PROVISIONS OF THE NEKANEET AGREEMENT
DEFINITIONS AND INTERPRETATION
In this Agreement, the following capitalized terms shall have the meanings hereafter ascribed to them, namely:
“Act”, “Chief”, “Council of a Band”, “Indian”, “Member of a Band”, “Minister”, “Reserve” and any other words herein which are used or defined in the Indian Act, R.S.C. 1985, c. I-5, shall have the same meaning as they have in the Indian Act, R.S.C. 1985, c. I-5, and the regulations made thereunder, and a reference to the Indian Act means the Indian Act, R.S.C. 1985, c. I-5, as amended or replaced from time to time, and any reference to a section of the Indian Act shall include that section as amended or replaced from time to time; (Loi)
“Agreement”, “this Agreement”, “hereto”, “hereof”, “herein”, “hereunder”, “hereby” and similar expressions, refer, unless otherwise stated, to this agreement, including the recitals, the Schedules and the Appendix attached hereto, and not to any particular article, section, subsection, subparagraph or other subdivision hereof or thereof; (accord)
“Discernible Surface Outlet” means a defined and ascertainable channel through which water normally flows for not less than seven (7) consecutive days each year; (débouché visible en surface)
“Entitlement Land” means Land, Minerals or Improvements in Saskatchewan hereafter Purchased by the Band and which are intended to be set apart as Entitlement Reserve pursuant to the provisions of this Agreement and the Trust Agreement; (terres dues en vertu d’un traité)
“Entitlement Reserve” means Entitlement Land which is set apart by Canada as a Reserve for the use and benefit of the Band in accordance with this Agreement; (nouvelle réserve)
“Improvements” means all buildings or structures erected or placed on, over or under Land and, unless otherwise expressly provided herein, includes, without limitation, anything affixed to or incorporated therein, the plant and equipment of any oil or gas well or mine, any pipeline on or under Land, fencing, and any dugouts or other alterations to Land designed to facilitate the collection and retention of water; (améliorations)
“Land” or “Lands” means real property, chattels real, or any interests therein or in the nature thereof and, unless the context otherwise requires, excludes Minerals and Improvements; (terre ou terres)
“Member” means a member of the Band within the meaning of the Act and shall include all registered Indians recorded on the Department’s Indian register in respect of the Band; (membre)
“Minerals” means any non-viable substance formed by the processes of nature, irrespective of chemical or physical state, and includes such substances both before and after extraction, or any interest in the same, and further includes any interest or improvement in the nature of a mine but does not include any surface or ground water, agricultural soil, sand or gravel; (minéraux)
“Purchase” or “Purchased” means a purchase of Land, Minerals or Improvements by the Trustees or an agent of the Band in accordance with the requirements of the Trust Agreement and this Agreement, and may include the acquisition of ownership rights by means other than a transaction of purchase and sale; (achat ou acheté)
“Road Allowance” means land held by Saskatchewan which was at any time intended for use by the general public for the passage of vehicles, whether actually used for that purpose or not; (réserves de chemin)
“Treaty” means Treaty Number Four made and concluded on the 15th day of September, 1874, by Canada and to which the Band adhered; (traité)
“Waterbody” means any river, stream, lake, pond, swamp, marsh, or other body of water; (nappe d’eau)
“Water Project” means:
(a) any drain, dyke, dam or other work that is proposed to divert or impound water, or any alteration, addition to, or elimination of, any such drain, dyke, dam or other work;
(b) any act which results in the emission of water or other substance into a Waterbody; or
(c) any use of water;
that affects, or if constructed or carried out could reasonably be anticipated to affect, the existing quantity, quality or rate of flow, in a discernible way, of water in a Waterbody and which, if constructed or carried out on lands subject to the jurisdiction of Saskatchewan, would require a licence or other approval under the laws of Saskatchewan. (projet d’aménagement hydraulique)
- 6.01WHOLLY ENCLOSED WATERBODIES:
- (a)If a surface or subsurface Waterbody is wholly enclosed within the boundaries of any Entitlement Lands and has no Discernible Surface Outlet beyond the boundaries of the Entitlement Lands, Saskatchewan shall, without compensation, transfer to Canada all water, beds and shores of that Waterbody, effective upon creation of the Entitlement Reserve with respect to those Entitlement Lands.
- (b)For the purposes of this Article, ownership of Road Allowances intersecting a Waterbody shall not be considered in determining whether or not a Waterbody is wholly enclosed within Entitlement Land.
- 6.02TRANSFER OF BEDS AND SHORES IN CERTAIN CIRCUMSTANCES:
Saskatchewan agrees to give favourable consideration to offers from the Band to Purchase the beds and shores of any Waterbody adjacent to Entitlement Land. Nothing in this Agreement shall be interpreted as requiring Saskatchewan to sell the beds and shores of such Waterbodies.
- 6.03RESERVE BOUNDARIES:
Where Entitlement Land adjacent to a Waterbody is set apart as an Entitlement Reserve, the parties agree that:
- (a)the boundary of the Entitlement Reserve shall be the ordinary high water mark for such Waterbody;
- (b)the Entitlement Reserve shall not include within its boundaries any portion of the bed or the shore of the Waterbody below the ordinary high water mark unless Saskatchewan has expressly agreed to transfer the beds and shores in accordance with section 6.02; and
- (c)subject to compliance with the Navigable Waters Protection Act, R.S.C. 1985, c. N-22, the Band shall have the right to place a dock, wharf or pier on the bed of the Waterbody along the boundary of any such Waterbody which is adjacent to an Entitlement Reserve, without needing to obtain any licence or to pay any fee or compensation whatsoever.
