The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 2nd day of June, 2011
Ian D. Izard, Q.C., Law Clerk
APPENDIX J-1
LIMITS ON PROVINCIAL EXPROPRIATION
1. Provincial Law applies to the expropriation of Yale First Nation Land by a Provincial Expropriating Authority except to the extent that this Agreement modifies its application.
2. A Provincial Expropriating Authority may expropriate an interest in Yale First Nation Land only with the consent and by the order of the Lieutenant Governor in Council.
3. The Lieutenant Governor in Council may issue an order consenting to an expropriation of an interest in Yale First Nation Land only:
a. after the conclusion of the procedures described in paragraphs 4 through 5; and
b. if the expropriation is justifiable in accordance with paragraph 6.
4. Before the Lieutenant Governor in Council makes a decision under paragraph 3, the Provincial Expropriating Authority will provide a report to Yale First Nation which states the reasons for the expropriation and addresses the factors under subparagraphs 6.1a to 6.d.
5. If Yale First Nation objects to the expropriation of an interest in Yale First Nation Land, the Provincial Expropriating Authority and Yale First Nation will, within 60 days of the delivery to Yale First Nation of the report referred to in paragraph 4, make reasonable efforts to resolve the objection raised by Yale First Nation.
6. For the purposes of subparagraph 3.b, an expropriation is justifiable where the Lieutenant Governor in Council is satisfied that the following requirements have been met:
a. there is no other reasonably feasible alternative to the expropriation, including the use of lands that are not Yale First Nation Land;
b. reasonable efforts have been made by the Provincial Expropriating Authority to acquire the interest in Yale First Nation Land through agreement with Yale First Nation;
c. the expropriation is of the smallest interest in Yale First Nation Land necessary and is for the shortest time required;
d. information relevant to the expropriation, other than documents that would be protected from disclosure under Provincial Law, has been provided to Yale First Nation, including the report referred to in paragraph 4; and
e. where Yale First Nation has objected to the expropriation, reasonable efforts have been made to resolve the objection.
7. The Lieutenant Governor in Council will not consent to the expropriation before the end of the period provided for in paragraph 5.
8. Notwithstanding paragraphs 3 to 7, the Lieutenant Governor in Council may consent to the expropriation if the Minister or Lieutenant Governor in Council has declared a state of emergency.
9. The total value of compensation for an expropriated interest in Yale First Nation Land will be based on the criteria used in the Expropriation Act and will take into account the following factors:
a. the market value of the land based on its use at the date of expropriation plus reasonable damages;
b. the market value of the land based on its highest and best use at the date of expropriation;
c. the value of a special economic advantage to the owner arising out of his or her occupation or use of the land; and
d. the value of improvements made by an owner occupying a residence located on the land.
10. If the Provincial Expropriating Authority and Yale First Nation disagree on the total value of compensation for an expropriated interest held by Yale First Nation, the dispute will be finally determined by arbitration in accordance with Chapter 24 Dispute Resolution without having to proceed through Stages One and Two. A Disagreement regarding the value of expropriated interest will not delay the expropriation. For the purpose of this paragraph British Columbia will act on behalf of the Provincial Expropriating Authority.
11. Notwithstanding paragraph 6.d, where a fee simple interest in Yale First Nation Land is expropriated by a Provincial Expropriating Authority, the expropriation will include the fee simple interest in the Subsurface Resources unless British Columbia and Yale First Nation agree otherwise.
12. Where a Provincial Expropriating Authority expropriates a fee simple interest in Yale First Nation Land, that land will be removed from Yale First Nation Land, the Parties will amend Appendix B, in accordance with 27.1.9, to reflect the removal, and the parcel of land will cease to be Yale First Nation Land when the amendment takes effect.
13. Where a fee simple interest in Yale First Nation Land held by Yale First Nation is expropriated by a provincial ministry or Crown corporation, that provincial ministry or Crown corporation will make reasonable efforts to identify and offer provincial Crown land of comparable value within the Yale First Nation Area to Yale First Nation as compensation.
14. If Yale First Nation accepts an offer of provincial Crown land as proposed replacement land made under paragraph 13, British Columbia will transfer the proposed replacement lands to Yale First Nation.
15. If the replacement land transferred under paragraph 14 is of less than comparable value, British Columbia will provide additional compensation in accordance with paragraph 9.
16. Yale First Nation may request that British Columbia and Canada consent to a parcel of replacement land transferred to Yale First Nation under paragraph 14 being added to Yale First Nation Land.
17. British Columbia will consent to a request under paragraph 16 if:
a. the replacement land is outside of the boundaries of a municipality or is within the boundaries of a municipality and that municipality provides written consent;
b. the replacement land becoming Yale First Nation Land will not unreasonably restrict the expansion or development of a municipality; and
c. British Columbia will not be required to assume financial or other obligations associated with that parcel of land.
18. Canada will consent to a request under paragraph 16 if:
a. the replacement land does not overlap with an area over that another First Nation claims a legal interest or which is subject to treaty negotiations with another First Nation, except where the other First Nation in those cases consents to the addition; and
b. the addition will not result in Canada being required to assume financial or other obligations.
19. If British Columbia and Canada have consented to a request under paragraph 16, each will provide notice of its consent to the other Parties. Upon receipt by Yale First Nation of the notices, the Parties will amend Appendix B in accordance with 27.1.9 to reflect the addition, and the parcel of land will become Yale First Nation Land when the amendment takes effect.
20. Unless otherwise agreed by British Columbia and Yale First Nation, if British Columbia owns Subsurface Resources under any replacement land that is transferred to Yale First Nation under paragraph 14, British Columbia will transfer the fee simple interest in those Subsurface Resources to Yale First Nation.
21. Replacement land, including any Subsurface Resources, transferred to Yale First Nation under paragraph 14 continues to be subject to any existing interests, unless the interest holder and Yale First Nation agree otherwise in writing.
22. For greater certainty, Yale First Nation ownership of Subsurface Resources is subject to any existing Subsurface Tenures and those Subsurface Tenures continue to be administered by British Columbia in accordance with 12.6.12 through 12.6.20.
23. If there is no agreement between the provincial ministry or Crown corporation and Yale First Nation on the provision of land as compensation under paragraph 13 and 14, the provincial ministry or Crown corporation will provide Yale First Nation with other compensation in accordance with paragraph 9.
24. If Yale First Nation has not received provincial Crown land as compensation from a Provincial Expropriating Authority in connection with the expropriation of a fee simple interest in Yale First Nation Land it may, within two years after the date of that expropriation, request that British Columbia and Canada consent to other replacement land that Yale First Nation intends to acquire being added to Yale First Nation Land upon Yale First Nation becoming the registered owner of a fee simple interest in that land.
25. If Yale First Nation intends to acquire lands and make a request under paragraph 24, it will make reasonable efforts to acquire a fee simple interest in lands that are contiguous to its existing Yale First Nation Land.
26. A request by Yale First Nation under paragraph 24 will include:
a. the legal description and parcel identification description (PID) of the proposed replacement land;
b. a detailed map that identifies the location of the proposed replacement land;
c. the size of the replacement land parcel in hectares; and
d. a description of any interests that are registered against the title to the proposed replacement lands.
27. Within 60 days of receiving a request under paragraph 24, British Columbia will review the proposed replacement land and if:
a. the proposed replacement land is located within the Yale First Nation Area;
b. the proposed replacement land is in an area outside of the boundaries of a municipality unless that municipality provides written consent;
c. the proposed replacement land becoming Yale First Nation Land will not unreasonably restrict the expansion or development of a municipality;
d. the proposed replacement land, and any replacement land transferred to Yale First Nation by the Provincial Expropriating Authority as partial compensation for the expropriation, is of equivalent size and comparable value to the Yale First Nation Land that was 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 request.
28. Canada will consent to a request under paragraph 24 if:
a. the proposed replacement land is within the Yale First Nation Area;
b. the proposed replacement land does not overlap with an area over which another First Nation claims a legal interest or that is subject to treaty negotiations with another First Nation, except where the other First Nation in those cases consents to the addition; and
c. the addition will not result in Canada being required to assume financial or other obligations.
29. If British Columbia and Canada have consented to a request under paragraph 24, each will provide notice of its consent to the other Parties. If notice has been provided, then upon Yale First Nation becoming owner of the land, the Parties will amend Appendix B in accordance with 27.1.9 to reflect the addition, and the parcel of land will become Yale First Nation Land when the amendment takes effect.
