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The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 5th day of March, 2013
Craig James, Clerk of the House
HONOURABLE IDA CHONG
MINISTER OF ABORIGINAL RELATIONS
AND RECONCILIATION
Appendix J
Expropriation Procedures
Provincial Expropriation Procedures
In this Appendix:
"Section" means a section in this Appendix.
1. Provincial Law applies to the expropriation of Tla’amin Lands by a Provincial Expropriating Authority except to the extent that this Agreement modifies its application.
2. A Provincial Expropriating Authority may expropriate an estate or interest in Tla’amin Lands only with the consent and by the order of the Lieutenant-Governor-in-Council.
3. The Lieutenant-Governor-in-Council may issue an order consenting to an expropriation of an estate or interest in Tla’amin Lands only:
a. after the conclusion of the procedures described in Sections 4 and 5: and
b. where the expropriation is justifiable in accordance with Section 6.
4. Before the Lieutenant-Governor-in-Council makes a decision under Section 3, the Provincial Expropriating Authority will provide to the Tla’amin Nation a report which states the reasons for the expropriation and addresses the factors under Sections 6. a and 6. d.
5. Within 30 days of receipt of the report under Section 4, Tla’amin Nation will notify the Provincial Expropriating Authority if it objects to the expropriation of the estate or interest in Tla’amin Lands and, within 30 days of the Provincial Expropriating Authority's receipt of notice from the Tla’amin Nation, the Provincial Expropriating Authority and the Tla’amin Nation will make reasonable efforts to resolve the objection raised by the Tla’amin Nation.
6. For the purposes of Section 3. b an expropriation is justifiable where the Lieutenant-Governor-in-Council is satisfied that, in addition to the applicable requirements under Provincial Law, the following requirements have been met:
a. there is no other reasonably feasible alternative to the expropriation, including the use of lands that are not Tla’amin Lands;
b. reasonable efforts have been made by the Provincial Expropriating Authority to acquire the estate or interest in Tla’amin Lands through agreement with the Tla’amin Nation;
c. the Provincial Expropriating Authority has confirmed that the proposed expropriation is the smallest estate or interest necessary and for the shortest time required;
d. information relevant to the expropriation, other than documents that would be protected from disclosure under Provincial Law, has been provided to the Tla’amin Nation, including the report referred to in Section 5; and
e. where the Tla’amin Nation has objected to the expropriation, reasonable efforts have been made to resolve the objection.
7. The Lieutenant-Governor-in-Council will not consent to the expropriation before the end of the period provided for in Section 5.
8. Notwithstanding Sections 3 to 7, the Lieutenant-Governor-in-Council may consent to the expropriation if the Minister or Lieutenant-Governor-in-Council has declared a state of emergency.
9. In the event an estate or interest in Tla’amin Lands is expropriated by a Provincial Expropriating Authority, the Provincial Expropriating Authority will provide compensation in accordance with this Agreement.
10. The total value of compensation for an expropriated estate or interest in Tla’amin Lands will be based on the criteria set out in Provincial Law.
11. Where the Provincial Expropriating Authority and the Tla’amin Nation disagree on the total value of compensation for an expropriated estate or interest held by the Tla’amin Nation, the dispute will be finally determined by arbitration. A dispute under this Section will not delay the expropriation. For the purposes of this Section British Columbia will act on behalf of the Provincial Expropriating Authority on such terms as British Columbia and the Provincial Expropriating Authority may agree.
12. Where less than the fee simple estate in a parcel of Tla’amin Lands is expropriated by a Provincial Expropriating Authority:
a. the parcel of land retains its status as Tla’amin Lands;
b. Tla’amin Law applies to the parcel of land except to the extent that the Tla’amin Law is inconsistent with the use of land for which the expropriation took place; and
c. the Tla’amin Nation may continue to use and occupy the parcel of land, except to the extent that such use or occupation interferes with the use of land for which the expropriation took place.
