GRANT OF RIGHT OF WAY FOR
ACCESS ROADS 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 wish to grant to Hydro
rights on Nisga'a Lands for certain roads 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 Access Roads" means trails or roads that provide
access to a Hydro right of way or works, including surfacing,
bridges, drainage and support works, and other works required
to maintain the integrity of the travelled surface.
"Hydro Access Road Areas" means those portions of Nisga'a
Lands as described in Schedule A attached to this Agreement.
"Hydro Purposes" means the transmission and distribution
of electric energy and telecommunications.
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 Access Road Areas
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, as follows:
- to construct, operate, maintain, repair,
alter, upgrade, remove and replace Hydro Access Roads, and
remove and trim trees, vegetation and obstructions, on the
Hydro Access Road Areas;
- to install, maintain and use gates in
all fences constructed by others which are now or hereafter
shall be on the Hydro Access Road Areas;
- to pass and repass over the Hydro Access
Road Areas with or without equipment, machinery and materials
as reasonably required by Hydro; 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 Access Road Areas or other parts of the Nisga'a
Lands and the Nisga'a Nation reserves the right to grant other
dispositions of the Hydro Access Road Areas so long as the grant
does not materially affect the exercise of Hydro's rights under
this Agreement.
Duration
In respect of a Hydro Access Road Area, 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:
- the Hydro right of way that the Hydro
Access Road Area serves terminates; or
- Hydro no longer requires the Hydro
Access Road Areas, 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 Access Roads
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 Access Road Area prior to undertaking the construction
or development of any Hydro Access Road. 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.
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.
Entry on Nisga'a Lands outside
the Hydro Right of Way Areas
Hydro, and its employees, representatives, agents, contractors,
licensees and assignees, may enter onto Nisga'a Lands outside
the Hydro Access Road Areas for the purpose of undertaking works
to protect Hydro Access Roads, or to protect persons and property,
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 14 of this Agreement;
- Hydro will minimize the 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 Access
Roads, and in that event Hydro will as soon as reasonably possible
notify the Nisga'a Nation in writing.
Relocation of Hydro Access Road
Areas
If the Nisga'a Nation requires a portion of a Hydro Access Road
Area for another purpose, then upon request by the Nisga'a Nation,
Hydro will relocate any Hydro Access Road Area, including the
related Hydro Access Road, to a new location as follows:
- the relocation will proceed only if
the new location is reasonably suitable for use for a Hydro
Access Road 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 Access Road 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 a Hydro
Access Road Area as reasonably required, so that the extended
Hydro Access Road Area has similar priority over other charges
and encumbrances as the original. When a portion of a Hydro
Access Road Area is relocated, then the Hydro Access Road 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 Hydro Access Road Areas), 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 Access Road Areas, 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 Access Road Areas and which Hydro is
liable to pay;
- to keep the Hydro Access Road Areas
in a safe, clean and sanitary condition to the extent the
condition relates to Hydro's use or occupation, and on written
notice from the Nisga'a Nation to make safe, clean and sanitary
any portion of the Hydro Access Road Areas that contravene
the provisions of this covenant, provided that Hydro has
no obligation to keep the Hydro 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 Access Road Areas;
- 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 Nisga'a Lands;
- not to commit or suffer any wilful or
voluntary waste, spoil or destruction on the Hydro Access
Road Areas, 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 matters
under this Agreement;
- 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 Access Road Areas;
- to permit the Nisga'a Nation to enter
upon the Hydro Access Road Areas at any time to examine
its condition;
- if for any reason this Agreement
terminates with respect to a portion of the Hydro Access
Road Areas, to:
- quit peaceably that portion of the
Hydro Access Road Areas; and
- decommission any Hydro Access Roads
on, and restore the surface of, that portion of the
Hydro Access Road Areas to a condition to which similar
lands are typically restored in British Columbia, unless
otherwise agreed to in writing by the Nisga'a Nation
and Hydro at the time of restoration;
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 Access Road Areas,
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
Hydro Access Road Areas 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 Access Road Areas; and
- not to intentionally do or authorize
any act or thing that injures or endangers the Hydro Access
Roads.
Licence
Hydro will not licence the use of the Hydro Access Road Areas,
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 Access Road Areas 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 ACCESS ROAD AREAS
|
Nisga'a Final
