Table of Contents

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ARTICLE 3

Land Exchange

3.1

Any Band whose Reserve lands are affected ("affected Band") shall be compensated by Manitoba granting to Her Majesty the Queen in right of Canada, for the use and benefit of the affected Band, an area of land equal to not less than four (4) acres for every acre of affected lands (as herein defined), free and clear of any encumbrances except any such easements in favour of Hydro as are provided in Article 3.5.

3.2

The land granted in compensation shall be selected from unallocated, unencumbered and unoccupied land, owned by Her Majesty the Queen in right of the Province of Manitoba, in the area commonly used and enjoyed by the community in the exercise of its traditional pursuits, and the land selected shall not necessarily be contiguous with a Reserve. In the absence of agreement between the parties on any parcel proposed for selection, the provisions of Article 24 shall apply. In order to avoid the undue restriction of the lands from which selection may be made, land set aside as a "Water Power Reserve" shall not be deemed to be allocated, encumbered, occupied or required for public purposes by reason only of it being set aside as a "Water Power Reserve". Land in respect to which Manitoba has set aside, granted or assigned timber rights shall not be deemed to be allocated, encumbered, occupied or required for public purposes by reason only of it being so set aside, granted or assigned, but land which is being actively logged at the date of this Agreement and land occupied by or used in connection with active logging camps shall be deemed to be allocated, encumbered or occupied.

3.3

The Band Council shall be entitled to identify the parcel or parcels of land it is prepared to accept in exchange for the affected lands, and provided they are not required for public purposes, Manitoba shall transfer such lands so that the said lands will constitute a Reserve, with all the rights appurtenant to Reserves occupied by the Bands or any of them at the date of this Agreement, including without limitation, all mineral rights. Any area so selected shall be subject to the right of Manitoba to exclude therefrom within three months after receipt of identification of such area, any area required by reason of intended specific use for public purposes. Such exclusion shall be identified by Manitoba submitting to the Band Council a map showing the excluded portion and a letter stating the area of the excluded portion and the intended specific use.

3.4

The Band Council may, at any time within five years following the date of this Agreement, notify Manitoba by Band Council Resolution that it wishes to e~change the land received pursuant to Article 3.1, or part thereof, for any other equal area of land owned by Her Majesty the Queen in right of the Province of Manitoba in the vicinity of the community affected, and such lands shall be transferred to the use and benefit of the Band as provided in Article 3.3.

3.5

Consistent with past practice and community attitudes in relation to land ownership and use, where land is transferred to the Bands pursuant to Article 3.1 or Article 3.4, and abuts any waterway, the boundaries shall be projected to the margin of the water so that the boundary of the parcel transferred shall be the upper margin of the water as it prevails after modification of the water regime. However, Hydro shall be granted an easement in perpetuity in the portion of the parcel below a severance line to be determined by Hydro in the manner set forth in this Article. The area of the land over which Hydro is granted such an easement shall not be considered to be part of the quantum of land which Manitoba undertakes to transfer as the entitlement pursuant to Article 3.1.

3.6

Each Band shall facilitate, and Canada shall grant to Hydro the easement in the following Reserve lands:

back to Article 1.18

3.6.1

At the Cross Lake Reserves, all reserve lands below 690 ft. A.S.L. and contiguous to the Nelson River;

3.6.2

At the Norway House Reserves, all Reserve lands below 717.5 ft. A.S.L. and contiguous to the Nelson River;

3.6.3

At the Nelson House Reserves, all Reserve lands below 814 ft. A.S.L. and contiguous to the Burntwood and Footprint Rivers and all land below the "protected severance line" shown on figures marked 6A to 6F inclusive attached hereto as Schedule " C", where such line is shown above elevation 820 ft. A.S.L. and such portions of the line shall be deemed to include the projection thereof from elevation 820 ft. A.S.L. to 814 ft. A.S.L.

3.6.4

At the Split Lake Reserves, all Reserve lands below 559 ft. A.S.L. and contiguous to Split Lake;

3.6.5

At the York Landing Reserve, all Reserve lands below 559 ft. A.S.L. and contiguous to Split Lake.

3.7

The upland boundaries of the easement lands as defined in Articles 3.6.1 to 3.6.5 above are the severance lines in each Reserve. These severance lines shall be determined from the best mapping and information available. Manitoba shall make available to the parties by August 31, 1977 maps showing the severance lines.

