Appendix C - 3
DOCUMENT 2
GRANT OF RIGHT OF WAY AND LICENCE FOR TELECOMMUNICATIONS
TO
BC TEL

This Agreement is dated _______________________________, ______________

BETWEEN:

NISGA'A NATION
[insert address]
(the "Nisga'a Nation")
AND:
BC TEL, a corporation under the laws of Canada
[insert address]
("BC TEL")
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 BC TEL rights on Nisga'a Lands for BC TEL Works existing on Nisga'a Lands on the effective date.

Therefore for good and valuable consideration the Nisga'a Nation and BC TEL agree as follows:
 
1.     Definitions

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

    "BC TEL Purposes" means telecommunications.

    "BC TEL 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.

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

    "Hydro" means British Columbia Hydro And Power Authority, and its successors and assigns.

    "Licensed BC TEL Works" means, collectively, any BC TEL Works, and any access roads within the BC TEL Right of Way Area, that, on the effective date, are located on Nisga'a Lands outside of:

    (a) a Crown road right of way area;

    (b) a BC TEL Right of Way Area; or

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

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

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 BC TEL Right of Way Area
    The Nisga'a Nation grants to BC TEL, and its employees, representatives, agents, contractors, licensees and assignees, the full, free and uninterrupted right, liberty and right of way, for BC TEL Purposes, as follows:
     
      (a) to construct, excavate for, erect, string, or otherwise install, operate, maintain, repair, alter, upgrade, remove and replace BC TEL Works over, upon and under the BC TEL Right of Way Area;

      (b) to trim or remove all or any trees, growth or vegetation now or hereafter on the BC TEL Right of Way Area that may in the reasonable opinion of BC TEL create a hazard or interfere with the BC TEL Works or the carrying out of any of the BC TEL Purposes, except that BC TEL 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 BC TEL Right of Way Area, such as the planting of vegetation compatible with use for BC TEL Purposes, and the application of herbicides and pesticides provided that:
       

        (i) BC TEL will not conduct any aerial application of herbicides or pesticides on the BC TEL Right of Way Area or other Nisga'a Lands; and

        (ii) BC TEL 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 BC TEL Right of Way Area and keep it cleared of all or any part of any obstructions that may in the reasonable opinion of BC TEL create a hazard or interfere with the BC TEL Works or the carrying out of any of the BC TEL Purposes;

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

      (f) to pass and repass over the BC TEL Right of Way Area with or without equipment, machinery and materials as reasonably required by BC TEL, and to construct, maintain, repair, replace and use trails, roads and bridges on the BC TEL Right of Way Area as reasonably required to obtain access to the BC TEL Works; and to generally do all acts or things necessary in connection with the foregoing.

4.     Non Exclusive Use
    This Agreement will not entitle BC TEL to exclusive possession of the BC TEL 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 BC TEL Right of Way Area so long as the grant does not materially affect the exercise of BC TEL's rights under this Agreement.
5.     Hydro
BC TEL will cooperate and enter into agreements with Hydro 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 BC TEL Works Located Outside Rights of Way
    The Nisga'a Nation grants to BC TEL, and its employees, representatives, agents, contractors, licensees and assignees, as of the effective date, a licence for all Licensed BC TEL Works to use and occupy Nisga'a Lands on the following terms:
     
      (a) the licence is irrevocable so long as BC TEL requires the use of the Licensed BC TEL Works for BC TEL Purposes, unless the Licensed BC TEL Works are included within a Crown road right of way area or BC TEL Right of Way Area under this paragraph;

      (b) for the Licensed BC TEL Works, BC TEL holds the same rights, privileges and obligations, including all indemnity obligations, as apply to BC TEL for the use of the BC TEL 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 BC TEL Works;

      (c) if at any time in the course of maintenance or operations BC TEL replaces or makes significant repairs to Licensed BC TEL Works which are adjacent to a Crown road right of way area or a BC TEL 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, BC TEL will relocate the Licensed BC TEL Works on to the adjacent right of way area, and the licence for those Licensed BC TEL Works will be terminated;

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

      (e) the Nisga'a Nation may at any time require BC TEL to relocate Licensed BC TEL 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 BC TEL Right of Way Area and in that event:

        (i) if the new location is reasonably suitable for use for BC TEL Works considering construction, maintenance and operation and costs BC TEL will proceed with the relocation;

        (ii) the Nisga'a Nation will give reasonable notice to permit design, planning and construction of the BC TEL 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 BC TEL Works, except if the relocated BC TEL Works are located on a Crown road right of way area or a BC TEL Right of Way Area, then the license for those BC TEL 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 BC TEL, when BC TEL no longer requires the BC TEL Right of Way Area, and:
     
      (a) BC TEL gives 90 days written notice to the Nisga'a Nation; or

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

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

    (b) relocation of any telecommunication lines;

    (c) trimming or removal of any trees, growth or vegetation on or adjacent to a BC TEL Right of Way Area;

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

    BC TEL will provide the work plan in time to afford the Nisga'a Nation the opportunity to comment, and BC TEL 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 BC TEL to carry insurance, to provide security, or both, in relation to rights of way granted to BC TEL by British Columbia, then on request of the Nisga'a Nation, BC TEL 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 BC TEL Rights of Way
    If for any reason BC TEL is unable to obtain reasonable access to any BC TEL Works from the BC TEL Right of Way Area, a Crown road, a Nisga'a road or a BC TEL private access right of way, then the Nisga'a Nation will, where land access is reasonably practicable, on application from BC TEL, grant BC TEL the right to cross Nisga'a Lands to provide BC TEL access on terms substantially the same as contained in Document 3 of Appendix C-4 to the Final Agreement.
11.     Protection of the Environment
    BC TEL 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.
12.     Replacement Right of Way
    If a material change occurs to lands which for any reason makes the continued use of any portion of the BC TEL Right of Way Area unsuitable for the BC TEL Purposes, then the Nisga'a Nation will, without charge, grant a replacement right of way to BC TEL for construction of the replacement BC TEL Works, as follows:
(a) BC TEL 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) BC TEL 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 BC TEL 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) BC TEL will execute a release of this Agreement in relation to the portions of the abandoned BC TEL Right of Way Area.

Despite any provision of this paragraph, in an emergency BC TEL 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 BC TEL Works. BC TEL will give notice as soon as reasonably possible to the Nisga'a Nation of any emergency entry.
13.     Entry on Nisga'a Lands outside the BC TEL Right of Way Area
    BC TEL, and its employees, representatives, agents, contractors, licensees and assignees, may enter onto Nisga'a Lands outside the BC TEL Right of Way Area for the purpose of undertaking works to protect BC TEL Works, or to protect persons and property that may be at risk from BC TEL Works, as follows:
(a) BC TEL 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 BC TEL and the Nisga'a Nation cannot agree on a work plan requested by BC TEL 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) BC TEL will minimize the damage to and time spent on Nisga'a Lands;

(d) BC TEL 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 BC TEL may undertake works and take steps on Nisga'a Lands as are reasonably required to be taken immediately in order to protect BC TEL Works, or to protect persons and property that may be at risk from BC TEL Works, and in that event BC TEL will as soon as reasonably possible notify the Nisga'a Nation in writing.
14.     Entry on Nisga'a Lands outside the Crown roads right of way area
The parties' rights and obligations as set out in paragraph 13 apply with respect to BC TEL Works located on a Crown road right of way area.
15.     Relocation of BC TEL Works
If the Nisga'a Nation requires a portion of a BC TEL Right of Way Area for other purposes, then upon request by the Nisga'a Nation, BC TEL will relocate any BC TEL Right of Way Area including the related BC TEL Works, to a new location as follows:
(a) the relocation will proceed only if the new location is reasonably suitable for use for BC TEL 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 BC TEL 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 BC TEL Right of Way Area as reasonably required, so that the extended BC TEL Right of Way Area has similar priority over other charges and encumbrances as the original. When a portion of a BC TEL Right of Way Area is relocated then the BC TEL Right of Way Area for the portion that is abandoned will be terminated.
16.     Indemnity
BC TEL 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 BC TEL of any of BC TEL'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 BC TEL's use or occupation of Nisga'a Lands under this Agreement.

