Lheidli T’enneh WILDFIRE SUPPRESSION AGREEMENT
THIS AGREEMENT made ___________.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians
(“Canada”)
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the Minister of Forests and Range and Minister Responsible for Housing
(“British Columbia”)
LHEIDLI T’ENNEH, as represented by Lheidli T’enneh Government
(“Lheidli T’enneh”)
WHEREAS:
A. Lheidli T'enneh, Canada and British Columbia have entered into the Lheidli T'enneh Final Agreement which provides that the Parties will enter into an agreement relating to the sharing of Wildfire control costs incurred by British Columbia for controlling and suppressing Wildfires originating on Lheidli T’enneh Lands; and
B. The Parties have negotiated this Agreement as a wildfire suppression agreement in accordance with the Lheidli T'enneh Final Agreement.
NOW THEREFORE in consideration of the premises and the covenants and agreements set out below, the Parties agree as follows:
DEFINITIONS
1. Words and expressions not defined in this Agreement but defined in the Lheidli T’enneh Final Agreement have the meanings ascribed to them in the Lheidli T’enneh Final Agreement.
2. In this Agreement:
“Agreement” means this Wildfire Suppression Agreement;
“Billing Year” means the Fiscal Year for which British Columbia is invoicing Canada and Lheidli T’enneh;
“Communication” means a notice, document, request, approval, authorization or consent required or permitted to be given or made under this Agreement;
“Direct Costs” means the costs incurred by British Columbia each Fiscal Year for Wildfire suppression for Wildfires originating on Lheidli T’enneh Lands which are recoverable under the Wildfire Act including the following:
a. regular and overtime wages, travel, training, accommodation and related costs of direct Wildfire fighting and support, ground and air crews;
b. costs of contract and casual labour hired for fire suppression and support functions;
c. all Wildfire suppression and support flying costs;
d. all costs incurred for the rental and purchase of equipment used for Wildfire control and the related costs of the equipment;
e. all rehabilitation costs for land damaged by Wildfire control measures; and
f. all post incident Wildfire investigation,
but do not include any costs associated with Wildfire prevention activities or costs associated with rehabilitation to lands, resources or any other assets damaged by Wildfire;
“Effective Date” means the date upon which the Lheidli T’enneh Final Agreement takes effect;
“Fiscal Year” means a period that commences on April 1st of a year and ends on March 31st of the following year;
“Lheidli T’enneh Final Agreement” means the Lheidli T'enneh Final Agreement signed on behalf of Her Majesty in right of Canada on [__________],Her Majesty in right of British Columbia on [__________] and Lheidli T'enneh on [__________],and includes any amendments made to the Lheidli T'enneh Final Agreement from time to time in accordance with its provisions;
“Wildfire” means a fire responded to by British Columbia;
“Wildfire Control Costs” include both Direct Costs and Wildfire Preparedness Costs; and
“Wildfire Preparedness Costs” means the annual appropriation for Wildfire preparedness including the following:
a. charges for guaranteed aircraft availability agreements and related costs;
b. salaries, accommodations, training, travel and related costs of Wildfire crews, lookout persons and surface patrol crews;
c. costs of constructing, maintaining, operating and supplying Wildfire centres, air tanker bases, Wildfire attack bases and lookouts;
d. salaries and operating costs for Wildfire management analysis and development, Wildfire management services, administration services and air operations services costs;
e. lightning location management systems costs;
f. operations of automated weather stations;
g. purchase of Wildfire suppression and communications equipment and supplies; and
h. costs of constructing and maintaining Wildfire access roads,
but do not include any costs associated with Wildfire prevention activities.
