The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 29th day of November, 2007
Ian D. Izard, Q.C., Law Clerk
2.1.1 On the Effective Date, Maa‑nulth First Nation Lands consist of the following:
a. for Huu‑ay‑aht First Nations:
i. 1,077 hectares, more or less, of Former Indian Reserves, identified for illustrative purposes in Appendix B-1, Part 1 as "Former Indian Reserves of Huu‑ay‑aht First Nations", and legally described in Appendix B-1, Part 1 (a); and
ii. 7,181 hectares, more or less, of additional lands identified for illustrative purposes in Appendix B-1, Part 2 as "Additional Lands", and described as "Subject Lands" in Appendix B-1, Part 2 (a);
b. for Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations:
i. 379 hectares, more or less, of Former Indian Reserves, identified for illustrative purposes in Appendix B-2, Part 1 as "Former Indian Reserves of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations", and legally described in Appendix B-2, Part 1 (a); and
ii. 5,920 hectares, more or less, of additional lands identified for illustrative purposes in Appendix B-2, Part 2 as "Additional Lands", and described as "Subject Lands" in Appendix B-2, Part 2 (a);
c. for Toquaht Nation:
i. 196 hectares, more or less, of Former Indian Reserves, identified for illustrative purposes in Appendix B-3, Part 1 as "Former Indian Reserves of Toquaht Nation", and legally described in Appendix B-3, Part 1 (a); and
ii. 1,293 hectares, more or less, of additional lands identified for illustrative purposes in Appendix B-3, Part 2 as "Additional Lands", and described as "Subject Lands" in Appendix B-3, Part 2 (a);
d. for Uchucklesaht Tribe:
i. 233 hectares, more or less, of Former Indian Reserves, identified for illustrative purposes in Appendix B-4, Part 1 as "Former Indian Reserves of Uchucklesaht Tribe", and legally described in Appendix B-4, Part 1 (a); and
ii. 2,834 hectares, more or less, of additional lands identified for illustrative purposes in Appendix B-4, Part 2 as "Additional Lands", and described as "Subject Lands" in Appendix B-4, Part 2 (a); and
e. for Ucluelet First Nation:
i. 199 hectares, more or less, of Former Indian Reserves, identified for illustrative purposes in Appendix B-5, Part 1 as "Former Indian Reserves of Ucluelet First Nation", and legally described in Appendix B-5, Part 1 (a);
ii. 5,147 hectares, more or less, of additional lands identified for illustrative purposes in Appendix B-5, Part 2 as "Additional Lands", and described as "Subject Lands" in Appendix B-5, Part 2 (a); and
iii. 92 hectares, more or less, of lands acquired by Canada and British Columbia identified for illustrative purposes in Appendix B-5, Part 3 and legally described in Appendix B-5, Part 3 (a).
2.1.2 On the Effective Date, an indefeasible title to each parcel of Maa‑nulth First Nation Lands listed in Part 3 of Appendices B-2 to B-4 and Part 4 of Appendix B-5 will be registered in the name of the applicable Maa‑nulth First Nation under the Land Title Act and the Land Title Act will apply to such parcels in accordance with this Agreement.
2.1.3 The Grassy Island Indian Reserve 17, legally described as Grassy Island IR17, DL 221, Nootka District, Plan BC516, is not included in the Maa‑nulth First Nation Lands of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations.
2.1.4 Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations releases to Canada all of the rights and Interests that Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations and its members ever had or now have or may have in the future in Grassy Island Indian Reserve 17, and acknowledges that, on the Effective Date, Grassy Island Indian Reserve 17 is no longer set apart for the use and benefit of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations.
2.1.5 In consideration of 2.1.3 and the release described in 2.1.4, Canada will pay to Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations the sum of $200,000, which amount is included in the Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations Capital Transfer Payment Plan, and other good valuable consideration, and Grassy Island Indian Reserve 17 is no longer set apart for the use and benefit of the Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations.
2.1.6 Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations acknowledges that nothing in this Agreement is intended to affect any Interest that Ehattesaht First Nation has in Grassy Island Indian Reserve 17.
2.2.1 On the Effective Date, Ucluelet First Nation owns the estate in fee simple in those lands identified as "Subject Lands" for illustrative purposes in Appendix C-1, Part 1 and legally described in Appendix C-1, Part 2, as Other Maa‑nulth First Nation Lands.
2.2.2 Ucluelet First Nation's ownership of the lands referred to in 2.2.1 is:
a. subject to the Interests listed in Appendix C-1, Part 3; and
b. does not include Subsurface Resources.
2.3.1 On the Effective Date, each Maa‑nulth First Nation owns the estate in fee simple in its Maa‑nulth First Nation Lands, and such estate is not subject to any condition, proviso, restriction, exception or reservation, under the Land Act.
2.3.2 A Maa‑nulth First Nation may, in accordance with this Agreement, its Maa‑nulth First Nation Constitution, and Maa‑nulth First Nation Law of the applicable Maa‑nulth First Nation Government, Dispose of Interests in its Maa‑nulth First Nation Lands without the consent of Canada or British Columbia.
2.3.3 Except as provided in 2.11.10 and 2.12.16, or with the consent of Canada and British Columbia in accordance with 2.3.8, a parcel of Maa‑nulth First Nation Lands does not cease to be Maa‑nulth First Nation Lands as a result of the Disposition of an Interest in such parcel.
2.3.4 If an estate in fee simple in a parcel of Maa‑nulth First Nation Lands is acquired through an agreement between the applicable Maa‑nulth First Nation and a federal department or agency, those lands are no longer Maa‑nulth First Nation Lands and Appendix B is deemed to be amended accordingly.
2.3.5 A Maa‑nulth First Nation may not transfer the estate in fee simple in a parcel of its Maa‑nulth First Nation Lands until indefeasible title to that parcel of land has been registered in accordance with Chapter 3 Land Title.
2.3.6 If a Maa‑nulth First Nation transfers the estate in fee simple in a parcel of its Maa‑nulth First Nation Lands, expropriation by a Federal Expropriating Authority of those lands may occur in accordance with Federal Law and not subject to 2.12.0, except 2.12.16.
2.3.7 If a Maa‑nulth First Nation transfers the estate in fee simple in a parcel of its Maa‑nulth First Nation Lands to any person other than to a:
a. Maa‑nulth‑aht of that Maa‑nulth First Nation;
b. Maa‑nulth First Nation Corporation of that Maa‑nulth First Nation; or
c. Maa‑nulth First Nation Public Institution of that Maa‑nulth First Nation,
expropriation by a Provincial Expropriating Authority of such land may occur in accordance with Provincial Law and not subject to 2.11.0, except 2.11.8 and 2.11.10.
2.3.8 After the Effective Date, before Disposing of the estate in fee simple in a parcel of its Maa‑nulth First Nation Lands, a Maa‑nulth First Nation may request the consent of Canada and British Columbia to having such land removed from its Maa‑nulth First Nation Lands.
2.3.9 In considering whether to consent to the removal of a parcel of land from the Maa‑nulth First Nation Lands of a Maa‑nulth First Nation in accordance with a request under 2.3.8, Canada and British Columbia may consider:
a. necessary jurisdictional, administrative and servicing arrangements;
b. the views of any affected Local Government or neighbouring First Nation;
c. whether the removal of the land will have an impact on fiscal arrangements negotiated between the applicable Maa‑nulth First Nation and Canada or British Columbia;
d. whether the removal of the land will have any legal or financial implications for Canada or British Columbia; or
e. any other matter that Canada or British Columbia considers relevant.
