Table of Contents

CHAPTER 4 — LANDS

TSAWWASSEN LANDS

1.  On the Effective Date, Tsawwassen Lands consist of those lands set out in Appendix C-4 including, subject to clause 96, the Former Tsawwassen Reserve and all Subsurface Resources on or beneath the surface of Tsawwassen Lands.

2.  On the Effective Date, subject to clauses 10 and 11, Tsawwassen First Nation owns Tsawwassen Lands in fee simple, being the largest estate known in law. That estate of Tsawwassen First Nation is not subject to any condition, proviso, restriction, exception or reservation set out in the Land Act, or any comparable limitation under Federal or Provincial Law. No estate or interest in Tsawwassen Lands may be expropriated except as permitted by, and under, this Agreement.

3.  Under this Agreement, the Tsawwassen Constitution and Tsawwassen Law, Tsawwassen First Nation may:

a. Dispose of the whole of its estate in fee simple in any parcel of Tsawwassen Lands to any Person; and

b. from the whole of its estate in fee simple, or its interest, in any parcel of Tsawwassen Lands, create or Dispose of any lesser estate or interest to any Person, including rights of way and covenants similar to those in sections 218 and 219 of the Land Title Act,

without the consent of Canada or British Columbia.

4.  Where Tsawwassen First Nation Disposes of its estate in fee simple in a parcel of Tsawwassen Lands, that parcel of land does not cease to be Tsawwassen Lands.

5.  All methods of acquiring a right in or over land by prescription or adverse possession, including the common law doctrine of prescription and the doctrine of the lost modern grant, are abolished in respect of Tsawwassen Lands.

6.  If, at any time, any parcel of Tsawwassen Lands, or any estate or interest in a parcel of Tsawwassen Lands, finally escheats to British Columbia, British Columbia will transfer, at no charge, that parcel, estate or interest to Tsawwassen First Nation.

7.  An estate, interest, reservation or exception held by Tsawwassen First Nation or by a Tsawwassen Public Institution in any parcel of Tsawwassen Lands:

a. the title to which is not registered in the Land Title Office; or

b. in respect of which title no application for registration in the Land Title Office has been made,

is not subject to attachment, charge, seizure, distress, execution or sale under a Writ of Execution, order for sale or other process unless the attachment, charge, seizure, distress, execution or sale under a Writ of Execution, order for sale or other process is:

c. made or issued for the purpose of enforcing, in accordance with its terms, a security instrument granted by Tsawwassen First Nation or by a Tsawwassen Public Institution;

d. allowed under Tsawwassen Law; or

e. made or issued for the purpose of enforcing a lien in favour of Canada or British Columbia.

8.  An estate, interest, reservation or exception held by Tsawwassen First Nation or by a Tsawwassen Public Institution in any parcel of Tsawwassen Lands:

a. the title to which is registered in the Land Title Office; or

b. in respect of which title an application for registration in the Land Title Office has been made,

is not subject to seizure or sale under a Writ of Execution, order for sale or other process unless the Writ of Execution, order for sale or other process is:

c. made or issued for the purpose of enforcing, in accordance with its terms, a security instrument granted by Tsawwassen First Nation or by a Tsawwassen Public Institution;

d. allowed under Tsawwassen Law;

e. made or issued for the purpose of enforcing a lien in favour of Canada or British Columbia; or

f. by leave of the Supreme Court of British Columbia under clause 165 of the Governance chapter.

9.  On the Effective Date, Tsawwassen Lands and Tsawwassen Water Lots are not within the boundaries of the Corporation of Delta.

INTERESTS ON TSAWWASSEN LANDS

10.  On the Effective Date, the title of Tsawwassen First Nation to Tsawwassen Lands is free and clear of all interests except:

a. any applicable interests referred to in Appendices D-1 and D-2, until such time as the Tsawwassen Fee Simple Interests are Disposed of under clause 11; and

b. any applicable interests referred to in Appendices D-3, D-4, D-5, D-6 and D-7.

11.  On the Effective Date, Tsawwassen First Nation will Dispose of, to each individual identified in Appendix D-1, a Tsawwassen Fee Simple Interest, free and clear of all interests except any applicable interests referred to in Appendices D-2 and D-3. For greater certainty, any Tsawwassen Law made under clause 1 of the Land Management chapter applies in respect of Tsawwassen Lands including Tsawwassen Fee Simple Interests.

12.  Where, on the Effective Date, Tsawwassen First Nation Disposes of an interest or issues a replacement interest, Tsawwassen First Nation will execute documents in respect of that interest, in accordance with clauses 13 and 14.