WILDFIRE CONTROL COSTS
3. Where British Columbia responds to a Wildfire originating on Lheidli T’enneh Lands, Lheidli T’enneh will share British Columbia’s Wildfire Control Costs as follows:
a. subject to paragraph 7, each Billing Year, Lheidli T’enneh will be responsible for one-third of the Direct Costs calculated in accordance with subparagraph 3.b;
b. the Direct Costs attributed to Lheidli T’enneh Lands will be the annual average of actual Direct Costs incurred by British Columbia over the previous 5 year period which includes the Billing Year, multiplied by the ratio of the area of the Wildfire within Lheidli T’enneh Lands and the total area of the Wildfire;
c. subject to paragraph 7, each Billing Year, Lheidli T’enneh will be responsible for one-third of the Wildfire Preparedness Costs calculated in accordance with subparagraph 3.d;
d. the Wildfire Preparedness Costs attributed to Lheidli T’enneh Lands will be determined by multiplying the Wildfire Preparedness Costs for the Billing Year by the ratio of the number of Wildfires originating on Lheidli T’enneh Lands over the previous 5 year period which includes the Billing Year divided by the total number of Wildfires for the province of British Columbia over the same 5 year period;
e. subject to subparagraph 3.f, in calculating the 5 year average in 3.b and 3.d, the Direct Costs and Wildfire Preparedness Costs will be deemed to be zero in each of the four Billing Years before the Effective Date of the Lheidli T’enneh Final Agreement; and
f. if the Effective Date is not April 1, then the number of Wildfires and the Direct Costs, if any, incurred between the Effective Date and the prior April 1 will be deemed to be zero.
4. Subject to paragraph 16, where British Columbia responds to a Wildfire originating on Lheidli T’enneh Lands, Canada and British Columbia will share equally all Wildfire Control Costs, with those Wildfire Control Costs being calculated as the total of:
a. Direct Costs, determined as the annual average of actual Direct Costs incurred by British Columbia over the previous 5 year period which includes the Billing Year;
plus
b. Wildfire Preparedness Costs, determined by multiplying the Wildfire Preparedness Costs for that Billing Year by the ratio of the number of Wildfires originating on Lheidli T’enneh Lands over the previous 5 year period which includes the Billing Year divided by the total number of Wildfires for the province of British Columbia over the same 5 year period;
less
c. the amount Lheidli T’enneh is responsible for under this Agreement.
5. In calculating the 5 year averages in subparagraphs 4.a and 4.b:
a. the Direct Costs and Wildfire Preparedness Costs will be deemed to be zero in each of the four Billing Years before the Effective Date; and
b. if the Effective Date is not April 1, then the number of Wildfires and the Direct Costs, if any, incurred by British Columbia between the Effective Date and the prior April 1 will be deemed to be zero.
6. For the purposes of subparagraph 4.a, Direct Costs are those associated with the entire spread of Wildfires both on and off Lheidli T’enneh Lands.
7. Subject to paragraph 21, Lheidli T’enneh’s responsibility for Wildfire Control Costs incurred by British Columbia under paragraph 3 for any one Billing Year will not exceed $10,000.
8. Lheidli T’enneh is not responsible for any Wildfire Control Costs incurred by British Columbia prior to the Effective Date, and, for greater certainty, any Wildfire Control Costs incurred prior to the Effective Date will not be included in the calculations set out in paragraph 3.
9. Nothing in this Agreement affects any obligations that Canada may have pursuant to a cost-sharing arrangement in effect between Canada and British Columbia for Wildfire Control Costs on former Lheidli T’enneh Indian Reserves where those obligations relate to costs that arise prior to the Effective Date.
10. Any recovery of Wildfire Control Costs and related amounts, administrative penalties or fines imposed on a third party in relation to a Wildfire originating on Lheidli T’enneh Lands, under the Wildfire Act, net of costs incurred to recover or collect those control costs, will be shared among the Parties in the same proportion as the Parties’ financial obligations for Wildfire Control Costs under this Agreement.
11. Lheidli T’enneh and Canada will be notified within 30 days of March 31 of every Billing Year of the amount owing for Wildfire Control Costs on Lheidli T’enneh Lands for that Billing Year, if any, and will pay their share of those costs as outlined in this Agreement to British Columbia (Ministry of Forest and Range Protection Program) within 60 days of receiving notice while this Agreement remains in effect.
