Tataskweyak Cree Nation Adverse Effects

Transcription

This Agreement dated the
L3- day of I~tt
,2009
Between:
Tataskweyak Cree Nation, ("TCN")
as represented by Chief and Council
and
The Manitoba Hydro-Electric Board ("Hydro")
Whereas:
A.
The Northern Flood Agreement dated December 16, 1977 (the 1977
Agreement) was entered into between Manitoba, Canada, the Northern Flood
Committee Inc., negotiating on behalf of the Cross Lake, Nelson House, Norway
House, Split Lake (TCN) and York Factory Indian Bands, and Hydro and was
ratified on March 15, 1978 by a majority vote of the members of the respective
bands.
B.
On June 24, 1992, TCN entered into the 1992 Agreement, which contains
provisions related to "Future Development" and "Impacting Future Development,"
including processes to determine compensation for adverse effects.
C.
On October 17,2000, TCN and Hydro entered into the Agreement in Principle
for the purposes of setting out certain fundamental principles and understandings
to govern a new relationship between TCN and Hydro with respect to the
potential development of the Keeyask Project, a hydro-electric generating
station at Gull Rapids on the Nelson River.
D.
The Agreement in Principle provides a framework to guide the negotiation of
the JKDA, which will address the ownership, planning, design, construction and
operation of the Keeyask Project through the Limited Partnership in which
TCN and Hydro, and potentially other First Nations, would be equity investors.
E.
On May 25, 2001, TCN and War Lake signed a Memorandum of Cooperation
and Understanding setting out the basis upon which they, as the CNP, the Cree
Nation partners, would continue to work together in good faith and with "one
voice" to negotiate all matters related to the Keeyask Project.
1
F.
TCN developed and undertook, over a period of more than eight (8) years, the
OWL Process to assess Keeyask Adverse Effects based upon the experience,
understanding, knowledge, wisdom, values, beliefs and priorities of TCN and
Members.
G.
TCN and Hydro appointed representatives to work cooperatively to identify and
recommend works and measures to address all Keeyask Adverse Effects on
TCN and Members, which are foreseen or could reasonably be foreseen with the
exercise of due diligence.
H.
To the extent reasonably practicable, the priorities in addressing Keeyask
Adverse Effects are in the order set out below:
(i)
to prevent or avoid works or measures which will cause Keeyask
Adverse Effects;
(ii)
to lessen or reduce unavoidable Keeyask Adverse Effects;
(iii)
to provide appropriate replacements, substitutions or opportunities
to offset any Keeyask Adverse Effects; and
(iv)
to pay fair compensation for the loss or damage suffered as a
consequence of Keeyask Adverse Effects, to the extent such
effects are not fully addressed by the measures undertaken to
accomplish the above priorities.
I.
The representatives of TCN and Hydro identified foreseeable Keeyask Adverse
Effects, many of which were related to potential impacts of the Keeyask Project
on the exercise of Aboriginal and Treaty rights by TCN and Members.
J.
Hydro and TCN have reached this Agreement, which includes agreed
Offsetting Programs designed to address anticipated Keeyask Adverse
Effects including, without limitation, impacts of the Keeyask Project on the
exercise of Aboriginal and Treaty rights by TCN and Members.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the terms, provisions, conditions and mutual covenants contained in this
Agreement, the parties agree, each with the other, as set forth below.
2
ARTICLE 1 - AGREEMENT AND INTERPRETATION
1.1
PREAMBLE
1.1.1
Preamble Excluded. The preamble sets forth historical facts as a
reference for this Agreement and should not be used or referred to in interpreting any
part of this Agreement.
1.2
AGREEMENT
1.2.1
Contents. This Agreement consists of the following Articles 1 through 16,
and includes the following schedules, which are attached to this Agreement:
1.3
(a)
Schedule 1 Payment Schedule
(b)
Schedule 2 Keeyask Centre Description
(c)
Schedule 3 Specifications for the Cabins, Docks, Ice Houses, Fish
Cleaning Tables and Storage Sheds
(d)
Schedule 4
Budgets
(e)
Schedule 5 POC Graph
(f)
Schedule 6 POC Example Calculations
(g)
Schedule 7 Form of Assignment, Assumption and Allocation Agreement
between Hydro and the Limited Partnership
Forms for Annual Program Reports and Annual Program
INTERPRETATION
1.3.1
Definitions. For purposes of this Agreement, the following terms, when
the first letter is capitalized and the term is printed in bold, will have the respective
meanings set out below, and grammatical variations of such terms will have the
corresponding meanings, and where the first letter of the term is capitalized and the
term is in bold, but it is not set out below, that term will have the same meaning as in the
JKOA:
Access Program means the Offsetting Program described in section 3.3.
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AEA Arbitrator means the Arbitrator appointed under the Dispute Resolution
Mechanism in Article 15 to resolve disputes between the parties which may arise out of
this Agreement relating to Keeyask Adverse Effects.
Agreed Water Regime means the permitted range of water levels and flows following
the development and operation of the Keeyask Project consistent with the
Fundamental Operating Features and in accordance with the Closing Licences,
which permitted range of water levels and flows is generally described in the Project
Description, and includes the Fully Compensated Zone and the PDC Zones shown
on Schedule 5.
Agreement means this agreement and all schedules listed in subsection 1.2.1.
Annual Program Budgets means the annual budgets prepared by TCN for
presentation to Members in accordance with subsections 6.3.2 and 6.3.3, which
describe the proposed uses and allocations for the following year of the Guaranteed '
Annual Amount in respect of each Offsetting Program.
Annual Program Reports means the annual reports prepared by TCN in accordance
with subsection 6.3.1, which annual reports describe the implementation of each
Offsetting Program undertaken in the previous year and include an accounting of the
use of the Guaranteed Annual Amount.
ASL means above sea level.
Chief and Council means the Chief and Council elected and in office from time to time
as the governing body of TCN pursuant to the Indian Act (Canada) and recognized as
the "council of the band" for TCN, as defined in section 2(1) of the Indian Act (Canada).
Closing Licences means the following regulatory processes, licences, approvals and
authorizations in respect of the Keeyask Project:
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(a)
an interim licence issued under The Water Power Act (Manitoba);
(b)
an environmental licence issued under The Environment Act (Manitoba);
(c)
the completion of the environmental assessment process, including the
comprehensive study report, required under the Canadian Environmental
Assessment Act (Canada);
(d)
the approvals required under the Navigable Waters Protection Act
(Canada); and
(e)
the authorizations required under the Fisheries Act (Canada).
CNP means TCN and War Lake.
Council Resolution means a resolution passed by Chief and Council.
CPI means the Consumer Price Index, as published by Statistics Canada, relating to
changes in the price of goods and services (All Items) in the Province of Manitoba.
Cree Language Program means the Offsetting Program described in section 3.8.
Daily Average Water Level means the average of all water levels, measured hourly, in
a 24 hour period (midnight to midnight) at the Keeyask Gauging Station.
Deviation means any event where the Daily Average Water Level falls outside of the
Fully Compensated Zone.
Direct Costs means costs incurred by Hydro in relation to providing equipment and
facilities, which are described in subsection 3.5.3, in support of TCN's implementation
of the Offsetting Programs.
Draw-down Event means any Deviation resulting from Hydro intentionally drawing
down the water on the forebay of the Keeyask Project to a level below 157.50 metres,
(516.7 feet) ASL, the minimum elevation referenced in the lower PDC Zone:
(i)
for emergency situations or for Hydro maintenance, inspection and other
purposes, and
(ii)
for a duration of no more than four (4) weeks.
Economic and Social Development Account means the account established by
section 2.1 of the Trust.
Environmental Impact Assessment means the assessment of the environmental
effects of the Keeyask Project completed for the purposes of federal and provincial
legislation, including pUblic consultation and review, and preparation of the EIS.
Existing Development means all those physical works related to the Project which
had been fully or partially constructed, by or on behalf of Hydro to June 24, 1992, and,
without limitation to the generality of the foregoing, will include specifically all dams,
dikes, channels, control structures, excavations, generating stations, roads,
transmission lines and other works which had been fully or partially constructed, by or
on behalf of Hydro to June 24, 1992, and which form part of, or are related to, all
aspects of the Project including:
5
-
Lake Winnipeg Regulation,
Churchill River Diversion,
Grand Rapids Generating Station,
Laurie River Generating Stations,
Kelsey Generating Station,
Kettle Generating Station,
Long Spruce Generating Station,
Limestone Generating Station,
and the access road and other physical construction with respect to the proposed
Conawapa Generating Station.
Final Closing Date means the first Business Day which is one hundred and eighty
(180) days following the Final Completion Date, or such earlier or later date as may be
agreed by the JKDA Parties.
Fully Compensated Zone means that portion of the Agreed Water Regime lying
between the elevations 157.95 metres (518.2 feet) ASL and 159.05 metres (521.8 feet)
ASL, which zone is shown graphically on Schedule 5, and which zone defines the area
of operations which, subject to section 14.4, is fully compensated.
Fundamental Features means the Fundamental Construction Features and the
Fundamental Operating Features.
Fundamental Operating Features means the specifically defined features required to
be met in the operation of the Keeyask Project, as described in subsection 7.2.2 of the
..IKDA.
Future Development means the construction of any portion or portions of the Project
that have not been physically constructed to June 24, 1992, and all major
redevelopment or reconstruction of any Existing Development.
Guaranteed Annual Amount means the aggregate of the funds, including any interest
earned thereon, provided pursuant to Schedule 1 and Articles 3 and 4, for use by TCN
to operate and maintain the Keeyask Centre and to manage, administer, and
implement the Offsetting Programs.
Healthy Food Fish Program means the Offsetting Program described in section 3.5.
Hydro means The Manitoba Hydro-Electric Board, a Crown Corporation continued by
The Manitoba Hydro Act, (Manitoba) as amended from time to time.
6
Initial Closing Date means the first Business Day that is thirty (30) days following the
delivery of a Construction Notice by Hydro, or such earlier or later date as the JKDA
Parties may agree.
JKDA means the Joint Keeyask Development Agreement, including all Schedules and
all amendments thereto and extensions thereof.
..IKDA Party means any of the signatories to the ..IKDA, and JKDA Parties means all of
them.
KCN Majority means, in the context of the Keeyask Cree Nations, those Keeyask
Cree Nations representing a majority of the population, based on band membership, of
all of the Keeyask Cree Nations, and in the context of the KCN Investment Entities,
means those KCN Investment Entities owned by those Keeyask Cree Nations
representing a majority of the population, based on band membership, of all the
Keeyask Cree Nations.
Keeyask Adverse Effects means the negative consequences of the planning,
construction and operation of the Keeyask Project, either direct or indirect, which
impact or change the physical, chemical or biological quality of the environment of any
part of the Split Lake Resource Area, and includes, without limitation, risks or injuries
to the health, safety, well-being, comfort or enjoyment of TCN or Members, and impacts
on interests in lands, pursuits, activities, opportunities, lifestyles and assets of TCN and
Members, and does not include any effects caused by Existing Development, or
Future Development other than the Keeyask Project, which effects are the
responsibility of Hydro and have been addressed, settled and resolved by the 1992
Agreement or, in the case of specified exceptions, are to be resolved under separate
processes contemplated in the 1992 Agreement, including processes in the Northern
Flood Agreement.
Keeyask Centre means the facility to be constructed by TCN as an Offsetting
Program, which facility is described in and is to be constructed pursuant ,to section 3.2
and the description attached as Schedule 2.
Keeyask Gauging Station means the measuring stations in the Keeyask Generating
Station forebay, immediately upstream of the intake structure, which are used to
measure and record water levels and determine the Daily Average Water Level on the
Keeyask Generating Station forebay, which measuring stations will be maintained in
proper working order and operated by Hydro.
Keeyask Generating Station means the proposed hydro-electric generating station
forming part of the Keeyask Project and consisting of a complex of structures,
including the powerhouse, spillway, dam, dykes and transition structures, used in the
production of electricity.
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Keeyask Project means the Keeyask Generating Station and all related works,
excluding the Keeyask Transmission Project and Bipole III, but including all
channels, excavations, camps, storage areas, local roads and access roads, to be
located in the vicinity of Gull Rapids, just upstream from the point at which the Nelson
River flows into Stephens Lake, all of which are more particularly described in the
Project Description and which, if built, will contribute approximately six hundred and
ninety-five (695) MW, at rated capacity, to the Integrated Power System.
Land Stewardship Program means the Offsetting Program described in section 3.4.
Limited Partnership means the Keeyask Hydropower Limited Partnership to be
created pursuant to the LP Agreement for the purposes of carrying on the Business.
Member means a person who is, in respect of TCN, a "member of a band" as defined in
subsection 2(1) of the Indian Act (Canada), and Members means a group of persons
each of whom is a Member.
Museum and Oral Histories Program means the Offsetting Program described in
section 3.10.
New Program means a future Offsetting Program, which is developed and agreed
upon, pursuant to subsection 5.2.1.