13.  Documents referred to in clause 12 will be in the applicable form, if any, set out in Appendix D-9, and will include any modification that Tsawwassen First Nation and the holder of the interest have agreed to in writing.

14.  Documents referred to in clause 12 are deemed to be:

a. executed and delivered by Tsawwassen First Nation on the Effective Date; and

b. executed and delivered by the Person entitled to the interest on the Effective Date, whether or not the document is actually executed or delivered by that Person.

15.  If Canada or British Columbia notifies Tsawwassen First Nation that an interest referred to in clause 10 or 11:

a. is in the name of a Person who was not entitled to that interest on the Effective Date; or

b. contains a clerical error or a wrong description of a material fact,

the responsible Parties will take reasonable measures to rectify the error.

16.  On the Effective Date, Tsawwassen First Nation will execute any documents or undertakings required to assume any obligations in respect of the interests referred to in clause 10.

17.  British Columbia will indemnify and forever save harmless Tsawwassen First Nation from any and all damages, losses, liabilities, or costs excluding fees and disbursements of solicitors and other professional advisors, that Tsawwassen First Nation may suffer or incur in connection with or as a result of any suit, action, cause of action, claim, proceeding or demand relating to or arising out of:

a. the omission from Appendix D-3 or D-7 of the name of a Person who, immediately before the Effective Date, had an interest in Tsawwassen Lands that had been granted by British Columbia; or

b. the incorrect naming of a Person in Appendix D-3 or D-7 as a Person entitled to an interest, where another Person was actually entitled, immediately before the Effective Date, to the interest in Tsawwassen Lands that had been granted by British Columbia.

OTHER TSAWWASSEN LANDS

18.  Other Tsawwassen Lands consist of:

a. on the Effective Date, the Boundary Bay Parcels and the Fraser River Parcels, both as set out in Appendix E-2; and

b. after the Effective Date, other lands that Tsawwassen First Nation acquires in fee simple that are not Tsawwassen Lands.

19.  On the Effective Date, Tsawwassen First Nation owns Other Tsawwassen Lands set out in Appendix E-2 in fee simple, subject to the conditions, provisos, restrictions, exceptions and reservations set out in the Land Act and subject to the interests set out in Appendix E-3.

20.  If, after the Effective Date, Tsawwassen First Nation acquires land for which the estate in fee simple includes ownership of Subsurface Resources, Tsawwassen First Nation will own the Subsurface Resources on those Other Tsawwassen Lands.

21.  Tsawwassen First Nation does not have the power to make laws in respect of Other Tsawwassen Lands unless otherwise provided in this Agreement.

SUBSURFACE RESOURCES — MANAGEMENT AND ADMINISTRATION

22.  As owners of the Subsurface Resources on or under Tsawwassen Lands, and where Tsawwassen First Nation owns Subsurface Resources on or under Other Tsawwassen Lands in accordance with clause 20, Tsawwassen First Nation may set fees, rents, royalties or charges other than taxes, related to the exploration, development, extraction or production of those Subsurface Resources.

23.  Clause 22 does not limit British Columbia from determining, collecting and receiving administrative fees, charges or other payments, relating to the exploration, development, extraction or production of Subsurface Resources from Tsawwassen Lands or Other Tsawwassen Lands, as applicable.

24.  Nothing in this Agreement confers jurisdiction on Tsawwassen Government to make laws in relation to the exploration for, development, production, use or application of nuclear energy or atomic energy or the production, possession or use, for any purpose, of nuclear substances, prescribed substances, prescribed equipment or prescribed information.

25.  Nothing in this Agreement confers jurisdiction on Tsawwassen Government to make laws in respect of:

a. spacing and target areas related to petroleum and natural gas, or the conservation and allocation of petroleum and natural gas among parties having interests in the same reservoir;

b. labour relations and working conditions, including occupational health and safety, in respect of exploration, development, production and site reclamation relating to Subsurface Resources;

c. protection and reclamation of land and water courses in respect of the exploration, development or production of Subsurface Resources; or

d. the closure, reclamation or abandonment of mines.

TSAWWASSEN WATER LOTS

26.  On the Effective Date, British Columbia will issue to Tsawwassen First Nation, in the form set out in Appendix F-2, water lot leases in respect of the Tsawwassen Water Lots.