2.3.10 If Canada and British Columbia consent to the removal of a parcel of land from Maa‑nulth First Nation Lands in accordance with 2.3.8, such parcel ceases to be Maa‑nulth First Nation Lands upon receipt by the applicable Maa‑nulth First Nation of notice of the consent of each of Canada and British Columbia and Appendix B is deemed to be amended to reflect such removal of lands from Maa‑nulth First Nation Lands.
2.3.11 If, at any time, any Interest in Maa‑nulth First Nation Lands finally escheats to the Crown, the Crown will transfer, at no cost and without fee, that Interest to the applicable Maa‑nulth First Nation.
2.3.12 All methods of acquiring a right in or over land by prescription or by adverse possession, including the common law doctrine of prescription and the doctrine of the lost modern grant, are abolished in respect of Maa‑nulth First Nation Lands.
2.3.13 No Interest, reservation or exception of a Maa‑nulth First Nation in any parcel of its Maa‑nulth First Nation Lands, the indefeasible title to which parcel, under the Land Title Act, is not registered in fee simple or subject to an application for registration in fee simple, is subject to attachment, charge, seizure, distress, execution or sale, except:
a. pursuant to:
i. a lien, charge or other encumbrance in favour of Canada or British Columbia; or
ii. the terms of a security instrument granted by that Maa‑nulth First Nation; or
b. if allowed under a Maa‑nulth First Nation Law made by the applicable Maa‑nulth First Nation Government.
2.4.1 Subject to 2.4.5, Submerged Lands do not form part of Maa‑nulth First Nation Lands and nothing in this Agreement affects British Columbia's ownership of Submerged Lands.
2.4.2 British Columbia will notify a Maa‑nulth First Nation of any proposed Disposition of an Interest in, or use or occupation of, Submerged Lands that are wholly contained within its Maa‑nulth First Nation Lands.
2.4.3 British Columbia will not, in respect of Submerged Lands that are wholly contained within Maa‑nulth First Nation Lands:
a. grant an estate in fee simple;
b. grant a lease that, with any rights of renewal, may exceed 25 years;
c. transfer administration and control for a period that may exceed 25 years; or
d. otherwise Dispose of an Interest in, or authorize the use or occupation of, Submerged Lands if that Disposition, use or occupation would adversely affect those Maa‑nulth First Nation Lands or the applicable Maa‑nulth First Nation's interests described in this Agreement,
without the consent of that Maa‑nulth First Nation.
2.4.4 2.4.2 and 2.4.3 do not affect the riparian rights of the upland owners of Maa‑nulth First Nation Lands adjacent to Submerged Lands.
2.4.5 Submerged Lands which are part of Former Indian Reserves form part of the Maa‑nulth First Nation Lands of the applicable Maa‑nulth First Nation.
2.4.6 No transfer of Submerged Lands to a Maa‑nulth First Nation in accordance with this Agreement includes the exclusive right to fish.
2.5.1 In those cases where adequate surveys do not already exist, before the Effective Date, or as soon as practicable after the Effective Date having regard to the Survey Protocol, the outer boundaries of those Maa‑nulth First Nation Lands described in 2.1.1 will be surveyed by:
a. Canada in respect of Former Indian Reserves; and
b. British Columbia in respect of those lands described as "Subject Lands" in Part 2 (a) of Appendices B-1 to B-5,
all in accordance with instructions to be issued by the Surveyor General of British Columbia and approved by Canada, British Columbia and the applicable Maa‑nulth First Nation for that portion of Maa‑nulth First Nation Lands being surveyed and otherwise in accordance with the survey procedure described in Schedule 1.
2.5.2 Canada and British Columbia will, as agreed between them, pay the full cost of the initial surveys approved in accordance with 2.5.1.
2.5.3 Upon the registration in the provincial Crown land registry of the survey plan completed in accordance with 2.5.1, Appendix B and, if applicable, Appendix D are deemed to be amended to reflect any adjustments to the boundaries of the Maa‑nulth First Nation Lands as a result of such survey.
2.6.1 If a Party provides the other affected Parties with a proposal to clarify the location of any part of a boundary of Maa‑nulth First Nation Lands, the Parties will follow the survey procedure described in Schedule 1.
2.6.2 Unless the affected Parties otherwise agree, the cost as between such Parties of any field survey undertaken in accordance with 2.6.1 to clarify the location of a part of a boundary of Maa‑nulth First Nation Lands will be borne by:
a. the Party authorizing an activity causing the need for clarification of the boundary location; or
b. the Party proposing clarification of the boundary location, if no Party has authorized an activity causing the need for clarification of the boundary location.
2.6.3 If the Parties affected by a proposal to clarify the location of any part of a boundary of Maa‑nulth First Nation Lands in accordance with 2.6.1 do not agree on whether or at whose cost to undertake the proposed boundary clarification, any such Party may refer the matter to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution without having to proceed through Stages One and Two.
2.6.4 If the clarification of a boundary of any part of Maa‑nulth First Nation Lands in accordance with 2.6.1 results in the adjustment of a boundary of Maa‑nulth First Nation Lands, then upon the registration in the provincial Crown land registry of the survey plan completed in accordance with 2.6.1, Appendix B and, if applicable, Appendix D are deemed to be amended to reflect any such adjustment to the boundaries of Maa‑nulth First Nation Lands.
2.7.1 On the Effective Date, title to Maa‑nulth First Nation Lands is free and clear of all Interests, except as listed in:
a. Appendices E-1 to E-5 in respect of replacement Interests;
b. Appendices E-7 to E-9 in respect of Interests on Former Indian Reserves;
c. Appendices E-11 to E-15 in respect of Interests that continue after the Effective Date under their existing terms and conditions; and
d. Appendices E-16 to E-20 in respect of existing foreshore Interests requiring upland owner consents.
2.7.2 Subject to 2.7.1, every Interest that, before the Effective Date, encumbered or applied to Maa‑nulth First Nation Lands, ceases to exist.
2.7.3 On the Effective Date, each Maa‑nulth First Nation will grant or issue Interests to those persons who are named in Appendices E-1 to E-5, E-7 to E-9 and E-16 to E-20 relating to its Maa‑nulth First Nation Lands.
2.7.4 On the Effective Date, each Maa‑nulth First Nation will execute documents granting or issuing to each person named in Appendix E-1 to E-5, Parts 2 and 3 of E-7, Part 1 of E-8, Part 2 of E-9 and E-16 to E-20 relating to its Maa‑nulth First Nation Lands that person's Interest, as described in that Appendix.
2.7.5 On the Effective Date, the applicable Maa‑nulth First Nation will issue to each individual named in Part 1 of Appendices E-7 and E-9, a form of tenure for the parcel of Maa‑nulth First Nation Lands ascribed to that individual and described in Part 1 of Appendices E-7 and E-9.
2.7.6 An individual to whom a Maa‑nulth First Nation issues a form of tenure in accordance with 2.7.5 has substantially the same right to possess the described parcel of Maa‑nulth First Nation Lands as the individual had as the holder of the certificate of possession under the Indian Act immediately before the Effective Date, modified to reflect the law-making authority of the applicable Maa‑nulth First Nation Government over such lands and ownership of such lands by the applicable Maa‑nulth First Nation in accordance with this Agreement.