Offsetting Programs mean the Keeyask Centre, the Access Program, the Land
Stewardship Program, the Healthy Food Fish Program, the Traditional Lifestyle
Experience Program, the Traditional Knowledge Learning Program, the Cree
Language Program, Traditional Foods Program and the Museum and Oral
Histories Program, all of which programs are described in Article 3, and include any
New Program that is subsequently developed and agreed upon.
OWL Process means the Overview of Water and Land Process used by TCN to assess
Keeyask Adverse Effects based upon the experience, understanding, knowledge,
wisdom, values, beliefs and priorities of TCN and Members.
PDC means the pre-determined compensation which will become payable to TCN
under Article 13 when water regime events fall outside of the Fully Compensated Zone
and within a PDC Zone, shown on the graph attached as Schedule 5.
PDC Zones means the ranges of water levels to which the rates and formulae for the
payment of PDC apply.
8
Program Planning Committee means the joint committee created pursuant to section
6.4 and comprised of members appointed by TCN and Hydro, which committee is to
discuss issues respecting Offsetting Programs.
Project means and includes all Existing Development and all past, present and future
hydro-electric development or redevelopment on the Churchill, Burntwood and Nelson
River Systems, and will include all development or redevelopment of the Lake Winnipeg
Regulation System north of the 53rd parallel, and will also include the operation thereof
by Hydro.
Project Description means the detailed description of the Keeyask Project, attached
as Schedule 7-1 to the JKDA.
Ratification Protocol means the agreement entered into between the JKDA Parties
dated July 29, 2008, setting out, among other things, agreed upon terms for the filing of
the Environment Act Proposal Form, agreed upon processes for the ratification of the
JKDA and, following ratification, agreed upon terms for the execution of the JKDA.
Regulatory Authorities means all appropriate federal, provincial, municipal or other
governmental or administrative bodies from which any licences, permits, consents,
approvals, certificates, registrations and authorizations are required to be obtained in
respect of the Keeyask Project or the Keeyask Transmission Project, including
without limitation, the Closing Licences.
Reserve will have the same meaning as contained in the Indian Act (Canada), but will
be restricted in this Agreement to that reserve or those reserves set apart for the use
and benefit of TCN.
Residual Compensation means the monetary compensation paid to TCN pursuant to
Article 9, but does not include the payments made pursuant to the Offsetting
Programs or the PDC.
Resource Management Board means the Board established pursuant to Article 5 of
the 1992 Agreement.
Settlement Proceeds means all monies paid by Hydro to TCN under this Agreement,
including Residual Compensation, PDC and monies paid in relation to the Offsetting
Programs, including the Guaranteed Annual Amount.
Split Lake Resource Area means the Split Lake Resource Management Area and
the rivers and lakes which are traditionally available to and used by TCN as a source of
food supply, income-in-kind and income.
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Split Lake Resource Management Area means the resource management area
shown on Schedule 5.1 to the 1992 Agreement, and includes the rivers and lakes
therein.
TCN means Tataskweyak Cree Nation, formerly known as Split Lake Cree Nation.
Traditional Foods Program means the Offsetting Program described in section 3.9.
Traditional Knowledge Learning Program means the Offsetting Program described
in section 3.7.
Traditional Lifestyle Experience Program means the Offsetting Program described
in section 3.6.
Trust means the trust settled by TCN on the terms and for the purposes set out in the
Trust Indenture dated June 24, 1992, made between TCN, the named
trustees, Canada, Manitoba and Hydro.
War Lake means War Lake First Nation.
1992 Agreement means the agreement made between Canada, Manitoba, Hydro and
TCN dated June 24, 1992 for settlement of claims and the implementation of the parties'
respective obligations under the NFA.
ARTICLE 2 - PURPOSE, SCOPE AND RELATIONSHIP
TO THE ..IKDA, THE LIMITED PARTNERSHIP AND THE 1992 AGREEMENT
2.1
PURPOSE AND SCOPE
2.1.1
Purpose. Subject to the exceptions referenced in subsection 14.4.1, the
purpose of this Agreement, including the Offsetting Programs, the Direct Costs, the
Residual Compensation, and the PDC is to address and resolve all past, present and
future Keeyask Adverse Effects on TCN, all impacts of the Keeyask Project on the
collective rights and interests of TCN and Members, and all impacts of the Keeyask
Project on the exercise of Aboriginal and Treaty rights by TCN and Members, which:
10
(a)
arise from the development and operation of the Keeyask Project within
the Agreed Water Regime; and
(b)
as of the date of signing of this Agreement are foreseen or, with the
exercise of due diligence, are foreseeable.
2.1.2
Scope. Subject to the exceptions referenced in subsection 14.4.1, TCN
and Hydro are satisfied that the Offsetting Programs in combination with the Direct
Costs, the Residual Compensation and the PDC provided under this Agreement
address and resolve all Keeyask Adverse Effects on TCN and Members, which arise
from the development and operation of the Keeyask Project within the Agreed Water
Regime, and which, as of the date of this Agreement, are foreseen or could be
foreseen with the exercise of due diligence.
2.2
RELATIONSHIP TO JKDA AND THE LIMITED PARTNERSHIP
2.2.1
Limited Partnership. Upon the Initial Closing Date, Hydro and the
Limited Partnership will enter into an agreement, attached as Schedule 7, whereby
Hydro will assign all of its rights, benefits and obligations under this Agreement to the
Limited Partnership and cause the Limited Partnership to accept such assignment
and assume such obligations, and, except where this Agreement specifically provides
in subsection 2.2.2 that Hydro will continue to enjoy a right or benefit under this
Agreement, or to be bound by an undertaking or obligation under this Agreement,
Hydro will be fully released and discharged from its undertakings and obligations, and
will quit claim and forfeit its rights and benefits under this Agreement in favour of the
Limited Partnership.
2.2.2
Hydro's Continuing Rights and Obligations. Notwithstanding the
assignment to the Limited Partnership, Hydro will continue to be entitled to its rights
and benefits under, and continue to be entitled to rely upon the provisions of, and
continue to be bound by its undertakings and obligations under:
(a)
subsection 2.2.1;
(b)
subsection 2.2.2;
(c)
subsection 2.2.3;
(d)
subsection 2.3.1 ;
(e)
subsection 2.3.2;
(f)
Article 11;
(g)
Article 14; and
(h)
subsection 15.3.5.
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2.2.3
TCN Accepts the Assignment. TCN will accept, honour, attorn to and be
bound by the assignment contemplated under subsection 2.2.1, as if it was a party to
the assignment, and upon its receipt of notice in writing that the assignment has been
made, TCN agrees that this Agreement will effectively be modified so that every
reference to Hydro will be a reference to the Limited Partnership, except as set out in
subsection 2.2.2 and subsection 11.2.1.
Presentation Concurrent. At the same time as the JKDA is presented to
2.2.4
Members for their consideration, Chief and Council will present this Agreement to
Members for review and approval, consistent with the process outlined in Article 3 of
the Ratification Protocol and the Referendum Rules with such modifications as the
circumstances require to reflect that the subject of the Ratification Protocol is this
Agreement and not the JKDA, including:
(a)
the term Member, as provided in this Agreement, will be restricted to a
member of TCN;
(b)
the process will reference only the approval of this Agreement by
Members of TCN;
(c)
the referendum question will be:
Do you support the Chief and Council of Tataskweyak Cree Nation
signing the proposed Keeyask Adverse Effects Agreement?
YES
2.3
NO
RELATIONSHIP TO THE 1992 AGREEMENT
2.3.1
"Post-Project Water Regime" Amended. By this Agreement:
(a)
the "Post-Project Water Regime" as defined under the 1992 Agreement
and as referenced in clause 2.8.1 (h) of the 1992 Agreement; and
(b)
the guidelines set forth in subsection 2.4.4 of the 1992 Agreement,
are expanded to incorporate the Fully Compensated Zone as part of the "Post-Project
Water Regime".
2.3.2
1992 Agreement. This Agreement will be taken as conclusive evidence
that Hydro and TCN have fulfilled their respective obligations under Article 2 of the
1992 Agreement, as those obligations relate to the Keeyask Project.
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ARTICLE 3 • OFFSETTING PROGRAMS
3.1
GENERAL PURPOSE OF OFFSET1·ING PROGRAMS
3.1.1
Purpose. The purpose of the Offsetting Programs is to provide
appropriate replacements, substitutions or opportunities to offset unavoidable Keeyask
Adverse Effects on practices, customs and traditions integral to the distinctive cultural
identity of TCN. The practices, customs and traditions affected include:
(a)
hunting, trapping and fishing for food;
(b)
maintaining historical relationships with the land;
(c)
eating traditional foods;
(d)
respecting and caring for Mother Earth;
(e)
maintaining spiritual relationships with the land;
(f)
maintaining emotional relationships with the land;
(g)
learning in traditional ways;
(h)
living on the land in traditional ways; and
(i)
helping each other by sharing.
3.1.2
Implementation of Offsetting Programs. Except as otherwise specifically
provided, TCN takes sole responsibility for the management, implementation and
operation of each Offsetting Program including, without limitation, obtaining all
necessary permits, licences, or other approvals.
3.1.3
Obligation of Hydro. Except as otherwise specifically provided, Hydro's
obligations in respect of the Offsetting Programs are limited to:
(a)
provision of specified facilities and equipment, as Direct Costs, as set
forth in subsection 3.5.3 for the Healthy Food Fish Program;
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3.2
(b)
payment of the funding for the Offsetting Programs, including the
Guaranteed Annual Amount identified, and provided for, in Articles 3
and 4 and Schedule 1;
(c)
payment of the Residual Compensation described in Article 9; and
(d)
participation on the Program Planning Committee consistent with the
terms of section 6.4.
KEEYASK CENTRE
3.2.1
Objective. The objective of the Keeyask Centre is to provide space and
facilities, primarily related to accommodating staffing requirements and office functions,
for the management and administration of the Offsetting Programs, but also including,
without limitation, space for display cases, for the storage of supplies and equipment,
for conducting educational and learning programs, for fish processing and for other
needs incidental to the management, administration and implementation of the
Offsetting Programs.
3.2.2
Funding. Hydro will provide funding to TCN to cover costs related to the
Keeyask Centre including, without limitation, the costs of constructing, servicing,
finishing, installing fixtures and furnishing the Keeyask Centre as follows:
(a)
two million ($2,000,000) dollars on March 31,2009, as a component of the
Guaranteed Annual Amount shown on Schedule 1; and
(b)
two million ($2,000,000) dollars on March 31, 2010, as a component of the
Guaranteed Annual Amount shown on Schedule 1.
3.2.3
TCN to Build. TCN will construct the Keeyask Centre, connect the
Keeyask Centre to existing services available on Reserve, install fixtures in the
Keeyask Centre and furnish the Keeyask Centre, all in accordance with this
Agreement and the Keeyask Centre description, attached as Schedule 2.
3.2.4
O&M Funding. Beginning on March 31, 2011, Hydro will provide funding
to TCN of three hundred eighty-four thousand nine hundred ($384,900) dollars, as a
component of the Guaranteed Annual Amount shown on Schedule 1, to be spent on:
14
(a)
operating, maintaining and repairing the Keeyask Centre;
(b)
creating a reserve fund;
3.3
(c)
hiring staff to assist in managing and administering the Offsetting
Programs; and
(d)
leasing and/or purchasing equipment and supplies to be located in, and
used in connection with, operating the Keeyask Centre.
ACCESS PROGRAM
3.3.1
Objective. The objective of the Access Program is to provide Members
with substitute opportunities to hunt, fish and trap for food and to carry out associated
customs, practices and traditions integral to their distinctive cultural identity within the
Split Lake Resource Management Area. The Access Program addresses the loss of
meaningful opportunities to sustain TCN's distinctive cultural identity on the waters of
the Nelson River and on land within the Split Lake Resource Management Area
adjacent to the Nelson River.
Funding. In support of the above objective, Hydro will:
3.3.2
(a)
provide to TCN a one time payment of two hundred seventeen thousand
($217,000) dollars as a component of the Guaranteed Annual Amount
shown on Schedule 1 to be payable on March 31, 2012, for the restoration
and improvement of portages and trails within the Split Lake Resource
Management Area, and for the purchase of satellite phones; and
(b)
beginning on March 31, 2009, provide to TCN annual funding of three
hundred fifty thousand ($350,000) dollars, as a component of the
Guaranteed Annual Amount shown on Schedule 1, to enable:
(i)
chartering with an air carrier to provide up to 'fifty-two
thousand (52,000) miles (eighty-three thousand six hundred
eighty-five (83,685) kilometres) of air transportation in an
aircraft, which is equipped with floats or skis and is capable
of transporting at least five (5) passengers,
(ii)
management of the Access Program,
(iii)
leasing of a vehicle suitable for transporting people,
equipment, fish and meat within the Reserve,
(iv)
hiring of labour and purchasing of equipment and supplies
for maintenance and repair of the trails and portages,
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3.4
(v)
paying incremental travel costs incurred by Members in
travelling additional distances from the Reserve within the
Split Lake Resource Management Area for purposes of
the Access Program, and
(vi)
acquiring, using and replacing satellite phones or other
remote communication equipment.
