Appendix C - 3
DOCUMENT 1
 
GRANT OF RIGHT OF WAY AND LICENCE FOR PUBLIC UTILITY WORKS
TO
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
 
 

This Agreement is dated _______________________________, _________________

BETWEEN: 

NISGA'A NATION
[insert address]
(the "Nisga'a Nation")
AND: 
BRITISH COLUMBIA HYDRO AND POWER AUTHORITY, continued under the Hydro and Power Authority Act, RSBC 1996, c. 212
[insert address]
("Hydro")
 
WHEREAS:
  1.  The Nisga'a Nation, Canada and British Columbia have entered into the Nisga'a Final Agreement.
  1. The Nisga'a Nation wishes to grant to Hydro rights on Nisga'a Lands for Hydro Works existing on Nisga'a Lands on the effective date.

  2.  
Therefore for good and valuable consideration the Nisga'a Nation and Hydro agree as follows:

 1.    Definitions

    "BC TEL" means BC TEL, and its successors and assigns.

    "Final Agreement" means the Nisga'a Final Agreement between the Nisga'a Nation, Canada and British Columbia.

    "Hydro Purposes" means the transmission and distribution of electric energy and telecommunications.

    "Hydro Works" means poles, towers, antennae (except for monopole free standing antennae), anchors, guy wires, brackets, cross arms, insulators, transformers, overhead and underground conductors, wires, lines and cables, underground conduits and pipes, access nodes, all ancillary appliances and fittings, reasonably required associated protective installations and related works such as fencing for safety or security, devices and identifying colours for aircraft warning, and utility services for the operation of any of the foregoing.

    "Hydro Right of Way Area" means those portions of Nisga'a Lands as described in Schedule A attached to this Agreement.

    "Licensed Hydro Works" means, collectively, any Hydro Works, and any access roads within the Vegetation Management Area, that, on the effective date, are located on Nisga'a Lands outside of:
     

      (a) a Crown road right of way area;

      (b) a Hydro Right of Way Area;

      (c) a right of way area granted to BC TEL on which Hydro is BC TEL's licensee; or

      (d) an area in respect of which, on the effective date, the Nisga'a Nation grants Hydro rights under a separate instrument.

    "Vegetation Management Area" means the Hydro Right of Way Area together with the area 10 metres on both sides of the Hydro Right of Way Area.
     
2.    Relationship to Final Agreement
    This Agreement is made under the Final Agreement, and defined terms in the Final Agreement will have the same meaning in this Agreement.
3.    Rights on Hydro Right of Way Area
    The Nisga'a Nation grants to Hydro, and its employees, representatives, agents, contractors, licensees and assignees, the full, free and uninterrupted right, liberty and right of way, for Hydro Purposes, as follows:
     
      (a) to construct, excavate for, erect, string, or otherwise install, operate, maintain, repair, alter, upgrade, remove and replace Hydro Works over, upon and under the Hydro Right of Way Area;

      (b) to trim or remove all or any trees, growth or vegetation now or hereafter on the Vegetation Management Area that may in the reasonable opinion of Hydro create a hazard or interfere with the Hydro Works or the carrying out of any of the Hydro Purposes, except that Hydro shall take all reasonable steps, including where appropriate planting of suitable replacement vegetation, to avoid erosion or other damage;

      (c) to conduct vegetation management upon the Vegetation Management Area, such as the planting of vegetation compatible with use for Hydro Purposes, and the application of herbicides and pesticides provided that:

     
        (i) Hydro will not conduct any aerial application of herbicides or pesticides on the Hydro Right of Way Area or other Nisga'a Lands; and
       
        (ii) Hydro will obtain all permits and approvals as required by authorities having jurisdiction, including any such permits or approvals required by the Nisga'a Nation, for the use of any herbicides or pesticides;
       
      (d) to clear the Hydro Right of Way Area and keep it cleared of all or any part of any obstructions that may in the reasonable opinion of Hydro create a hazard or interfere with the Hydro Works or the carrying out of any of the Hydro Purposes;