- 6.04RIPARIAN RIGHTS:
The Band shall, immediately upon creation of an Entitlement Reserve, have full common law riparian rights with respect to the use and occupation of that Entitlement Reserve adjacent to a Waterbody, but, for greater certainty, the principle of ad medium filium aquae shall be inapplicable unless the affected beds and shores have otherwise been acquired by the Band under section 6.02.
- 6.05NON-ENFORCEMENT OF RIPARIAN RIGHTS IN CERTAIN CASES:
- (a)Where Entitlement Reserve is established adjacent to a Waterbody, the Band agrees with Canada and Saskatchewan that the common law riparian rights referred to in section 6.04 shall be unenforceable by injunction, mandamus, prohibition, or similar prerogative writ for the purposes of preventing or delaying any Water Project provided that:
- (i)Canada and the Band whose common law riparian rights have been affected, were notified at least six (6) months in advance of any decision in relation to the approval of any Water Project; and
- (ii)the Band whose common law riparian rights have been affected by any such Water Project shall have been afforded active and meaningful participation in any decision by a decision making authority concerned with the approval or operation of any such Water Project.
- (b)The parties agree that nothing in this section limits the right of the Band to seek or obtain monetary compensation from Saskatchewan (including costs associated with obtaining such compensation) for damages suffered as the result of any interference with, loss of, or damage to, the Band’s common law riparian rights.
- 6.06ENVIRONMENTAL ASSESSMENTS AND CONSIDERATION OF INDIAN USE:
- (a)Where any Water Project may, in the opinion of the Band, reasonably be expected in a discernible way to adversely affect the Band’s common law riparian rights, the Band and Canada and/or Saskatchewan, as the case may be, agree to jointly review or, if applicable, jointly conduct any environmental impact assessments or other studies concerning the effects, or possible effects, of any Water Project as may be statutorily required;
- (b)Canada and/or Saskatchewan, as the case may be, agree to jointly review or, if applicable, jointly conduct the same with the Band in a manner which takes due consideration of the Band’s riparian rights and usage of any affected Waterbody by the Band, or the Members of the Band, for hunting, fishing, trapping, gathering or other traditional uses.
- 6.07AGREEMENT AMONGST PARTIES:
Notwithstanding any other provision of this Article, but subject to applicable legislation, Saskatchewan and the Band may enter into a Co-Management Agreement concerning the management and use of all or any portion of a particular Waterbody adjacent to an Entitlement Reserve (including its water, bed and shore) affecting the Band’s common law riparian rights, which meets the needs and objectives of all parties.
- 6.08CO-MANAGEMENT AGREEMENT:
- (a)The Co-Management Agreement shall address matters affecting, in a discernible way, the quantity, quality, or rate of flow of waters in a Waterbody in respect of which the Band has riparian rights and may provide for any matters related to the use, management or development of the Waterbody. In particular, such an agreement may provide for the following:
- (i)the establishment of a process for the exchange of information and consultations between the Band and Saskatchewan (and, where necessary, Canada) with respect to those Waterbodies and Water Projects;
- (ii)the establishment of a process for the active and meaningful participation by the Band in the decision making process with respect to the approval or disapproval of Water Projects; and
- (iii)the establishment of a Co-Management Board to make binding decisions with respect to Waterbodies and Water Projects.
- (b)In no event shall the entering into of a Co-Management Agreement be a condition precedent to the sale of any Crown Land, Minerals or Improvements hereunder.
- 6.09CO-MANAGEMENT BOARD:
In the event that the Band and Saskatchewan agree pursuant to a Co-Management Agreement that a Co-Management Board be established, the following principles shall apply:
- (a)the Band and Saskatchewan shall be represented on the Co-Management Board by an equal number of members except in cases where the interest of the Band vis-à-vis the interest of other users of the water does not warrant equal representation, in which case the respective representation of the Band and Saskatchewan on the Co-Management Board shall be agreed upon by the Band and Saskatchewan;
- (b)in the event that there is no agreement on the representation of the Band and Saskatchewan on the Co-Management Board, it shall be referred to the Arbitration Board; and
- (c)the Co-Management Board shall have the authority to review and either approve, wholly or on terms and conditions, or disapprove, of any Water Project within its jurisdiction.
- 6.10MINISTER’S CONSENT MAY BE REQUIRED:
Subject to applicable legislation, the Band and Saskatchewan acknowledge that the Minister’s consent may be required pursuant to the Act to give effect to any Co-Management Agreement. To the extent such consent is required, the Band and Saskatchewan agree that such consent shall be obtained prior to execution and delivery of any Co-Management Agreement.
- 6.11NO EFFECT ON TREATY RIGHTS:
Any provision of this Article which is found by a court of competent jurisdiction to conflict with or derogate from Treaty rights of the Band or its Members shall, to the extent of such conflict or derogation, be deemed to be null and void and of no further force or effect whatsoever.
- Date modified: