CHAPTER 9 WATER

9.1  GENERAL

9.1.1  Nothing in this Agreement alters Federal or Provincial Law in respect of property in water.

9.1.2  Storage, diversion, extraction and use of water and Groundwater will be in accordance with Federal and Provincial Law.

9.1.3  Notwithstanding 9.1.2, the Water Utility Act does not apply to Yale First Nation, a Yale First Nation Public Institution or a Yale First Nation Corporation, for the provision of services on Yale First Nation Land.

9.2  YALE FIRST NATION LAWS

9.2.1  Yale First Nation Government may make laws in respect of:

a. the consent of Yale First Nation under 9.3.4a to applications for Water Licences to be applied against the Yale First Nation Water Reservation; and

b. the supply and the use of water from a Water Licence issued to Yale First Nation in accordance with 9.3.4.

9.2.2  Yale First Nation Law under 9.2.1a prevails to the extent of a Conflict with Federal or Provincial Law.

9.2.3  Federal or Provincial Law prevails to the extent of a Conflict with Yale First Nation Law under 9.2.1b.

9.3  YALE FIRST NATION WATER RESERVATION

9.3.1  On the Effective Date, British Columbia will establish a water reservation under the Water Act, in favour of Yale First Nation, for all purposes including domestic, industrial, and agricultural purposes, but excluding hydro power purposes, of 9,832 cubic decametres of water per year from those Streams as set out in Schedule 9-A.

9.3.2  The Yale First Nation Water Reservation will have priority over all Water Licences on those Streams set out in Schedule 9-A other than:

a. Water Licences issued before July 30, 2008;

b. Water Licences issued pursuant to an application made before July 30, 2008; and

c. Water Licences issued pursuant to water reservations established before July 30, 2008.

9.3.3  A person may apply to British Columbia for a Water Licence to be applied against the Yale First Nation Water Reservation.

9.3.4  If a person applies to British Columbia for a Water Licence under 9.3.3 and:

a. Yale First Nation has consented in writing to the application;

b. the application conforms to provincial regulatory requirements, including safety standards;

c. there is sufficient unrecorded volume of flow in the Yale First Nation Water Reservation;

d. where required, the application includes provisions for storage where the monthly percentage of Available Flow during periods of low flow is insufficient to meet proposed demand; and

e. the application is for a volume of flow from a Stream that, together with the total volume of flow licensed for that Stream under this Agreement, does not exceed the monthly percentage of Available Flow for that Stream as set out in this Agreement;

British Columbia will approve the application and issue the Water Licence.

9.3.5  The volume of flow approved by British Columbia in a Water Licence issued under 9.3.4 will be deducted from the unrecorded volume of flow in the Yale First Nation Water Reservation.

9.3.6  The total volume of flow under the Water Licences to be applied against the Yale First Nation Water Reservation may not exceed the monthly percentage of Available Flow of each Stream as set out in Schedule 9-A.

9.3.7  If a Water Licence issued under 9.3.4 is cancelled, expires or is otherwise terminated, the volume of flow in that Water Licence will be added back to the unrecorded volume of flow for that Stream in the Yale First Nation Water Reservation.

9.3.8  British Columbia will Consult with Yale First Nation in respect of applications for Water Licences where the applicant may reasonably require access across, or, an interest in, Yale First Nation Land.

9.3.9  If a person other than Yale First Nation or a Yale First Nation Member has a Water Licence and requires access across, or an interest in, Yale First Nation Land for the construction, maintenance, improvement or operation of works authorized under that licence, Yale First Nation may not unreasonably withhold consent, and will take reasonable steps to ensure that access or the granting of that interest, if the Water Licence holder offers fair compensation to the owner of the interest affected.

9.3.10  British Columbia or Yale First Nation may refer a dispute arising under 9.3.9 to be finally determined by arbitration in accordance with Chapter 24 Dispute Resolution.

9.3.11  If Yale First Nation or a Yale First Nation Member has a Water Licence issued under 9.3.4 and reasonably requires access across, or an interest in, provincial Crown land for the construction, maintenance, improvement or operation of work authorized under that licence, British Columbia will grant the access or interest on reasonable terms in accordance with Provincial Law.

9.3.12  A Water Licence issued under 9.3.4 for use on Yale First Nation Land is not subject to any rentals, fees, or other charges, except taxes, by British Columbia.

9.3.13  Nothing in this Agreement precludes Yale First Nation or Yale First Nation Members from applying under Provincial Law for a Water Licence unrelated to the Yale First Nation Water Reservation.

9.3.14  Sections 27, 28, 29 and 30 of the Water Act in respect of a licensee's right to expropriate land do not apply on Yale First Nation Land.

9.4  SALE OF WATER

9.4.1  If Federal and Provincial Law permit the sale of water, Yale First Nation may sell water in accordance with Federal and Provincial Law.

9.5  WATER MANAGEMENT

9.5.1  Yale First Nation may participate in provincial water planning processes in the Yale First Nation Area.

9.5.2  Yale First Nation and Canada or British Columbia may enter into agreements in respect of the management of water within the Yale First Nation Area to:

a. define respective roles and responsibilities and coordinate activities related to:

i. flood response and public safety;

ii. protection of water quality;

iii. Groundwater management and regulation;

iv. resource inventory;

v. monitoring of water quality and quantity;

vi. management of, and access to, information;

vii. water conservation;

viii. water management objectives and planning;

ix. any other matters as agreed to by the Parties; and

b. identify watersheds that require water management planning.