2.7.7 A document executed in accordance with 2.7.4 for an Interest listed in:
a. Appendices E-1 to E-5 will be in the applicable form described in Appendix E-6 or Part 2 of Appendix E-10;
b. Part 2 of Appendices E-7 and E-9 and Part 1 of Appendix E-8 will be in the applicable form described in Part 2 of Appendix E-10;
c. Part 3 of Appendix E-7 will be in the applicable form described in Part 1 of Appendix E-10; and
d. Appendices E-16 to E-20 will be in the applicable form described in Appendix E-21,
and in all cases will include any modifications agreed upon in writing before the Effective Date by the applicable Maa‑nulth Indian Band and the person entitled to the Interest.
2.7.8 A document referred to in 2.7.4 and 2.7.5 is deemed to be:
a. delivered by the applicable Maa‑nulth First Nation on the Effective Date; and
b. executed and delivered by the applicable person named in Appendix E on the Effective Date.
2.7.9 Each Maa‑nulth First Nation will physically deliver the applicable document:
a. to the applicable person named in Appendix E; or
b. to any other person who, before the Effective Date, was identified to that Maa‑nulth First Nation by Canada or British Columbia,
and the Appendix is deemed to be amended on the Effective Date by substituting the name of the applicable Interest holder listed in Appendix E with the name of the person identified in the notice.
2.7.10 If, following the Effective Date, Canada or British Columbia notifies a Maa‑nulth First Nation that an Interest granted in accordance with 2.7.3:
a. is in the name of a person who was not entitled to the Interest on the Effective Date; or
b. contains a clerical error or a wrong description of a material fact,
the appropriate Parties will take reasonable measures to rectify the error.
2.7.11 Any right of way of the nature described in section 218 of the Land Title Act that is granted by a Maa‑nulth First Nation under this Agreement is legally binding and enforceable notwithstanding that Maa‑nulth First Nation Lands to which the right of way relates are not subject to the Land Title Act.
2.7.12 The Interests listed in Appendices E-11 to E-15 are retained by the persons who hold those Interests on the Effective Date in accordance with the existing terms and conditions of the Interest on the Effective Date, modified where appropriate to reflect ownership of the land by the applicable Maa‑nulth First Nation and Provincial Law. If such an Interest is not renewed or replaced when it expires in accordance with its terms or Provincial Law, that Interest ceases to exist.
2.7.13 If, after the Effective Date, BC Hydro or Telus is requested by Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations or Uchucklesaht Tribe, as the case may be, to construct facilities for the provision of electrical or telecommunications services on their respective Maa‑nulth First Nations Lands, Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations or Uchucklesaht Tribe, as the case may be, will grant or issue to BC Hydro and Telus an Interest for such facilities on terms substantially the same as those set out in Part 2 of Appendix E-10, "Distribution Right of Way".
2.7.14 If BC Hydro agrees to provide electrical services on the Maa‑nulth First Nation Lands of Uchucklesaht Tribe, Uchucklesaht Tribe will grant or issue to BC Hydro an Interest for such facilities on terms substantially the same as those set out in Part 3 of Appendix E-10, "Distribution Right of Way - Uchucklesaht Tribe".
2.7.15 If BC Hydro determines that it will construct hydro transmission facilities on the Maa‑nulth First Nation Lands of Toquaht Nation in the area approximately identified as the "Right of Way Area" in Part 3 of Appendix E-10 "Transmission Right of Way - Toquaht Nation", or any portion thereof, Toquaht Nation will grant or issue to BC Hydro an Interest for such facilities substantially the same as set out in Part 3 of Appendix E-10 "Transmission Right of Way - Toquaht Nation".
2.7.16 If BC Hydro determines that it will construct hydro transmission facilities on the Maa‑nulth First Nation Lands of Ucluelet First Nation in the area approximately identified as the "Right of Way Area" in Part 3 of Appendix E-10 "Transmission Right of Way - Ucluelet First Nation", or any portion thereof, Ucluelet First Nation will grant or issue to BC Hydro an Interest for such facilities substantially the same as set out in Part 3 of Appendix E-10 "Transmission Right of Way - Ucluelet First Nation".
2.8.1 British Columbia will indemnify and forever save harmless each Maa‑nulth First Nation from any damages, losses, liabilities or costs, excluding fees and disbursements of solicitors and other professional advisors, that the Maa‑nulth First Nation may suffer or incur in connection with or as a result of any claims, demands, actions or proceedings relating to or arising out of:
a. the omission from Appendix E of the name of a person who, immediately before the Effective Date, had an Interest in the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation that had been granted by British Columbia; or
b. the incorrect naming of a person in Appendix E as a person entitled to an Interest, where another person was actually entitled, immediately before the Effective Date, to the Interest in the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation that had been granted by British Columbia.
2.8.2 For greater certainty, a Maa‑nulth First Nation does not release Canada from any damages, losses, liability or costs that Canada may otherwise be liable for before the Effective Date in relation to:
a. the omission in Appendix E of the name of an individual who, immediately before the Effective Date, had an Interest in or certificate of possession in respect of a Former Indian Reserve of the applicable Maa‑nulth First Nations; or
b. the incorrect naming of an individual in Appendix E as an individual entitled to an Interest or certificate of possession, where another individual was actually entitled, immediately before the Effective Date, to the interest or the certificate of possession in respect of a Former Indian Reserve of the applicable Maa‑nulth First Nation that had been granted by Canada.
2.9.1 If, after the Effective Date, a Maa‑nulth First Nation decides to develop a site described as "Subject Lands" in Appendix B-3, Part 4, it will provide notice of such development to British Columbia.
2.9.2 After receiving notice in accordance with 2.9.1, British Columbia will inspect the applicable site and if it is determined that such site is a Contaminated Site, British Columbia will undertake or cause to be undertaken appropriate remediation of the site in accordance with the Environmental Management Act and 2.9.3.
2.9.3 In determining whether a site referred to in 2.9.1 is a Contaminated Site and in determining the extent of the appropriate remediation of such site, the use of that site is deemed to be the use described in Schedule 2.
2.9.4 British Columbia or any person undertaking the inspection or remediation of a site in accordance with 2.9.2, will provide the applicable Maa‑nulth First Nation with:
a. notice before commencing any inspection or remediation; and
b. the opportunity to observe any inspection or remediation.
2.9.5 Nothing in this Agreement limits the ability of British Columbia to recover the costs incurred in inspecting and remediating a site referred to in 2.9.1 from any third party determined to be a Responsible Person in respect of the Contamination of any such site.
2.9.6 British Columbia is not liable in respect of the Contamination of any site referred to in 2.9.1 which occurs after the Effective Date.
2.9.7 The transfer of Former Federal Lands to a Maa‑nulth First Nation in accordance with this Agreement does not, in and of itself, result in British Columbia being determined to be a Responsible Person in respect of any potential Contamination of any Former Federal Lands.
2.9.8 British Columbia is not required to prepare and provide a Site Profile for any lands transferred to a Maa‑nulth First Nation in accordance with this Agreement.
2.10.1 A Maa‑nulth First Nation may request that Canada and British Columbia consent to a parcel of land being added to its Maa‑nulth First Nation Lands.
2.10.2 British Columbia will consider a request by a Maa‑nulth First Nation to add a parcel of land to its Maa‑nulth First Nation Lands, made in accordance with 2.10.1, if:
a. the estate in fee simple in that parcel of land is owned by that Maa‑nulth First Nation or a Maa‑nulth First Nation Corporation, Maa‑nulth First Nation Public Institution or Maa‑nulth‑aht of that Maa‑nulth First Nation, and such owner provides written consent;
b. the parcel of land is within the Maa‑nulth First Nation Area of that Maa‑nulth First Nation;
c. the parcel of land is in an area outside of the boundaries of a Municipality or, if within the boundaries of a Municipality, that Municipality provides written consent;
d. the parcel of land becoming Maa‑nulth First Nation Lands will not unreasonably restrict the expansion or development of a Municipality or the community of Bamfield; and
e. British Columbia will not be required to assume financial or other obligations associated with that parcel of land.