27.  For so long as Tsawwassen First Nation is the lessee of a Tsawwassen Water Lot, Tsawwassen Government may make laws, subject to and consistent with the applicable Tsawwassen Water Lot lease, in respect of the regulation, control or prohibition of any action, activity or undertaking that constitutes, or may constitute, a nuisance, a trespass, a danger to public health or a threat to public order, peace or safety on that Tsawwassen Water Lot, other than actions, activities or undertakings authorized by the Crown.

28.  A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 27.

29.  British Columbia will not designate Tsawwassen Lands or lands within the Tsawwassen Water Lots as a Wildlife Management Area, Protected Area, Provincial Park, conservancy or ecological reserve.

RECONCILIATION FUND

30.  On the Effective Date, Canada will provide to Tsawwassen First Nation an amount, to be paid in accordance with clause 1 of the Capital Transfer and Negotiation Loan Repayment chapter, for the purpose of establishing a Reconciliation Fund in respect of legacy projects. The value in 2006 of that amount is approximately $440,000.

AGRICULTURAL LAND RESERVE

31.  On the Effective Date, the Tsawwassen Lands set out in Appendix G-2 and Other Tsawwassen Lands retain the designation as an agricultural land reserve under the Agricultural Land Commission Act.

32.  On the Effective Date, the Tsawwassen Lands set out in Appendix G-3 are excluded from the designation as an agricultural land reserve under the Agricultural Land Commission Act. For greater certainty, on the Effective Date, the Former Tsawwassen Reserve is not included in the designation as an agriculture land reserve under the Agricultural Land Commission Act.

33.  Clause 31 does not result in a permanent designation of Tsawwassen Lands or Other Tsawwassen Lands as an agricultural land reserve. After the Effective Date, the Agricultural Land Commission may remove that designation in accordance with the Agricultural Land Commission Act.

34.  In respect of Tsawwassen Lands and the Former Tsawwassen Reserve referred to in clause 32, those lands will not be included within the agricultural land reserve at any time after the Effective Date, except with the consent of Tsawwassen First Nation.

RIGHTS OF REFUSAL

35.  Tsawwassen First Nation has the rights of refusal to purchase, on the terms and conditions set out in Appendix H-3, the Rights of Refusal Lands, which include Category B Lands within the meaning of the 1998 Roberts Bank Protocol Agreement between Tsawwassen First Nation and British Columbia.

ADDITION TO OR REMOVAL FROM TSAWWASSEN LANDS

36.  Tsawwassen First Nation may add lands that it owns in fee simple to Tsawwassen Lands, in accordance with clauses 37 through 49, no more often than once every five years.

37.  Nothing requires Canada or British Columbia to assume financial or other obligations associated with any addition to Tsawwassen Lands, including paying any costs arising because the lands added are not contiguous to Tsawwassen Lands.

38.  Any financial charge or encumbrance on lands to be added to Tsawwassen Lands must be paid in full and discharged before the lands are added to Tsawwassen Lands, unless the holder of the charge or encumbrance agrees otherwise.

39.  Any interest, other than a financial charge or encumbrance, on lands to be added to Tsawwassen Lands will continue, unless the holder of that interest agrees otherwise.

40.  Tsawwassen First Nation will own the Subsurface Resources on lands that are added to Tsawwassen Lands if:

a. the estate in fee simple includes ownership of Subsurface Resources; or

b. British Columbia and Tsawwassen First Nation agree.

41.  Specified Lands include Category B lands within the meaning of the 1998 Roberts Bank Protocol Agreement between Tsawwassen First Nation and British Columbia.

42.  If, within 50 years after the Effective Date, Tsawwassen First Nation owns any parcel of Specified Lands in fee simple, that parcel of Specified Lands will become Tsawwassen Lands after completion of the process set out in clauses 43 and 44.

43.  Before the addition of any parcel of Specified Lands to Tsawwassen Lands, Tsawwassen First Nation will:

a. hold discussions with any resident of, or interest holder in, the parcel of Specified Lands and with the Corporation of Delta;

b. address the provision of any service provided by any municipality to a parcel of Specified Lands and any tax revenue matter related to such service;

c. consider whether a road that is adjacent to a parcel of Specified Lands should be a Local Road or a Local Boundary Road;

d. consider the compatibility of any land use plan of Tsawwassen First Nation with any municipal or regional land use or transportation plan applying to that parcel of Specified Lands; and

e. provide reasonable notice to Canada, British Columbia, the Greater Vancouver Regional District and the Corporation of Delta in respect of the addition of the parcel of Specified Lands and Tsawwassen First Nation will confirm in the notice that it has dealt with the matters set out in subclauses 43.a through 43.d.

