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CHAPTER 7 — WATER

GENERAL

1. Storage, diversion, extraction or use of water and Groundwater will be in accordance with Federal and Provincial Law.

2. The Tla'amin Nation may only sell water in accordance with Federal and Provincial Law that permit the sale of water.

3. This Agreement does not alter Federal or Provincial Law in respect of proprietary interests in water.

4. Notwithstanding paragraph 1, the Water Utility Act does not apply to the Tla'amin Nation, a Tla'amin Public Institution or a Tla'amin Corporation for the provision of services on Tla'amin Lands.

WATER RESERVATION

5. On the Effective Date, British Columbia will establish a water reservation under the Water Act in favour of the Tla'amin Nation of 11,225 cubic decametres of water per year from Streams set out in Schedule 1 for all purposes under the Water Act including domestic, agricultural and industrial uses, but excluding those purposes set out in paragraphs 25 to 27.

6. Any water reservation for the Tla'amin Nation established under paragraph 5 will have priority over all Water Licences other than:

a. Water Licences for the Sliammon Creek watershed issued:

i. before June 6, 2003;

ii. pursuant to an application made before June 6, 2003; and

iii. pursuant to water reservations established before June 6, 2003; and

b. Water Licences other than for the Sliammon Creek watershed issued:

i. before February 27, 2008;

ii. pursuant to an application made before February 27, 2008; and

iii. pursuant to water reservations established before February 27, 2008.

WATER LICENCES

7. The Tla'amin Nation or, with the consent of the Tla'amin Nation, a Tla'amin Public Institution, Tla'amin Corporation or Tla'amin Citizen may apply to British Columbia for Water Licences for volumes of flow to be applied against the Tla'amin Nation's water reservation under paragraph 5.

8. The total volume of flow under the Water Licences to be applied against the Tla'amin Nation's water reservation under paragraph 5 may not exceed the monthly percentage of the Available Flow of each Stream listed in Schedule 1.

9. Where the Tla'amin Nation, a Tla'amin Public Institution, Tla'amin Corporation or Tla'amin Citizen applies to British Columbia for a water licence under paragraph 7, British Columbia will approve the application and issue a Water Licence if:

a. the Tla'amin Nation has consented to the application;

b. the application conforms to provincial regulatory requirements;

c. there is sufficient unrecorded volume of flow in the Tla'amin Nation's water reservation;

d. the application is for a volume of flow that, together with the total volume of flow licensed for that Stream under this Agreement, does not exceed a percentage of Available Flow for that Stream as set out in this Agreement; and

e. where required, the application includes provisions for storage where the monthly Available Flow during periods of low flow is insufficient to meet proposed demand.

10. The volume of flow approved in a Water Licence issued under paragraph 9 will be deducted from the unrecorded volume of flow in the Tla'amin Nation's water reservation under paragraph 5.

11. A Water Licence issued under paragraph 9, for use on Tla'amin Lands, will not be subject to any rentals, fees or other charges except taxes by British Columbia.

12. Where a Water Licence issued under paragraph 9 is cancelled, expires or otherwise terminates, the volume of flow in that Water Licence will be added back to the unrecorded volume of flow in the Tla'amin Nation's water reservation.

13. This Agreement does not preclude the Tla'amin Nation, a Tla'amin Public Institution, Tla'amin Corporation or Tla'amin Citizen from applying for additional Water Licences under Provincial Law not provided for under the water reservation under paragraph 5.

WATER LICENCE ACCESS

14. Where the Tla'amin Nation, a Tla'amin Public Institution, Tla'amin Corporation or Tla'amin Citizen has a Water Licence issued under paragraph 9 or obtains a Water Licence under paragraph 13 and reasonably requires access across, or an interest in, provincial Crown land for the construction, maintenance, improvement or operation of works authorized under the licence, British Columbia will grant the access or interest on reasonable terms in accordance with Provincial Law.

15. Where a person other than the Tla'amin Nation, a Tla'amin Public Institution, Tla'amin Corporation or Tla'amin Citizen has a Water Licence and reasonably requires access across, or an interest in, Tla'amin Lands for the construction, maintenance, improvement, or operation of works authorized under the licence, the Tla'amin Nation may not unreasonably withhold consent to, and will take reasonable steps to ensure, that access or the granting of that interest where the licence holder offers fair compensation to the owner of the estate or interest affected.

16. For greater certainty, paragraph 15 does not apply to works, or access to works, on Tla'amin Lands which continue as provincial permits of occupation in accordance with Provincial Law or are replaced by the Tla'amin Nation under paragraph 55 of the Lands Chapter.