2.10.3 In addition to the matters described in 2.10.2, in determining whether to consent to a request received in accordance with 2.10.1, British Columbia may consider whether the parcel of land is contiguous to the existing Maa‑nulth First Nation Lands of that Maa‑nulth First Nation and such other matters as British Columbia considers relevant.
2.10.4 Canada will consider a request by a Maa‑nulth First Nation to add a parcel of land to its Maa‑nulth First Nation Lands, made in accordance with 2.10.1, if:
a. the estate in fee simple in that parcel of land is owned by that Maa‑nulth First Nation;
b. the parcel of land is located within the Maa‑nulth First Nation Area of that Maa‑nulth First Nation;
c. the parcel of land is in an area free from overlap with another First Nation or, if within an area of overlap with another First Nation, that other First Nation provides written consent; and
d. Canada will not be required to assume financial or other obligations associated with that parcel of land.
2.10.5 In addition to the matters described in 2.10.4, in determining whether to consent to a request received in accordance with 2.10.1, Canada may take into account such other matters as it considers relevant.
2.10.6 If British Columbia and Canada consent to a request made in accordance with 2.10.1, each will provide notice of its consent to the other Parties and that parcel of land will become Maa‑nulth First Nation Lands of the applicable Maa‑nulth First Nation upon receipt by that Maa‑nulth First Nation of notice of the consent of each of British Columbia and Canada and Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nations Lands.
2.10.7 If a Maa‑nulth First Nation wishes to acquire any parcel of land, or any portion thereof, described as "Subject Lands" in Appendix F-1 for that Maa‑nulth First Nation it will, within 15 years of the Effective Date, provide notice to British Columbia.
2.10.8 Within 180 days of receiving a notice in accordance with 2.10.7, British Columbia will prepare and forward to the applicable Maa‑nulth First Nation an offer to sell the parcel of land, setting out:
a. a description of the parcel of land;
b. the purchase price of the parcel of land which, unless British Columbia and the applicable Maa‑nulth First Nation otherwise agree, will be equal to the fair market value of the parcel of land;
c. any Interests which the parcel of land will be subject to; and
d. any other terms and conditions applicable to the purchase and sale of the parcel of land.
2.10.9 An offer to sell provincial Crown land made in accordance with paragraph 2.10.8 will be open for acceptance by the applicable Maa‑nulth First Nation for a period of one year from the receipt of such offer, after which that Maa‑nulth First Nation is deemed to have refused the offer to sell and the offer to sell expires.
2.10.10 If a Maa‑nulth First Nation acquires provincial Crown land in accordance with 2.10.7 to 2.10.13, such land will be added to its Maa‑nulth First Nation Lands upon that Maa‑nulth First Nation becoming the owner of such lands and Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nation Lands. If Toquaht Nation acquires any land described as "Subject Lands" in Plan 1 of Part 3 of Appendix F-1 in accordance with 2.10.7 adjacent to the Provincial Road shown as "Potential Crown Corridor" in Plan 1 of Part 3 of Appendix F-1 that portion of such Provincial Road subsequently bounded by the Maa‑nulth First Nation Lands of Toquaht Nation is included within the lands identified as Crown Corridors, and Appendix D is deemed to be amended to reflect such addition.
2.10.11 If British Columbia and the applicable Maa‑nulth First Nation disagree on the fair market value of any provincial Crown land identified in Appendix F-1 offered for sale in accordance with 2.10.8, that Maa‑nulth First Nation may refer the issue to be be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution without having to proceed through Stages One and Two.
2.10.12 Subject to 2.10.13, British Columbia will continue to manage and use the provincial Crown lands identified in Appendix F-1 at its sole discretion and, for greater certainty, nothing in this Agreement limits the ability of British Columbia to authorize the use or Disposition of Forest Resources or Subsurface Resources on any lands identified in Appendix F-1 before the acquisition of the estate in fee simple in such lands by a Maa‑nulth First Nation.
2.10.13 For a period of 15 years after the Effective Date, British Columbia will not, in respect of the provincial Crown lands described as "Subject Lands" in Appendix F-1:
a. grant an estate in fee simple; or
b. grant a lease that, with any rights of renewal, may exceed 15 years,
without the consent of the applicable Maa‑nulth First Nation.
2.10.14 At the request of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations, within 15 years of the Effective Date, British Columbia and Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations will negotiate and attempt to reach agreement that will:
a. transfer the parcel of land described in Appendix B-2, Part 1, Plan BC141, known formerly as the Malksope Indian Reserve, from Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations to British Columbia; and
b. transfer provincial Crown land of equivalent fair market value, to be identified from "Site 1" or "Site 2" of Plan 2 in Part 2 of Appendix F-1, from British Columbia to Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations.
2.10.15 If British Columbia and Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations are unable to reach agreement on the fair market value of the lands identified in 2.10.14, either Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations or British Columbia may refer the issue to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution without having to proceed through Stages One and Two.
2.10.16 Upon the transfer of the lands contemplated in 2.10.14, Appendix B is deemed to be amended to reflect such addition to and removal from the Maa‑nulth First Nation Lands of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations.
2.10.17 If, at any time, British Columbia determines that a parcel of provincial Crown land, or any portion thereof, described as "Subject Lands" in Appendix F-2, is surplus to provincial requirements, British Columbia will offer to sell such parcel by providing notice to the applicable Maa‑nulth First Nation setting out:
a. a description of the parcel of land;
b. the purchase price of the parcel of land which, unless British Columbia and the applicable Maa‑nulth First Nation otherwise agree, will be equal to the fair market value of the parcel of land;
c. any Interests which the parcel of land will be subject to; and
d. any other terms and conditions applicable to the purchase and sale of the land.
2.10.18 An offer to sell provincial Crown land made in accordance with paragraph 2.10.17 will be open for acceptance by the applicable Maa‑nulth First Nation for a period of one year from the receipt of such offer, after which that Maa‑nulth First Nation is deemed to have refused the offer to sell, the offer to sell expires and British Columbia may otherwise Dispose of such parcel of land.
2.10.19 If a Maa‑nulth First Nation acquires provincial Crown land in accordance with 2.10.17 to 2.10.22, such land will be added to its Maa‑nulth First Nation Lands upon that Maa‑nulth First Nation becoming the owner of such lands and Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nation Lands.
2.10.20 For greater certainty, in determining which provincial Crown lands described as "Subject Lands" in Appendix F-2 are surplus to provincial requirements, British Columbia may identify requirements for Crown Corridors and exclude such corridors from those lands and Appendix D is deemed to be amended to reflect such Crown Corridors.
2.10.21 If British Columbia and the applicable Maa‑nulth First Nation disagree on the fair market value of any provincial Crown land identified in Appendix F-2 offered for sale in accordance with 2.10.17, that Maa‑nulth First Nation may refer the issue to be be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution without having to proceed through Stages One and Two.
2.10.22 British Columbia will continue to manage and use the provincial Crown lands identified in Appendix F-2 at its sole discretion and, for greater certainty, nothing in this Agreement will limit the ability of British Columbia to authorize the use or Disposition of Forest Resources or Subsurface Resources on any lands identified in Appendix F-2 before the acquisition of an estate in fee simple in such lands by a Maa‑nulth First Nation.