17.     Covenants of BC TEL
BC TEL 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 BC TEL Right of Way Area), livestock, drains, ditches, culverts, fences, trails, bridges, roads and fruit, nut or ornamental trees caused by BC TEL;

(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 BC TEL on Nisga'a Lands on or adjacent to the BC TEL 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 BC TEL;

(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 BC TEL which relate to the BC TEL Right of Way Area and which BC TEL is liable to pay;

(d) to keep the BC TEL Right of Way Area, and any BC TEL Works, in a safe, clean and sanitary condition to the extent the condition relates to BC TEL's use or occupation of the BC TEL Right of Way Area, and on written notice from the Nisga'a Nation, to make safe, clean and sanitary any portion of the BC TEL Right of Way Area, or the BC TEL Works that contravene the provisions of this covenant;

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

(j) to permit the Nisga'a Nation to enter upon the BC TEL 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 BC TEL Right of Way Area, to:

(i) quit peaceably that portion of the BC TEL Right of Way Area;

(ii) decommission any BC TEL roads and restore the surface of that portion of the BC TEL 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 BC TEL at the time of restoration;

(iii) remove all above ground BC TEL Works from that portion of the BC TEL Right of Way Area within a reasonable period of time and in any event within 2 years, and any BC TEL Works remaining on that portion of the BC TEL 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 BC TEL Works within 4 years, BC TEL 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 BC TEL Works that remain on or in that portion of the BC TEL Right of Way Area after termination, except that if the Nisga'a Nation uses or authorizes the use of the remaining below ground BC TEL Works for any purpose then BC TEL 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 BC TEL, or its employees, representatives, agents, contractors, licensees or assignees, discover any archaeological material on the BC TEL 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.

18.     Covenants of the Nisga'a Nation
The Nisga'a Nation covenants with BC TEL:
(a) not to use or authorize the use of the BC TEL Right of Way Area for any purpose, including the construction of any improvements, that in the reasonable opinion of BC TEL would be unsafe or would interfere with BC TEL's use of the BC TEL Right of Way Area;

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

(c) not to intentionally do or authorize any act or thing that injures or endangers the BC TEL Works.

19.     Licence
BC TEL will not licence the use of the BC TEL Right of Way Area, in whole or in part, without the prior written consent of the Nisga'a Nation provided that:
(a) BC TEL may, despite any limitations in the grants and authorizations to BC TEL in this Agreement, grant a licence to Hydro for the use of the BC TEL Right of Way Area for the transmission and distribution of electric energy and telecommunications, without the consent of the Nisga'a Nation. Any licence to Hydro will be deemed to include the right, exclusively for Hydro's benefit, to remove any tree located on Nisga'a Lands which by falling or otherwise may endanger any of Hydro's works, and, except in an emergency, Hydro will be required to give the Nisga'a Nation prior written notice of the exercise of this right outside the BC TEL Right of Way Area;
(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 BC TEL's obligations as set out in this Agreement.

20.     Assignment
Despite paragraph 19, BC TEL may, without the consent of the Nisga'a Nation, assign its interest in this Agreement to an affiliate (as defined in the Company Act ) of BC TEL provided that BC TEL gives 120 days notice in writing of this change.
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.
24.     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.
25.     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.
26.     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.
27.     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:
 

BC TEL

Per:

Per:

 

 SCHEDULE A - DESCRIPTION OF BC TEL RIGHT OF WAY AREA