Schedule 12 - Order in Council 1901/2017

Department of Indian Affairs and Northern Development

Section 28(2) Permit

This permit made in quadruplicate as of this XXth day of XXXXX, 201X,

Between:

Her Majesty the Queen in right of Canada as

represented by the Minister of Indian Affairs and

Northern Development, ("the Minister")

[-and-]

Ontario Federation of Snowmobile Clubs, a corporation

incorporated pursuant to the laws of the Province of Ontario

(“OFSC”)

[-and-]

_________________ Snowmobile Club,

a corporation duly incorporated pursuant to the laws of

the Province of Ontario

(“___SC”)

-and-

The Pic Mobert First Nation, a “band” as defined

under the Indian Act, R.S.C. 1985, c.I-5 as

represented by its Chief and Council

(hereinafter referred to as the “First Nation”)

Recitals:

Whereas the Council of the Band has, in accordance with sub-section 28(2) of the Indian Act and pursuant to Band Council Resolution number ___ and dated ______, in consideration for the commitments of Ontario and Canada in the Final Agreement, and such other good and valuable consideration (the receipt and adequacy of which are hereby acknowledged), agreed to request that the Minister issue this Permit to the Permittee(s) on the terms set out in this Permit (the “Permit Agreement”);

Whereas the Permittee(s) have applied to use and occupy the Permit Area hereinafter described for the purpose of operating and maintaining a snowmobile trail, and for rest stops while snowmobiling;

Whereas the Band Council has, by Band Council Resolution No. XXXX dated the XXth day of XXXXX, 201X, a copy of which is attached hereto as Schedule “B”, approved and consented to the issuance of this Permit Agreement including the terms and conditions herein set forth;

And Whereas the Minister is authorized to enter into this Permit Agreement pursuant to subsection 28 (2) of the Indian Act;

1. Definitions:
   1. In this Permit:

      “Adverse Effect” means “adverse effect” as that term is defined in the Ontario Environmental Protection ActR.S.O. 1990, c. E-19, and regulations made thereunder, all as amended and replaced from time to time.

      “Authorized Users” means the OFSC and the ___SC and any of their members, successors, assigns or persons authorized by them, and any persons that have been issued a Trail Permit to use the Prescribed Trail System, or are listed in Items 1 and 2 of the Table attached as Schedule C under the circumstances identified in the Table.

      “Band Council Resolution” means a duly executed written resolution of the Council adopted at a duly convened meeting of the Council as provided in the Indian Act;

      "Council" means the duly elected council of the First Nation which is a “council of the band” within the meaning of the Indian Act and for greater certainty, includes the Chief of the First Nation;

      “Federal” means pertaining to the Government of Canada

      "Federal Court Act" means the Federal Court Act, R.S.C. 1985, c. F-7, and regulations made thereunder, all as amended or replaced from time to time;

      "First Nation" means the Pic Mobert First Nation, a “band’ as defined under the Indian Act;

      “Final Agreement” means the agreement entered into between the First Nation, Canada and Ontario dated for reference _______, 2014;

      "Indian Act" means the Indian Act, R.S.C. 1985, c. 1-5, and regulations made thereunder, all as amended or replaced from time to time, and any reference to a section of the Indian Act will include that section as amended or replaced from time to time;

      "Local" means pertaining to the government of any municipality;

      "Minister" means the Minister of Indian Affairs and Northern Development or his authorized representatives;

      “Permit” means this Permit, issued pursuant to section 28(2) of the Indian Act, and the schedules attached hereto;

      "Permit Area" means those lands situate in the Pic Mobert Indian Reserve, in the Province of Ontario as marked in Schedule "A" attached hereto;

      "Permit Date" means the date on which this Permit commences, being the latest of the dates that this Permit is executed by the Minister, the First Nation and the Permittee(s);

      "Permit Period" means a period commencing on the Permit Date and expiring when the Permit Area is no longer used by the Permittee(s) or their respective members, successors, assigns or persons authorized by them as a recreational snowmobile trail and rest stop while snowmobiling (for the purposes of this paragraph use of the Permit Area as a recreational snowmobile trail and rest stop while snowmobiling by members of the First Nation who are members of the Permittee(s) shall not be considered to be use by the Permittee(s));