2.10.23 If, within 15 years after the Effective Date, a Maa‑nulth First Nation referred to in Appendix F-3 or F-4, or a Maa‑nulth First Nation Corporation, Maa‑nulth First Nation Public Institution or Maa‑nulth‑aht of that Maa‑nulth First Nation, becomes the registered owner of the estate in fee simple in a parcel of land, or any portion thereof, identified for illustrative purposes as "Subject Lands" and legally described in the applicable Part of Appendix F-3 or F-4, and:
a. where the owner of such parcel is a Maa‑nulth First Nation Corporation, Maa‑nulth First Nation Public Institution or Maa‑nulth‑aht of that Maa‑nulth First Nation, such owner provides written consent; and
b. the registered holder of any financial charge or encumbrance provides written consent,
then that Maa‑nulth First Nation may provide notice to British Columbia and Canada, that the parcel of land is to be added to the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation.
2.10.24 After receipt of a notice in accordance with 2.10.23, BritishColumbia and Canada will each, upon satisfactory review of the consents referred to in 2.10.23a. and b., provide confirmation to the other Parties that such parcel of land is to be added to the Maa‑nulth First Nation Lands of the applicable Maa‑nulth First Nation.
2.10.25 If British Columbia and Canada provide confirmation in accordance with 2.10.24, that parcel of land will become Maa‑nulth First Nation Lands of the applicable Maa‑nulth First Nation upon receipt by that Maa‑nulth First Nation of such confirmation and Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nation Lands.
2.10.26 Before the Effective Date, British Columbia, Canada and a Maa‑nulth First Nation may, through a treaty related measure, agree to the acquisition by Canada or British Columbia of the estate in fee simple in a parcel of land described as "Subject Lands" in Appendix F-3 for that Maa‑nulth First Nation.
2.10.27 If British Columbia or Canada acquires a parcel of land for a Maa‑nulth First Nation before the Effective Date in accordance with 2.10.26 and the Capital Transfer Payment Plan is adjusted in accordance with 16.1.2, on the Effective Date that parcel of land becomes Maa‑nulth First Nation Lands of the applicable Maa‑nulth First Nation and Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nation Lands.
2.10.28 A parcel of land added to Maa‑nulth First Nation Lands in accordance with 2.10.0 continues to be subject to any Interest existing immediately before the parcel of land becomes Maa‑nulth First Nation Lands, unless the holder of such Interest otherwise agrees in writing.
2.10.29 A Maa‑nulth First Nation will own the Subsurface Resources on lands that are added to its Maa‑nulth First Nation Lands in accordance with 2.10.0 if:
a. the estate in fee simple includes ownership of the Subsurface Resources; or
b. British Columbia and the applicable Maa‑nulth First Nation agree.
2.10.30 For greater certainty, a Maa‑nulth First Nation's ownership of Subsurface Resources is subject to any Subsurface Tenures existing immediately before the acquisition of the parcel of land by the Maa‑nulth First Nation and those Subsurface Tenures continue to be administered by British Columbia in accordance with 4.2.0.
2.10.31 The total amount of the estate in fee simple identified in 2.11.8 for a Maa‑nulth First Nation increases by five percent of the area, in hectares, of the estate in fee simple added in accordance with 2.10.0 to the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation.
2.10.32 Unless otherwise agreed by the applicable Maa‑nulth First Nation, Canada and British Columbia, neither Canada nor British Columbia is responsible for the costs associated with the survey, registration and transfer of any parcel of land acquired by that Maa‑nulth First Nation following the Effective Date.
2.10.33 For greater certainty, Canada is not required to assume financial or other obligations in respect of any addition to Maa‑nulth First Nation Lands made in accordance with 2.10.0.
2.11.1 British Columbia acknowledges as a general principle that where it is reasonable to use other means, expropriation of Maa‑nulth First Nation Lands will be avoided.
2.11.2 Subject to this Chapter, any Interest in Maa‑nulth First Nation Lands may be expropriated by and for the use of a Provincial Expropriating Authority in accordance with provincial legislation and with the consent of the Lieutenant Governor-in-Council.
2.11.3 Where a Provincial Expropriating Authority has determined that it must use Maa‑nulth First Nation Lands, the Provincial Expropriating Authority will make reasonable efforts to acquire the necessary Interest through agreement with the applicable Maa‑nulth First Nation.
2.11.4 Any expropriation of Maa‑nulth First Nation Lands by a Provincial Expropriating Authority will be of the smallest Interest necessary and for the shortest time required.
2.11.5 The value of the expropriated Interest will be based on the criteria used to determine compensation under the provincial Expropriation Act.
2.11.6 If the Provincial Expropriating Authority and the applicable Maa‑nulth First Nation disagree on the value of the expropriated Interest, either that Maa‑nulth First Nation or British Columbia may refer the issue to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution without having to proceed through Stages One and Two. A Disagreement regarding the value of the expropriated Interest will not delay the expropriation.
2.11.7 The applicable Maa‑nulth First Nation will be responsible for providing compensation to the holder of any Interest in its Maa‑nulth First Nation Lands that may be expropriated by a Provincial Expropriating Authority in accordance with 2.11.0, and the holder of any such expropriated Interest has no recourse against British Columbia or the Provincial Expropriating Authority for compensation.
2.11.8 Subject to 2.10.31 and 2.11.30, the total amount of the estate in fee simple in Maa‑nulth First Nation Lands that may be expropriated by Provincial Expropriating Authorities is as follows:
a. from the Maa‑nulth First Nation Lands of Huu‑ay‑aht First Nations, 410 hectares;
b. from the Maa‑nulth First Nation Lands of Ka:'yu:'k't'h'/Che:k'tles7et'h' First Nations, 315 hectares;
c. from the Maa‑nulth First Nation Lands of Toquaht Nation, 70 hectares;
d. from the Maa‑nulth First Nation Lands of Uchucklesaht Tribe, 150 hectares; and
e. from the Maa‑nulth First Nation Lands of Ucluelet First Nation, 270 hectares.
2.11.9 Notwithstanding 2.11.4, where an estate in fee simple in Maa‑nulth First Nation Lands is expropriated by a Provincial Expropriating Authority, the expropriation will include the estate in fee simple in Subsurface Resources unless British Columbia and the applicable Maa‑nulth First Nation otherwise agree.
2.11.10 Where a Provincial Expropriating Authority expropriates the estate in fee simple in Maa‑nulth First Nation Lands, those lands are no longer Maa‑nulth First Nation Lands and Appendix B is deemed to be amended to reflect such removal of lands from Maa‑nulth First Nation Lands.
2.11.11 Where an estate in fee simple in Maa‑nulth First Nation Lands is expropriated by a Provincial Expropriating Authority other than a provincial ministry or Crown corporation, that Provincial Expropriating Authority will provide that Maa‑nulth First Nation with compensation under the provincial Expropriation Act.
2.11.12 Where an estate in fee simple in Maa‑nulth First Nation Lands is expropriated by a provincial ministry or Crown corporation, that provincial ministry or Crown corporation will make reasonable efforts to identify, acquire and offer provincial Crown land of comparable value within the applicable Maa‑nulth First Nation Area to the Maa‑nulth First Nation as compensation.
2.11.13 If a Maa‑nulth First Nation accepts an offer of provincial Crown land as proposed replacement lands made in accordance with 2.11.12, British Columbia will transfer the proposed replacement lands to the applicable Maa‑nulth First Nation.
2.11.14 A Maa‑nulth First Nation may request that British Columbia consent to a parcel of replacement lands transferred to that Maa‑nulth First Nation in accordance with 2.11.13 being added to its Maa‑nulth First Nation Lands.