13. Sections 14 to 20 do not apply to an expropriation by a Provincial Expropriating Authority of less than the fee simple estate in a parcel of Tla’amin Lands.
14. Where a fee simple estate in Tla’amin Lands is expropriated by a Provincial Expropriating Authority:
a. unless British Columbia and the Tla’amin Nation agree otherwise, the expropriation will include the fee simple estate to Subsurface Resources which will revert to British Columbia at the time of the expropriation;
b. unless the Provincial Expropriating Authority and the Tla’amin Nation agree otherwise, the expropriation will include all other interests in the land; and
c. those lands will no longer be Tla’amin Lands and Appendix C will be amended in accordance with the process set out in paragraph 9 of the Amendment Chapter.
15. For the purposes of Section 14:
a. the Provincial Expropriating Authority will be responsible for the transaction costs including the cost of surveying, registering and transferring the land; and
b. where the land is registered in the Land Title Office, British Columbia will file such certificates or other documents in the Land Title Office as may be required under the Land Title Act.
16. Where British Columbia expropriates a fee simple estate in Tla’amin Lands that is held by the Tla’amin Nation, British Columbia will make reasonable efforts to identify and offer provincial Crown land of comparable value within the Tla’amin Area to the Tla’amin Nation as compensation.
17. Where there is no agreement between British Columbia and the Tla’amin Nation on the provision of land as compensation under Section 16, British Columbia will provide the Tla’amin Nation with other compensation according to Provincial Law.
18. Where the replacement land provided under Section 16 is of less than comparable value, British Columbia will provide additional compensation in accordance with Section 10.
19. Where the Tla’amin Nation accepts provincial Crown land as replacement land, British Columbia will provide the Tla’amin Nation with a certificate transferring the indefeasible title or, where applicable, the registered title to the parcel of land to the Tla’amin Nation.
20. At the request of the Tla’amin Nation, British Columbia will consent to the replacement land being added to Tla’amin Lands and, where Canada consents to such replacement lands becoming Tla’amin Lands in accordance with a request under paragraph 85 of the Lands Chapter, upon receipt by the Tla’amin Nation of notice of the consent of each of British Columbia and Canada Appendix C will be amended in accordance with the process set out in paragraph 9 of the Amendment Chapter.
21. Where an expropriated estate or interest in Tla’amin Lands is no longer required by the Provincial Expropriating Authority, the expropriated estate or interest will be returned to the Tla’amin Nation subject to terms to be negotiated at the time of the return of the expropriated estate or interest.
22. Where the fee simple estate to a parcel of land under Section 21 is transferred by the Provincial Expropriating Authority to the Tla’amin Nation, the Tla’amin Nation may add the parcel to Tla’amin Lands upon notice to Canada and British Columbia.
23. Upon receipt by Canada and British Columbia of notice under Section 22, the parcel will become Tla’amin Lands and Appendix C will be amended in accordance with the process set out in paragraph 9 of the Amendment Chapter.
24. Replacement land accepted by the Tla’amin Nation under Section 19 or land returned to the Tla’amin Nation under Section 21 will be subject to:
a. where the parcel is not registered in the Land Title Office, any interest granted by British Columbia that is not discharged at the time of transfer unless the Tla’amin Nation and the interest holder agree to a replacement interest, including any modifications agreed to in writing by the Tla’amin Nation and the interest holder; and
b. where the parcel is registered in the Land Title Office, any registered charge or registered encumbrance subject to their discharge under the Land Title Act.
25. The Tla’amin Nation will own the Subsurface Resources on lands that are added to Tla’amin Lands under Section 20 or 23 where:
a. the fee simple title includes ownership of the Subsurface Resources; or
b. British Columbia owned the Subsurface Resources at the time of the transfer to the Tla’amin Nation.
26. For the purposes of Section 25, unless otherwise agreed by the Tla’amin Nation and British Columbia, any Subsurface Resource tenures and the Subsurface Resources associated with those tenures will be administered by British Columbia in accordance with paragraphs 75 to 80 of the Lands Chapter.