LAND STEWARDSHIP PROGRAM
3.4.1
Objective. The objective of the Land Stewardship Program is to provide
opportunities for TCN to show respect for the land in a manner consistent with
traditional TCN values and to assist TCN in caring for the land within the Split Lake
Resource Management Area.
3.4.2
Funding. Beginning on March 31, 2013, in support of the above objective,
Hydro will provide to TCN annual funding, as a component of the Guaranteed Annual
Amount shown on Schedule 1, to enable:
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(a)
chartering with an air carrier to provide up to six thousand seven hundred
sixty (6,760) miles (ten thousand eight hundred eighty (10,880) kilometres)
of air transportation in an aircraft, which is equipped with floats or skis and
is capable of transporting at least five (5) passengers;
(b)
hiring of staff to monitor land use in the Split Lake Resource
Management Area, and to provide support to TCN representatives
involved in work of the Resource Management Board;
(c)
purchasing, operating, maintaining and replacing equipment necessary to
enable staff to travel throughout the Split Lake Resource Management
Area;
(d)
hiring of trappers or other knowledgeable people to assist staff with travel
and gathering information in the Split Lake Resource Management
Area; and
(e)
engaging such professional services as may reasonably be required to
further the objectives of the Land Stewardship Program.
3.5
HEALTHY FOOD FISH PROGRAM
3.5.1
Objective. The objective of the Healthy Food Fish Program is to provide
opportunities for Members to continue to fish and to provide a supply of wholesome
food fish to Members in order to replace fish which may no longer be available to
Members as a result of increased methyl-mercury levels in fish caused by the Keeyask
Project in the reach of the Nelson River between the Kelsey Generating Station dam
and the Keeyask Generating Station dam.
3.5.2
Description. The Healthy Food Fish Program is to provide annually up to
one hundred thirty seven thousand (137,000) pounds (sixty two thousand one hundred
forty two (62,142) kilograms) round weight of fish from Pelletier, Recluse, Waskaiowaka,
Limestone and Myre Lakes, and such other lakes in the Split Lake Resource
Management Area, as may be designated by TCN in consultation with the Resource
Management Board.
3.5.3
Direct Costs Support. In support of the above objective, Hydro will at its
sole cost and expense:
(a)
beginning as of March 31,2012, and subject to TCN obtaining all required
licences, permits or other regulatory approvals, referenced in subsection
6.1.3, construct a cabin, a dock, an ice house, a fish cleaning table and a
storage shed, generally in conformity with the specifications provided in
Schedule 3, at each of Pelletier, Recluse, Waskaiowaka, Limestone and
Myre Lakes; and
(b)
on March 31, 2012, purchase, and provide to TCN, four (4) snow
machines (no more than five hundred fifty (550) cc's to six hundred fifty
(650) cc's), four (4) sleighs (Equinox "Big Boggan" or similar), four (4)
sixteen (16) foot aluminum boats (Lunds or similar) and four (4) thirty (30)
horsepower outboard motors for transport of supplies, equipment and fish.
3.5.4
(a)
chartering with an air carrier to provide up to six thousand two hundred
forty (6,240) miles (ten thousand forty six (10,046) kilometres) of air
transportation to transport fish and ten (10) hours air transportation of
"heavy" supplies and equipment required for fishing and maintenance,
repair and/or replacement of the cabins, docks and icehouses;
17
3.6
(b)
maintaining and replacing cabins, docks, icehouses, storage sheds, snow
machines, sleighs, boats and motors;
(c)
purchasing nets, fishing equipment, gas and oil;
(d)
paying fishers; and
(e)
processing fish in the Keeyask Centre or other local facility.
TRADITIONAL LIFESTYLE EXPERIENCE PROGRAM
3.6.1
Objective. The objective of the Traditional Lifestyle Experience
Program is to provide opportunities for young adult Members to experience a
traditional lifestyle during one (1) cycle of seasonal activities on the land.
3.6.2
Hydro will, provide to TCN annual funding, as a component of the Guaranteed Annual
3.7
(a)
payment of living costs for participants;
(b)
provision of special clothing and equipment; and
(c)
provision of mentorship for participants.
TRADITIONAL KNOWLEDGE LEARNING PROGRAM
3.7.1
Objective. The objective of the Traditional Knowledge Learning
Program is to replace opportunities for Members for traditional learning that will be lost
due to development of the Keeyask Project.
3.7.2
Description. The Traditional Knowledge Learning Program has two (2)
parts, namely:
18
(a)
the opportunity for traditional learning created through the Access
Program; and
(b)
opportunities for traditional learning provided for students primarily at, or
through, the Keeyask Centre.
3.7.3
Funding. Beginning on March 31, 2013, in support of the opportunities for
traditional learning provided for students primarily at, or through, the Keeyask Centre,
Amount shown on Schedule 1, to enable the:
3.8
(a)
hiring of instructional staff; and
(b)
creating and implementing Traditional Knowledge Learning Programs
that can be conducted at, or through, the Keeyask Centre.
CREE LANGUAGE PROGRAM
3.8.1
Objective. The objective of the Cree Language Program is to strengthen
the cultural identity of TCN and Members by creating an opportunity for adult Members
to learn to speak Cree, or to improve their Cree language skills.
3.8.2
3.9
(a)
employment of, and provision of lodging for, instructors;
(b)
payment of honourariums to Elders for their assistance in teaching the
courses; and
(c)
purchase of supplies required for the courses.
TRADITIONAL FOODS PROGRAM
3.9.1
Objective. The objective of the Traditional Foods Program is to provide
opportunities for Members to gather and share traditional foods.
3.9.2
Description. Beginning on March 31, 2013, in support of the above
objective, Hydro will provide to TCN annual funding, as a component of the
Guaranteed Annual Amount shown on Schedule 1, to enable the adapting of
traditional concepts of gathering and sharing of traditional country foods among Elders
and other Members of the country foods obtained through the Access Program. The
Traditional Foods Program is to be implemented and operated in conjunction with the
Access Program, and will create opportunities for gathering and sharing traditional
foods by resource harvesters, in keeping with the customs and traditions of TCN and
Members.
19
3.10 MUSEUM AND ORAL HISTORIES PROGRAM
3.10.1
Objective. The objective of the Museum and Oral Histories Program is
to provide a substitute opportunity for TCN and Members to maintain the historical
connection to the land that will be destroyed when the Keeyask Project is built.
Description. In support of the above objective, Hydro will:
3.10.2
(a)
provide a one time payment of capital funding of one hundred twenty
thousand ($120,000) dollars on March 31, 2012, as a component of the
Guaranteed Annual Amount shown on Schedule 1 for the purchase of
display cases to be housed in the Keeyask Centre, and for the
development of a cultural resources plan, and the training of a cultural
manager to implement the Museum and Oral Histories Program; and
(b)
beginning on March 31, 2013, provide funding, as a component of the
Guaranteed Annual Amount shown on Schedule 1, for:
(i)
hiring a manager for the Museum and Oral Histories
Program, and
(ii)
regular maintenance of displays.
ARTICLE 4 - FUNDING OBLIGATIONS OF HYDRO
4.1
GUARANTEED ANNUAL AMOUNT
4.1.1
Initial Payments of Guaranteed Annual Amount. Hydro will pay to TCN
the Guaranteed Annual Amount as identified in Schedule 1 on March 31, 2009,
March 31, 2010, March 31, 2011, March 31,2012 and March 31, 2013.
4.1.2
Continuing Payments of Guaranteed Annual Amount. After March 31,
2013, the Guaranteed Annual Amount will remain at two million one hundred twenty
three thousand six hundred seven ($2,123,607) dollars, in 2008 dollars, adjusted for
CPI as provided in subsection 4.1.5, and Hydro will pay to TCN the Guaranteed
Annual Amount annually on March 31 of each year after 2013 for the life of the
Keeyask Project.
4.1.3
Allocation of Continuing Payments. As provided in Article 3, on and after
March 31, 2013, and subject to reallocation under subsection 4.1.4, the Guaranteed
20
Annual Amount provided pursuant to subsection 4.1.2 will be used by TCN to
implement the Offsetting Programs, as follows:
(a)
five hundred twenty-eight thousand five hundred ($528,500) dollars for
chartering with an air carrier to provide air transportation required to
implement the Offsetting Programs;
(b)
six hundred seventy-seven thousand one hundred nineteen ($677,119)
dollars for paying salaries, honourariums, fees and other staff benefits and
employee expenses related to retaining and paying all personnel involved
in the management, administration and implementation of the Offsetting
Programs;
(c)
two hundred sixty-three thousand five hundred ($263,500) dollars for the
purchase or lease of equipment, supplies and services required in the
management, administration and implementation of the Offsetting
Programs;
(d)
three hundred thirteen thousand seven hundred ($313,700) dollars for the
costs of repairing, maintaining and replacing the facilities, equipment,
fixtures, furniture and other assets acquired for and used in the
management, administration and implementation of the Offsetting
Programs; and
(e)
three hundred forty thousand seven hundred eighty-eight ($340,788)
dollars for the development of courses, for lodging, for travel, for payment
of any and all utility charges, taxes, rates and other impositions, for the
payment of all fuel costs and for all other additional or ancillary expenses,
including property and public liability insurance, necessary for operation
and maintenance of the Keeyask Centre and the management,
administration and implementation of the Offsetting Programs.
4.1.4
Reallocation. TCN may reallocate funds between and among the
categories outlined in subsection 4.1.3, provided that it does so in a manner that
supports the implementation of the Offsetting Programs.
4.1.5
Adjustment for Inflation. The Guaranteed Annual Amount is shown on
Schedule 1 in 2008 dollars and is to be adjusted annually on January 31 of each year
during the life of the Keeyask Project, commencing on January 31, 2009, in proportion
to the annual change in CPl.
21
ARTICLE 5 • USE OF GUARANTEED ANNUAL AMOUNT
5.1
OBLIGATION AS TO USE OF GUARANTEED ANNUAL AMOUNT
5.1.1
Use of the Guaranteed Annual Amount. In each year during the life of
the Keeyask Project, TCN undertakes to use the Guaranteed Annual Amount to:
(a)
operate and maintain the Keeyask Centre in a reasonable manner,
consistent with good building management practices; and
(b)
manage, administer and implement the Offsetting Programs for the
benefit of Members.
5.1.2
Unspent Portions of the Guaranteed Annual Amount. If any portion of
the Guaranteed Annual Amount is not spent by TCN in any year, the unspent amount
may be used by TCN in the following year in the same manner as if the unspent amount
were part of that following year's Guaranteed Annual Amount.
5.2
PROGRAM CHANGES
5.2.1
Program Proposals. If TCN wishes to discontinue an existing Offsetting
Program, or to use any portion of the Guaranteed Annual Amount to implement a
New Program then, prior to implementing such change, TCN will:
22
(a)
prepare a written Program Proposal, which will include an explanation of
the need and justification for discontinuing an existing Offsetting
Program and/or establishing a New Program, and how such change in
the Offsetting Programs and the reallocation of funds will assist in
offsetting Keeyask Adverse Effects on the exercise of customs, practices
and traditions integral to TCN's distinctive cultural identity;
(b)
present the Program Proposal to Members at a duly called public meeting
of Members, notice of such meeting to be provided no later than fourteen
(14) days prior to such meeting;
(c)
obtain a Council Resolution approving the Program Proposal; and
(d)
deliver the written Program Proposal and a copy of the Council
Resolution to Hydro, and obtain the consent of Hydro, which consent will
not be unreasonably withheld.
ARTICLE 6 • ADDITIONAL UNDERTAKINGS,
COMMITTEE AND REPORTING
6.1
ADDITIONAL UNDERTAKINGS OF TCN
6.1.1
Coordination with Resource Management Board. TCN undertakes to
seek input from the Resource Management Board and to provide Annual Program
Reports to the Resource Management Board with respect to the management and
administration of Offsetting Programs that involve resource management, resource
harvesting and resource use activities within the Split Lake Resource Management
Area, such as the Access Program, the Land Stewardship Program, the Healthy
Food Fish Program, and the Traditional Lifestyle Experience Program.
6.1.2
Continuation of the Healthy Food Fish Program. If TCN decides to
continue the Healthy Food Fish Program after levels of methyl-mercury in fish in the
Nelson River have returned to pre-Keeyask Project levels, TCN will provide Hydro with
written reasons for continuing that program. The decision of TCN to continue the
Healthy Food Fish Program is entirely within TCN's discretion and not open to dispute
by Hydro.
6.1.3
Healthy Food Fish Program Undertaking. TCN undertakes to obtain and
provide to Hydro copies of any licences, permits or other regulatory approvals required
for the construction of the cabins, docks, ice houses, and storage sheds pursuant to
paragraph 3.5.3(a).