2.11.15 British Columbia will consent to proposed replacement lands, transferred to the applicable Maa‑nulth First Nation in accordance with 2.11.13, being added to the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation if:
a. the proposed replacement lands are within the Maa‑nulth First Nation Area of that Maa‑nulth First Nation;
b. the proposed replacement lands are in an area outside of the boundaries of a Municipality or, if within the boundaries of a Municipality, that Municipality provides written consent;
c. the proposed replacement lands becoming Maa‑nulth First Nation Land will not unreasonably restrict the expansion or development of a Municipality or the community of Bamfield; and
d. British Columbia will not be required to assume financial or other obligations associated with that parcel of land.
2.11.16 Unless otherwise agreed by British Columbia and the applicable Maa‑nulth First Nation, if British Columbia owns the Subsurface Resources under any proposed replacement lands which are transferred to that Maa‑nulth First Nation in connection with an expropriation by a Provincial Expropriating Authority of its Maa‑nulth First Nation Lands, British Columbia will transfer the estate in fee simple in such Subsurface Resources to that Maa‑nulth First Nation.
2.11.17 Proposed replacement lands, including any Subsurface Resources, transferred to a Maa‑nulth First Nation in accordance with 2.11.13 continue to be subject to any Interest existing immediately before the transfer to the Maa‑nulth First Nation, unless the holder of such Interest otherwise agrees in writing.
2.11.18 For greater certainty, a Maa‑nulth First Nation's ownership of Subsurface Resources is subject to any Subsurface Tenures existing immediately before the acquisition of the parcel of land by the Maa‑nulth First Nation and those Subsurface Tenures continue to be administered by British Columbia in accordance with 4.2.0.
2.11.19 If there is no agreement between the provincial ministry or Crown corporation and a Maa‑nulth First Nation on the provision of land as compensation in accordance with 2.11.12 and 2.11.13, the provincial ministry or Crown corporation will provide that Maa‑nulth First Nation with other compensation under the provincial Expropriation Act.
2.11.20 If British Columbia has consented to replacement lands becoming Maa‑nulth First Nation Lands in accordance with a request under 2.11.14, and Canada has consented to such replacement lands becoming Maa‑nulth First Nation Lands in accordance with a request under 2.10.1 then upon receipt by that Maa‑nulth First Nation of notice of the consent of each of British Columbia and Canada, Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nations Lands.
2.11.21 A Maa‑nulth First Nation that has not received land as compensation from a Provincial Expropriating Authority in connection with the expropriation of an estate in fee simple in its Maa‑nulth First Nation Lands may, within two years after the date of such expropriation, request that British Columbia consent to the proposed replacement lands which that Maa‑nulth First Nation intends to acquire being added to its Maa‑nulth First Nation Lands.
2.11.22 If a Maa‑nulth First Nation intends to acquire lands and make a request in accordance with 2.11.21, it will make reasonable efforts to acquire an estate in fee simple in lands that are contiguous to its existing Maa‑nulth First Nation Lands.
2.11.23 A request by a Maa‑nulth First Nation to British Columbia in accordance with 2.11.21 will include:
a. the legal description and parcel identification description (PID) of the proposed replacement lands;
b. a detailed map that identifies the location of the proposed replacement lands;
c. the size of the replacement lands parcel in hectares; and
d. a description of any Interests that are registered against the title to the proposed replacement lands.
2.11.24 Within 60 days of receiving a request prepared in accordance with 2.11.23, British Columbia will review the proposed replacement lands and if:
a. the proposed replacement lands are within the Maa‑nulth First Nation Area of the applicable Maa‑nulth First Nation;
b. the proposed replacement lands are in an area outside of the boundaries of a Municipality or, if within the boundaries of a Municipality, that Municipality provides written consent;
c. the proposed replacement lands becoming Maa‑nulth First Nation Lands will not unreasonably restrict the expansion or development of a Municipality or the community of Bamfield;
d. the proposed replacement lands, and any replacement land transferred to the Maa‑nulth First Nation by the Provincial Expropriating Authority as partial compensation for the expropriation of Maa‑nulth First Nation Lands, are of equivalent size and comparable value to the Maa‑nulth First Nation Lands which were expropriated; and
e. British Columbia will not be required to assume financial or other obligations associated with that parcel of land,
British Columbia will consent to the proposed replacement lands being added to Maa‑nulth First Nation Lands upon the Maa‑nulth First Nation becoming the registered owner of the estate in fee simple in those replacement lands.
2.11.25 If British Columbia has consented to replacement lands becoming Maa‑nulth First Nation Lands in accordance with a request under 2.11.21 and Canada has consented to such replacement lands becoming Maa‑nulth First Nation Lands in accordance with a request under 2.10.1, then, upon receipt by that Maa‑nulth First Nation of notice of the consent of each of British Columbia and Canada, Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nations Lands.
2.11.26 Unless otherwise agreed by British Columbia and the applicable Maa‑nulth First Nation, if British Columbia owns the Subsurface Resources under any proposed replacement lands which become Maa‑nulth First Nation Lands of that Maa‑nulth First Nation in accordance with 2.11.25, British Columbia will transfer the estate in fee simple in such Subsurface Resources to that Maa‑nulth First Nation.
2.11.27 Proposed replacement lands, including any Subsurface Resources, transferred to a Maa‑nulth First Nation in accordance with 2.11.26 continue to be subject to any Interest existing immediately before the transfer to the Maa‑nulth First Nation, unless otherwise agreed by the Maa‑nulth First Nation and British Columbia.
2.11.28 For greater certainty, a Maa‑nulth First Nation's ownership of Subsurface Resources is subject to any Subsurface Tenures existing immediately before the acquisition of the parcel of land by the Maa‑nulth First Nation and those Subsurface Tenures continue to be administered by British Columbia in accordance with 4.2.0.
2.11.29 Where an expropriated Interest in Maa‑nulth First Nation Lands is no longer required by the Provincial Expropriating Authority for the purpose for which it was expropriated, the Interest will be returned to the applicable Maa‑nulth First Nation subject to terms to be negotiated at the time of the return of the expropriated Interest.
2.11.30 Where an estate in fee simple is returned to a Maa‑nulth First Nation in accordance with 2.11.29, the total amount of the estate in fee simple, in hectares, in Maa‑nulth First Nation Lands of that Maa‑nulth First Nation described in 2.11.8 that may be expropriated will be increased by the total amount of the estate in fee simple, in hectares, returned to that Maa‑nulth First Nation.
2.11.31 If the Provincial Expropriating Authority and the affected Maa‑nulth First Nation disagree as to whether the Interest is no longer required for the purpose for which it was expropriated, either that Maa‑nulth First Nation or British Columbia may refer the issue to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution.
2.11.32 Where an estate in fee simple in a parcel is returned to a Maa‑nulth First Nation in accordance with 2.11.29, such parcel of land will be added to its Maa‑nulth First Nations Lands upon that Maa‑nulth First Nation becoming the owner of such lands and Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nations Lands, unless that Maa‑nulth First Nation provides notice to British Columbia and Canada before the date of such transfer that such lands are not to be added to its Maa‑nulth First Nation Lands.
2.11.33 The Provincial Expropriating Authority, without the consent of the Lieutenant Governor-in-Council, may decide that the expropriated Interest in land is no longer required and may determine the Disposition of any improvements.
2.11.34 Where less than the estate in fee simple in a parcel of Maa‑nulth First Nation Lands is expropriated by a Provincial Expropriating Authority:
a. the parcel of land retains its status as Maa‑nulth First Nation Lands;
b. the parcel of land remains subject to Maa‑nulth First Nation Law except to the extent that the Maa‑nulth First Nation Law is inconsistent with the use of land for which the expropriation took place; and
c. the Maa‑nulth First 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.