      (e) to install, maintain and use gates in all fences constructed by others which are now or hereafter shall be on the Hydro Right of Way Area and in fences across roads in the Vegetation Management Area;

      (f) to ground any structures, installation or things, by whomsoever owned, from time to time situated anywhere on the Hydro Right of Way Area or adjacent Nisga'a Lands where, in the reasonable opinion of Hydro, such grounding will eliminate or reduce hazard to persons;

      (g) to pass and repass over the Hydro Right of Way Area with or without equipment, machinery and materials as reasonably required by Hydro, and to construct, maintain, repair, replace and use trails, roads and bridges on the Hydro Right of Way Area as reasonably required to obtain access to the Hydro Works; and

      (h) to generally do all acts or things necessary in connection with the foregoing.

4.    Non Exclusive Use
    This Agreement will not entitle Hydro to exclusive possession of the Hydro Right of Way Area or other parts of the Nisga'a Lands and the Nisga'a Nation reserves the right to grant other dispositions of the Vegetation Management Area, including the Hydro Right of Way Area, so long as the grant does not materially affect the exercise of Hydro's rights under this Agreement.
5.    BC TEL
    Hydro will cooperate and enter into agreements with BC TEL in the same manner as Hydro and BC TEL cooperate and enter into agreements elsewhere in British Columbia, to share the use of poles, ducts and other works.
6.    Licence For Hydro Works Located Outside Rights of Way
    The Nisga'a Nation grants to Hydro, and its employees, representatives, agents, contractors, licensees and assignees, as of the effective date, a licence for all Licensed Hydro Works to use and occupy Nisga'a Lands on the following terms:

    (a) the licence is irrevocable so long as Hydro requires the use of the Licensed Hydro Works for Hydro Purposes, unless the Licensed Hydro Works are included within a Crown road right of way area or Hydro Right of Way Area under this paragraph;

    (b) for the Licensed Hydro Works, Hydro holds the same rights, privileges and obligations, including all indemnity obligations, as apply to Hydro for the use of the Hydro Right of Way Area under this Agreement, and including the right of reasonable access onto the Nisga'a Lands for the purpose of gaining access to the Licensed Hydro Works;

    (c) if at any time in the course of maintenance or operations Hydro replaces or makes significant repairs to Licensed Hydro Works which are adjacent to a Crown road right of way area or a Hydro Right of Way Area then, upon written notice from the Nisga'a Nation and provided the relocation does not result in significant increased costs, and for a Crown road right of way area if the relocation is acceptable to British Columbia, Hydro will relocate the Licensed Hydro Works on to the adjacent right of way area, and the licence for those Licensed Hydro Works will be terminated;

    (d) the Nisga'a Nation may at any time at no cost to Hydro require Hydro to enter into an agreement to extend the Hydro Right of Way Area so as to incorporate within the Hydro Right of Way Area any Licensed Hydro Works designated by the Nisga'a Nation and upon the appropriate extension of the Hydro Right of Way Area the licence for those Licensed Hydro Works will be terminated;

    (e) the Nisga'a Nation may at any time require Hydro to relocate Licensed Hydro Works designated by the Nisga'a Nation to another location on Nisga'a Lands, including on to an adjacent Crown road right of way area if acceptable to British Columbia, or to a Hydro Right of Way Area and in that event:
     

      (i) if the new location is reasonably suitable for use for Hydro Works considering construction, maintenance and operation and costs, Hydro will proceed with the relocation;
     
      (ii) the Nisga'a Nation will give reasonable notice to permit design, planning and construction of the Hydro Works to be relocated;
     
      (iii) the Nisga'a Nation will pay all reasonable costs, including costs of design, supervision and construction; and
     
      (iv) upon relocation, this licence is extended to the relocated Hydro Works, except if the relocated Hydro Works are located on a Crown road right of way area or a Hydro Right of Way Area, then the license for those Hydro Works will be terminated.
7.    Duration
    The rights, liberties and rights of way granted under this Agreement are for so long as required and will terminate, without compensation to Hydro, when Hydro no longer requires the Hydro Right of Way Area, and:
     
      (a) Hydro gives 90 days written notice to the Nisga'a Nation; or

      (b) the Nisga'a Nation gives 90 days written notice to Hydro.