6.2
ADDITIONAL UNDERTAKINGS OF HYDRO
6.2.1
Application of Additional Factor. To accommodate changes in participation
in the Traditional Knowledge Learning Program, the Guaranteed Annual Amount
will be adjusted annually by adding, or subtracting, an amount equivalent to the
percentage change in the number of students enrolled in elementary and secondary
schools in Split Lake at the beginning of the school year, year over year, multiplied by
the lesser of:
(a)
the amount actually spent by TCN in relation to the Traditional
Knowledge Learning Program in the previous year; or
(b)
the sum of forty-five thousand ($45,000) dollars in 2008 dollars adjusted
for CPI to the then current year.
23
6.3
ANNUAL PROGRAM BUDGETS AND ANNUAL PROGRAM REPORTS
6.3.1
Annual Program Reports on Offsetting Programs. On or before June
30 of each year, or such later date as may be agreed upon by Hydro, TCN will provide
to Members and to Hydro, Annual Program Reports for the Offsetting Programs,
carried out in the preceding fiscal year. Each Annual Program Report will include an
accounting of the use of the Guaranteed Annual Amount in the preceding fiscal year
and a narrative report on the implementation of each Offsetting Program in the
preceding fiscal year, including qualitative and quantitative details such as the number
of Members participating and the results achieved.
6.3.2
Review by Members. Before December 31 of each year, TCN will hold a
meeting of Members, on not less than fourteen (14) days notice, to review and provide
input to Chief and Council with respect to the Annual Program Budgets for the
Offsetting Programs.
Annual Program Budgets for Offsetting Programs. On or before
6.3.3
December 31 of each year, or such later date as may be agreed upon by Hydro, after
review by, and input from, Members, as provided in subsection 6.3.2, and after
approval by Chief and Council, TCN will provide to Hydro, Annual Program Budgets
in respect of the Offsetting Programs, describing the proposed uses and allocations of
the Guaranteed Annual Amount in the next fiscal year.
6.3.4
Requirement to Provide. If TCN does not provide an Annual Program
Report or Annual Program Budget when due, Hydro may refer the matter to the AEA
Arbitrator to, among any other available remedy, obtain an order compelling TCN to
provide the applicable Annual Program Report or Annual Program Budget and/or
relieving Hydro of its obligation to provide any or all of the Guaranteed Annual
Amount or fund any or all of the Direct Costs otherwise then due, until such Annual
Program Report or Annual Program Budget is provided.
6.3.5
Forms for Reports. The Annual Program Budgets and the Annual
Program Reports will be in an appropriate form to address the matters identified in
Schedule 4 and a senior official, duly appointed by Chief and Council, will certify that
the activities undertaken and expenses incurred are accurately described in the Annual
Program Budget or Annual Program Report, as the case may be, and the costs have
been incurred with respect to only those matters that relate to the relevant Offsetting
Program.
6.3.6
Disclosure. The Annual Program Reports, the Annual Program
Budgets and the contents thereof will be considered public information and may be
publically disclosed by any party to this Agreement, with the exception of any
information concerning specific expenditures by TCN and any information relating to
24
individual Members. Information concerning specific expenditures by TCN or relating to
individual Members will not be disclosed by any party to this Agreement without the
prior written consent of the other party to this Agreement or, where the information
relates to an individual Member, the consent of that individual Member, except where
such disclosure is required:
(a)
by TCN to inform Members;
(b)
for audit purposes;
(c)
to meet the reasonable requirements of Regulatory Authorities in
relation to their review and approval of the Keeyask Project;
(d)
by Hydro to fulfill its need to inform Manitoba and the Minister
responsible for Hydro;
(e)
for the purposes of arbitration pursuant to Article 15; or
(f)
by law.
6.3.7
Consent of Individuals. Nothing in subsection 6.3.6 is intended to dispense
with the need for the consent of individuals to the disclosure of their personal
information, where such consent is required by law.
6.4
PROGRAM PLANNING COMMIT"rEE
6.4.1
Purpose of Program Plannina Committee. The Program Planning
Committee will act as a forum for co-operative review, discussions and
recommendations regarding ways and means for strengthening the implementation
success of the Offsetting Programs.
6.4.2
Consider Issues. The Program Planning Committee will consider any
issues respecting Offsetting Programs, including issues related to their effective
implementation and coordination with other initiatives implemented to mitigate Keeyask
Adverse Effects.
6.4.3
Not Binding. No recommendations or decisions of the Program Planning
Committee will be binding on either TCN or Hydro. The fact that any matter is before
the Program Planning Committee will in no way affect or delay the pursuit of any
remedy hereunder by any party to this Agreement, including, without limitation, the
referral of a matter to dispute resolution under Article 15.
25
6.4.4
Members of Program Planning Committee. The Program Planning
Committee will consist of five (5) members, of which:
(a)
three (3) members will be appointed by TCN, and
(b)
two (2) members will be appointed by Hydro.
6.4.5
Meetings of Program Planning Committee. Either TCN or Hydro may
call a meeting of the Program Planning Committee at any time, on no less than
twenty-one (21) days notice, for purposes of discussing any aspect of the
implementation of the Offsetting Programs. The notice may be in writing and delivered
or mailed, or may be given by telephone, facsimile or email, and will specify the matters
to be discussed at the meeting.
6.4.6
Place of Meeting. The Program Planning Committee will meet only in
Split Lake or Thompson, Manitoba, unless the Program Planning Committee
unanimously decides otherwise. Members of the Program Planning Committee may
attend a meeting in person, or participate in a meeting by telephone or other
communication conferencing mechanism.
AR·nCLE 7 • CLOSING LICENCES AND OFFSETTING PROGRAMS
7.1
CHANGES
7.1.1
Existing Understandings. In approaching the negotiation of this
Agreement, TCN, with funding from Hydro, developed and undertook, over a period of
more than eight (8) years, the OWL Process to assess Keeyask Adverse Effects
based upon the experience, understanding, knowledge, wisdom, values, beliefs and
priorities of TCN and Members. The OWL Process has enabled TCN to consider the
proposed Keeyask Project and the potential Keeyask Adverse Effects, from a Cree
perspective and from the perspective of Aboriginal and Treaty rights. The negotiation of
this Agreement was based on:
26
(a)
TCN's perspective developed through the OWL Process;
(b)
an understood and agreed Project Description;
(c)
the past experience of TCN and Hydro with respect to hydro-electric
development; and
(d)
the best professional advice available on the impacts of the proposed
Keeyask Project.
Although the negotiation was undertaken before the Environmental Impact
Assessment was fully complete, TCN and Hydro are satisfied that all of the information
on Keeyask Adverse Effects reasonably required to conclude this Agreement is
available and understood.
Change in Circumstance. Notwithstanding the foregoing, if:
7.1.2
(a)
new and material information about potential Keeyask Adverse Effects
becomes apparent through the Environmental Impact Assessment;
(b)
the Project Description is altered, without changing a Fundamental
Feature; or
(c)
an Offsetting Program is required, by the Regulatory Authorities, to be
modified;
then, subject to and in accordance with subsection 7.1.3, either TCN or Hydro may
request changes to this Agreement and/or the Offsetting Programs.
7.1.3
Nature of Changes. An amendment to this Agreement and/or the
Offsetting Programs may be required only where, as a consequence of a change in
circumstance identified in subsection 7.1.2:
(a)
a Keeyask Adverse Effect, which was not anticipated or foreseen, is
identified;
(b)
the negative impact of an anticipated Keeyask Adverse Effect is
materially aggravated;
(c)
the negative impact of an anticipated Keeyask Adverse Effect is
materially reduced; or
(d)
the effectiveness of an Offsetting Program or any mitigation measure
described in the Project Description is materially enhanced or reduced;
and such change in circumstance, or the effect thereof on a Keeyask Adverse Effect,
an Offsetting Program or a mitigation measure, outlined above, was not considered or
27
addressed in the negotiation and conclusion of this Agreement or the Offsetting
Programs.
7.1.4
Process. In the event of a changed circumstance contemplated in
subsection 7.1.2, either TCN or Hydro may request a meeting to discuss such changed
circumstance and propose an amendment, as contemplated in subsection 7.1.3. The
party requesting such an amendment must provide the other party with a written notice,
as soon as reasonably practical following their becoming aware of the changed
circumstance, outlining:
(a)
details of the changed circumstance and
contemplated in subsection 7.1.3;
the effect thereof,
as
(b)
the basis upon which that party maintains that the changed circumstance,
or the potential effect thereof on a Keeyask Adverse Effect, an
Offsetting Program, or a mitigation measure was not considered or
addressed during the negotiation and conclusion of this Agreement; and
(c)
the proposed resolution to the matter.
7.1.5
Negotiation Period. After the receipt of a notice pursuant to subsection
7.1.4, the parties will meet in good faith to address the concerns raised and attempt to
reach a mutually acceptable resolution.
7.1.6
Where No Agreement. If TCN and Hydro are not in agreement that a
change in circumstance contemplated in subsection 7.1.2 occurred, or that an
amendment contemplated in subsection 7.1.3 is required, or if a mutually acceptable
resolution cannot be agreed between the parties under subsection 7.1.5, such issues
may be resolved by arbitration under the Dispute Resolution Mechanism set out in
Article 15, with the onus being on the party who asserts that such a change in
circumstances has occurred, and that such an amendment is required.
7.1.7
Binding Arbitration. The parties agree to be bound by the decision of the
AEA Arbitrator under subsection 7.1.6.
7.1.8
Jurisdiction to Amend Offsetting Programs Limited. Where the AEA
Arbitrator determines that there has been a change in circumstance contemplated in
subsection 7.1.2, and that an amendment contemplated in subsection 7.1.3 is required,
the AEA Arbitrator will have the jurisdiction to amend the Offsetting Programs and
the Settlement Proceeds solely for the purpose of addressing the effects of a change
in circumstance on a Keeyask Adverse Effect, an Offsetting Program or a mitigation
measure, as contemplated in subsection 7.1.3. The AEA Arbitrator will not have the
28
jurisdiction or power to question the reasonableness of the Offsetting Programs or the
Settlement Proceeds originally negotiated or settled upon.
7.1.9
Interim Costs. Prior to the Final Closing Date, the AEA Arbitrator may
make an interim order for costs in favour of TCN in relation to an arbitration under
subsection 7.1.8. In considering an application for an interim award of costs, the AEA
Arbitrator will consider all relevant circumstances, including the respective financial
means of the parties and the prima facie case of TCN in respect of the issues which are
the subject matter of the said arbitration.
ARTICLE 8 • MONITORING COMMITMENT
8.1
MONITORING
8.1.1
Monitoring. Hydro will monitor environmental effects in relation to the
development and operation of the Keeyask Project, and it is anticipated that monitoring
requirements may be included as a condition of one or more of the Closing Licences.
8.1.2
Monitoring Commitment. Once the scope of planned monitoring is
determined, including monitoring to meet regulatory requirements, TCN and Hydro will
determine:
(a)
which monitoring requirements are relevant to issues of Keeyask
Adverse Effects;
(b)
whether or not additional monitoring, relevant to Keeyask Adverse
Effects, is required for purposes of this Agreement; and
(c)
the scope and duration of monitoring, relevant to Keeyask Adverse
Effects, required for purposes of this Agreement.
8.1.3
Dispute. If TCN and Hydro are unable to agree upon the monitoring,
relevant to Keeyask Adverse Effects, that is required for purposes of this Agreement
under subsection 8.1 .2, that issue may be resolved by reference to the AEA Arbitrator
under Article 15.
29
ARTICLE 9 - RESIDUAL COMPENSA"nON
9.1
COMPENSATION FOR RESIDUAL EFFECTS
9.1.1
Residual Effects. The parties identified
residual Keeyask Adverse Effects which are not
Programs and the PDC, and Hydro and TCN agree
dollars, paid in accordance with subsection 9.1.2,
Compensation.
and described all anticipated
addressed by the Offsetting
that three million ($3,000,000)
constitutes the full Residual
9.1.2
Payment of Residual Compensation. On the date the last party signs this
Agreement, Hydro will pay to TCN the Residual Compensation, which will be settled
by TCN into the Economic and Social Development Account of the Trust.
9.1.3
Interest. Late payment of Residual Compensation will bear interest at the
then current prime interest rate per annum as publicly announced from time to time by
the Royal Bank of Canada at its main office in Winnipeg, Manitoba as its preferred
lending rate of interest charged to its most creditworthy Canadian customers, whether
or not such interest rate is actually charged by said bank to any customer, calculated
daily from the date due until the date upon which payment is made.
ARTICLE 10 - MEMBERS' CLAIMS
10.1
MEMBERS' CLAIMS
10.1.1
Continuing Liability of Hydro. Notwithstanding the Offsetting Programs,
the Settlement Proceeds and the releases and indemnities under this Agreement,
Hydro will remain liable to compensate any Member, who is a licensed trapper, for any
loss of net revenue from commercial trapping and for any direct loss or damage to any
buildings, structures or other infrastructure located on a Registered Trapline used by the
Member, which results from the construction and operation of the Keeyask Project.