2.12.1 Canada and the Maa‑nulth First Nations acknowledge that as a general principle, and where reasonable and practical, Maa‑nulth First Nation Lands are not subject to expropriation, except as described in this Chapter, due to the Maa‑nulth First Nations' interest in maintaining the size and integrity of Maa‑nulth First Nation Lands.
2.12.2 Notwithstanding 2.12.1, any Interest in Maa‑nulth First Nation Lands may be expropriated by a Federal Expropriating Authority in accordance with federal legislation and with the consent of the Governor-in-Council.
2.12.3 The Governor-in-Council may consent to an expropriation of an Interest in Maa‑nulth First Nation Lands only if the expropriation is justifiable and necessary for a public purpose.
2.12.4 For the purposes of 2.12.3, 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 Maa‑nulth First Nation Lands;
b. reasonable efforts have been made by the Federal Expropriating Authority to acquire the Interest in Maa‑nulth First Nation Lands through agreement with the applicable Maa‑nulth First Nation;
c. the most limited Interest in Maa‑nulth First Nation Lands necessary for the purpose for which the Interest in land is sought is to be expropriated; and
d. information relevant to the expropriation, other than documents that would be protected from disclosure under federal legislation, has been provided to the applicable Maa‑nulth First Nation.
2.12.5 Before the Governor-in-Council issues an order consenting to the expropriation of an Interest in Maa‑nulth First Nation Lands, the Federal Expropriating Authority will provide to the applicable Maa‑nulth 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 of 2.12.4.
2.12.6 If a Maa‑nulth First Nation objects to a proposed expropriation of an Interest in its Maa‑nulth First Nation Lands, it may, within 60 days after the report has been provided to that Maa‑nulth First Nation in accordance with 2.12.5, while at the same time providing notice in writing to the Federal Expropriating Authority, refer the matter to a neutral evaluator, in accordance with Appendix Y-5, for a review of the steps taken to satisfy the requirements described in 2.12.4.
2.12.7 The Federal Expropriating Authority may not seek Governor-in-Council consent to the expropriation of an Interest in Maa‑nulth First Nation Lands before the expiration of the period referred to in 2.12.6 or, if the applicable Maa‑nulth First Nation has referred the matter to a neutral evaluator in accordance with 2.12.6, before the neutral evaluator has delivered an opinion on the matter, such opinion to be rendered within 60 days of the referral being made or within such additional time as the Federal Expropriating Authority and that Maa‑nulth First Nation may agree.
2.12.8 For greater certainty, the opinion of the neutral evaluator contemplated by 2.12.7:
a. is without prejudice to the legal positions that may be taken by a Federal Expropriating Authority and the Maa‑nulth First Nation in court or in any other forum;
b. is not admissible in any legal proceedings, unless otherwise required by law; and
c. is not binding on the Governor-in-Council under 2.12.3 and 2.12.4.
2.12.9 Where an estate in fee simple in a parcel of Maa‑nulth First Nation Lands is expropriated by a Federal Expropriating Authority, the Federal Expropriating Authority will make reasonable efforts to identify replacement lands within the Maa‑nulth First Nation Area of the applicable Maa‑nulth First Nation, being either federal Crown land or land available on a willing-seller willing-buyer basis, of equivalent or greater size and comparable value and, if acceptable to that Maa‑nulth First Nation, to acquire and offer the replacement lands to that Maa‑nulth First Nation as partial or full compensation for the expropriation. If the Federal Expropriating Authority and that Maa‑nulth First Nation are unable to agree on the provision of replacement lands as compensation, the Federal Expropriating Authority will provide that Maa‑nulth First Nation with other compensation in accordance with this Agreement.
2.12.10 Subject to 2.12.13, if the replacement lands identified by the Federal Expropriating Authority would result in the total size of the applicable Maa‑nulth First Nation's Maa‑nulth First Nation Lands being less than at the Effective Date and that Maa‑nulth First Nation does not agree that the replacement lands are of comparable value to the Interest in Maa‑nulth First Nation Lands being expropriated, that Maa‑nulth First Nation may refer the issue of whether the replacement lands are of comparable value to the Interest in Maa‑nulth First Nation Lands being expropriated to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution.
2.12.11 The total value of compensation for an Interest in Maa‑nulth First Nation Lands expropriated by a Federal Expropriating Authority in accordance with this Chapter will be determined by taking into account the following factors:
a. the fair market value of the expropriated Interest or of the Maa‑nulth First Nation Lands in which an interest has been expropriated;
b. the replacement value of any improvement to the Maa‑nulth First Nation Lands in which an 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 Interest in Maa‑nulth First Nation Lands that is not expropriated which directly relates to the expropriation;
e. any adverse effect on any cultural or other special value of Maa‑nulth First Nation Lands in which an Interest has been expropriated to the applicable Maa‑nulth First Nation, provided that the cultural or other special value is only applied to an Interest in Maa‑nulth First Nation Lands recognized in law and held by that Maa‑nulth First Nation, and provided that 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 Maa‑nulth First Nation Lands to the extent that the value is not otherwise compensated.
2.12.12 Subject to 2.12.13, if the total value of compensation cannot be agreed upon between the Federal Expropriating Authority and the Maa‑nulth First Nation, or where there is Disagreement on whether the combination of replacement lands and cash is equal to the total value of compensation, either Canada acting on behalf of the Federal Expropriating Authority or that Maa‑nulth First Nation may refer the issue of the total value of compensation for dispute resolution in accordance with Chapter 25 Dispute Resolution.
2.12.13 A dispute on the valuation of replacement lands under 2.12.10, or on the total value of compensation under 2.12.12, or on the terms and conditions of the return of land under 2.12.27, will not delay the expropriation.
2.12.14 Any claim or encumbrance in respect of the Interest expropriated may only be made or discharged against the amount of compensation payable in accordance with Federal Law.
2.12.15 Interest on compensation is payable from the date the expropriation takes effect, at the prejudgment interest rate payable in accordance with federal legislation.
2.12.16 Where a Federal Expropriating Authority expropriates an estate in fee simple in a parcel of Maa‑nulth First Nation Lands, that parcel is no longer Maa‑nulth First Nation Lands.
2.12.17 Where a Federal Expropriating Authority expropriates less than an estate in fee simple in a parcel of Maa‑nulth First Nation Lands:
a. the parcel of land retains its status as Maa‑nulth First Nation Lands;
b. the parcel of land remains subject to Maa‑nulth First Nation Law that are otherwise applicable, 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. the applicable Maa‑nulth First Nation may continue to use and occupy the parcel of land, except to the extent the use or occupation is inconsistent with the expropriation in the view of the Federal Expropriating Authority.
2.12.18 A Maa‑nulth First Nation may request that Canada and British Columbia consent to a parcel of replacement lands transferred to that Maa‑nulth First Nation in accordance with 2.12.0 being added to its Maa‑nulth First Nation Lands.
2.12.19 Canada will consent to replacement lands transferred by a Federal Expropriating Authority to the applicable Maa‑nulth First Nation as part of the compensation in accordance with 2.12.9 being added to Maa‑nulth First Nation Lands if:
a. the replacement lands are located within the Maa‑nulth First Nation Area of that Maa‑nulth First Nation;
b. the replacement lands are located in an area free from overlap with another First Nation or, if within an area of overlap with another First Nation, that First Nation provides written consent; and
c. Canada will not be required to assume financial or other obligations associated with the replacement lands.