30. Unless otherwise agreed by British Columbia and Yale First Nation, if British Columbia owns Subsurface Resources under any replacement lands that become Yale First Nation Land in accordance with paragraph 29, British Columbia will transfer the estate in fee simple in those Subsurface Resources to Yale First Nation.
31. Proposed replacement land, including any Subsurface Resources, that become Yale First Nation Land under paragraph 29 continue to be subject to any existing interests, unless Yale First Nation and British Columbia agree otherwise.
32. For greater certainty, Yale First Nation ownership of Subsurface Resources is subject to any existing Subsurface Tenures and those Subsurface Tenures continue to be administered by British Columbia in accordance with 12.6.12 through 12.6.20.
33. Where an expropriated interest in Yale First Nation Land is no longer required by the Provincial Expropriating Authority for the purpose for which it was expropriated, that interest will be returned to Yale First Nation subject to terms to be negotiated at the time of the return of the expropriated interest.
34. If the Provincial Expropriating Authority and Yale First Nation disagree as to whether the interest is no longer required for the purpose for which it was expropriated, either Yale First Nation or British Columbia may refer the issue to be finally determined by arbitration.
35. Where a fee simple interest in a parcel of land is returned to Yale First Nation in accordance with paragraph 33, that parcel of land will be added to Yale First Nation Land and upon Yale First Nation becoming the owner of the land the Parties will amend Appendix B in accordance with 27.1.9 to reflect the addition, and the parcel of land will become Yale First Nation Land when the amendment takes effect, unless Yale First Nation provides notice to British Columbia and Canada before the date of the transfer that the parcel of land is not to be added to Yale First Nation Land.
36. The amount of Yale First Nation Land identified in paragraph 12.14.4 will increase by five percent of the area, in hectares, of land that is added to Yale First Nation Land under paragraph 35.
37. 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.
38. Where less than a fee simple interest in a parcel of Yale First Nation Land is expropriated by a Provincial Expropriating Authority:
a. the land retains its status as Yale First Nation Land;
b. subject to the terms of this Agreement, the parcel of land remains subject to Yale First Nation Law except to the extent that Yale First Nation Law impairs or frustrates the use or occupation of land, or any works located on the land, for which the expropriation took place;
c. subject to the terms of this Agreement, Yale First Nation may continue to use and occupy the parcel of land, except to the extent that such use or occupation impairs or frustrates the use or occupation of land, or any works located on the land, for which the expropriation took place; and
d. notwithstanding paragraph 6.c, where the Provincial Expropriating Authority is a Public Utility, the Public Utility will have the right to use and occupy the expropriated interest on substantially the same terms and conditions as set out in Appendix H-5, Document 2 (Transmission Right of Way (BC Hydro)) or Document 3 (Distribution Right of Way (BC Hydro and TELUS)), as applicable.
APPENDIX J-2
LIMITS ON FEDERAL EXPROPRIATION
1. The Governor-in-Council may consent to an expropriation of an interest in Yale First Nation Land if the expropriation is justifiable in accordance with paragraph 3 and necessary for a public purpose.
2. For greater certainty, where Federal Law deems an expropriation to be for a public purpose, the expropriation will be deemed to be necessary for a public purpose under this Appendix J-2.
3. For the purposes of paragraph 1, an expropriation is justifiable where the Governor-in-Council is satisfied that the following requirements have been met:
a. there is no other reasonably feasible alternative land to acquire that is not Yale First Nation Land;
b. the Federal Expropriating Authority has made reasonable efforts to acquire the interest in Yale First Nation Land through agreement with Yale First Nation;
c. the most limited interest in Yale First Nation Land necessary for the shortest time possible for the purpose for which the interest in land is sought is expropriated; and
d. information relevant to the expropriation, other than documents that would be protected from disclosure under Federal Law, has been provided to Yale First Nation.
4. Before the Governor-in-Council issues an order consenting to the expropriation of an interest in Yale First Nation Land, the Federal Expropriating Authority will provide to Yale 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 paragraph 3.
5. If Yale First Nation objects to a proposed expropriation of an interest in Yale First Nation Land, it may, within 60 days after the report has been provided to Yale First Nation under paragraph 4, by providing notice in writing to the Federal Expropriating Authority, refer the matter of the steps taken to satisfy the requirements set out in paragraph 3 directly to neutral evaluation under Stage Two of Chapter 24 Dispute Resolution.