10.1.2
Commercial Trapping and Related Infrastructure Claims. Following signing
of the JKDA by Hydro and the KCN Majority, Hydro will provide an offer of
compensation to any Member, who is a licensed trapper, for any existing or anticipated
loss of net revenue from commercial trapping, and for any anticipated direct loss or
damage to any buildings, structures or other infrastructure located on a Registered
Trapline used by the Member, which results from the construction and operation of the
Keeyask Project.
10.1.3
Claims by Members for Other Losses. Hydro will establish and operate a
claims process to facilitate the resolution of claims by any Member, for loss or damage
30
resulting from Keeyask Adverse Effects, to personal property belonging to such
Member, which claims are not settled and resolved by this Agreement.
10.1.4
Use of 1992 Claims Process. Hydro and TCN may agree in the future to
use the claims process available for Members under Articles 8, 9 and 16 of the 1992
Agreement, with such changes as may be required to reflect that the process is
addressing claims arising from Keeyask Adverse Effects, and compensation for such
claims, if any, will be paid or reimbursed by Hydro, as a cost to the Keeyask Project.
ARTICLE 11 - TERMINATION
11.1 TERMINATION
11.1.1
Suspension of Settlement Proceeds. If the JKDA is terminated under the
provisions of Article 21 of the JKDA or if, under the terms of the JKDA, the JKDA
Parties agree that the construction of the Keeyask Project will not proceed, then any
portion of the Settlement Proceeds that has not been paid pursuant to this Agreement
will no longer be payable by Hydro to TCN and the releases and indemnities provided
by TCN under Article 14 will be limited to loss and damage actually suffered or incurred
by TCN prior to the termination of the JKDA as a consequence of Keeyask Adverse
Effects.
11.1.2
Limitation on Release and Indemnity. The release and indemnity provided
by TCN to Hydro pursuant to subsection 11.1.1 will not extend to release or indernnify
Hydro with respect to any loss or damage actually suffered or incurred by TCN after the
termination of the JKDA, as a consequence of any Keeyask Adverse Effect that has a
continuing chemical, biological, or physical impact. Socio-economic damages, if any,
are compensable only to the extent that they are caused by or attributable to such
continuing chemical, biological, or physical impacts.
11.1.3
Best Efforts after Termination of JKDA. If the JKDA is terminated as
contemplated in subsection 11.1.1, each of Hydro and TCN will make its best efforts to
agree upon compensation for any loss or damage actually suffered or incurred by TCN
after the termination of the JKDA, as a consequence of any continuing Keeyask
Adverse Effects.
AEA Arbitrator Jurisdiction after Termination of JKDA. If Hydro and TCN
11.1.4
cannot agree:
(a)
on whether or not the loss or damage is addressed by the release and
indemnity as provided under subsection 11.1.1;
31
(b)
that the loss or damage is a consequence of a continuing Keeyask
Adverse Effect;
(c)
that the loss or damage was suffered or incurred after the termination of
the JKDA; or
(d)
on the nature or amount of compensation required, if any, to address the
loss or damage suffered;
either party may refer such dispute to the AEA Arbitrator pursuant to Article 15 and all
parties agree to be bound by the decision of the AEA Arbitrator.
11.1.5
Continuation of Certain Offsetting Programs. If the ..IKDA is terminated
as contemplated in subsection 11.1.1, each of Hydro and TCN will make its best efforts
to conclude an agreement for the continuation of certain Offsetting Programs, on
terms to be negotiated, including potentially the granting of a credit from TCN to Hydro
to be used against any obligation Hydro may have to TCN with respect to Future
Development or "Impacting Future Development" as that term is defined in the 1992
Agreement.
11.1.6
No Arbitration. Notwithstanding anything else in this Agreement, no party
will be able to submit any dispute respecting any matter arising from subsection 11.1.5
to the AEA Arbitrator, and the AEA Arbitrator will not have the jurisdiction to consider
any matter arising from subsection 11.1.5.
11.2 DISSOLUTION OF LIMITED PARTNERSHIP
11.2.1
Dissolution of Limited Partnership. If, after the construction of the
Keeyask Project is completed and the Closing Licences have issued, the Limited
Partnership is dissolved pursuant to the JKDA, the Assignment, Assumption and
Allocation Agreement, attached as Schedule 7, between the Limited Partnership and
Hydro will be terminated as of the date of dissolution of the Limited Partnership, and
Hydro will assume all rights and benefits under this Agreement, and be bound by all
undertakings and obligations under this Agreement.
AR"rlCLE 12 - FUNDAMENTAL OPERA·rlNG FEATURES
12.1 BASIS FOR PROCEEDING
12.1.1
Agreed in ..IKDA. The Fundamental Features set forth in the JKDA are of
fundamental importance to TCN. The JKDA provides in subsection 7.1.5 that no
change will be made to the Project Description which would result in a change to any
32
Fundamental Feature described in subsections 7.2.1 or 7.2.2 of the JKDA without the
prior written consent of TCN.
12.1.2
Fundamental Operating Features. It is recognized that over the life of
the Keeyask Project, from time to time, there may be a breach of a Fundamental
Operating Feature for reasons beyond the control of Hydro, and that in such
circumstances there will be a need for a process and a mechanism for the parties to
consider and resolve any new or incremental Keeyask Adverse Effects arising from
such breach of any Fundamental Operating Feature.
12.2 PROCESS TO ADDRESS A BREACH OF A FUNDAMENTAL OPERATING
FEATURE
12.2.1
Breach. Where a breach of a Fundamental Operating Feature, as
contemplated in subsection 12.1.2, occurs, TCN and Hydro will:
(a)
identify any new or incremental Keeyask Adverse Effects arising, or
likely to arise, from such breach;
(b)
undertake any studies and investigations required to assess any new or
incremental Keeyask Adverse Effects arising, or likely to arise, from
such breach;
(c)
where feasible, implement steps to mitigate any new or incremental
Keeyask Adverse Effects arising, or likely to arise, from such breach;
and
(d)
determine appropriate compensation for any new or incremental Keeyask
Adverse Effects arising, or likely to arise, from such breach, to the extent
such Keeyask Adverse Effect is not fully mitigated through the steps, if
any, taken under paragraph 12.2.1 (c).
12.2.2
Joint Studies. Whenever a study or investigation of an issue is required to
conclude the process outlined in subsection 12.2.1, TCN and Hydro agree that, if
reasonable, such study or investigation, including the establishment of the terms of
reference for same, will be undertaken by them jointly. Reasonable efforts will be made
to employ Members in such studies or investigations.
12.2.3
Budget. TCN will prepare a budget, and if reasonable, such budget will be
prepared jointly or collaboratively with Hydro, for the reasonable costs of TCN,
including professional costs, to develop, review and investigate information provided or
required under subsection 12.2.2 or, independent of any joint study, to develop, review
33
and investigate information respecting the matters described in subsection 12.2.1. If
Hydro approves the budget or if the budget is approved by the AEA Arbitrator
pursuant to subsection 12.2.4, Hydro agrees to pay such reasonable costs provided
that:
(a)
the actual invoice reflects the budget or the revised budget; and
(b)
the work done accords with the work outlined in the budget or revised
budget.
AEA Arbitrator's Remedial Authority. If Hydro and TCN do not agree:
12.2.4
(a)
that a breach of a Fundamental Operating Feature, contemplated in
subsection 12.1.2, has resulted in any new or incremental Keeyask
Adverse Effect;
(b)
on the scope and magnitude of any new or incremental Keeyask Adverse
Effect or the appropriate compensation payable for any such new or
incremental Keeyask Adverse Effect;
(c)
on the feasibility of any proposed mitigation; or
(d)
on the reasonableness of any budget under subsection 12.2.3;
such dispute may be referred to the AEA Arbitrator for resolution.
12.2.5
Interim Costs. Prior to the Final Closing Date, the AEA Arbitrator may
make an interim order for costs in favour of TCN in relation to an arbitration under
subsection 12.2.4. In making an interim award of costs, the AEA Arbitrator will
consider all relevant circumstances, including the respective financial means of the
parties and the prima facie legitimacy of TCN's claim or TCN's defence to the claim, as
the case may be.
12.2.6
Reasonableness of Settlement Proceeds. The AEA Arbitrator will not
have the jurisdiction or power, under this Article 12, to question the reasonableness of
the Offsetting Programs or the Settlement Proceeds originally negotiated or settled
upon.
34
AR1"ICLE 13 - PDC
13.1 PDC
13.1.1
PDC. During the life of the Keeyask Project, Hydro will pay PDC to TCN
in accordance with this Article 13 for events outside of the parameters of the Fully
Compensated Zone occurring after commissioning of the last generating unit within the
Keeyask Generating Station.
13.1.2
Reasonable Assessment. The PDC represents a reasonable prior
assessment and estimation by Hydro and TCN of damages which will be experienced
by TCN or Members as a result of water regime events outside the parameters of the
Fully Compensated Zone and within the PDC Zones. Specific rates and formulas for
calculating PDC are provided with respect to each PDC Zone.
13.1.3
PDC Rates and Formulas. The rates and formulas for determining the
appropriate quantum of PDC are as follows:
(a)
for each day that the Daily Average Water Level on the Keeyask Project
forebay falls below 157.95 metres (518.2 feet) ASL but exceeds 157.50
metres (516.7 feet) ASL, Hydro will pay to TCN the sum of four thousand
five hundred ($4,500) dollars per foot;
(b)
for each day that the Daily Average Water Level on the Keeyask Project
forebay exceeds 159.05 metres (521.8 feet) ASL Hydro will pay to TCN
the sum of four thousand five hundred ($4,500) dollars per foot.
13.1.4
Proportion of Payments. Payments of compensation for part of a foot will
be pro-rated to the nearest one/tenth (1/10) of a foot.
13.1.5
Draw-down Events. Where Hydro has scheduled a Draw-down Event
for maintenance, inspection or other purposes, Hydro will give TCN fourteen (14) days
notice of the Draw-down Event. Where the Draw-down Event occurs for emergency
purposes, or where it is otherwise not reasonably practicable to give fourteen (14) days
notice, Hydro will give TCN as much notice, if any, as is practicable in the
circumstances. Hydro will compensate TCN for each Draw-down Event at the rate of
twenty-one thousand three hundred dollars ($21,300). Where a Draw-down Event
extends beyond twenty-eight (28) days in duration, it will constitute a new Draw-down
Event for the purpose of this Agreement.
13.1.6
Example Calculations. PDC is to be calculated in a manner consistent with
the example calculations in Schedule 6.
35
13.1.7
Seasonal Determinations. Not later than sixty (60) days following the end
of the seasonal period from October 1 to the next March 31, and sixty (60) days
following the end of the seasonal period April 1 to September 30, Hydro will for each
day within such seasonal period determine the Oaily Average Water Level on the
Keeyask Project forebay.
13.1.8
Calculations. Within the relevant sixty (60) day periods provided to make
the determinations setforth in subsection 13.1.7, Hydro will:
(a)
calculate the quantum of POC, if any, payable to TCN pursuant to this
Article 13, applying the applicable rates for the relevant events, set forth in
subsections 13.1.3 and 13.1.5, and consistent with the example
calculations in Schedule 6;
(b)
provide TCN with all relevant data in writing or on computer disk or in
some other mutually acceptable electronic form and with a written report
summarizing the data, the determinations and the POC calculations; and
(c)
pay to TCN the POC owing, if any, for deposit to the Trust.
13.1.9
Dispute. If TCN disagrees with the summary of the data, the
determinations, or the POC calculations, contained in the report provided under
subsection 13.1.8, it will, within sixty (60) days of its receipt of the later of the report or
the POC, give written notice to Hydro explaining the nature and extent of the
disagreement.
13.1.10
Deemed to Accept. Subject to subsection 13.1.11, unless TCN gives
notice that it disagrees with the summary of the data, the determinations, or the POC
calculations, contained in the report provided under paragraph 13.1.8 (b), within the
terms and the time set forth in subsection 13.1.9, TCN will be conclusively deemed to
have accepted same as correct.
13.1.11
Notice of Disagreement. Notwithstanding subsection 13.1.10, if either TCN
or Hydro subsequently determines that there is an error in the raw data collected
pursuant to Article 13 of this Agreement, it will give written notice to the other specifying
the error in such raw data within one hundred twenty (120) days of determining that
such an error exists. If no such error is determined to exist by either TCN or Hydro
within six (6) years after the date the summary of the data was reported, such raw data
will for the purposes of this Agreement conclusively be deemed to be correct.
36
13.1.12
Indexing. Where any amount of POC payment is specified in dollars and at
the time Hydro pays the POC pursuant to this Article 13, the amount payable is to be
adjusted in proportion to the annual change in the CPI since January 1, 2008.
13.1.13
Minimum Payment. In any year where the Oaily Average Water Levels
fall within the POC Zones, and the aggregate POC calculated to be payable under this
is Article 13 is less than five tholJsand ($5,000) dollars, Hydro will, notwithstanding that
POC calculation, pay to TCN five thousand ($5,000) dollars in POC for that year.