17. British Columbia will Consult with the Tla'amin Nation respecting applications for Water Licences made after the Effective Date where the applicant may reasonably require access across, or an interest in, Tla'amin Lands.

LAW-MAKING AUTHORITY

18. The Tla'amin Nation may make laws in relation to:

a. the consent of the Tla'amin Nation under paragraph 7; and

b. the supply and use of water from a Water Licence issued under paragraph 9.

19. Tla'amin Law under subparagraph 18.a prevails to the extent of a Conflict with Federal of Provincial Law.

20. Federal or Provincial Law prevails to the extent of a Conflict with Tla'amin Law under subparagraph 18.b.

GROUNDWATER

21. Where:

a. British Columbia brings into force Provincial Law regulating the volume of Groundwater under Tla'amin Lands which may be extracted and used; and

b. Groundwater is reasonably available,

British Columbia and the Tla'amin Nation will negotiate and attempt to reach agreement on the volume of Groundwater that may be extracted and used for domestic, agricultural and industrial purposes by the Tla'amin Nation on Tla'amin Lands for as long as such Provincial Law is in effect.

22. For the purposes of paragraph 21, British Columbia and the Tla'amin Nation will:

a. determine the volume of flow of Groundwater that can reasonably be withdrawn from the Groundwater aquifer under consideration while maintaining the sustainability and quality of the Groundwater from the aquifer;

b. determine the existing and reasonable future needs for Groundwater of the Tla'amin Nation and Tla'amin Citizens on Tla'amin Lands, as well as the existing and future needs of other users in the area; and

c. take into account any applicable requirement under Federal and Provincial Law.

23. Where British Columbia and the Tla'amin Nation fail to agree under paragraph 21, the dispute will be finally determined by arbitration under the Dispute Resolution Chapter without having to proceed through Stages One and Two.

24. Access to Tla'amin Lands to extract Groundwater under Tla'amin Lands requires the consent of the Tla'amin Nation.

HYDRO POWER RESERVATION

25. In addition to the Tla'amin Nation's water reservation under paragraph 5, on the Effective Date British Columbia will establish a water reservation under the Water Act in favour of the Tla'amin Nation of the unrecorded water from Sliammon Creek, Appleton Creek and Theodosia River for 5 years to enable the Tla'amin Nation to investigate the suitability of those Streams for hydro power purposes, including related storage purposes.

26. Where:

a. the Tla'amin Nation applies for a Water Licence for hydro power purposes and any related storage purposes for a volume of flow to be applied against the water reservation under paragraph 25;

b. the proposed hydro power project conforms with Federal and Provincial Law; and

c. there is sufficient Available Flow in the Stream that is subject to the water reservation,

British Columbia will grant the Water Licence.

27. Where British Columbia issues a Water Licence under paragraph 26, the water reservation established under paragraph 25 will terminate in respect of that Stream.

SCHEDULE 1 — TLA'AMIN WATER VOLUMES

Streams partly within Tla'amin Lands and their specified monthly percentage of Available Flow:

Contents | Sections 1 to 28 | Schedule - Contents | Schedule - Preamble | Schedule - Chapter 1 | Schedule - Chapter 2 | Schedule - Chapter 3 | Schedule - Chapter 4 | Schedule - Chapter 5 | Schedule - Chapter 6 | Schedule - Chapter 7 | Schedule - Chapter 8 | Schedule - Chapter 9 | Schedule - Chapter 10 | Schedule - Chapter 11 | Schedule - Chapter 12 | Schedule - Chapter 13 | Schedule - Chapter 14 | Schedule - Chapter 15 | Schedule - Chapter 16 | Schedule - Chapter 17 | Schedule - Chapter 18 | Schedule - Chapter 19 | Schedule - Chapter 20 | Schedule - Chapter 21 | Schedule - Chapter 22 | Schedule - Chapter 23 | Schedule - Chapter 24 | Schedule - Chapter 25 | Schedule - Chapter 26 | Appendix - Contents | Appendix - Introduction | Appendix - Appendix A | Appendix - Appendix B | Appendix - Appendix C | Appendix - Appendix D | Appendix - Appendix E | Appendix - Appendix F | Appendix - Appendix G | Appendix - Appendix H | Appendix - Appendix I | Appendix - Appendix J | Appendix - Appendix K | Appendix - Appendix L | Appendix - Appendix M | Appendix - Appendix N | Appendix - Appendix O | Appendix - Appendix P | Appendix - Appendix Q | Appendix - Appendix R | Appendix - Appendix S | Appendix - Appendix T | Appendix - Appendix U | Appendix - Appendix V | Appendix - Appendix W | Appendix - Appendix X

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