3.8

The severance lines referred to in Article 3.7 are preliminary determinations and it is agreed that they shall be more specifically determined in accordance with the provisions set out in Article 3.12. The severance lines so determined shall, subject to the approval of the parties, be the final severance lines. No party shall unreasonably withhold its approval to an alteration of the severance lines as required by the provisions of Article 3.12.

3.9

The granting of the easement by Canada is subject to the following conditions:

3.9.1

That Hydro shall, to the extent it is possible to do so and is within the control and authority of Hydro, control the flow of water on the regulated waterways so as to ensure that the static inundation levels of waterways adjacent to each Reserve do not exceed the following:

3.9.1.1

At Cross Lake, 687 ft. A.S.L.;

3.9.1.2

At Norway House, 715 ft. A.S.L.;

3.9.1.3

At Nelson House, 800 ft. A.S.L. before construction of any dam, the forebay of which includes Threepoint Lake, and 802 ft. A.S.L. during and after such construction;

3.9.1.4

At Split Lake and York Landing, 556 ft. A.S.L. All levels refer to Canadian Geodetic Datum established at the date of this Agreement.

3.9.2

That Hydro will use all practical means, including adjustment of flows through control structures, to prevent any inundation of Reserve lands lying between the static inundation level and the severance line.

3.9.3

That the easement is granted to Hydro solely for reasons directly associated with the Project and does not grant to Hydro any other rights in the easement land.

back to Article 1.13

3.10

Canada and the Bands shall not develop, improve or construct any temporary or permanent structure on the easement land other than those which the Band Council deems necessary for the social and economic well-being of the Band. Any such structure or improvement shall not impede or adversely affect the rights conferred upon Hydro by the easement. Hydro shall not be liable for damage to any structure or improvement unless such damage occurs as a result of inundation caused by the negligence of Hydro.

3.11

Subject to Articles 3.12 and 3.13, Manitoba shall cause to be performed all such legal surveys of all Reserve lands contemplated by this Agreement in order to give full force and effect to all of the above provisions concerning land exchange at no cost to the Bands or Canada, and shall use its best efforts to ensure that such surveys are carried out expeditiously upon, and in any event within not more than twelve months after, receiving notice of any Band Council resolution duly approved by Canada of the need to survey any particular boundary, and/or parcel.

3.12

The area of the affected lands for each Reserve shall be determined, for the purpose of the land exchange provisions herein, as follows:

back to Article 3.8.

3.12.1

Manitoba agrees to determine severance lines for the Reserves based on the process and methodology employed for geotechnical studies pursuant to the Canada-Manitoba Northlands Agreement (1976 - 1981). The said severance lines shall reflect the margin of the effects of flooding, erosion, ice conditions, wind setup, and wave up-rush on the land above the Static Inundation Levels described in Article 3.9.

3.12.2

The severance lines shall be inscribed on photo maps of the Reserves (at a scale of at least 1:2,000, and said maps shall be compiled to accuracy standards as contained in specifications for 1:2,000 mapping by Surveys and Mapping Branch, Province of Manitoba, and the Department of Energy, Mines and Resources of Canada. Such maps shall be made available to all the parties.

3.12.3

The severance lines as presented in Article 3.12.1 above shall be legally surveyed by Manitoba pursuant to requirements of the Surveyor-General of Canada and incorporated into legal plans of the Reserves. The legal description and area of lands to be subject to a grant of easement in favour of Hydro shall be according to the said legal plans of the Reserves pursuant to requirements of Canada and Manitoba for subdivision of land.

3.12.4

The plans and easements shall be filed in the Indian Lands Registry in Ottawa, and at the option of Manitoba, in the appropriate Land Titles Office in Manitoba.

3.13

It is estimated by Manitoba that completion of the requirements of Article 3.12 with respect to settled areas can be accomplished within six months of ratification of this Agreement and the remainder of the requirements within a further eighteen months. In the meantime, there will be uncertainty as to the precise area of easement land and hence delay in the selection of land to be given in exchange. Therefore, notwithstanding the time required for completion of the mapping, the parties agree to forthwith make every reasonable effort as provided under, Article 3.7 to estimate the approximate quantum of land each Reserve will be entitled to receive in exchange for the easement land as provided herein. Each Band may then select such area of land as the estimates, with reasonable certainty, may allow. The total area of land to which each Band will be entitled shall be finally determined on completion of the requirements of Article 3.12.

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Northern Flood Agreement

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