GRANT OF RIGHT OF WAY
AND LICENCE FOR PUBLIC UTILITY WORKS
TO
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
This Agreement is dated _______________________________,
_________________
BETWEEN:
NISGA'A NATION
[insert address]
(the "Nisga'a Nation")
AND:
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY, continued under the Hydro and Power Authority Act, RSBC 1996,
c. 212
[insert address]
("Hydro")
WHEREAS:
- The Nisga'a Nation, Canada and British Columbia
have entered into the Nisga'a Final Agreement.
- The Nisga'a Nation wishes to grant to Hydro
rights on Nisga'a Lands for Hydro Works existing on Nisga'a
Lands on the effective date.
Therefore for good and valuable consideration
the Nisga'a Nation and Hydro agree as follows:
Definitions
"BC TEL" means BC TEL, and its successors and assigns.
"Final Agreement" means the Nisga'a Final Agreement between
the Nisga'a Nation, Canada and British Columbia.
"Hydro Purposes" means the transmission and distribution
of electric energy and telecommunications.
"Hydro Works" means poles, towers, antennae (except for
monopole free standing antennae), anchors, guy wires, brackets,
cross arms, insulators, transformers, overhead and underground
conductors, wires, lines and cables, underground conduits and
pipes, access nodes, 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.
"Hydro Right of Way Area" means those portions of Nisga'a
Lands as described in Schedule A attached to this Agreement.
"Licensed Hydro Works" means, collectively, any Hydro
Works, and any access roads within the Vegetation Management
Area, that, on the effective date, are located on Nisga'a Lands
outside of:
- a Crown road right of way area;
- a Hydro Right of Way Area;
- a right of way area granted to BC TEL
on which Hydro is BC TEL's licensee; or
- an area in respect of which, on the
effective date, the Nisga'a Nation grants Hydro rights under
a separate instrument.
"Vegetation Management Area" means the Hydro Right of Way Area together with the area 10
metres on both sides of the Hydro Right of Way Area.
Relationship to Final Agreement
This Agreement is made under the Final Agreement, and defined
terms in the Final Agreement will have the same meaning in this
Agreement.
Rights on Hydro Right of Way Area
The Nisga'a Nation grants to Hydro, and its employees, representatives,
agents, contractors, licensees and assignees, the full, free
and uninterrupted right, liberty and right of way, for Hydro
Purposes, as follows:
- to construct, excavate for, erect, string,
or otherwise install, operate, maintain, repair, alter,
upgrade, remove and replace Hydro Works over, upon and under
the Hydro Right of Way Area;
- to trim or remove all or any trees,
growth or vegetation now or hereafter on the Vegetation
Management Area that may in the reasonable opinion of Hydro
create a hazard or interfere with the Hydro Works or the
carrying out of any of the Hydro Purposes, except that Hydro
shall take all reasonable steps, including where appropriate
planting of suitable replacement vegetation, to avoid erosion
or other damage;
- to conduct vegetation management
upon the Vegetation Management Area, such as the planting
of vegetation compatible with use for Hydro Purposes, and
the application of herbicides and pesticides provided that:
- Hydro will not conduct any aerial
application of herbicides or pesticides on the Hydro
Right of Way Area or other Nisga'a Lands; and
- Hydro will obtain all permits and
approvals as required by authorities having jurisdiction,
including any such permits or approvals required by
the Nisga'a Nation, for the use of any herbicides or
pesticides;
- to clear the Hydro Right of Way Area
and keep it cleared of all or any part of any obstructions
that may in the reasonable opinion of Hydro create a hazard
or interfere with the Hydro Works or the carrying out of
any of the Hydro Purposes;
- to install, maintain and use gates in
all fences constructed by others which are now or hereafter
shall be on the Hydro Right of Way Area and in fences across
roads in the Vegetation Management Area;
- to ground any structures, installation
or things, by whomsoever owned, from time to time situated
anywhere on the Hydro Right of Way Area or adjacent Nisga'a
Lands where, in the reasonable opinion of Hydro, such grounding
will eliminate or reduce hazard to persons;
- to pass and repass over the Hydro Right
of Way Area with or without equipment, machinery and materials
as reasonably required by Hydro, and to construct, maintain,
repair, replace and use trails, roads and bridges on the
Hydro Right of Way Area as reasonably required to obtain
access to the Hydro Works; and
- to generally do all acts or things necessary
in connection with the foregoing.