      “Permit Rights” means the right to use and occupy those lands in the Permit Area as a  snowmobile trail and rest stop while snowmobiling and for no other purpose whatsoever (for the purposes of this paragraph use of the snowmobile trail includes operation and maintenance of the trail);

      “Permittee” means either the OFSC or the ___SC, or both, as the case may be;

      “Prescribed Trail System” means the trail system prescribed under the Ontario Motorized Snow Vehicles Act, R.S.O. 1990, c. M.44, and its regulations, as amended from time to time;

      "Provincial" means pertaining to the Government of the Province of Ontario;

      "Reserve" means the ___ Indian Reserve No. ___ and in the event that the name of the said Reserve is changed from time to time pursuant to the Indian Act, of which change the Minister shall give notice to the Permittees, Reserve shall mean the ___ Indian Reserve No. ___ as renamed.

      “Trail Permit” means a permit issued under s. 2.1 of the Ontario Motorized Snow Vehicles Act, R.S.O. 1990, c. M.44, and its regulations, as amended from time to time;

2. Purpose
   1. The Minister, with the consent of the Council, under authority of subsection 28(2) of the Indian Act, hereby authorizes the OFSC and ___SC and any of their members, successors, assigns or persons authorized by them, and any persons that have been issued a Trail Permit to use the Prescribed Trail System, or are listed in Items 1 and 2 of the Table attached as Schedule C, under the circumstances identified in the Table, the right to use and occupy the lands in the Permit Area to exercise the Permit Rights.  For greater certainty, the Permit Area does not form part of the Prescribed Trail System.
   2. The Authorized Users are required by this Permit to comply with all safety requirements contained in the laws of the Province of Ontario.
3. Prior Encumbrances
   1. Except as otherwise provided herein, the Permit Rights are authorized subject to all prior encumbrances and to all other prior grants or permits, and reserving all mines and minerals, solid, liquid or gaseous which may be found to exist within, upon or under the Permit Area.
4. Permit Period
   1. The Permittee(s) and the other Authorized Users may exercise the Permit Rights for the Permit Period unless terminated earlier in accordance with the provisions of this Permit.
5. Permit Fee
   1. Each Permittee will pay in each and every year of calendar year, or portion thereof, of the Permit Period the sum of ten dollars ($10.00) which sum is payable on or before January 1st in each year except that the first such annual payments will be payable on or before the signing of the Permit by the Permittee(s).
6. Payment of Permit Fee
   1. The Permittee(s) will pay the Permit Fee in the manner set forth in this Permit without any abatement or deduction whatsoever and acceptance of the Permit Fee, whether or not in arrears, shall not constitute a waiver of compliance with any of the terms and conditions of this Permit or of Her Majesty's rights, or the First Nation's rights, with respect to Permit Fee reviews and other rights reserved to Her Majesty or the First Nation in this Permit.
   2. The Permittee(s) will pay or cause to be paid the said Permit Fee in the manner and on the dates hereinbefore appointed for the payment thereof.
   3. The Permittee(s) will, during the currency of this Permit, make all payments under this Permit by certified cheque or bank draft, payable in Canadian funds in favour of the Receiver General for Canada.
7. Taxes
   1. he Permittee(s) shall be jointly liable for and pay and discharge all rates, taxes, duties and assessments which the Permittee(s) are now or shall hereafter be liable to pay to any taxing authority, whether Federal, Provincial or in accordance with resolutions duly authorized by the Council and which are now or shall hereafter be charged during the continuance of this Permit upon or in respect of the Permit Area of the Permittee(s)’ use of the Permit Area.
8. Applicable Laws
   1. The Permittee(s), in exercising their Permit Rights and in carrying out their obligations under this Permit, will comply with all applicable Federal, Provincial, First Nation or Local laws, and the orders of any competent authority or agency acting thereunder.
9. Nuisance
   1. The Permittee(s) will not create or suffer any nuisance anywhere within the Permit Area and, without limiting the generality of the foregoing, the Permittee(s) will, upon receiving written notice from the Minister or the First Nation, forthwith abate any nuisance arising directly or indirectly out of the exercise of any of their Permit Rights or the performance or non-performance of any obligations of the Permittee(s) under this Permit, and where the Permittee(s) do not do so, the Minister or First Nation may take whatever steps he or it deems necessary to abate any such nuisance and the Permittee(s) will be jointly and severally liable to reimburse to the Minister or First Nation upon demand the full costs reasonably incurred by the Minister or First Nation in so abating the nuisance. It is understood that the ordinary use of the Permit Area for the Permit Rights does not constitute a "nuisance" within the meaning of this Permit.
10. Enjoyment of Permit Rights
    1. The Permittee(s), upon performing and observing the covenants and conditions of this agreement, shall peaceably hold and enjoy the rights and privileges hereby granted, without hindrance, molestation or interruption by Her Majesty or the First Nation.
11. Waste
    1. The Permittee(s) will not cause, permit or suffer the commission of any waste of the Permit Area.
    2. Except as permitted in writing by the Minister, with the consent of the Council, the Permittee(s) will not cause, permit or suffer the removal of any sand, gravel, topsoil, or other material constituting part of the Permit Area.
12. Rubbish
    1. Without limiting Article 11, the Permittee(s) will not cause, permit or suffer any rubbish or debris to be placed or left at the Permit Area except as is reasonably necessary in accordance with the uses permitted by section 2.1 or as permitted by the Minister and Council.
13. Trees, Bushes and Plants
    1. The Permittee may cut down any trees, bushes and plants in the Permit Area to the extent required for the safe use and enjoyment of the Permit Rights. The Permittee(s) are responsible for safely disposing of any such trees, bushes and plants. Nothing contained herein shall be deemed to constitute a conveyance of trees, bushes and plants to the Permittee(s).
14. Environmental Standards
    1. Without limiting the generality of Article 8, the Permittee(s) will at all times conduct all activities on the Permit Area in compliance with all applicable environmental laws, statutes, by-laws, ordinances, regulations, notices, orders or lawful requirements of the Federal, Provincial, Local government or authority, the Council or other lawful authority of Canada or the Province of Ontario, or any competent Local authority or agency, whether or not such laws, rules, regulations, notices or orders be of a kind now existing or within the contemplation of the parties hereto.
15. Hazardous Acts
    1. The Permittee(s) shall not in exercising their rights or carrying out any of their obligations under this Permit, knowingly commit any act or make any omission which may directly or indirectly cause, prolong or increase any hazard to any person or property.;
16. No contaminants
    1. Without limiting the generality of Article 14, no contaminants or toxic substances, as defined under the Canadian Environmental Protection Act and its Regulations, as amended or replaced from time to time or as defined under the equivalent provincial legislation, as amended or replaced, will be used, emitted, discharged or stored on the Permit Area or any adjacent land by the Permittee(s), their officers, directors, invitees, members, agents, employees or assigns except in strict compliance with all applicable laws, statutes, by-laws, ordinances, regulations, notices, orders, or lawful requirements of the Federal, Provincial, Local government or authority, the Council or other lawful authority.
17. No residual impacts
    1. At all times there will be no residual and/or Adverse Effects as a result of the use of the Permit Area or the activities of the Permittee(s), their officers, directors, invitees, members, agents, employees or assigns, except as would be normally incidental in the responsible exercise of the rights under this Permit.
18. Maintenance of Permit Area
    1. The Permittee(s) will at their expense alone, during the Permit Period, keep and maintain the Permit Area in good and safe repair, except for such damage or disrepair as may be caused by First Nation members or by those persons for whom the First Nation is responsible at law.
19. Co-access to Lands
    1. The Permittee(s) will not, without the prior written consent of the Minister, acting on the advice and/or direction of the Council, where appropriate, fence or enclose the Permit Area or any part thereof.
    2. Her Majesty, Her officers, employees and agents, and representatives of the Council and members of the First Nation, and its invitees, and every person, whether an individual, firm, partnership, association or corporation, having any interest in, or right or privilege to use, any part of the reserve affected by this Permit in their own right, or claiming any interest in the part of the reserve affected by this Permit by, through or under Her Majesty, or the Council, may have free access to and use of the land occupied by the Permit.
       Where equipment left unmarked may, in the Minister’s opinion constitute a hazard to human health, or safety, the Minister may direct the Permittee(s) to mark such equipment in which event the Permittee(s) as directed by the Minister shall forthwith, at their sole expense, mark the equipment.
       It shall be lawful for the Minister or any person, whether an individual, firm, partnership, association or corporation, thereunto authorized by the Minister, at all reasonable time to enter upon the Permit Area for the purpose of examining the condition thereof and to observe the compliance of the Permittee(s) with the terms and conditions of this Permit.