12. The obligations of Lheidli T’enneh and Canada under this Agreement are separate.
13. Any funding required for the purposes of this Agreement is subject to the appropriation of funds:
a. in the case of Canada, by the Parliament of Canada;
b. in the case of British Columbia, by the Legislature of British Columbia; or
c. in the case of Lheidli T’enneh, by the Lheidli T’enneh Government.
INFORMATION EXCHANGE
14. The Parties will share, at no cost to the requesting Party, in a timely manner, information reasonably required for purposes of implementation, monitoring, renewal or amendment of this Agreement.
15. At the written request of Canada or Lheidli T’enneh, British Columbia will provide information pertaining to the determination of Wildfire Control Costs incurred by British Columbia and billed to Canada and Lheidli T’enneh.
TERM OF AGREEMENT
16. Subject to paragraph 17, this Agreement commences on the Effective Date and remains in effect until March 31 of the Billing Year in which the 10th anniversary of the Effective Date occurs.
17. This Agreement, as it pertains to Lheidli T’enneh’s responsibility for Wildfire Control Costs incurred by British Columbia and subject to amendments under paragraphs 22 and 23, will remain in effect on the same terms and conditions following the expiry of the period under paragraph 16 until terminated at the written request of Lheidli T'enneh.
18. Not less than 90 days before March 31 of the Billing Year in which the 10th anniversary of the Effective Date occurs, Canada will notify British Columbia and Lheidli T’enneh whether Canada intends to enter into negotiations with British Columbia and Lheidli T’enneh respecting Canada’s participation in this Agreement following the expiry of the term under paragraph 16.
19. Termination of this Agreement does not affect any rights, obligations or liabilities that Canada, British Columbia and Lheidli T’enneh had prior to termination of this Agreement.
DISPUTE RESOLUTION
20. If any issue arises with respect to interpretation, application or implementation of this Agreement where the Parties cannot reach an acceptable solution, the Parties agree to use the process described in the Dispute Resolution Chapter of the Final Agreement.
REVIEW AND AMENDMENT
21. Not less than 120 days before March 31 of the Billing Year in which every 10 year anniversary of the Effective Date occurs, Lheidli T’enneh and British Columbia will, pursuant to the Forestry Chapter of the Lheidli T’enneh Final Agreement, amend this Agreement in accordance with paragraphs 22 and 23.
22. On every 10 year anniversary of the Effective Date that this Agreement is in effect, the value under paragraph 7 will be replaced with the greater of:
a. $10,000; or
b. 100% increase over the average annual Wildfire Control Costs for the preceding ten year period that would have been billed to Lheidli T'enneh if paragraph 7 had not applied over the preceding ten year period.
23. For purposes of subparagraph 22.b, Lheidli T’enneh and British Columbia will consider the nature and extent of exceptionally large Wildfires that may have originated on Lheidli T’enneh Lands over the previous ten years and may exclude such Wildfires from the calculation of Wildfire Control Costs.
24. Except as otherwise provided under paragraph 25 and 26, any amendment to this Agreement must be in writing and executed by the Parties.
25. Any amendments to paragraphs 4 and 5 of this Agreement must be in writing and executed by Canada and British Columbia.
26. Any amendment to this Agreement in accordance with paragraph 27 must be in writing and executed by Lheidli T’enneh and British Columbia.
AMENDMENT
27. Any amendment to this Agreement must be in writing and executed by the Parties.
NO IMPLIED WAIVER
28. A provision of this Agreement, or the performance by a Party of an obligation under this Agreement, or the default by a Party of an obligation under this Agreement, may not be waived unless the waiver is in writing and signed by the Party or Parties giving the waiver.
29. No written waiver of a provision of this Agreement, of the performance by a Party of an obligation under this Agreement or of the default by a Party of an obligation under this Agreement, will be a waiver of any other provision, obligation or subsequent default.
FURTHER ASSURANCES
30. The Parties will execute any other documents and do any other things that may be necessary to carry out the intent of this Agreement.