Non Exclusive Use
This Agreement will not entitle Hydro to exclusive possession
of the Hydro Right of Way Area or other parts of the Nisga'a
Lands and the Nisga'a Nation reserves the right to grant other
dispositions of the Vegetation Management Area, including the
Hydro Right of Way Area, so long as the grant does not materially
affect the exercise of Hydro's rights under this Agreement.
BC TEL
Hydro will cooperate and enter into agreements with BC TEL in
the same manner as Hydro and BC TEL cooperate and enter into
agreements elsewhere in British Columbia, to share the use of
poles, ducts and other works.
Licence For Hydro Works Located
Outside Rights of Way
The Nisga'a Nation grants to Hydro, and its employees, representatives,
agents, contractors, licensees and assignees, as of the effective
date, a licence for all Licensed Hydro Works to use and occupy
Nisga'a Lands on the following terms:
- the licence is irrevocable so long as
Hydro requires the use of the Licensed Hydro Works for Hydro
Purposes, unless the Licensed Hydro Works are included within
a Crown road right of way area or Hydro Right of Way Area
under this paragraph;
- for the Licensed Hydro Works, Hydro
holds the same rights, privileges and obligations, including
all indemnity obligations, as apply to Hydro for the use
of the Hydro Right of Way Area under this Agreement, and
including the right of reasonable access onto the Nisga'a
Lands for the purpose of gaining access to the Licensed
Hydro Works;
- if at any time in the course of maintenance
or operations Hydro replaces or makes significant repairs
to Licensed Hydro Works which are adjacent to a Crown road
right of way area or a Hydro Right of Way Area then, upon
written notice from the Nisga'a Nation and provided the
relocation does not result in significant increased costs,
and for a Crown road right of way area if the relocation
is acceptable to British Columbia, Hydro will relocate the
Licensed Hydro Works on to the adjacent right of way area,
and the licence for those Licensed Hydro Works will be terminated;
- the Nisga'a Nation may at any time at
no cost to Hydro require Hydro to enter into an agreement
to extend the Hydro Right of Way Area so as to incorporate
within the Hydro Right of Way Area any Licensed Hydro Works
designated by the Nisga'a Nation and upon the appropriate
extension of the Hydro Right of Way Area the licence for
those Licensed Hydro Works will be terminated;
- the Nisga'a Nation may at any
time require Hydro to relocate Licensed Hydro Works designated
by the Nisga'a Nation to another location on Nisga'a Lands,
including on to an adjacent Crown road right of way area
if acceptable to British Columbia, or to a Hydro Right of
Way Area and in that event:
- if the new location is reasonably
suitable for use for Hydro Works considering construction,
maintenance and operation and costs, Hydro will proceed
with the relocation;
- the Nisga'a Nation will give reasonable
notice to permit design, planning and construction of
the Hydro Works to be relocated;
- the Nisga'a Nation will pay all
reasonable costs, including costs of design, supervision
and construction; and
- upon relocation, this licence is
extended to the relocated Hydro Works, except if the
relocated Hydro Works are located on a Crown road right
of way area or a Hydro Right of Way Area, then the license
for those Hydro Works will be terminated.
Duration
The rights, liberties and rights of way granted under this Agreement
are for so long as required and will terminate, without compensation
to Hydro, when Hydro no longer requires the Hydro Right of Way
Area, and:
- Hydro gives 90 days written notice to
the Nisga'a Nation; or
- the Nisga'a Nation gives 90 days written
notice to Hydro.
Work Plans For Hydro Works
Except in an emergency, Hydro will provide to the Nisga'a Nation
a written work plan describing proposed work on or related to
a Hydro Right of Way Area prior to undertaking any of the following
work:
- installation of any new transmission
or distribution lines;
- relocation of any transmission or distribution
lines;
- trimming or removal of any trees, growth
or vegetation on or adjacent to a Hydro Right of Way Area,
including the Vegetation Management Area;
- constructing any new trails, roads or
bridges on the Hydro Right of Way Area.
Hydro will provide the work plan in
time to afford the Nisga'a Nation the opportunity to comment,
and Hydro will use reasonable efforts to accommodate any suggestions
or requests presented by the Nisga'a Nation provided they do
not result in significant increased costs.