27. Where the Tla’amin Nation wishes to register land which is replaced under Section 19 or returned under Section 21, the Tla’amin Nation and British Columbia will, as appropriate, file such plans, certificates, instruments and other documents in the Land Title Office as may be required under the Land Title Act.
28. At any given point in time the total amount of Tla’amin Lands that has been expropriated in fee simple by Provincial Expropriating Authorities will not exceed a cumulative total of 300 hectares.
29. Where replacement land is provided under Section 19 or a fee simple estate which is not replaced under Section 22 is returned to the Tla’amin Nation in accordance with Section 21, the amount of Tla’amin Lands that may be expropriated under Section 28 will be increased by the amount replaced or returned.
30. For greater certainty, the cumulative total under Section 28 will not increase beyond 300 hectares, including where:
a. the amount of replacement land provided in fee simple under Section 19 is greater than the amount of Tla’amin Lands expropriated in fee simple under Section 14;
b. the fee simple estate in Tla’amin Lands, which was expropriated under Section 14 and replaced under Section 19 is returned to the Tla’amin Nation in fee simple under Section 22; or
c. a fee simple estate is added to Tla’amin Lands under paragraphs 83, 87, 91 or 95 of the Lands Chapter.
31. Where the Tla’amin Nation acquires land with any compensation provided by a Provincial Expropriating Authority, there will be no increase in the cumulative total under Section 28.
Federal Expropriation Procedures
In this Appendix:
"Section" means a section in this Appendix.
1. The Governor-in-Council may consent to an expropriation of an estate or interest in Tla’amin Lands where the expropriation is justifiable in accordance with Section 3 and necessary for a public purpose.
2. For greater certainty, where a Federal Expropriating Authority seeks to expropriate an interest in Tla’amin Lands under section 4.1 of the Expropriation Act, that expropriation will be deemed to be necessary for a public purpose.
3. For the purposes of Section 1, an expropriation is justifiable where the Governor-in-Council is satisfied that the following requirements have been met:
a. there is no other reasonably feasible alternative land to expropriate that is not Tla’amin Lands;
b. reasonable efforts have been made by the Federal Expropriating Authority to acquire the estate or interest in Tla’amin Lands through agreement with the Tla’amin Nation;
c. the smallest estate or interest necessary in Tla’amin Lands and for the shortest time required for the purpose for which the interest in land is sought is expropriated; and
d. information relevant to the expropriation, other than documents that would be protected from disclosure under Federal Law, has been provided to the Tla’amin Nation.
4. Prior to the Governor-in-Council issuing an order consenting to the expropriation of an estate or interest in Tla’amin Lands, the Federal Expropriating Authority will provide to the Tla’amin Nation and the Governor-in-Council, and make available to the public, a report stating the justification for the expropriation and describing the steps taken to satisfy the requirements of Section 3.
5. Where the Tla’amin Nation objects to the expropriation of an estate or interest in Tla’amin Lands, it may, within 60 days after the report has been provided to the Tla’amin Nation in accordance with Section 4 refer the dispute directly to neutral evaluation under Stage Two of the Dispute Resolution Chapter for a review of the steps taken to satisfy the requirement set out Section 3.
6. The Federal Expropriating Authority will not seek Governor-in-Council consent to the expropriation of an estate or interest in Tla’amin Lands:
a. before the expiration of the period referred to in Section 5;
b. where the Tla’amin Nation has referred the dispute to a neutral evaluator in accordance with Section 5, before:
i. the neutral evaluator has delivered to Tla’amin Nation and the Federal Expropriating Authority an opinion on the dispute, such opinion to be rendered within 60 days of the referral being made; and
ii. the Federal Expropriating Authority has delivered the opinion of the neutral evaluator to the Governor-in-Council for consideration under Sections 1 and 2; or
c. within such additional time as the Tla’amin Nation and the Federal Expropriating Authority may agree.
7. Without limiting the generality of the Dispute Resolution Chapter, the opinion of the neutral evaluator under Section 6:
a. is without prejudice to the legal positions that may be taken by a Federal Expropriating Authority and the Tla’amin Nation in court or in any other forum;
b. will not be admissible in any legal proceedings, unless otherwise required by law; and
c. is not binding on the Governor-in-Council under Sections 1 and 3.
8. At the time of the expropriation the Tla’amin Nation and the Federal Expropriating Authority will negotiate the terms and conditions of the return of an expropriated estate or interest in Tla’amin Lands, including requirements relating to financial considerations based on fair market value and the condition of the land to be returned.
9. Where the terms and conditions of the return of an expropriated estate or interest in Tla’amin Lands cannot be agreed upon by the Tla’amin Nation and the Federal Expropriating Authority at the time of the expropriation, the dispute will be finally determined by arbitration under the Dispute Resolution Chapter. For the purposes of this Section, Canada will act on behalf of the Federal Expropriating Authority.
10. Where a fee simple estate in a parcel of Tla’amin Lands is expropriated by a Federal Expropriating Authority, the Federal Expropriating Authority will make reasonable efforts to:
a. identify replacement land of equivalent or greater size and comparable value within the Tla’amin Area, being either federal Crown land or lands available on a willing-seller willing-buyer basis; and
b. where acceptable to the Tla’amin Nation, to acquire and offer the replacement land to the Tla’amin Nation as partial or full compensation for the expropriation.
11. Subject to Section 15, if the replacement land identified by the Federal Expropriating Authority would result in the total size of Tla’amin Lands being less than at the Effective Date and the Tla’amin Nation does not agree that the replacement land is of comparable value to the estate or interest in Tla’amin Lands being expropriated, the Tla’amin Nation may refer the dispute to be finally determined by arbitration under the Dispute Resolution Chapter.
12. Where the Federal Expropriating Authority and the Tla’amin Nation are unable to agree on the provision of replacement land as compensation, the Federal Expropriating Authority will provide the Tla’amin Nation with other compensation in accordance with this Agreement.
13. The total value of compensation for an estate or interest in Tla’amin Lands expropriated by a Federal Expropriating Authority under this Appendix will be determined by taking into account the following factors:
a. the fair market value of the expropriated estate or interest;
b. the replacement value of any improvement to Tla’amin Lands in which an estate or interest has been expropriated;
c. any expenses or losses resulting from the disturbance directly attributable to the expropriation;
d. any reduction in the value of any estate or interest in Tla’amin Lands that is not expropriated which directly relates to the expropriation;
e. any adverse effect on any cultural or other special value of Tla’amin Lands in which an estate or interest has been expropriated provided that:
i. the cultural or other special value is only applied to an estate or interest in Tla’amin Lands recognized in law and held by the Tla’amin Nation; and
ii. there will be no increase in the total value of compensation on account of any aboriginal rights, title or interest; and
f. the value of any special economic advantage arising out of or incidental to the occupation or use of Tla’amin Lands to the extent that the value is not otherwise compensated.
14. Subject to Section 15, if the Federal Expropriating Authority and the Tla’amin Nation cannot agree on the total value of compensation or on whether the combination of replacement land and other compensation is equal to the total value of compensation, either Canada acting on behalf of the Federal Expropriating Authority or the Tla’amin Nation may refer the dispute for resolution under the Dispute Resolution Chapter.
15. A dispute in respect of:
a. the valuation of replacement land under Section 11;
b. the total value of compensation under Section 13; or
c. the terms and conditions of the return of land under Section 8,
will not delay the expropriation.
16. Any claim or incumbrance with respect to the estate or interest expropriated by a Federal Expropriating Authority may only be discharged against the amount of compensation payable under Section 13.
17. Interest on compensation is payable from the date the expropriation takes effect at the interest rate payable under Federal Law.
18. Where a Federal Expropriating Authority expropriates a fee simple estate in a parcel of Tla’amin Lands, the lands will no longer be Tla’amin Lands and Appendix C will be amended in accordance with the process set out in paragraph 9 of the Amendment Chapter.