44.  Within 150 days of receipt of the notice referred to in subclause 43.e:

a. the Parties will amend Appendix C-4 in accordance with clause 11 of the Amendment chapter to change the boundaries of Tsawwassen Lands;

b. the Lieutenant Governor in Council will issue supplementary letters patent adjusting the area of the Corporation of Delta; and

c. the parcel of Specified Lands will become Tsawwassen Lands upon the last of these events to occur.

45.  After the 50-year period referred to in clause 42, British Columbia will consider a request by Tsawwassen First Nation to add land, including any parcel of the Specified Lands, to Tsawwassen Lands if:

a. Tsawwassen First Nation owns the land in fee simple;

b. the land is within Tsawwassen Territory; and

c. the land is:

i. outside municipal boundaries and a change in jurisdiction to that land will not unreasonably restrict the expansion or development of a municipality; or

ii. inside municipal boundaries and the municipality consents.

46.  In addition to the matters set out in clause 45, British Columbia will take into account among other factors:

a. whether the land is contiguous to existing Tsawwassen Lands; and

b. the interests of a regional district in cases where the land is within a regional district but not within a municipality.

47.  After the 50-year period referred to in clause 42, Canada will consider a request from Tsawwassen First Nation to add land, including any parcel of the Specified Lands, to Tsawwassen Lands if:

a. Tsawwassen First Nation owns the lands in fee simple;

b. the lands are within Tsawwassen Territory; and

c. the lands are:

i. free from any overlapping aboriginal claim; or

ii. subject to an overlapping aboriginal claim and the claimant consents.

48.  In considering whether to consent to a request referred to in clause 45 or 47, British Columbia or Canada may take into account any other matter that British Columbia or Canada, respectively, considers relevant.

49.  If Canada and British Columbia consent to an addition, then within 150 days of receipt by Tsawwassen First Nation of written notice of that consent:

a. the Parties will amend Appendix C-4 in accordance with clause 11 of the Amendment chapter to change the boundaries of Tsawwassen Lands;

b. the Lieutenant Governor in Council will issue supplementary letters patent adjusting the boundaries of the relevant municipality; and

c. the parcel of land will become Tsawwassen Lands upon the last of these events to occur.

50.  Tsawwassen First Nation may request the consent of Canada and British Columbia to remove a parcel of Tsawwassen Lands from the jurisdiction of Tsawwassen First Nation and such lands, if removed, will cease to be Tsawwassen Lands. In considering whether to consent, Canada and British Columbia may consider:

a. necessary jurisdictional, administrative and servicing arrangements;

b. the views of any affected municipalities and neighbouring First Nations;

c. any impact on fiscal arrangements; and

d. any legal or financial implications to Canada or British Columbia.

51.  If Canada and British Columbia consent to the removal of a parcel of Tsawwassen Lands from the jurisdiction of Tsawwassen First Nation, then within 150 days of receipt by Tsawwassen First Nation of written notice of that consent:

a. the Parties will amend Appendix C-4 in accordance with clause 11 of the Amendment chapter to change the boundaries of Tsawwassen Lands;

b. the Lieutenant Governor in Council will issue supplementary letters patent adjusting the boundaries of the relevant municipality; and

c. the parcel will cease to be Tsawwassen Lands upon the last of these events to occur.

HIGHWAY 17 CORRIDOR

52.  On the Effective Date:

a. the Highway 17 Corridor is not part of Tsawwassen Lands;

b. British Columbia owns the Highway 17 Corridor except for Subsurface Resources which are owned by Tsawwassen First Nation;

c. British Columbia owns the Highway 17 Corridor for use for provincial public highway purposes, subject to existing works of Public Utility set out in Appendix Q-2; and

d. Tsawwassen First Nation may use the Subsurface Resources if that use is consistent with the use of the Highway 17 Corridor for provincial public highway purposes and works of Public Utility.

53.  If British Columbia no longer requires any portion of the Highway 17 Corridor for provincial public highway purposes:

a. at the request of Tsawwassen First Nation, Tsawwassen First Nation will take ownership of that portion in fee simple, at no cost to Tsawwassen First Nation;

b. that portion will be in the same condition as it was in at the time British Columbia ceased to use it for provincial public highway purposes;

c. the ownership of Tsawwassen First Nation of that portion will be subject to any existing works of Public Utility; and

d. that portion ceases to be part of the Highway 17 Corridor.