Insurance and Security
If British Columbia requires Hydro to carry insurance, to provide
security, or both, in relation to rights of way granted to Hydro
by British Columbia, then on request of the Nisga'a Nation,
Hydro will obtain insurance, security, or both, for the benefit
of the Nisga'a Nation on terms substantially the same as required
by British Columbia.
Access to Hydro Rights of Way
If for any reason Hydro is unable to obtain reasonable access
to any Hydro Works from the Hydro Right of Way Area, a Crown
road, a Nisga'a road or a Hydro private access right of way,
then the Nisga'a Nation will, where land access is reasonably
practicable, on application from Hydro, grant Hydro the right
to cross Nisga'a Lands to provide Hydro access on terms substantially
the same as contained in Document 3 of Appendix C4 to the Final
Agreement.
Hazardous Trees Adjacent to Hydro Right
of Way
Hydro may remove any tree located on Nisga'a Lands which by
falling or otherwise may endanger any Hydro Works, but, except
in an emergency, will give the Nisga'a Nation prior written
notice.
Protection of the Environment
Hydro will undertake activities permitted under this Agreement
having regard for the impact on the environment, and will take
prudent measures to minimize damage or disruption to the environment.
Replacement Right of Way
If a material change occurs to lands which for any reason makes
the continued use of any portion of the Hydro Right of Way Area
unsuitable for the Hydro Purposes, then the Nisga'a Nation will,
without charge, grant a replacement right of way to Hydro for
construction of the replacement Hydro Works, as follows:
- Hydro will, before undertaking any work,
deliver a work plan to the Nisga'a Nation indicating the
location of the contemplated replacement right of way area,
for approval by the Nisga'a Nation which approval will not
be unreasonably withheld;
- Hydro will take into account the effect
of the replacement right of way area on adjacent Nisga'a
Lands, and any unique aspects of these lands, and the Nisga'a
Nation will take into account the cost efficiencies of the
location selected by Hydro for a replacement right of way
area in relation to alternative locations;
- the replacement right of way agreement
will be on the same terms and conditions as this Agreement,
and the Nisga'a Nation will use its best efforts to ensure
that the replacement right of way has the same priority
over other charges and encumbrances as this Agreement;
- Hydro will execute a release of this
Agreement in relation to the portions of the abandoned Hydro
Right of Way Area.
Despite any provision of this paragraph,
in an emergency Hydro may, without approval from the Nisga'a
Nation, enter on to Nisga'a Lands to undertake all work and
take all steps as are reasonably required to be taken immediately
in order to restore electrical and telecommunication services,
or to ensure safety of persons and property that may be at risk
from Hydro Works. Hydro will give notice as soon as reasonably
possible to the Nisga'a Nation of any emergency entry.
Entry on Nisga'a Lands outside
the Hydro Right of Way Area
Hydro, and its employees, representatives, agents, contractors,
licensees and assignees, may enter onto Nisga'a Lands outside
the Hydro Right of Way Area for the purpose of undertaking works
to protect Hydro Works, or to protect persons and property that
may be at risk from Hydro Works, as follows:
- Hydro will before commencing any work
deliver a written work plan describing the effect and extent
of the proposed work on Nisga'a Lands to the Nisga'a Nation
for approval;
- the Nisga'a Nation will not unreasonably
withhold approval of the work plan, considering the effect
of the proposed work, including the cost of the proposed
works compared to the cost of alternate solutions, the extent
of the risk of not undertaking the work, and the impact
on the Nisga'a Lands. If Hydro and the Nisga'a Nation cannot
agree on a work plan requested by Hydro within 30 days of
receipt by the Nisga'a Nation of the proposed work plan
then either party may refer the disagreement to dispute
resolution under Paragraph 21 of this Agreement;
- Hydro will minimize damage to and time
spent on Nisga'a Lands;
- Hydro will pay fair compensation, as
defined in the Final Agreement, for any interference with
or damage to adjacent Nisga'a Lands.
Notwithstanding other provisions of
this paragraph or this Agreement, in an emergency Hydro may
undertake works and take steps on Nisga'a Lands as are reasonably
required to be taken immediately in order to protect Hydro Works,
or to protect persons and property that may be at risk from
Hydro Works, and in that event Hydro will as soon as reasonably
possible notify the Nisga'a Nation in writing.
Entry on Nisga'a Lands outside the Crown
roads right of way area
The parties' rights and obligations as set out in paragraph
14 apply with respect to Hydro Works located on a Crown roads
right of way area.