9.5.3  Where a watershed includes both Yale First Nation Land and provincial Crown land, and if Yale First Nation or British Columbia considers that the watershed is an important source of drinking water, British Columbia and Yale First Nation may enter into agreements on the protection of drinking water in that watershed.

9.6  POWER RESERVATION

9.6.1  In addition to the Yale First Nation Water Reservation, on the Effective Date British Columbia will establish water reservations under the Water Act of the unrecorded water of Gordon Creek and Nine Mile Creek, in favour of Yale First Nation, for five years after the Effective Date to enable Yale First Nation to investigate the suitability of those Streams for hydro power purposes, including related storage purposes.

9.6.2  If Yale First Nation applies for a Water Licence for hydro power purposes and any related storage purposes in relation to a water reservation established under 9.6.1, British Columbia will grant the Water Licence if the proposed hydro power project conforms to Federal and Provincial Law and there is sufficient Available Flow in the Stream subject to that water reservation.

9.6.3  If British Columbia issues a Water Licence under 9.6.2 for a Stream, the water reservation established under 9.6.1 will terminate in respect of that Stream.

9.6.4  Subject to 9.6.6, British Columbia will establish water reservations under the Water Act of:

a. the unrecorded waters of Emory Creek and tributaries upstream of Everet's Creek, in the New Westminster Water District, for a period of three years commencing from:

i. the Effective Date; or

ii. the date of the final decision on the current application for power purpose on Emory Creek (application file 2002654) or from the abandonment of that application,

whichever is later;

b. the unrecorded waters of Ruby Creek and tributaries, in the New Westminster Water District, for a period of three years commencing from:

i. the Effective Date; or

ii. the date of the final decision the current application for power purpose on Ruby Creek (application file 2002618) or from the abandonment of that application,

whichever is later; and

c. the unrecorded waters of Siwash Creek and tributaries in the New Westminster Water District, for a period of three years commencing from:

i. the Effective Date; or

ii. the date of the final decision on the current application for power purpose on Siwash Creek (application file 2002574) or from the abandonment of that application,

whichever is later;

to enable Yale First Nation to investigate the suitability of those Streams for hydro power purposes, including related storage purposes.

9.6.5  For the purpose of any of the water reservations to be established in accordance with 9.6.4, "final decision" refers to the final outcome of the application after all decisions on the application have been made, including:

a. any appeal under the Water Act from the decision; and

b. any other legal proceeding filed in respect of the application, the decision or any appeal from the decision.

9.6.6  Notwithstanding 9.6.4, if a Water Licence is issued to the applicant in respect of any of the current applications on Emory Creek and tributaries (application file 2002654), on Ruby Creek and tributaries (application file 2002618), or on Siwash Creek and tributaries (application file 2002574), British Columbia will not be required to establish a water reservation for hydro power purposes under the Water Act for Yale First Nation on any of the Streams in respect of which that Water Licence has been issued.

9.6.7  If Yale First Nation applies for a Water Licence for hydro power purposes and any related storage purposes in relation to a water reservation established for Yale First Nation under 9.6.4, British Columbia will grant the Water Licence if the proposed hydro power project conforms to Federal and Provincial Law and there is sufficient Available Flow in the Stream subject to that water reservation.

9.6.8  If British Columbia issues a Water Licence under 9.6.7 for a Stream, the water reservation established under 9.6.4 will terminate in respect of that Stream.

9.7  GROUNDWATER

9.7.1  If British Columbia brings into force Provincial Law regulating the volume of Groundwater under Yale First Nation Land which may be extracted and used and if Groundwater is reasonably available, British Columbia and Yale First Nation will negotiate and attempt to reach agreement on the volume of Groundwater that may be extracted and used for domestic, agricultural and industrial purposes by Yale First Nation on Yale First Nation Land for as long as that Provincial Law is in effect.

9.7.2  For the purposes of 9.7.1, the British Columbia and Yale First Nation will determine:

a. the volume of flow of Groundwater that can reasonably be withdrawn from the Groundwater aquifer under consideration while maintaining the sustainability and quality of the Groundwater from the aquifer; and

b. the existing and reasonable future needs for Groundwater of Yale First Nation on Yale First Nation Land, as well as the existing and future needs of other users in the area,

and take into account any applicable requirement under Federal and Provincial Law.

9.7.3  If British Columbia and Yale First Nation are unable to reach agreement under 9.7.1 and 9.7.2 on the volume of Groundwater that may be extracted and used by Yale First Nation, British Columbia or Yale First Nation may refer the matter to be finally determined by arbitration.

9.7.4  Access to extract Groundwater on Yale First Nation Land requires the consent of Yale First Nation.

SCHEDULE 9-A – YALE FIRST NATION WATER VOLUMES

Streams partially within Yale First Nation Land for which a monthly percentage of Available Flow has been specified:

[ Previous | Next ]