54.  Tsawwassen First Nation may add to Tsawwassen Lands that portion of the Highway 17 Corridor referred to in clause 53 but, before doing so, Tsawwassen First Nation will:

a. consult with any interest holder whose interest lies within that portion;

b. provide reasonable notice to Canada, British Columbia, the Greater Vancouver Regional District and the Corporation of Delta in respect of the addition; and

c. confirm in the notice that Tsawwassen First Nation has completed the consultation referred to in subclause 54.a.

55.  Within 150 days of the receipt of the notice referred to in subclause 54.b:

a. the Parties will amend Appendix C-4 in accordance with clause 11 of the Amendment chapter to change the boundaries of Tsawwassen Lands;

b. the Lieutenant Governor in Council will issue supplementary letters patent adjusting the area of the Corporation of Delta; and

c. that portion of the Highway 17 Corridor will become Tsawwassen Lands upon the last of these events to occur.

56.  Nothing in this Agreement requires British Columbia to assume any financial or other obligations, including survey costs or remediation costs, associated with an addition to Tsawwassen Lands of any portion of the Highway 17 Corridor.

DELTAPORT WAY CORRIDOR

57.  British Columbia or Canada, as applicable, will Consult with Tsawwassen First Nation before authorizing new works within the Deltaport Way Corridor.

FEDERAL EXPROPRIATION

58.  Canada acknowledges the interest of Tsawwassen First Nation in maintaining the size and integrity of Tsawwassen Lands and agrees that, as a general principle, federal expropriation of Tsawwassen Lands will be avoided where reasonably practicable, except as set out in this chapter.

59.  Where the fee simple interest in a parcel of land in the Former Tsawwassen Reserve is held by Tsawwassen First Nation, a Tsawwassen Member, a Tsawwassen Corporation or a Tsawwassen Public Institution, no interest in that parcel may be expropriated by a Federal Expropriating Authority.

60.  Despite clause 58, where the fee simple interest in a parcel of Tsawwassen Lands, including the Former Tsawwassen Reserve, is held by a Person other than Tsawwassen First Nation, a Tsawwassen Member, a Tsawwassen Corporation or a Tsawwassen Public Institution, this chapter does not apply to the expropriation of any interest in that parcel and, for greater certainty, any such interest may be expropriated under federal legislation.

61.  Despite clause 58, but subject to clause 59, where the fee simple interest in a parcel of Tsawwassen Lands is held by Tsawwassen First Nation, any interest in that parcel may be expropriated by a Federal Expropriating Authority in accordance with this chapter, federal legislation, and with the consent of the Governor in Council.

62.  Despite clause 58, but subject to clause 59, where the fee simple interest in a parcel of Tsawwassen Lands is held by a Tsawwassen Member, a Tsawwassen Corporation or a Tsawwassen Public Institution, any interest in that parcel may be expropriated by a Federal Expropriating Authority in accordance with federal legislation, and with the consent of the Governor in Council, and in accordance with clauses 63 through 68, clause 76, clause 77, and clauses 79 through 86, which apply with such modifications as the circumstances require to reflect that the interest is held by a Tsawwassen Member, a Tsawwassen Corporation or a Tsawwassen Public Institution, as the case may be, except that any return of land under clauses 79 through 82 will be to Tsawwassen First Nation.

63.  The Governor in Council may consent to an expropriation of an interest in Tsawwassen Lands only if the expropriation is justifiable in accordance with clause 64 and necessary for a public purpose.

64.  For the purposes of clause 63, 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 acquire that is not Tsawwassen Lands;

b. reasonable efforts have been made by the Federal Expropriating Authority to acquire the interest in Tsawwassen Lands through agreement with Tsawwassen First Nation;

c. the most limited interest in Tsawwassen Lands necessary for the purpose for which the interest in land is sought is expropriated and for the shortest time possible; and

d. information relevant to the expropriation, other than documents that would be protected from disclosure under federal legislation, has been provided to Tsawwassen First Nation.

65.  Before the Governor in Council consents to the expropriation of an interest in Tsawwassen Lands, the Federal Expropriating Authority will provide to Tsawwassen First Nation, and make available to the public, a report stating the justification for the expropriation and describing the steps taken to satisfy the requirements set out in clause 64.

66.  If Tsawwassen First Nation objects to a proposed expropriation of an interest in Tsawwassen Lands, it may, within 60 days after the report has been provided to Tsawwassen First Nation in accordance with clause 65, by providing notice in writing to the Federal Expropriating Authority, refer the matter for review of the steps taken to satisfy the requirements set out in clause 64 directly to neutral evaluation under Stage Two of the Dispute Resolution chapter.