INTERPRETATION
31. In this Agreement:
a. the use of the word “will” denotes an obligation that, unless this Agreement provides to the contrary, must be carried out as soon as practicable after the Effective Date or the event that gives rise to the obligation;
b. the word “or” is used in its inclusive sense, meaning A or B, or both A and B; and the word “and” is used in its joint sense, meaning A and B, but not either alone;
c. unless it is otherwise clear from the context, the use of the word “including” means “including, but not limited to”, and the use of the word “includes” means “includes, but is not limited to”
d. a reference to “paragraphs A to B” includes both paragraphs A and B;
e. unless it is otherwise clear from the context, a reference to a “paragraph”, “subparagraph” or “Appendix” means a paragraph, subparagraph or appendix, respectively, of this Agreement;
f. headings and subheadings are for convenience only, do not form a part of this Agreement and in no way define, limit, alter or enlarge the scope or meaning of any provision of this Agreement;
g. a reference to a statute includes every amendment to it, whether amended before or after the Effective Date, every regulation made under it and any law enacted in substitution for it or in replacement of it;
h. unless it is otherwise clear from the context, “provincial” refers to the province of British Columbia and “provincial” has a corresponding meaning; and
i. unless it is otherwise clear from the context, the use of the singular includes the plural, and the use of the plural includes the singular.
32. All accounting terms have the meanings assigned to them under generally accepted accounting principles.
33. This Agreement:
a. is not part of the Lheidli T’enneh Final Agreement; and
b. is not a treaty or land claims agreement and does not recognize or affirm any aboriginal or treaty rights within the meaning of sections 25 or 35 of the Constitution Act, 1982.
TIME OF THE ESSENCE
34. Time is of the essence in this Agreement.
SEVERABILITY
35. If any part of this Agreement is declared or held invalid for any reason, the invalidity of that part will not affect the validity of the remainder which will continue in full force and effect and be construed as if this Agreement had been executed without the invalid part.
ENUREMENT
36. This Agreement will enure to the benefit of and be binding upon the Parties and their respective permitted assigns.
ASSIGNMENT
37. Unless otherwise agreed to by the Parties, this Agreement may not be assigned, either in whole or in part, by any Party.
NOTICE
38. Unless otherwise provided, a Communication must be in writing and:
a. delivered personally or by courier;
b. transmitted by fax or e-mail; or
c. mailed by any method of delivery for which confirmation of delivery to a named person is provided.
39. A Communication will be considered to have been given, made, or delivered, and received:
a. if delivered personally or by courier, at the start of business on the next business day after the business day on which it was received by the addressee or a responsible representative of the addressee;
b. if transmitted by fax or e-mail and the sender receives confirmation of the transmission, at the start of business on the business day next following the day on which it was transmitted; or
c. mailed by any method of delivery for which confirmation of delivery to a named person is provided, when the postal receipt is acknowledged by the addressee.
40. A Communication will be delivered, mailed to the address, or transmitted to the fax number, of the intended recipient as set out below:
For: British Columbia
Attention: Minister of Aboriginal Relations and Reconciliation
Room 310, Parliament Buildings
PO Box 9052 Stn Prov Govt
Victoria, British Columbia
V8W 9E2
Fax Number: (250) 356-6595
For: Lheidli T’enneh
Attention: General Manager
1041 Whenun Road
Prince George, British Columbia
V2K 5G5
Fax Number: (250) 963-6954
41. A Party may change its address or facsimile number by giving a notice of the change to the other Parties in the manner set out above.
THIS AGREEMENT HAS BEEN EXECUTED as of the day and year first above written.
EXECUTED in the presence of:
_______________________________
As to the authorized signatory for the Minister of Indian Affairs and Northern Development
)
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians or duly authorized signatory
_____________________________
Per: duly authorized signatory
As to the authorized signatory for the Minister of __________________
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by the Minister of Forests and Range and Minister Responsible for Housing or duly authorized signatory
As to the signature of
LHEIDLI T’ENNEH as represented by __________________ or duly authorized signatory
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