8.    Work Plans For Hydro Works
    Except in an emergency, Hydro will provide to the Nisga'a Nation a written work plan describing proposed work on or related to a Hydro Right of Way Area prior to undertaking any of the following work:
     
      (a) installation of any new transmission or distribution lines;

      (b) relocation of any transmission or distribution lines;

      (c) trimming or removal of any trees, growth or vegetation on or adjacent to a Hydro Right of Way Area, including the Vegetation Management Area;

      (d) constructing any new trails, roads or bridges on the Hydro Right of Way Area.
       

    Hydro will provide the work plan in time to afford the Nisga'a Nation the opportunity to comment, and Hydro will use reasonable efforts to accommodate any suggestions or requests presented by the Nisga'a Nation provided they do not result in significant increased costs.
 9.    Insurance and Security
    If British Columbia requires Hydro to carry insurance, to provide security, or both, in relation to rights of way granted to Hydro by British Columbia, then on request of the Nisga'a Nation, Hydro will obtain insurance, security, or both, for the benefit of the Nisga'a Nation on terms substantially the same as required by British Columbia.
10.    Access to Hydro Rights of Way
    If for any reason Hydro is unable to obtain reasonable access to any Hydro Works from the Hydro Right of Way Area, a Crown road, a Nisga'a road or a Hydro private access right of way, then the Nisga'a Nation will, where land access is reasonably practicable, on application from Hydro, grant Hydro the right to cross Nisga'a Lands to provide Hydro access on terms substantially the same as contained in Document 3 of Appendix C4 to the Final Agreement.
11.    Hazardous Trees Adjacent to Hydro Right of Way
    Hydro may remove any tree located on Nisga'a Lands which by falling or otherwise may endanger any Hydro Works, but, except in an emergency, will give the Nisga'a Nation prior written notice.
12.    Protection of the Environment
    Hydro will undertake activities permitted under this Agreement having regard for the impact on the environment, and will take prudent measures to minimize damage or disruption to the environment.
13.    Replacement Right of Way
    If a material change occurs to lands which for any reason makes the continued use of any portion of the Hydro Right of Way Area unsuitable for the Hydro Purposes, then the Nisga'a Nation will, without charge, grant a replacement right of way to Hydro for construction of the replacement Hydro Works, as follows:
     
      (a) Hydro will, before undertaking any work, deliver a work plan to the Nisga'a Nation indicating the location of the contemplated replacement right of way area, for approval by the Nisga'a Nation which approval will not be unreasonably withheld;

      (b) Hydro will take into account the effect of the replacement right of way area on adjacent Nisga'a Lands, and any unique aspects of these lands, and the Nisga'a Nation will take into account the cost efficiencies of the location selected by Hydro for a replacement right of way area in relation to alternative locations;

      (c) the replacement right of way agreement will be on the same terms and conditions as this Agreement, and the Nisga'a Nation will use its best efforts to ensure that the replacement right of way has the same priority over other charges and encumbrances as this Agreement;

      (d) Hydro will execute a release of this Agreement in relation to the portions of the abandoned Hydro Right of Way Area.
       