67.  The Federal Expropriating Authority may not seek Governor in Council consent to the expropriation of an interest in Tsawwassen Lands before the expiration of the period referred to in clause 66 or, if Tsawwassen First Nation has referred the matter to a neutral evaluator in accordance with clause 66, before the neutral evaluator has reported on the matter, such report to be rendered to Tsawwassen First Nation and the Federal Expropriating Authority within 60 days of the referral being made, or within such additional time period as they may agree.

68.  Without limiting the generality of the Dispute Resolution chapter, the opinion of the neutral evaluator under clause 66:

a. is without prejudice to the legal positions that may be taken by a Federal Expropriating Authority and Tsawwassen First 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 clauses 63 and 64.

69.  Where a fee simple interest in a parcel of Tsawwassen Lands is expropriated by a Federal Expropriating Authority, the Federal Expropriating Authority will make reasonable efforts:

a. to identify replacement land within Tsawwassen Territory, being either Crown land or land available on a willing-seller willing-buyer basis, of equivalent or greater size and comparable value; and

b. if the replacement land is acceptable to Tsawwassen First Nation, to acquire and offer the replacement land to Tsawwassen First Nation as partial or full compensation for the expropriation.

If the Federal Expropriating Authority and Tsawwassen First Nation are unable to agree on the provision of replacement land as compensation, the Federal Expropriating Authority will provide Tsawwassen First Nation with other compensation in accordance with this Agreement.

70.  Subject to clause 73, if the replacement land identified by the Federal Expropriating Authority would result in the total size of Tsawwassen Lands being less than as at the Effective Date and Tsawwassen First Nation does not agree that the replacement land is of comparable value to the interest in Tsawwassen Lands being expropriated, then Tsawwassen First Nation may refer the issue of whether the replacement land is of comparable value to the interest in Tsawwassen Lands being expropriated to be finally determined by arbitration under the Dispute Resolution chapter.

71.  The total value of compensation for an interest in Tsawwassen Lands expropriated by a Federal Expropriating Authority under this chapter will be determined by taking into account the following factors:

a. the market value of the expropriated interest or of the Tsawwassen Lands in which an interest has been expropriated;

b. the replacement value of any improvement to Tsawwassen Lands in which an interest has been expropriated;

c. any expenses or losses resulting from a disturbance directly attributable to the expropriation;

d. any reduction in the value of any interest in Tsawwassen Lands that is not expropriated which directly relates to the expropriation;

e. any adverse effect on any cultural or other special value of Tsawwassen Lands in which an interest has been expropriated to Tsawwassen First Nation, provided that the cultural or other special value is only applied to an interest in Tsawwassen Lands recognized in law and held by Tsawwassen First Nation, and provided that there will be no increase in the total value of compensation on account of any Section 35 Rights of Tsawwassen First Nation; and

f. the value of any special economic advantage arising out of or incidental to the occupation or use of Tsawwassen Lands by Tsawwassen First Nation to the extent that the value is not otherwise compensated.

72.  Subject to clause 73, if the total value of compensation cannot be agreed upon between the Federal Expropriating Authority and Tsawwassen First Nation, or where there is disagreement on whether the combination of replacement land and cash is equal to the total value of compensation, either the Federal Expropriating Authority or Tsawwassen First Nation may refer the issue of the total value of compensation for dispute resolution under the Dispute Resolution chapter.

73.  A dispute on the valuation of replacement land under clause 70, or on the total value of compensation under clause 72, or on the terms and conditions of the return of land under clause 82 will not delay the expropriation.

74.  Any claim or encumbrance in respect of the interest expropriated may only be claimed against the amount of compensation that is otherwise payable under clause 71.

75.  Interest on compensation is payable from the date the expropriation takes effect, at the prejudgment interest rate payable in accordance with federal legislation.

76.  Where a Federal Expropriating Authority expropriates a fee simple interest in a parcel of Tsawwassen Lands, that parcel will no longer be Tsawwassen Lands.

77.  Where a Federal Expropriating Authority expropriates less than a fee simple interest in a parcel of Tsawwassen Lands:

a. the parcel retains its status as Tsawwassen Lands;

b. the parcel remains subject to Tsawwassen Laws, except to the extent that such laws are inconsistent with the use of the parcel of land for which the expropriation took place; and

c. Tsawwassen First Nation or any interest holder may continue to use and occupy the parcel, except to the extent that 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.