6. The Federal Expropriating Authority may not seek Governor-in-Council consent to the expropriation of an interest in Yale First Nation Land before the expiration of the period referred to in paragraph 5 or, if Yale First Nation has referred the matter to a neutral evaluator in accordance with paragraph 5, 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 Parties may agree.
7. Without limiting the generality of Chapter 24 Dispute Resolution, the opinion of the neutral evaluator under paragraph 6:
a. is without prejudice to the legal positions that may be taken by a Federal Expropriating Authority and Yale 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 paragraph 1 and paragraph 3.
8. Where a fee simple interest in a parcel of Yale First Nation Land is expropriated by a Federal Expropriating Authority, the Federal Expropriating Authority will make reasonable efforts:
a. to identify replacement land within the Yale First Nation Area, being either federal Crown land, or land, including provincial Crown land, available on a willing-seller willing-buyer basis, of equivalent or greater size and comparable value; and
b. if acceptable to Yale First Nation, to acquire and offer the replacement land to Yale First Nation as partial or full compensation for the expropriation.
9. If the Federal Expropriating Authority and Yale First Nation are unable to agree on the provision of replacement land as compensation, the Federal Expropriating Authority will provide Yale First Nation with other compensation in accordance with this Agreement.
10. Subject to paragraph 13, if the replacement land identified by the Federal Expropriating Authority would result in the total size of Yale First Nation Land being less than at the Effective Date and Yale First Nation does not agree that the replacement land is of comparable value to the interest in Yale First Nation Land being expropriated, Yale First Nation may refer the issue of whether the replacement land is of comparable value to the interest in Yale First Nation Land being expropriated to be finally determined by arbitration.
11. The total value of compensation for an interest in Yale First Nation Land expropriated by a Federal Expropriating Authority under this Appendix J-2 will be determined by taking into account the following factors:
a. the market value of the expropriated interest or of the Yale First Nation Land in which an interest has been expropriated;
b. the replacement value of any improvement to Yale First Nation Land 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 Yale First Nation Land that is not expropriated which directly relates to the expropriation;
e. any adverse effect on any cultural or other special value of Yale First Nation Land in which an interest has been expropriated to Yale First Nation, provided:
i. that the cultural or other special value is only applied to an interest in Yale First Nation Land recognized in law and held by Yale First Nation, and,
ii. there will be no increase in the total value of compensation on account of any aboriginal rights, title or interest; and
f. the value of any special economic advantage arising out of or incidental to the occupation or use of Yale First Nation Land by Yale First Nation to the extent that the value is not otherwise compensated.
12. Subject to paragraph 13, if the Federal Expropriating Authority and Yale First Nation cannot agree on the total value of compensation or on whether the combination of replacement land and cash is equal to the total value of compensation, the Federal Expropriating Authority or Yale First Nation may refer the issue of the total value of compensation for resolution under Chapter 24 Dispute Resolution.
13. A dispute in respect of:
a. the valuation of replacement land under paragraph 10;
b. the total value of compensation under paragraph 12; or
c. the terms and conditions of the return of land under paragraph 26,
will not delay the expropriation.
14. Any claim or encumbrance in respect of the interest expropriated by a Federal Expropriating Authority may only be claimed against the amount of compensation payable under paragraph 11.
15. Interest is payable on compensation from the date of an expropriation at the interest rate payable under Federal Law.
16. Where a Federal Expropriating Authority expropriates a fee simple interest in Yale First Nation Land, that land will be removed from Yale First Nation Land, the Parties will amend Appendix B in accordance with 27.1.9 to reflect the removal, and the parcel of land will cease to be Yale First Nation Land when the amendment takes effect.
17. Where a Federal Expropriating Authority expropriates less than a fee simple interest in a parcel of Yale First Nation Land:
a. the parcel of land retains its status as Yale First Nation Land;
b. the parcel of land remains subject to Yale First Nation Law, except to the extent that such law interferes with the use of the parcel of land for which the expropriation took place; and
c. Yale First Nation may continue to use and occupy the parcel of land, except to the extent that, in the view of the Federal Expropriating Authority, the use or occupation is inconsistent with the use of the parcel for which the expropriation took place.