    Despite any provision of this paragraph, in an emergency Hydro may, without approval from the Nisga'a Nation, enter on to Nisga'a Lands to undertake all work and take all steps as are reasonably required to be taken immediately in order to restore electrical and telecommunication services, or to ensure safety of persons and property that may be at risk from Hydro Works. Hydro will give notice as soon as reasonably possible to the Nisga'a Nation of any emergency entry.
14.    Entry on Nisga'a Lands outside the Hydro Right of Way Area
    Hydro, and its employees, representatives, agents, contractors, licensees and assignees, may enter onto Nisga'a Lands outside the Hydro Right of Way Area for the purpose of undertaking works to protect Hydro Works, or to protect persons and property that may be at risk from Hydro Works, as follows:
     
      (a) Hydro will before commencing any work deliver a written work plan describing the effect and extent of the proposed work on Nisga'a Lands to the Nisga'a Nation for approval;

      (b) the Nisga'a Nation will not unreasonably withhold approval of the work plan, considering the effect of the proposed work, including the cost of the proposed works compared to the cost of alternate solutions, the extent of the risk of not undertaking the work, and the impact on the Nisga'a Lands. If Hydro and the Nisga'a Nation cannot agree on a work plan requested by Hydro within 30 days of receipt by the Nisga'a Nation of the proposed work plan then either party may refer the disagreement to dispute resolution under Paragraph 21 of this Agreement;

      (c) Hydro will minimize damage to and time spent on Nisga'a Lands;

      (d) Hydro will pay fair compensation, as defined in the Final Agreement, for any interference with or damage to adjacent Nisga'a Lands.
       

    Notwithstanding other provisions of this paragraph or this Agreement, in an emergency Hydro may undertake works and take steps on Nisga'a Lands as are reasonably required to be taken immediately in order to protect Hydro Works, or to protect persons and property that may be at risk from Hydro Works, and in that event Hydro will as soon as reasonably possible notify the Nisga'a Nation in writing.
15.    Entry on Nisga'a Lands outside the Crown roads right of way area
    The parties' rights and obligations as set out in paragraph 14 apply with respect to Hydro Works located on a Crown roads right of way area.
16.    Relocation of Hydro Works
    If the Nisga'a Nation requires a portion of a Hydro Right of Way Area for other purposes, then upon request by the Nisga'a Nation Hydro will relocate any Hydro Right of Way Area including the related Hydro Works, to a new location as follows:
     
      (a) the relocation will proceed only if the new location is reasonably suitable for use for Hydro Works considering construction, maintenance and operation and costs; and

      (b) the Nisga'a Nation will give reasonable notice to permit design, planning and construction of the Hydro Works to be relocated; and

      (c) the Nisga'a Nation will pay all reasonable costs, including costs of design, supervision and construction.
       

    The Nisga'a Nation will extend the Hydro Right of Way Area as reasonably required, so that the extended Hydro Right of Way Area has similar priority over other charges and encumbrances as the original. When a portion of a Hydro Right of Way Area is relocated then the Hydro Right of Way Area for the portion that is abandoned will be terminated.
17.    Indemnity
    Hydro will indemnify and save harmless the Nisga'a Nation from and against all losses, damages, costs, liabilities, claims, expenses, and suits, including fees of solicitors and other professional advisors, arising out of:
     
      (a) any breach, violation or non-performance by Hydro of any of Hydro's covenants, conditions or obligations under this Agreement; and

      (b) any personal injury, death, or property damage, including environmental damage, occurring on or to Nisga'a Lands arising from Hydro's use or occupation of Nisga'a Lands under this Agreement,
       

    but not for any claims based on nuisance or the rule in Rylands v Fletcher unless Hydro was negligent.
18.    Covenants of Hydro
    Hydro covenants with the Nisga'a Nation:
     
      (a) to pay compensation to the Nisga'a Nation for any damage to buildings, crops (except for trees in the Vegetation Management Area), livestock, drains, ditches, culverts, fences, trails, bridges, roads and fruit, nut or ornamental trees caused by Hydro;

      (b) despite subparagraph (a), to pay compensation to its owner, in accordance with generally accepted principles of timber valuation, for all merchantable timber cut or damaged by Hydro on Nisga'a Lands on or adjacent to the Hydro Right of Way Area, and the parties agree that on payment, title to any timber cut on the Nisga'a Lands under this Agreement vests in Hydro;