78.  Canada and British Columbia will consent to replacement land, transferred by a Federal Expropriating Authority to Tsawwassen First Nation as part of the compensation in accordance with clause 69, being added to Tsawwassen Lands if:

a. the replacement land is within Tsawwassen Territory;

b. the replacement land is outside municipal boundaries and a change in jurisdiction to that land will not unreasonably restrict the expansion or development of a municipality, or the replacement land is inside municipal boundaries if the municipality consents;

c. the replacement land is free from any overlapping aboriginal claim unless the claimant consents; and

d. the addition of replacement land to Tsawwassen Lands will not result in Canada or British Columbia being required to assume financial or other obligations.

79.  Where an expropriated interest in a parcel of Tsawwassen Lands is no longer required for the purpose for which it was expropriated, the federal department, agency or entity, or its successor or assigns, will ensure that the interest in land is returned to Tsawwassen First Nation on the terms and conditions negotiated in accordance with clause 81. Subject to clause 78, where a fee simple interest in a parcel of land is returned to Tsawwassen First Nation in accordance with this clause, the parcel of land will become Tsawwassen Lands on the date of the transfer.

80.  The Minister responsible for the federal department, agency or other entity, or its successors or assigns, who holds the expropriated interest, without the consent of the Governor in Council, may decide that the expropriated interest is no longer required and may determine the disposition of any improvements.

81.  The terms and conditions of the return of an expropriated interest in Tsawwassen Lands, including requirements relating to financial considerations based on market value principles, the condition of the land to be returned, and the process for resolving disputes on the implementation of the terms and conditions, will be negotiated by Tsawwassen First Nation and the Federal Expropriating Authority at the time of the expropriation.

82.  Subject to clause 73, where the terms and conditions of the return of an expropriated interest in Tsawwassen Lands cannot be agreed upon by Tsawwassen First Nation and the Federal Expropriating Authority at the time of the expropriation, either Tsawwassen First Nation or the Federal Expropriating Authority may refer the issue to be finally determined by arbitration under the Dispute Resolution chapter.

83.  Except as otherwise provided in clauses 58 through 86, no conflict or dispute between the Parties in respect of the interpretation, application or implementation of these clauses will go to dispute resolution under the Dispute Resolution chapter.

84.  For greater certainty, and subject to clause 85, except to the extent that the provisions of this chapter modify the application of federal legislation relating to an expropriation of Tsawwassen Lands, all federal legislation relating to expropriation applies to an expropriation of Tsawwassen Lands under this chapter.

85.  Without limiting the generality of clause 27 of the General Provisions chapter, this Agreement prevails to the extent of an inconsistency with the federal Expropriation Act or other federal legislation relating to an expropriation of Tsawwassen Lands.

86.  Nothing in this Agreement affects or limits the application of the Emergencies Act (Canada), or any successor legislation, and the Emergencies Act (Canada) continues to apply in all aspects to Tsawwassen Lands.

PROVINCIAL EXPROPRIATION

87.  British Columbia acknowledges as a general principle that where it is reasonable to use other means, expropriation of Tsawwassen Lands and Other Tsawwassen Lands will be avoided.

88.  Expropriations of Tsawwassen Lands by Provincial Expropriating Authorities in total, over time, will not exceed three per cent of the amount of Tsawwassen Lands as at the Effective Date.

89.  For greater certainty, Provincial Law in respect of expropriation applies to Other Tsawwassen Lands and to additions to Tsawwassen Lands.

90.  Subject to this chapter, any expropriation of Tsawwassen Lands by and for the use of a Provincial Expropriating Authority will be carried out in accordance with applicable provincial legislation and processes.

91.  Where a Provincial Expropriating Authority has determined that it must use Tsawwassen Lands:

a. it will make reasonable efforts to acquire the land through agreement with Tsawwassen First Nation and any interest holder; and

b. it will provide to Tsawwassen First Nation and any interest holder information relevant to the acquisition or expropriation.

92.  Any expropriation of Tsawwassen Lands by a Provincial Expropriating Authority will be:

a. of the smallest estate or interest necessary, and for the shortest time required;

b. by and for the use of a provincial ministry or agent of the provincial Crown, or for the use of a Public Utility whether or not an agent of the Crown, who would otherwise have the authority to expropriate land under provincial legislation, or on whose behalf British Columbia may expropriate;

c. necessary for a public purpose; and

d. with the consent of the Lieutenant Governor in Council.