18. Yale First Nation may request that Canada and British Columbia consent to a parcel of replacement land transferred to Yale First Nation under paragraph 8 being added to Yale First Nation Land.
19. Canada will consent to a request under paragraph 18 if:
a. the replacement land does not overlap with an area over which another First Nation claims a legal interest or which is subject to treaty negotiations with another First Nation, except where the other First Nation in those cases consents to the addition; and
b. the addition will not result in Canada being required to assume financial or other obligations.
20. British Columbia will consent to a request under paragraph 18 if:
a. the replacement land is in an area outside of the boundaries of a municipality or is within the boundaries of a municipality and that municipality provides written consent;
b. the replacement land becoming Yale First Nation Land will not unreasonably restrict the expansion or development of a municipality; and
c. the addition will not result in British Columbia being required to assume financial or other obligations.
21. If British Columbia and Canada have consented to a request under paragraph 18, each will provide notice of its consent to the other Parties. If notice has been provided, then upon Yale First Nation becoming owner of the land, the Parties will amend Appendix B in accordance with 27.1.9 to reflect the addition, and the parcel of land will become Yale First Nation Land when the amendment takes effect.
22. Where an expropriated interest in a parcel of Yale First Nation Land is no longer required for the purpose for which it was expropriated, the federal department, agency or other entity who holds the expropriated land, or its successors or assigns, will ensure that the interest in land is returned to Yale First Nation on the terms and conditions negotiated under paragraph 25.
23. The consent of the Governor-in-Council is not required to give effect to a return of land under paragraph 22, and the federal department, agency or other entity who holds the expropriated interest will determine the disposition of any improvements made to the land in a manner consistent with an agreement reached pursuant to paragraph 25 or the outcome of an arbitration under paragraph 26.
24. Yale First Nation agrees that the return of an interest in Yale First Nation Land under paragraph 22 will not result in Canada or British Columbia assuming financial or other obligations, unless agreed to in writing at the time of the expropriation.
25. At the time of the expropriation, Yale First Nation and the Federal Expropriation Authority will negotiate the terms and conditions of the return of an expropriated interest in Yale First Nation Land, including:
a. requirements relating to financial considerations based on market value principles;
b. the condition of the land to be returned; and
c. the process for resolving any disputes around the implementation of these terms and conditions.
26. Where Yale First Nation and the Federal Expropriating Authority cannot agree on the terms and conditions of the return of an expropriated interest in Yale First Nation Land at the time of the expropriation, either Canada acting on behalf of the Federal Expropriating Authority or Yale First Nation may refer the issue to be finally determined by arbitration.
27. Where a fee simple interest in a parcel of land is returned to Yale First Nation under paragraph 22, that parcel of land will be added to Yale First Nation Land and upon Yale First Nation becoming the owner of the land the Parties will amend Appendix B in accordance with 27.1.9 to reflect the addition, and the parcel of land will become Yale First Nation Land when the amendment takes effect, unless Yale First Nation provides notice to British Columbia and Canada before the date of the transfer that the parcel of land is not to be added to Yale First Nation Land.
28. Except as otherwise provided in paragraphs 5, 10, 12 and 26, no conflict or dispute between the Parties respecting the interpretation, application or implementation of 12.14.1 through 12.14.3 and paragraphs 1 through 27 will go to dispute resolution under Chapter 24 Dispute Resolution.
29. For greater certainty, and subject to paragraph 30, except to the extent that the provisions of this Appendix J-2 modify the application of Federal Law relating to an expropriation of Yale First Nation Land, all federal legislation relating to expropriation applies to an expropriation of Yale First Nation Land under this Appendix J-2.
30. Without limiting the generality of 2.7.2, the provisions of this Appendix J-2 prevail to the extent of an inconsistency with the federal Expropriation Act or other Federal Law relating to the expropriation.
31. Where the fee simple interest in a parcel of Yale First Nation Land is held by a Yale First Nation Member, a Yale First Nation Corporation or a Yale First Nation Public Institution, any interest in that parcel may be expropriated by a Federal Expropriating Authority in accordance with:
a. Federal Law;
b. the consent of the Governor-in-Council; and
c. paragraphs 1 through 7, 15, 16, 17 and 22 through 30,
and for greater certainty, any return of land under paragraphs 22 through 27 will be to Yale First Nation.