      (c) to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged to the account of Hydro which relate to the Hydro Right of Way Area and which Hydro is liable to pay;

      (d) to keep the Hydro Right of Way Area, and any Hydro Works, in a safe, clean and sanitary condition to the extent the condition relates to Hydro's use or occupation of the Hydro Right of Way Area, and on written notice from the Nisga'a Nation, to make safe, clean and sanitary any portion of the Hydro Right of Way Area, or the Hydro Works that contravene the provisions of this covenant, provided that Hydro has no obligation to keep the Hydro Right of Way roads or access roads, suitable for use by anyone except Hydro;

      (e) not to disturb or interfere with any survey monuments, bars or iron pins located on the Nisga'a Lands including the Hydro Right of Way Area;

      (f) not to bury debris or rubbish of any kind on Nisga'a Lands in excavations or backfill, and to remove shoring and similar temporary structures as backfilling proceeds;

      (g) to bury and maintain all underground works as may be required so as not to unduly interfere with the drainage of the Nisga'a Lands;

      (h) not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Hydro Right of Way Area, or anything that may be or become a nuisance or annoyance to the owners of the Nisga'a Lands, except to the extent necessary to carry out any of the Hydro Purposes;

      (i) to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority which relate to the Hydro Right of Way Area;

      (j) to permit the Nisga'a Nation to enter upon the Hydro Right of Way Area at any time to examine its condition;

      (k) if for any reason this Agreement terminates with respect to a portion of the Hydro Right of Way Area, to:
       

        (i) quit peaceably that portion of the Hydro Right of Way Area;
       
        (ii) decommission any Hydro roads and restore the surface of that portion of the Hydro Right of Way Area to a condition to which similar lands are typically restored in the Province of British Columbia, unless otherwise agreed to in writing by the Nisga'a Nation and Hydro at the time of restoration;
       
        (iii) remove all above ground Hydro Works from that portion of the Hydro Right of Way Area within a reasonable period of time and in any event within 2 years, and any Hydro Works remaining on that portion of the Hydro Right of Way Area will be absolutely forfeited to and become the property of the Nisga'a Nation. If the Nisga'a Nation removes any remaining above ground Hydro Works within 4 years, Hydro will, on demand by the Nisga'a Nation, reimburse the Nisga'a Nation for all reasonable costs of removal; and
       
        (iv) remain liable for any environmental damage to the Nisga'a Lands arising from any below ground Hydro Works that remain on or in that portion of the Hydro Right of Way Area after termination, except that if the Nisga'a Nation uses or authorizes the use of the remaining below ground Hydro Works for any purpose then Hydro will not be liable for any environmental damage caused by the Nisga'a Nation use, or authorized use;
       
        and to the extent necessary, this covenant will survive the termination of this Agreement; and
         
      (l) if Hydro, or its employees, representatives, agents, contractors, licensees or assignees, discover any archaeological material on the Hydro Right of Way Area, to take all reasonable steps and precautions to minimize disturbance of that material, and to immediately notify the Nisga'a Nation.
19.    Covenants of the Nisga'a Nation
    The Nisga'a Nation covenants with Hydro:
     
      (a) not to use or authorize the use of the portions of the Hydro Right of Way Area designated by Hydro, acting reasonably, as "non-parking areas" for the regular or organized parking of vehicles, provided that nothing in this paragraph is intended to prevent safe temporary parking of vehicles;

      (b) not to park or authorize to be parked on the Hydro Right of Way Area any vehicle or equipment exceeding 25 feet in length under any conductor of 500 kV or higher voltage, unless such vehicle is properly grounded;

      (c) not to use or authorize the use of the Hydro Right of Way Area for fuelling any vehicle or equipment;

      (d) not to use or authorize the use of the Hydro Right of Way Area for any purpose, including the construction of any improvements, that in the reasonable opinion of Hydro would be unsafe or would interfere with Hydro's use of the Hydro Right of Way Area;

      (e) not to carry out blasting or aerial logging operations on or immediately adjacent to the Hydro Right of Way Area without the prior written permission from Hydro, which permission will not be unreasonably withheld or delayed; and

      (f) not to intentionally do or authorize any act or thing that injures or endangers the Hydro Works.