Relocation of Hydro Works
If the Nisga'a Nation requires a portion of a Hydro Right of
Way Area for other purposes, then upon request by the Nisga'a
Nation Hydro will relocate any Hydro Right of Way Area including
the related Hydro Works, to a new location as follows:
- the relocation will proceed only if
the new location is reasonably suitable for use for Hydro
Works considering construction, maintenance and operation
and costs; and
- the Nisga'a Nation will give reasonable
notice to permit design, planning and construction of the
Hydro Works to be relocated; and
- the Nisga'a Nation will pay all reasonable
costs, including costs of design, supervision and construction.
The Nisga'a Nation will extend the Hydro
Right of Way Area as reasonably required, so that the extended
Hydro Right of Way Area has similar priority over other charges
and encumbrances as the original. When a portion of a Hydro
Right of Way Area is relocated then the Hydro Right of Way Area
for the portion that is abandoned will be terminated.
Indemnity
Hydro will indemnify and save harmless the Nisga'a Nation from
and against all losses, damages, costs, liabilities, claims,
expenses, and suits, including fees of solicitors and other
professional advisors, arising out of:
- any breach, violation or non-performance
by Hydro of any of Hydro's covenants, conditions or obligations
under this Agreement; and
- any personal injury, death, or property
damage, including environmental damage, occurring on or
to Nisga'a Lands arising from Hydro's use or occupation
of Nisga'a Lands under this Agreement,
but not for any claims based on nuisance
or the rule in Rylands v Fletcher unless Hydro was negligent.
Covenants of Hydro
Hydro covenants with the Nisga'a Nation:
- to pay compensation to the Nisga'a Nation
for any damage to buildings, crops (except for trees in
the Vegetation Management Area), livestock, drains, ditches,
culverts, fences, trails, bridges, roads and fruit, nut
or ornamental trees caused by Hydro;
- despite subparagraph (a), to pay compensation
to its owner, in accordance with generally accepted principles
of timber valuation, for all merchantable timber cut or
damaged by Hydro on Nisga'a Lands on or adjacent to the
Hydro Right of Way Area, and the parties agree that on payment,
title to any timber cut on the Nisga'a Lands under this
Agreement vests in Hydro;
- to pay and discharge when due all applicable
taxes, levies, charges and assessments now or hereafter
assessed, levied or charged to the account of Hydro which
relate to the Hydro Right of Way Area and which Hydro is
liable to pay;
- to keep the Hydro Right of Way Area,
and any Hydro Works, in a safe, clean and sanitary condition
to the extent the condition relates to Hydro's use or occupation
of the Hydro Right of Way Area, and on written notice from
the Nisga'a Nation, to make safe, clean and sanitary any
portion of the Hydro Right of Way Area, or the Hydro Works
that contravene the provisions of this covenant, provided
that Hydro has no obligation to keep the Hydro Right of
Way roads or access roads, suitable for use by anyone except
Hydro;
- not to disturb or interfere with any
survey monuments, bars or iron pins located on the Nisga'a
Lands including the Hydro Right of Way Area;
- not to bury debris or rubbish of any
kind on Nisga'a Lands in excavations or backfill, and to
remove shoring and similar temporary structures as backfilling
proceeds;
- to bury and maintain all underground
works as may be required so as not to unduly interfere with
the drainage of the Nisga'a Lands;
- not to commit or suffer any wilful or
voluntary waste, spoil or destruction on the Hydro Right
of Way Area, or anything that may be or become a nuisance
or annoyance to the owners of the Nisga'a Lands, except
to the extent necessary to carry out any of the Hydro Purposes;
- to observe, abide by and comply with
all applicable laws, bylaws, orders, directions, ordinances
and regulations of any competent governmental authority
which relate to the Hydro Right of Way Area;
- to permit the Nisga'a Nation to enter
upon the Hydro Right of Way Area at any time to examine
its condition;
- if for any reason this Agreement
terminates with respect to a portion of the Hydro Right
of Way Area, to:
- quit peaceably that portion of the
Hydro Right of Way Area;
- decommission any Hydro roads and
restore the surface of that portion of the Hydro Right
of Way Area to a condition to which similar lands are
typically restored in the Province of British Columbia,
unless otherwise agreed to in writing by the Nisga'a
Nation and Hydro at the time of restoration;
- remove all above ground Hydro Works
from that portion of the Hydro Right of Way Area within
a reasonable period of time and in any event within
2 years, and any Hydro Works remaining on that portion
of the Hydro Right of Way Area will be absolutely forfeited
to and become the property of the Nisga'a Nation. If
the Nisga'a Nation removes any remaining above ground
Hydro Works within 4 years, Hydro will, on demand by
the Nisga'a Nation, reimburse the Nisga'a Nation for
all reasonable costs of removal; and
- remain liable for any environmental
damage to the Nisga'a Lands arising from any below ground
Hydro Works that remain on or in that portion of the
Hydro Right of Way Area after termination, except that
if the Nisga'a Nation uses or authorizes the use of
the remaining below ground Hydro Works for any purpose
then Hydro will not be liable for any environmental
damage caused by the Nisga'a Nation use, or authorized
use;
and to the extent necessary, this covenant will survive
the termination of this Agreement; and
- if Hydro, or its employees, representatives,
agents, contractors, licensees or assignees, discover any
archaeological material on the Hydro Right of Way Area,
to take all reasonable steps and precautions to minimize
disturbance of that material, and to immediately notify
the Nisga'a Nation.