ARTICLE 14· RECIPROCITY
14.1
RECIPROCITY
14.1.1
Introduction. This Article sets forth the general and specific releases and
indemnities, and the exceptions to both the general and specific releases and
indemnities contained in this Agreement.
14.2
RELEASES
14.2.1
Release. Except as set forth in subsection 14.4.1, TCN hereby releases
and forever discharges Hydro of and from any and all actions, causes of action, suits,
claims, demands, losses or damages of any nature or kind whatsoever, at law or in
equity, which TCN, its successors, assigns or those it represents, have had, now have
or hereafter can, will or may have, for, or by reason of, Keeyask Adverse Effects
including, without limitation, impacts on, or interference with, the exercise of the
Aboriginal or Treaty rights, or the collective rights and interests of TCN and/or
Members.
14.2.2
Offsetting Programs Release. TCN hereby releases and forever
discharges Hydro of and from any and all actions, causes of action, suits, claims,
demands, losses or damages of any nature or kind whatsoever, at law or in equity,
which TCN, its successors, assigns or those it represents, have had, now have or
hereafter can, will or may have, for, or by reason of any loss, damage or injury suffered
as a consequence of, or through participation of TCN or Members in, any Offsetting
Program.
14.2.3
Satisfaction. Except as set forth in subsection 14.4.1, all existing and
future rights of action and claims of TCN, relating to, or arising out of, Keeyask
Adverse Effects including, without limitation, impacts on, or interference with, the
exercise of the Aboriginal or Treaty rights, or the collective rights and interests of TCN
and/or Members, are hereby satisfied.
37
14.2.4
Covenant. TCN covenants and agrees not to commence or prosecute any
action, claim, demand or proceeding on its own behalf or on behalf of any other person
or entity against Hydro, with respect to any action, cause of action, suit, claim, demand,
loss or damage which has been fully and finally concluded, or with respect to which
TCN has released or indemnified Hydro.
14.3 INDEMNITIES
14.3.1
Indemnity. Except as set out in subsection 14.4.1, TCN hereby undertakes
and agrees to indemnify and save harmless Hydro, in respect of any and all actions,
causes of action, suits, claims, demands, losses or damages of any nature or kind
whatsoever, at law or in equity, brought or instituted, directly or indirectly, by any
Member by reason of any cause, matter or thing whatsoever attributable to Keeyask
Adverse Effects including, without limitation, impacts on Aboriginal and Treaty rights,
or on the collective rights and interests of TCN and Members, or on the exercise of
those rights. The obligation to pay any amount required under this indemnity provision
will be an obligation of TCN. This indemnity does not cover Hydro's costs in resisting
such claim and is conditional upon Hydro:
(a)
forthwith, upon becoming aware of such claim, giving notice to TCN;
(b)
consenting to or supporting any application by TCN, if TCN is not named
as a party, to be named as a party thereto; and
(c)
not settling any such claim without the written consent of Chief and
Council to such settlement, provided that this does not require Hydro to
appeal any decision, award, ruling, or judgment by which it may be bound,
and for which it is seeking indemnity pursuant to subsection 14.3.1.
14.3.2
Indemnity regarding Offsetting Programs. TCN hereby undertakes and
agrees to indemnify and save harmless Hydro, in respect of any and all actions, causes
of action, suits, claims, demands, losses or damages of any nature or kind whatsoever,
at law or in equity, brought or instituted, directly or indirectly, by:
38
(a)
any Member by reason of any loss, damage or Injury suffered as a
consequence of, or through participation of TCN or Members in any
Offsetting Program; or
(b)
any person by reason of the negligence, recklessness or wilful action on
the part of TCN or its agents or employees in the implementation of any
Offsetting Program.
14.3.3
Indemnity Conditions.
Neither indemnity provided under paragraphs
14.3.2 (a) or 14.3.2 (b) covers Hydro's costs in resisting such claim, and each
indemnity is conditional upon Hydro:
(a)
forthwith, upon becoming aware of such claim, giving notice to TCN;
(b)
consenting to or supporting any application by TCN, if TCN is not named
as a party, to be named as a party thereto; and
(c)
not settling any such claim without the written consent of Chief and
Council to such settlement, provided that this does not require Hydro to
appeal any decision, award, ruling, or judgment by which it may be bound,
and for which it is seeking indemnity pursuant to subsection 14.3.2.
14.3.4
Hydro for:
Exceptions. Nothing in this Agreement will require TCN to indemnify
(a)
an amount, in aggregate, greater than the Settlement Proceeds;
(b)
matters for which Hydro remains liable under subsection 14.4.1; and
(c)
any claim arising solely out of the existence or scope of the Offsetting
Program.
14.4 EXCEPTIONS TO RELEASE AND CONTINUING LIABILITY
14.4.1
Exception to Releases. It is understood and agreed that, by the provisions
of this Article 14, TCN does not waive, release, or indemnify Hydro with respect to
liability and claims as follows:
(a)
liability and claims for personal injury and death, past and future, caused
by or attributable to Keeyask Adverse Effects;
(b)
liability and claims for Keeyask Adverse Effects, as further defined by
subsection 14.4.2, that were, at the date of this Agreement, unknown
and/or unforeseen and not discernible or foreseeable with the exercise of
due diligence;
(c)
liability and claims for human disabilities, illness or death resulting from
the ingestion of methyl-mercury caused by or attributable to Keeyask
Adverse Effects;
39
(d)
liability and claims for the recovery and re-interment of human remains
disinterred by flooding or shoreline deterioration caused by or attributable
to Keeyask Adverse Effects;
(e)
liability and claims for any operations outside of, or in material breach of,
the Closing Licences;
(f)
liability for a breach of a Fundamental Operating Feature;
(g)
liability for claims, contemplated in subsection 10.1.1 and not resolved by
an agreement under subsection 10.1.2, by any Member, who is a licensed
trapper, for any loss of net revenue from commercial trapping and for any
direct loss or damage to any buildings, structures or other infrastructure
located on a Registered Trapline used by the Member, caused by or
attributable to Keeyask Adverse Effects; and
(h)
liability for claims, contemplated in subsection 10.1.3, by any Member for
loss or damage to personal property belonging to such Member, caused
by or attributable to Keeyask Adverse Effects.
14.4.2
Limitation. The Keeyask Adverse Effects referred to in paragraph
14.4.1(b) are further limited to chemical, biological and physical impacts causing
material damage to TCN or a Member, and attributable to the Keeyask Project.
Alleged socio-economic damages to TCN or a Member, if any, are compensable only to
the extent that they are caused by or attributable to such chemical, biological and
physical impacts.
14.4.3
Notice. TCN will give prompt notice of any occurrence which is alleged to
have caused a Keeyask Adverse Effect as referred to in paragraph 14.4.1 (b), together
with all particulars and evidence in support of such occurrence and of any damages
which are alleged to have resulted from such occurrence.
14.4.4
Future Acts or Omissions. Nothing in this Agreement will relieve any party
of liability for breaches of this Agreement, future breaches of fiduciary obligations,
future negligent or unlawful acts or omissions, or future wilful misconduct, on their own
part, or on the part of those for whom they are responsible at law.
40
ARTICLE 15 • DISPUTE RESOLUTION MECHANISM
15.1
INTRODUCTION
15.1.1
Introduction. This Article sets forth methods of resolving disputes arising
out of this Agreement.
15.2
ARBITRATION
15.2.1
Arbitration Act. Submissions to arbitration will be pursuant to The
Arbitration Act (Manitoba), which Act will govern the arbitration except where the Act
conflicts with any express term of this Article, in which case the provisions of this Article
will prevail. Nothing in this Article grants any substantive rights to any party, except for
the right to refer matters to arbitration.
15.2.2
Fees. Any AEA Arbitrator appointed pursuant to this Article will be
entitled to be paid a reasonable fee, which will not be fixed or determined by The
Arbitration Act (Manitoba).
Hydro to Pay. Hydro will pay the fees of the AEA Arbitrator provided
15.2.3
that, Hydro may apply for, and the AEA Arbitrator may order, that the fees of the AEA
Arbitrator be paid, in whole or in part, by any other party or parties to the arbitration.
15.3
DISPUTES BETWEEN THE PARTIES
15.3.1
Submission. The parties agree to arbitrate any dispute as to the meaning,
application, implementation or breach (the "Issue") of this Agreement. Each such Issue
will be submitted to arbitration in the Province of Manitoba to an AEA Arbitrator to be
appointed as hereinafter set forth.
15.3.2
Notice. The party initiating recourse to arbitration (the "Claimant") will
serve upon the other party (the "Respondent") a written notice of its Claim.
15.3.3
Contents. The Claim will include the following:
(a)
a demand that the Issue be referred to arbitration;
(b)
the nature of the Issue;
(c)
the relief, remedy or redress sought; and
41
(d)
the party or parties with whom the Claimant has the dispute constituting
the Issue.
Notwithstanding the foregoing, any party may refer to the AEA Arbitrator a dispute as
to the interpretation of this Agreement, without claiming any relief, remedy or additional
redress.
15.3.4
Amendments. The Claim may be amended, at any time prior to the
decision or award of the AEA Arbitrator, with leave of the AEA Arbitrator, following
notice to all of the parties, and on such terms as the AEA Arbitrator deems just.
15.3.5
Participation. If TeN, Hydro, or the Limited Partnership are not named in
the arbitration, such party may apply to the AEA Arbitrator to be added as a party to
the arbitration, if its interests could be affected by a decision of the AEA Arbitrator
within the scope of the Claim. If Hydro applies to be a party and the AEA Arbitrator
grants the application, Hydro agrees to be bound by the provisions of this Article 15 and
be bound by the decision of the AEA Arbitrator.
15.3.6
Selecting AEA Arbitrator. The AEA Arbitrator will be determined in
accordance with the following procedure:
(a)
The Claimant will, on giving notice of its Claim, submit to the Respondent
the names, addresses and occupations of not more than five (5)
individuals, anyone of whom may be selected to act as the AEA
Arbitrator.
(b)
If the Claimant fails to submit the list of names with its Claim, it will be
deemed to have withdrawn its Claim, and the matter will not proceed
further except by a new Claim under subsection 15.3.2 of this Article.
(c)
The Respondent, within twenty-one (21) days of its receipt of the names
submitted by the Claimant, will:
(d)
42
(i)
select one (1) or more of the individuals submitted by the
Claimant that is or are acceptable to it to act as the AEA
Arbitrator, and so advise the Claimant in writing, or
(ii)
reject all of the individuals submitted by the Claimant.
If the Respondent does not respond within the twenty-one (21) days
provided, it will be deemed to have accepted any selection made by the
Claimant.
(e)
If only one (1) of the individuals whose names have been submitted is
accepted by the Respondent, and that individual is willing and able to act
as the AEA Arbitrator, then that individual will be, and is hereby,
appointed as the AEA Arbitrator.
(f)
If more than one (1) individual is accepted by the Respondent, and more
than one (1) of those individuals are willing and able to act, the Claimant
will choose the AEA Arbitrator from the list of individuals accepted by the
Respondent who are willing and able to act, and such individual selected
by the Claimant will be, and is hereby, appointed as the AEA Arbitrator to
hear the Issue submitted to arbitration.
15.3.7
Application to Judge. If the Claimant and the Respondent do not
unanimously agree as to the individual to be named as the AEA Arbitrator, then either
may request that the AEA Arbitrator be appointed by a Judge of the Court of Queen's
Bench of Manitoba, in accordance with the provisions of The Arbitration Act (Manitoba).
15.3.8
Time for Hearing. The AEA Arbitrator will be obliged to render his or her
decision and the reasons for such decision, in writing, within thirty (30) days of the
conclusion of the arbitration hearing, unless such time is extended by agreement of the
Claimant and the Respondent, or by order of a court of competent jurisdiction.
15.4 HEARING PROCEDURE ON DISPUTES BETWEEN THE PARTIES
15.4.1
Jurisdiction. From and after the date of his or her appointment, the AEA
Arbitrator will have jurisdiction to supervise the conduct of the proceedings and to
make such orders as to procedure as may be necessary or expedient to ensure that all
parties are in a position to proceed to determination of the Issue on an expeditious and
fair basis.
15.4.2
Procedures. The AEA Arbitrator may conduct the arbitration in whatever
manner he or she considers appropriate, but will maintain a record (although not
necessarily a verbatim transcript, unless such transcript is requested by the Claimant or
Respondent, and then upon such terms as the AEA Arbitrator may impose, including,
without limitation, the costs thereof) of the proceedings, and at all times will conform to
the rules of natural justice.
15.4.3
Evidence. If the Claimant or Respondent requests, at any stage of the
proceedings, the AEA Arbitrator will hold hearings for the presentation of evidence by
witnesses, including expert witnesses, or for oral argument. In the absence of such a
request, the AEA Arbitrator will decide whether or not to hold such a hearing, and
43
whether or not the proceedings will be conducted on the basis of documents and other
materials.
15.4.4
Disclosure. The parties agree that they will disclose and produce any
document or documents, as may be required, in writing, by the AEA Arbitrator, except
such documents as would not be compellable were the Issue an action brought in a
court of law.
15.4.5
Distribution. All documents or information supplied to the AEA Arbitrator
by any party will concurrently be provided by that party to each other party.
15.4.6
Rules of Evidence. The AEA Arbitrator will not be strictly bound by the
rules of evidence, but may receive all evidence submitted by the parties which is
determined to be relevant by the AEA Arbitrator.
15.5
AWARD AND COSTS
15.5.1
Power and Authority. The AEA Arbitrator will have the power and
authority to hear and determine any Issue, including the power to:
(a)
interpret this Agreement, and any provisions thereof, and declare the
rights and obligations of any party under this Agreement;
(b)
determine any dispute as to facts;
(c)
direct that an audit be undertaken;
(d)
award damages;
(e)
award interest; and
(f)
award costs.
15.5.2
No Change to Agreement. Except for the power to amend the Offsetting
Programs or the Settlement Proceeds under subsection 7.1.8, the AEA Arbitrator will
have no authority or jurisdiction to change, alter or amend this Agreement, or question
the reasonableness of the Offsetting Programs or the Settlement Proceeds originally
negotiated or settled.
15.5.3
Costs Generally. In the absence of an order as to costs, each party will
bear its own costs.
44
15.5.4
Cost Awards. The costs of the arbitration, including the AEA Arbitrator's
fee, upon application of any party, may be awarded by the AEA Arbitrator against any
party in full or in part. In making an award of costs, the AEA Arbitrator will consider all
relevant circumstances, including the relative financial means of the parties.
No Interim Costs. Except as provided in subsections 7.1.9 and 12.2.5, the
15.5.5
AEA Arbitrator will have no power to award interim costs.
15.5.6
Finality. The award of the AEA Arbitrator will be final and binding on all
the parties, subject to the right of any party to appeal, within thirty (30) days of the
party's receipt of the decision being rendered, to the Court of Appeal of Manitoba on a
point of law or jurisdiction.
AR1·ICLE 16 - GENERAL PROVISIONS
16.1
INTRODUCTION
16.1.1
Introduction. This Article contains provisions of a general nature relating to
this Agreement.
16.2
INTERPRETATION
16.2.1
Headings. The Article and section headings, and any introductory
provision in any Article are for reference and information purposes only, and will not
affect in any way the meaning or interpretation of this Agreement.
16.2.2
Numbers. Plural. Words importing the singular number only will include the
plural, and vice versa, as the context may require; and words importing persons will
include firms, governments and corporations, and vice versa, as the context may
require.
16.2.3
Metric Measure. Subject to any legislative requirement, in the event of a
conflict between metric and Imperial measure, metric measure will prevail, except where
the original data or measuring device was in Imperial measure, then the Imperial
measure will prevail. The parties agree that the metric conversion rate to be used for
purposes of this Agreement will be one (1) foot equals 0.3048 metres and one (1)
metre equals 3.28084 feet.
16.2.4
Interpretation Aids. In any interpretation of this Agreement, only the
Agreement itself will be considered and no other documents, such as notes,
memoranda, or electronic records will be referred to or considered.
45
16.3
PRESUMPTIONS
16.3.1
No Presumptions. The parties have endeavoured to ensure that the terms
of this Agreement are as clear as possible, and in interpreting this Agreement there
will be no presumption in favour of or against any party.
16.4
CONTINGENCY FEES
16.4.1
No Contingency Fees. No portion of the Settlement Proceeds will be
used to pay a contingency fee or bonus to any member of Chief and Council, or to any
advisor or legal counsel acting on behalf of TCN in relation to, or as payment for, work
done in negotiating, finalizing or documenting this Agreement.
16.5
INDEPENDENT LEGAL ADVICE
16.5.1
Independent Legal Advice. As certified in Schedule 24-4 of the JKDA,
TCN acknowledges that both directly and as a member of the CNP, it has received
legal advice in connection with this Agreement, including without limitation, review of
the various drafts of this Agreement and legal representation in the negotiations of the
various drafts of t~lis Agreement.
16.6
PARTIES
16.6.1
Binding on Parties. This Agreement will be binding upon and enure to the
benefit of the parties and their respective successors and permitted assigns. Nothing in
this Agreement is intended to confer upon any person who is not a party any rights or
remedies under or by reason of this Agreement.
16.7
NOTICE
16.7.1
Notices. All notices and other communication provided for in this
Agreement will be in writing, and will be given by personal delivery or sent by
registered mail or facsimile, charges pre-paid and confirmed by telephone, to the
applicable addresses or facsimile numbers set out in this section, or to addresses or
facsimile numbers which a party may from time to time designate to the other parties.
Any such communication will be deemed to have been validly and effectively given on
the date of such delivery, if such date is a business day and such delivery has been
made during the normal business hours of the recipient; otherwise, it will be deemed to
have been validly and effectively given on the business day next following such date of
delivery. The addresses for the parties are:
46
To TeN:
Tataskweyak Cree Nation
General Delivery
Split Lake MB ROB 1PO
Fax (204) 342-2270
cc.
General Counsel
Campbell, Marr LLP
10 Donald Street
Winnipeg MB R3C 1L5
Fax (204) 943-7997
To Hydro:
Manitoba Hydro
Attention: General Counsel
PO Box 815, Station Main
360 Portage Avenue
Winnipeg MB R3C 2P4
Fax (204)360-6147
16.8
ASSIGNMENT
16.8.1
Assignment. Except as expressly provided in Article 2 and Schedule 7,
neither this Agreement, nor any portion or provision of this Agreement, may be
assigned, without prior written permission of all of the parties.
16.8.2
Further Action. Each of the parties will, from time to time, and without
further consideration, execute and deliver such other instruments or documents and
take such further action as required, to more effectively complete any matter provided
for in this Agreement.
16.9
GOVERNING LAW
16.9.1
Laws in Manitoba. This Agreement will be governed by, and construed in
accordance with, the federal and provincial laws from time to time in force in the
Province of Manitoba.
16.9.2
Meeting of Parties. Any party may, at any time, convene a meeting of the
parties for purposes relating to the Agreement by providing not less than thirty (30)
47
days written notice setting forth the purpose, date, time, and place in Winnipeg, or any
other agreed place in Manitoba, for such meeting.
IN WITNESS WHEREOF the parties have executed this Agreement as of
the day and year first above written.
SI(1WEYAl~REE
NATION
Councillor
~~
CO~
f9rn-cv.dJ-
Councillor
ad~
C'ouncillor
Per: -I-...,L.4~~~~~':':"'_----
48
Schedule 1
Payment Schedule
All payments shown in 2008 dollars
Guaranteed Annual Amount
Guaranteed
Annual
Amount
2009
2010
2011
2012
2013
Annually
Thereafter For
the Life of the
Keeyask
Project
$2,350,000 1
$2,350,0002
$734,9003
$1,071,9004
$2,123,607
$2,123,607
The Guaranteed Annual Amount will be adjusted by CPI as provided in Article 4.
1
2
3
4
~
co
Capital for the Keeyask Centre and funds for the Access Program.
Capital for the Keeyask Centre and funds for the Access Program.
Keeyask Centre 0 & M and funds for the Access Program.
Keeyask Centre 0 & M, funds for the Access Program, including trails, and funds for the Museum and Oral Histories Program.
Schedule 2
Keeyask Centre Description
Concept
The proposed Keeyask Centre is a centrally located building, as shown outlined in red
on the attached site plan, providing facilities and a focal point for the administration of
programs that involve replacements and substitutions for lost opportunities to TCN,
resulting from the Keeyask Project.
Structure and Facilities
The proposed Keeyask Centre is envisaged as a two-storey multi-purpose building
about 8,000 square feet in size. There will also be an attached one-storey services
facility about 2,000 square feet in size and a fenced storage compound.
The main building would be designed to fulfill several functions. In addition to a
reception area containing work by local artists, it would house museum-like displays of
artifacts and a reference centre for information about Aboriginal language, culture and
history in general. It would also provide a suitable environment for related uses, such as
traditional teachings, language teaching and perhaps displays of special student
projects.
The "standard" floor area arrangement would have several "centres" such as areas for
display cabinets with cultural artifacts, a reference library area with high-speed internet
access for research purposes, an area with a backdrop suitable for uses such as
traditional teachings, and a gathering place with comfortable chairs. A small theatre,
with up-to-date audio-visual equipment and seating for groups of up to about 40 in size,
would be located at the back or on one side of the more open area.
Recent soil tests indicate the presence of overburden above the bedrock in this location
with sufficient depth to permit the construction of a concrete basement. If costs allow, a
basement would be used for the long-term storage of TCN artifacts, archives and other
facilities and equipment.
Building Configuration and Site Layout
The final building configuration and composition of floors will be determined by the
design process based on an interactive discussion with proposed users and the efficient
utilization of the area available on the selected site. Negotiations for removal of the
existing structure on the west portion of the site are recommended to allow for the full
development of the new building.
50
Services Facility
The services facility would be divided into two areas: one for storing equipment required
by the Resource Management Board (800 square feet); and the other for
administration, preparation and storage related to the Traditional Foods Program
(1,200 square feet).
An additional fenced and locked exterior storage compound for trailers and other
equipment, such as structures used in traditional practices (e.g. smoking meat and
tanning hides), and traditional shelters would be located adjacent to the building.
Traditional Foods Program Area
The space for the Traditional Foods Program would have a small administrative office
where records would be kept and where Members would come to pick up traditional
foods for healthy eating.
It is expected that animals such as moose and caribou would be field dressed and
quartered. Fish would arrive in the round or headless dressed. The facilities would meet
applicable health standards, which would be expected to stipulate ceramic tiles on the
floor and walls, stainless steel counters, large wash-up sinks, storage space for
equipment, special disposal facilities for entrails and trimmings and storage space for
raw hides.
After initial preparation and cleanup, meat would be put into a temperature-controlled
room large enough to hang moose quarters, and with shelving sufficient to hold several
hundred pounds of other meat or fish.
51
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EXTEND 6.oM ROAD
TO HIGHWAY
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WVEN EXIS1lI'JCi ".0 M
WIDE ROAD TO 6.0 M
===========================~==~
.
.
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.
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PROPOSID KfEYASK
......:C'··\

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I• •
....
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......
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........ _.. '
EXISTJN:; FIREHAll AND
AMBULANCE GARAGE
EXlSlll'JCi
POUaSTATION
EXISllNG STORE
AND RESTAURANT
EXIS1lI'JCi
o
00
PROPOSED SITE
FOR NEW KEEYASK
BUILDING
BAND HAll
....... _
~." ..
_
=,.
c-=!"
.. - ' - -
.. -
=---
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___ -- _-------i~-:-.:.. _.=~==~=~=:..._..__
2..._FT::::::::.::.::.::.::.- ---
Schedule 3
Specifications for the Cabins, Docks, Ice Houses,
Fish Cleaning Tables and Storage Sheds
Cabin: 16'x20' wood frame cabin to be built in an area chosen by TCN, the location of
which TCN will advise Hydro of no later than January 31, 2012, in a location that is
relatively level on well drained soil with a foundation consisting of 9-18"x18"x6" concrete
pads, 8"x8" PT posts and 3-3 ply 2"x8" beams. Floor joists to consist of 2"x8" @ 24"O.C.
with %" T&G fir plywood sheeting screwed. Roof system to consist of 2"x 6" rafters @
24"O.C. complete with 1"x6" ridge board and 2"x4" collar ties (at mid height) with R12
batt insulation, vapour barrier, plywood so'ffits and facia, and with appropriate insulation
stops and vents. The 2"x4" wood frame wall system is to contain one door and 2
windows and to consist of studs at 16" O.C. with 3/8" siding, tyvek house wrap, R12 batt
insulation, vapour barrier and ~" G1 S plywood on the interior.
Dock: T-style 5' x 20' main deck with 5' x 16' attachment, pressure treated wood, 2' x 8'
x 12" sealed styrofoam floatation billets and associated hardware materials.
Ice House: 12' x 12' with 8' high walls, rafters, 2" x 4" wall construction with 1" x 4" cross
beam strapping, styrofoam insulated walls, floor and ceiling, plywood flooring, interior
and exterior tin siding, tin roofing, pressure treated timber foundation, one 36" exterior
door and associated hardware materials, with required site preparation.
Fish Cleaning Table: 4' x 4' table with Teflon top and 1 sq. ft. centre hole.
Storage Shed: 12' x 12' with 8' high walls, 2" x 4" wall construction with 1" x 4" cross
beam strapping, non-insulated, rafters, exterior tin siding, tin roofing, plywood flooring,
pressure treated timber foundation, one 36" exterior door and associated hardware
materials, with required site preparation.
53
Schedule 4
Forms for Annual Program Reports and Annual Program Budgets
A)
Requirements for Annual Program Budgets
Each Annual Program Budget will:
(a)
indicate the total funds available for the year for all Offsetting Programs
(Guaranteed Annual Amount and any carryover Guaranteed Annual
Amount from a previous year);
(b)
outline how the total funds will be allocated among all of the Offsetting
Programs;
(c)
with respect to each Offsetting Program, describe the amount planned to
be expended for:
(d)
54
(i)
salaries, honouraria, fees, staff benefits and employee
expenses,
(ii)
equipment, supplies and services,
(iii)
operation and maintenance, repair, replacing facilities,
equipment, fixtures, furniture and other assets,
(iv)
air transportation,
(v)
other expenses required for the relevant Offsetting
Program, including, without limitation, development of
courses, lodging expenses, travel expenses, and fuel;
provide a narrative description respecting the proposed uses of the
Guaranteed Annual Amount allocated to each program. The narrative
description is to include information such as:
(i)
proposed start and termination dates,
(ii)
program description, and
(iii)
B)
program objectives, including indicators relevant to each
specific program, such as the number of Members
anticipated to participate and the benefits anticipated to be
achieved.
Requirements for Annual Program Reports
Each Annual Program Report will:
(a)
indicate how funds or resources were budgeted for each Offsetting
Program, referencing the cost categories that were included in the
relevant Annual Program Budget;
(b)
describe the actual costs incurred for all expenses outlined in the Annual
Program Budget;
(c)
explain any variances, which are in excess of 10% of the budget, between
the Annual Program Budget and the actual expenses;
(d)
provide a narrative report, which may include:
(i)
start and termination dates,
(ii)
program highlights,
(iii)
program outcomes achieved, with reference to the objectives
and indicators included in the Annual Program Budget,
(iv)
number of Members participating,
(v)
recommendations for the upcoming year,
(vi)
explanation for any variances, and
(vii)
photographs.
55
CJ1
0')
Schedule 5 - PDe GRAPH
Nelson River at Keeyask Forebay
- 159.71
-
524.0
159.50
523.3
523.0
..g:
LL.
521.8ft
IV
522.0
521.6 1-- . . -
..
_ ..
1-- •• ---
..
_..
.
",""""
.. -
._ ..
(jj
>
(I)
ClI
(I)
(I)
II
520.0
>
o
~
.. -
-_ ..
_.. -
._ ... .. ~
._~
..
1Il
( I)
(I)
159.00
I
>
(I)
.J
ClI
FuUy Compensated Zone (157.95m to 159.05m)
(I)
I
en
(I)
>
0
.0.
.0.
«
t:
o
519.0
+:i
ClI
........ -
>
518.4
iii
518.0 .~
(I)
:E
(jj
I
521.0
.J
en
...
159.05m
..
_
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.. - .._ ..
~
.. - .
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,~
.. - ._ ... .. ~
._ ...
t:
j.... •• -
._ .... 158.00
- 157.50
516.0
157.27
FEB
MAR
APR
MAY
JUN
JUL
Compensation Factors • $/FootlDay
Proposed
Fully Compensated
I
I
$4500 (to be adjusted for inflation (CPI))
I
I
Keeyask Forebay Level based on daily average water level.
AUG
SEP
OCT
NOV
DEC
>
iii
157.95m
517.0
516.7
JAN
ClI
(I)
/
518.2ft
0
+:i
Schedule 6
PDC Example Calculations
1.
PDC Zones. For each day of an event, multiply the distance that the Daily
Average Water Level on the Keeyask Project forebay extends into the zone by the
rate applicable to that zone. For example, if the Daily Average Water Level on the
Keeyask Project forebay on June 15th in a future year is 517.1 feet, the daily PDC
would be calculated as shown in Example A. If the water level is 522.1 feet, the daily
PDC would be calculated as shown in Example B.
Example A
Daily Average Water Level on the Keeyask Project forebay
517.1 feet
Minimum level of Fully Compensated Zone
518.2 feet
Distance below Fully Compensated Zone
Zone 2 rate
Calculated PDC (1.1 x $4,500)
1.1 feet
$4,500 per ft/day
$4,950
Example B
Daily Average Water Level on the Keeyask Project forebay
522.1 feet
Maximum level of Fully Compensated Zone
521.8 feet
Distance above Fully Compensated Zone
Zone 2 rate
Calculated PDC (0.3 x $4,500)
0.3 feet
$4,500 per ft/day
$1,350
Similar calculations would be done for every day that the Daily Average Water Level
on the Keeyask Project forebay is outside the Fully Compensated Zone and inside
Zone 2 shown graphically on Schedule 5. The total compensation for the event would
be the sum of the daily values during the event.
57
2.
Draw-down Events. If the Daily Average Water Level on the Keeyask Project
forebay is below the minimum level of PDC Zone (516.7 feet) from June 15th to June
30th in a future year, Hydro will compensate TCN as shown in Example C. If the water
level is below 516.7 feet from June 15th to July 22nd in a future year, Hydro will
compensate TCN as shown in Example D.
Example C
Minimum level of PDC Zone
516.7 feet
Duration of Draw-down Event June 15th to June 30th
16 days
Compensation ($21,300 per event)
$21,300
Example D
Minimum level of PDC Zone
516.7 feet
Duration of Draw-down Event June 15th to July 22 nd
Event #1 - June 15th to July 1i
58
h
38 days
28 days
Event #2 - July 13th to July 22 nd
10 days
Compensation (2 x $21,300)
$42,600
Schedule 7
ASSIGNMENT, ASSUMPTION and ALLOCATION AGREEMENT
THIS AGREEMENT is made as of the • day of·, .,
B ETWEE N:
THE MANITOBA HYDRO-ELEC"rRIC BOARD
( "Hydro")
- and-
KEEYASK HYDROPOWER LIMITED PARTNERSHIP
(the "Limited Partnership")
WHEREAS:
A.
Hydro has entered into a certain Adverse Effects Agreement (the "AEA") with
Tataskweyak Cree Nation ("TCN") dated March 13, 2009 which, among other
things, sets forth the respective obligations of Hydro and TCN in connection with
certain Offsetting Programs designed to address foreseeable adverse effects of
the proposed hydro-electric generating station and all related works, to be
located in the vicinity of Gull Rapids, just upstream from the point at which the
Nelson River flows into Stephens Lake.
B.
The AEA contemplates that on the Initial Closing Date, Hydro would assign all
of its rights, benefits, undertakings and obligations under the AEA to the Limited
Partnership and, except where the AEA specifically provides that Hydro would
continue to enjoy, with the Limited Partnership, the rights or benefits or be
bound by such undertakings and obligations in addition to the Limited
Partnership, Hydro would be fully released and discharged from such
undertakings and obligations, and would quit claim and forfeit such benefits and
rights in favour of the Limited Partnership.
C.
On the Initial Closing Date, Hydro desires to assign all of its right, title and
interest under the AEA to the Limited Partnership and the Limited Partnership
desires to receive such assignment and to assume all of Hydro's obligations and
duties under the AEA.
D.
Hydro and the Limited Partnership desire to define an area in which, between
Hydro and the Limited Partnership, the Limited Partnership will assume
liability for certain claims.
59
NOW THEREFORE in consideration of the mutual covenants contained in this
assignment and other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties hereto agree as follows:
ARTICLE 1 • Assignment
1.1
Hydro hereby transfers and assigns to the Limited Partnership, and the
Limited Partnership hereby accepts, all of Hydro's rights, benefits, undertakings and
obligations under the AEA, except as otherwise expressly provided for in the AEA.
ARTICLE 2 • Assumption
2.1
The Limited Partnership hereby agrees to assume, and will observe and
perform, all undertakings and obligations of Hydro pursuant to the AEA as and from the
date hereof, including, without limitation, all of the representations and covenants of
Hydro, except as otherwise expressly provided for in the AEA.
ARTICLE 3 • Indemnity
3.1
The Limited Partnership hereby covenants and agrees with Hydro that it
will indemnify and save Hydro harmless from all actions, suits, costs, losses, charges,
damages and expenses in respect of the non-observance of Hydro's undertakings and
obligations in the AEA hereby assigned, or any of them, accruing or occurring from and
after the date hereof. Hydro hereby covenants and agrees with the. Limited
Partnership that it will indemnify and save harmless the Limited Partnership from all
actions, suits, costs, losses, charges, damages and expenses in respect of the non
observance of Hydro's undertakings and obligations in the AEA, or, any of them not
hereby assigned, accruing or occurring before the date hereof.
ARTICLE 4 • Further Assurances
4.1
Each of the parties hereto will promptly do, make, execute or deliver, or
cause to be done, made, executed or delivered, all such further acts, documents and
things as the other party hereto may reasonably require, from time to time, for the
purpose of giving effect to this assignment and will use its best efforts and take all such
steps as may be reasonably within its power to implement to their full extent the
provisions of this assignment.
60
AR1"ICLE 5 - Enurement
5.1
This assignment will enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
ARTICLE 6 - Governing Law
6.1
This assignment will be governed by and construed in accordance with the
laws of the Province of Manitoba and the laws of Canada applicable therein.
ARTICLE 7 - Apportionment of Liability
7.1
Where a claim is made against either Hydro or the Limited Partnership
and there is an issue as to whether the loss or damage suffered was the result of a
Keeyask Adverse Effect or an adverse effect as defined under the 1992 Agreement,
the apportionment of responsibility, if any, to compensate for such claim, as between
the Limited Partnership and Hydro, will be determined consistent with the following
provisions:
(a)
Hydro will assume responsibility for any claim arising out of a matter
excepted from the releases under paragraph 14.4.1 (a) of the AEA unless
the circumstances giving rise to such claim occurred on or within the
Allocation Area as same is defined in section 7.3 and shown on the
attached map, in which event the Limited Partnership will assume
responsibility;
(b)
excepted from the releases under paragraph 14.4.1 (b) of the AEA except
to the extent that Hydro is able to establish that its Project, as defined
under the 1992 Agreement, but not including the Keeyask Project, was
not the cause of the adverse effect giving rise to the claim;
(c)
excepted from the releases under paragraph 14.4.1 (c) of the AEA except
to the extent that Hydro is able to establish that its Project, as defined
under the 1992 Agreement, but not including the Keeyask Project, was
not the cause of the adverse effect giving rise to the claim;
(d)
excepted from the releases under paragraph 14.4.1 (d) of the AEA unless
the circumstances giving rise to such claim occurred on, or within the
61
Allocation Area, as same is defined in section 7.3 and shown on the
attached map, in which event the Limited Partnership will assume
responsibility;
(e)
the Limited Partnership will assume responsibility for any claim arising
out of a matter excepted from the releases under paragraph 14.4.1 (e) of
the AEA;
(f)
the Limited Partnership will assume responsibility for any claim arising
out of a matter excepted from the releases under paragraph 14.4.1 (f) of
the AEA;
(g)
the Limited Partnership will assume responsibility for any claim for any
loss of net revenue from commercial trapping and for any direct loss or
damage to any buildings, structures or other infrastructure located on a
Registered Trapline used by a Member, arising out of a matter excepted
from the releases under paragraph 14.4.1 (g) of the AEA, unless the
Limited Partnership is able to establish that the Keeyask Project was
not the cause of the adverse effect giving rise to the claim; and
(h)
Hydro will assume responsibility for any claim for personal property loss
or damage excepted from the releases under paragraph 14.4.1 (h) of the
AEA unless the circumstances giving rise to such claim occurred on or
within the Allocation Area as same is defined in section 7.3 and shown on
the attached map, in which event the Limited Partnership will assume
responsibility.
7.2
If there is a dispute under section 7.1, between Hydro and the Limited
Partnership as to whether the Limited Partnership or Hydro is the entity responsible
to assume liability, with respect to any particular occurrence, that dispute will be
resolved pursuant to the Dispute Resolution Mechanism provisions of Article 15. Any
such dispute will not delay any payment, by the Limited Partnership to TeN, required
under the AEA.
7.3
Allocation Area means the geographic area shown on the attached map,
which area generally includes:
62
(a)
the Keeyask Generating Station;
(b)
the north and south access roads and a corridor two hundred metres wide
running parallel to and along those roads;
(c)
the construction camp, including a buffer of five hundred (500) metres
around the camp;
(d)
the Work Areas, including a buffer of five hundred (500) metres around the
Work Areas;
(e)
the tailrace downstream to Stephens Lake;
(f)
the reservoir upstream to the green line marking the upstream boundary of
the area; and
(g)
the shorelines surrounding the tailrace and the reservoir to a depth of five
hundred (500) metres;
in which, between Hydro and the Limited Partnership, liability will be allocated to the
Limited Partnership.
IN WITNESS WHEREOF the parties hereto have executed this assignment.
THE MANITOBA HYDRO-ELECTRIC BOARD
Per: - - - - - - - - - - - - - -
Per:
--------------
KEEYASK
HYDROPOWER
LIMITED
PARTNERSHIP, by its General Partner •
Manitoba Ltd.
Per:
--------------
63
~
KEEYASK
-
W:IWarehouse GrouosIPower_SupplyIProiects' - .....
I
ALLOCATION AREA MAP
0
Kilomelcrs