2.12.20 British Columbia will consent to replacement lands transferred by a Federal Expropriating Authority to the Maa‑nulth First Nation in accordance with 2.12.9 being added to the Maa‑nulth First Nation Lands of that Maa‑nulth First Nation if:
a. the replacement lands are within the Maa‑nulth First Nation Area of that Maa‑nulth First Nation;
b. the replacement lands are in an area outside of the boundaries of a Municipality or, if within the boundaries of a Municipality, that Municipality provides written consent;
c. the replacement lands becoming Maa‑nulth First Nation Lands will not unreasonably restrict the expansion or development of a Municipality or the community of Bamfield; and
d. British Columbia will not be required to assume financial or other obligations associated with that parcel of land.
2.12.21 If British Columbia and Canada have consented to replacement lands becoming Maa‑nulth First Nation Lands in accordance with a request under 2.12.18, then upon receipt by that Maa‑nulth First Nation of notice of the consent of each of British Columbia and Canada, Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nations Lands.
2.12.22 Replacement lands, including any Subsurface Resources, transferred to a Maa‑nulth First Nation by a Federal Expropriating Authority in accordance with 2.12.9 continue to be subject to any Interests that exist in such lands immediately before the transfer to the Maa‑nulth First Nation.
2.12.23 Where an Interest in a parcel of Maa‑nulth First Nation Lands expropriated by a Federal Expropriating Authority is no longer required for the purpose for which it was expropriated, the federal department, agency or person who holds the expropriated Interest will ensure that the Interest in land is returned to the applicable Maa‑nulth First Nation on the terms and conditions negotiated in accordance with 2.12.26.
2.12.24 Subject to confirmation by the applicable Maa‑nulth First Nation to Canada that it will not be asking Canada to assume financial or other obligations in relation to an estate in fee simple in a parcel of land returned to that Maa‑nulth First Nation in accordance with 2.12.23, such parcel of land will be added to its Maa‑nulth First Nations Lands upon the Maa‑nulth First Nation becoming the owner of such land and Appendix B is deemed to be amended to reflect such addition to Maa‑nulth First Nations Lands, unless the Maa‑nulth First Nation provides notice to British Columbia and Canada before the date of such transfer that such land is not to be added to its Maa‑nulth First Nation Lands.
2.12.25 The federal department, agency or person for whom the land was expropriated may decide, without the consent of the Governor-in-Council, that the expropriated Interest in land is no longer required and may determine the Disposition of any improvements made to the land in a manner consistent with the agreement made in accordance with 2.12.26.
2.12.26 The terms and conditions of the return of an expropriated Interest in Maa‑nulth First Nation Lands, including requirements relating to financial considerations based on market value principles and the condition of the land to be returned, including the process for resolving any disputes around the implementation of these terms and conditions, will be negotiated by the applicable Maa‑nulth First Nation and the Federal Expropriating Authority at the time of the expropriation.
2.12.27 Where the terms and conditions of the return of an expropriated Interest in Maa‑nulth First Nation Lands cannot be agreed upon by the applicable Maa‑nulth First Nation and the Federal Expropriating Authority at the time of the expropriation, either that Maa‑nulth First Nation or Canada, acting on behalf of the Federal Expropriating Authority, may refer the issue to be finally determined by arbitration in accordance with Chapter 25 Dispute Resolution.
2.12.28 Except as otherwise provided in 2.12.0, no conflict or dispute between the Parties respecting the interpretation, application or implementation of 2.12.0 will be considered a Disagreement for the purpose of Chapter 25 Dispute Resolution.
2.12.29 For greater certainty, and subject to 2.12.30, except to the extent that the provisions of this Chapter modify the application of federal legislation relating to an expropriation of Maa‑nulth First Nation Lands, all federal legislation relating to expropriation applies to an expropriation of Maa‑nulth First Nation Lands under this Chapter.
2.12.30 For greater certainty, this Agreement prevails to the extent of an inconsistency with the federal Expropriation Act or other federal legislation relating to an expropriation of Maa‑nulth First Nation Lands.
2.12.31 For greater certainty, nothing in this Agreement affects or limits the application of the federal Emergencies Act and the federal Emergencies Act will continue to apply in all aspects to Maa‑nulth First Nation Lands.
2.13.1 The Minister will, on or before the Effective Date, designate up to 12 hectares of provincial Crown land for each Maa‑nulth First Nation under section 17 (1) of the Land Act, for a term of at least 15 years from the date of such designation, for the purpose of providing the applicable Maa‑nulth First Nation an opportunity to apply for a commercial recreation tenure in accordance with Provincial Law.
2.13.2 Notwithstanding section 17 (3) of the Land Act, the Minister will not amend or cancel a designation referred to in 2.13.1 without the consent of the applicable Maa‑nulth First Nation unless the designated lands are required by British Columbia for regional infrastructure and British Columbia has made reasonable attempts to secure other provincial Crown lands that would not impact the designated lands.
2.13.3 Subject to 2.13.2, British Columbia will continue to manage and use provincial Crown lands designated in accordance with 2.13.1.
2.13.4 Each Maa‑nulth First Nation may apply to British Columbia for a commercial recreation tenure in respect of the lands within its Maa‑nulth First Nation Area that are designated for that Maa‑nulth First Nation in accordance with 2.13.1.
1. If any Party undertakes a field survey of a part of a Maa‑nulth First Nation Lands boundary in accordance with either 2.5.0 or 2.6.0, the Party instigating or in charge of the survey will provide notice to the Surveyor General of British Columbia of the intention to undertake such field survey.
2. Following receipt of a notice in accordance with paragraph 1, the Surveyor General of British Columbia will prepare survey instructions and, once approved by the affected Parties, issue survey instructions to the Land Surveyor designated to undertake the survey.
3. The Land Surveyor will provide copies of any survey returns, prepared in accordance with a designation contemplated by paragraph 2, to the Surveyor General of British Columbia and to the affected Parties.
4. Within 30 days after a Party receives a copy of a survey return from the Land Surveyor, the Party will provide, in writing, to the Surveyor General of British Columbia, its approval of the survey return or any recommendation of that Party.
5. If the affected Parties approve a survey return, the Surveyor General of British Columbia will request the Land Surveyor to submit the final plan to the Surveyor General of British Columbia for confirmation.
6. If the affected Parties recommend the issuance of further instructions to the Land Surveyor, the Surveyor General of British Columbia will compile any recommendations received in respect of the survey return and submit the further instructions to the affected Parties for approval.
7. Upon receipt of the approval referred to in paragraph 6, the Surveyor General of British Columbia will then issue further instructions to the Land Surveyor to amend the survey return.
8. Upon receipt of the amended survey return, the Surveyor General of British Columbia will seek written consent to the amendments from the affected Parties.
9. Upon receipt of the consent contemplated by paragraph 8, the Surveyor General of British Columbia will request the Land Surveyor to submit the final plan to the Surveyor General of British Columbia for confirmation.
10. Upon confirmation of the final plan, the Surveyor General of British Columbia will file one copy of the plan in the Crown land registry and will forward one copy to each of the affected Parties.
SCHEDULE 2 – CONTAMINATED SITE REMEDIATION
| SITE DESCRIPTION | DEEMED USE OF SITE
AS PER ENVIRONMENTAL MANAGAMENT ACT |
|---|---|
| The Maa‑nulth First Nation Lands of Toquaht Nation described as "Subject Lands" in Appendix B-3, Part 4, Plan 1. | industrial land use |
| The Maa‑nulth First Nation Lands of Toquaht Nation described as "Subject Lands" in Appendix B-3, Part 4, Plan 2. | commercial land use |