93.  The total value of the compensation provided by the Provincial Expropriating Authority will take into account among other factors:

a. the market value of the estate or interest expropriated plus reasonable damages for disturbance including moving, legal and survey costs;

b. the value of the goodwill of a business located on the expropriated property if the business cannot be relocated;

c. if not included in the market value, the value of a special economic advantage to the owner arising out of the owner's occupation of the land and the value of improvements made by an owner occupying a residence on the land; and

d. if the expropriated property has a limited market because of its use, compensation may be based on the reasonable costs of rebuilding on another site.

94.  Where a fee simple estate or less than a fee simple estate in a parcel of Tsawwassen Lands is expropriated by a Provincial Expropriating Authority:

a. the parcel retains its status as Tsawwassen Lands;

b. the parcel remains subject to Tsawwassen Law except to the extent that the Tsawwassen Law is inconsistent with the use of the parcel of land for which the expropriation took place; and

c. Tsawwassen First Nation or any interest holder may continue to use and occupy the parcel, except to the extent that such use or occupation is inconsistent with the use of the parcel of land for which the expropriation took place.

95.  Where an expropriated interest in Tsawwassen Lands is no longer required by a Provincial Expropriating Authority, the interest will be returned to Tsawwassen First Nation subject to terms to be negotiated at the time of the return.

MINES AND MINERALS UNDER ENGLISH BLUFF

96.  The mines and minerals set out in Appendix C-5 are not included in Tsawwassen Lands, and Canada will transfer those mines and minerals to British Columbia on the Effective Date.

97.  Tsawwassen First Nation releases to Canada all of the rights and interests that Tsawwassen First Nation or Tsawwassen Members ever had, now have or may have in the future in the mines and minerals referred to in clause 96, and acknowledges that, on the Effective Date, those mines and minerals are no longer set apart for the use and benefit of Tsawwassen First Nation.

98.  In consideration of the arrangement described in clause 96 and the release set out in clause 97, Canada will pay to Tsawwassen First Nation the sum of two million dollars ($2,000,000) on the Effective Date, the sufficiency of which Tsawwassen First Nation hereby acknowledges.

ACCRETED LANDS

99.  For greater certainty, the water boundary fronting Tsawwassen Lands is the Natural Boundary.

100.  Tsawwassen First Nation owns any lawful accretions to Tsawwassen Lands.

101.  Where Tsawwassen First Nation provides to Canada and British Columbia notice confirming that there has been lawful accretion within the meaning of the Land Title Act to Tsawwassen Lands, then within 150 days the Parties will amend Appendix C-4 in accordance with clause 11 of the Amendment chapter to reflect the change to the boundaries of Tsawwassen Lands and, if required, the Lieutenant Governor in Council will issue supplementary letters patent to reflect the change, if any, to the area of the Corporation of Delta.

LEGAL SURVEY

102.  Canada and British Columbia will, as agreed between them, pay the cost of initially surveying the boundaries of Tsawwassen Lands, and Other Tsawwassen Lands set out in Appendix E-2.

103.  In those cases where adequate surveys do not already exist, before the Effective Date, or as soon as practicable after the Effective Date, Canada and British Columbia will register new survey plans in the Land Title Office and upon registration of those new survey plans, the Parties will amend Appendix C-4 in accordance with clause 11 of the Amendment chapter to change the boundaries of Tsawwassen Lands.

CONTAMINATED SITES

104.  The transfer of the Former Tsawwassen Reserve to Tsawwassen First Nation in accordance with this Agreement does not, in and of itself, result in British Columbia being liable in respect of any Contamination of such lands.

105.  In respect of provincial Crown lands transferred to Tsawwassen First Nation in accordance with this Agreement, to the best of British Columbia's knowledge those lands have not been used for a prescribed industrial or commercial purpose or any other purpose or activity prescribed under the Environmental Management Act, and British Columbia is not required to prepare or provide a Site Profile for those lands.

106.  Nothing in this Agreement precludes Tsawwassen First Nation from recovering the costs incurred in the inspection or remediation of any Contaminated Sites on the lands referred to in clause 105 from British Columbia or any other Person who may be determined to be a Responsible Person in respect of the Contamination of that site.

ECONOMIC DEVELOPMENT CAPITAL FUND

107.  On the Effective Date, Canada will provide to Tsawwassen First Nation an amount, to be paid in accordance with clause 1 of the Capital Transfer and Negotiation Loan Repayment chapter, for the purpose of establishing an Economic Development Capital Fund. The value in 2006 of that amount is approximately $1,055,000.