Covenants of the Nisga'a Nation
The Nisga'a Nation covenants with Hydro:
- not to use or authorize the use of the
portions of the Hydro Right of Way Area designated by Hydro,
acting reasonably, as "non-parking areas" for the regular
or organized parking of vehicles, provided that nothing
in this paragraph is intended to prevent safe temporary
parking of vehicles;
- not to park or authorize to be parked
on the Hydro Right of Way Area any vehicle or equipment
exceeding 25 feet in length under any conductor of 500 kV
or higher voltage, unless such vehicle is properly grounded;
- not to use or authorize the use of the
Hydro Right of Way Area for fuelling any vehicle or equipment;
- not to use or authorize the use of the
Hydro Right of Way Area for any purpose, including the construction
of any improvements, that in the reasonable opinion of Hydro
would be unsafe or would interfere with Hydro's use of the
Hydro Right of Way Area;
- not to carry out blasting or aerial
logging operations on or immediately adjacent to the Hydro
Right of Way Area without the prior written permission from
Hydro, which permission will not be unreasonably withheld
or delayed; and
- not to intentionally do or authorize
any act or thing that injures or endangers the Hydro Works.
Licence
Hydro will not licence the use of the Hydro Right of Way Area,
in whole or in part, without the prior written consent of the
Nisga'a Nation provided that:
- Hydro may grant a licence to BC Tel
for the use of the Hydro Right of Way Area without the consent
of the Nisga'a Nation;
- the Nisga'a Nation may attach conditions
to its consent to any licence, including the provision of
insurance and security, in a form and amount acceptable
to the Nisga'a Nation; and
- no licence will act as a release of
any of Hydro's obligations as set out in this Agreement.
Disputes
Any dispute arising out of or in connection with this Agreement
will be resolved as follows:
- the parties will attempt to resolve disputes
by good faith negotiations, including timely disclosure of
all relevant facts, information and documents;
- 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;
- 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 of competent
jurisdiction at any time for interim or conservatory relief
and for the court to grant that relief.
Notice
If notice is required or permitted under this Agreement, the
notice:
- must be in writing;
- must be delivered to the address set
out above, or other address as specified in writing by a
party;
- may be given in one or more of
the following ways:
- delivered personally or by courier,
and it will be deemed received on the next business
day;
- delivered by fax, and it will be
deemed received on the next business day; or
- mailed by pre-paid post in Canada,
and it will be deemed received on the eighth business
day following.
Runs With the Land
This Agreement runs with and binds Nisga'a Lands, to the extent
reasonably necessary to give full force and effect to this Agreement.
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.
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.
Successors and Assigns
The terms and provisions of this Agreement will extend to, be
binding upon and enure to the benefit of the parties and their
successors and assigns.
Interpretation
In this Agreement:
- all attached schedules form an integral
part of this Agreement;
- unless the context otherwise requires,
the singular includes the plural and the masculine include
the feminine gender, body politic and a corporation;
- 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;
- 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
- 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.
IN WITNESS THEREOF the parties have duly executed
this Agreement, as of the date first referred to above.
NISGA'A NATION
Per:
Per:
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
Per:
Per:
SCHEDULE A - DESCRIPTION OF
HYDRO RIGHT OF WAY AREA
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Nisga'a Final