20.   Licence
    Hydro will not licence the use of the Hydro Right of Way Area, in whole or in part, without the prior written consent of the Nisga'a Nation provided that:
     
      (a) Hydro may grant a licence to BC Tel for the use of the Hydro Right of Way Area without the consent of the Nisga'a Nation;

      (b) the Nisga'a Nation may attach conditions to its consent to any licence, including the provision of insurance and security, in a form and amount acceptable to the Nisga'a Nation; and

      (c) no licence will act as a release of any of Hydro's obligations as set out in this Agreement.

21.    Disputes
    Any dispute arising out of or in connection with this Agreement will be resolved as follows:
     
      (a) the parties will attempt to resolve disputes by good faith negotiations, including timely disclosure of all relevant facts, information and documents;

      (b) either party may, at any time, by written notice request that the dispute be referred to mediation, conducted by a mediator, knowledgeable about the matters in dispute;

      (c) if the dispute is not resolved within 30 days of the notice to mediate under subparagraph (b) then, on the agreement of both parties, the dispute may be referred to a single arbitrator for final resolution. If the parties do not agree to arbitration then either party may refer the matter to a court of competent jurisdiction;

    except that it is not incompatible with this paragraph for a party to apply to a court of competent jurisdiction at any time for interim or conservatory relief and for the court to grant that relief.
22.    Notice
    If notice is required or permitted under this Agreement, the notice:

    (a) must be in writing;

    (b) must be delivered to the address set out above, or other address as specified in writing by a party;

    (c) may be given in one or more of the following ways:
     

      (i) delivered personally or by courier, and it will be deemed received on the next business day;
     
      (ii) delivered by fax, and it will be deemed received on the next business day; or
     
      (iii) mailed by pre-paid post in Canada, and it will be deemed received on the eighth business day following.
23.    Runs With the Land
    This Agreement runs with and binds Nisga'a Lands, to the extent reasonably necessary to give full force and effect to this Agreement.
23.    Waiver and Consent
    A breach of any term, condition, covenant or other provision of this Agreement may only be waived in writing, and any waiver will not be construed as a waiver of any subsequent breach. Consent to or approval of any act, where consent or approval is required under this Agreement, will not be construed as consent to or approval of any subsequent act.
24.    Remedies
    No remedy set out in this Agreement is exclusive of any other remedy provided by law, but will be in addition to any other remedy existing at law, in equity, or by statute.
25.    Successors and Assigns
    The terms and provisions of this Agreement will extend to, be binding upon and enure to the benefit of the parties and their successors and assigns.
26.    Interpretation
    In this Agreement:
      (a) all attached schedules form an integral part of this Agreement;

      (b) unless the context otherwise requires, the singular includes the plural and the masculine include the feminine gender, body politic and a corporation;

      (c) the headings are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of this Agreement;

      (d) a reference to an enactment of British Columbia or of Canada will be deemed to include a reference to any subsequent amendments or replacements; and

      (e) if any provision is determined by a court or arbitrator of competent jurisdiction to be illegal or unenforceable, that provision will be considered separate and severable, and the legality or enforceability of the remaining provisions will not be affected by that determination.

IN WITNESS THEREOF the parties have duly executed this Agreement, as of the date first referred to above.

NISGA'A NATION

Per:

Per:
 

BRITISH COLUMBIA HYDRO AND POWER AUTHORITY

Per:

Per:
 


 SCHEDULE A - DESCRIPTION OF HYDRO RIGHT OF WAY AREA