERPRETATION

11.1  In this licence, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation.

11.2  The captions and headings contained in this licence are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the provisions herein.

11.3  If any section of this licence or any part of a section is found to be illegal or unenforceable, that part or section, as the case may be, shall be considered separate and severable and the remaining parts and sections of this licence shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.

IN WITNESS WHEREOF, the parties have executed this licence as of the day and year first above written.

LEGAL DESCRIPTION SCHEDULE

1.  Legal Description

2.  Sketch Plan

SPECIAL PROVISOS SCHEDULE

 
Appendix F-6

Applicable Form of Document for Evidencing Interests Registered in the Land Title Office

Document 1. State of Title Certificate

[ Previous | Next ]