19. Where a Federal Expropriating Authority expropriates less than a fee simple estate in a parcel of Tla’amin Lands:
a. the parcel of lands retains its status as Tla’amin Lands;
b. the parcel of lands remains subject to Tla’amin Law, except to the extent that such law interferes with the use of the parcel of lands for which the expropriation took place; and
c. the Tla’amin Nation may continue to use and occupy the parcel of lands, except to the extent the use or occupation is inconsistent with the use of the parcel for which the expropriation took place, in the view of the Federal Expropriating Authority.
20. Where replacement land is transferred to the Tla’amin Nation as partial or full compensation in accordance with Section 10, the Tla’amin Nation may request that land be added to Tla’amin Lands.
21. Canada and British Columbia will consent to the land referred to in Section 20 being added to Tla’amin Lands where:
a. the land is within the Tla’amin Area;
b. the land does not overlap with an area over which another First Nation claims a legal interest or which is subject to treaty negotiations with another First Nation, except where the other First Nation in those cases consents to the addition;
c. the land is outside municipal boundaries unless the municipality consents; and
d. Canada or British Columbia will not be required to assume financial or other obligations, associated with the replacement land.
22. Where Canada and British Columbia consent under Section 21, each of them will provide notice of its consent to the other Parties. Upon receipt by the Tla’amin Nation of the notices, Appendix C will be amended in accordance with the process set out in paragraph 9 of the Amendment Chapter.
23. Where an expropriated estate or interest in a parcel of Tla’amin Lands is no longer required by the Federal Expropriating Authority for the purpose for which it was expropriated, the Federal Expropriating Authority will ensure that the estate or interest in land is returned to the Tla’amin Nation on the terms and conditions negotiated under Section 8.
24. The return of an estate or interest in Tla’amin Lands under Section 23 will not result in Canada or British Columbia assuming financial or other obligations, unless agreed to in writing at the time of the expropriation.
25. Where the Tla’amin Nation becomes the registered owner of the fee simple estate to a parcel of land under Section 23, the Tla’amin Nation may add that parcel to Tla’amin Lands upon notice to Canada and British Columbia.
26. Upon receipt by Canada and British Columbia of a notice under Section 25, the parcel will become Tla’amin Lands and Appendix C will be amended in accordance with the process set out in paragraph 9 of the Amendment Chapter.
27. The federal department or agency or other entity that holds the expropriated estate or interest may decide, without the consent of the Governor-in-Council, that the expropriated estate or interest in land is no longer required and may determine the disposition of any improvements made to the land in a manner consistent with an agreement reached under Section 8 or the outcome of an arbitration under Section 9.
28. Except as otherwise provided in Sections 5, 9, 11 and 14, no dispute between Canada and the Tla’amin Nation respecting the interpretation, application or implementation of paragraphs 127 and 129 of the Lands Chapter or Sections 1 to 27 will be resolved under the Dispute Resolution Chapter.
29. Subject to Section 30, except to the extent that the provisions of the Lands Chapter and this Appendix modify the application of federal expropriation legislation in respect of an expropriation of Tla’amin Lands, all expropration legislation applies to an expropriation in respect of Tla’amin Lands under the Lands Chapter and this Appendix.
30. Without limiting the generality of paragraph 10 of the General Provisions Chapter, this Agreement prevails to the extent of a Conflict with the federal Expropriation Act or other Federal Law relating to the expropriation.
31. Where the fee simple estate in a parcel of Tla’amin Lands is held by a Tla’amin Citizen, a Tla’amin Institution or a Tla’amin Corporation, any interest in that parcel may be expropriated by a Federal Expropriating Authority in accordance with:
a. Federal Law;
b. the consent of the Governor-in-Council; and
c. Sections 1 through 9, 15. c, 18, 19 and 23 through 27, and
for greater certainty, any return of land under Sections 23 through 27 will be to the Tla’amin Nation.