20. Archaeological Resources
    1. The Permittee(s) shall promptly notify the Minister and First Nation of any archaeological resources discovered or found on the Permit Area by the Permittee, their invitees, agents, or employees.
    2. Upon receipt of the notice given pursuant to section 20.1, the Minister, acting on the advice and/or direction of the Council, where appropriate, may order the Permittee(s) to cease or alter their exercise of the Permit Rights to enable the First Nation to conduct an archaeological excavation of the site on which the archaeological resources referred to in section 20.1 were discovered or found.
    3. The Permittee(s) hereby acknowledge that the archaeological resources referred to in section 20.1 or any archaeological resources uncovered during or following an excavation under section 20.2 are the property of the First Nation and hereby agree that they will promptly remit all such archaeological resources to the Council.
21. Indemnity
    1. To the extent attributable to the negligent acts or omissions of the Permittee(s), their officers, directors, invitees, members, agents, employees or assigns, including any persons that have been issued a Trail Permit to use the Prescribed Trail System, the Permittee(s) shall at all times hereafter indemnify and hold harmless Her Majesty and the First Nation against all actions, claims and demands that may be lawfully brought or made against Her Majesty or the First Nation by reason of any act or omission by the Permittee(s) in the exercise or purported exercise of the rights hereby granted. Her Majesty and the First Nation undertake to use her and their best efforts to give the Permittee(s) notice in writing as soon as practicable of any action, claim or demand made against Her Majesty or the First Nation that may give rise to a claim by Her Majesty or the First Nation pursuant to this provision; provided however that Her Majesty's or the First Nation's failure to notify the Permittee(s) in accordance with the above shall not absolve or affect the Permittee(s)’ liability under the provision.
22. Insurance
    1. The Permittee(s) shall take out and maintain commercial general liability insurance in the amount of Two Million ($2,000,000) Dollars, whereby the Permittee(s), Her Majesty and the First Nation are indemnified in respect of loss by fire or other insurable causes of property damage, death, and personal injury caused by negligence attributed to the use, occupation or possession of the Permit Area by the Permittee(s), their officers, directors, invitees, members, agents, employees or assigns, including any persons that have been issued a Trail Permit to use the Prescribed Trail System.
    2. The Permittee(s) release Her Majesty, Her heirs, successors and assigns, and the First Nation from all liability for personal injury, death and property damage caused by any or the perils against which the Permittee(s) have agreed to insure.
    3. The Permittee(s) shall furnish the Minister and the First Nation with certificates evidencing such policies within thirty (30) days of the commencement of this Permit and a certificate of renewal at least five (5) days prior to the date of the expiration of any policy in force. In the event that the Permittee(s) fail to effect such insurance or renewal thereof or to furnish a certificate, the Minister or First Nation may procure such insurance and the premium paid by the Minister shall be deemed to be an additional Permit Fee due and payable by the Permittee(s).
    4. For greater certainty, the requirements of this section may be satisfied by either or both of the Permittee(s) providing proof of one insurance policy which meets the requirements of 22.1. The Permittee(s) will not both be required to provide separate policies in the amount stipulated in 22.1.
23. Removal of Fixtures
    1. Upon the termination of this Permit, the Permittee(s) will peaceably yield up use and occupation of the Permit Area and shall remove any works at their own expense and without damage to the Permit Area and until the works are removed, the obligations of the Permittee(s) under this Permit shall remain in force. In the event that the Permittee(s) do not remove all works within 12 months of the termination of this Permit, any unremoved works shall, without compensation, at the option of the First Nation, become the property of the First Nation, or the First Nation may take all actions it deems necessary to remove the unremoved works and to restore the Permit Area, and all costs, expenses and damages incurred by the First Nation shall be paid by the Permittee(s). The Permittee(s) shall be jointly and severally liable for said amounts.
24. Default Permittee
    1. The Permit Rights authorized hereunder may be revoked or cancelled by the Minister if either Permittee is in default in the performance of any of the terms or conditions hereunder, and such default is not rectified within, or if proceedings have not been diligently commenced to rectify such default, within ninety (90) days of the date of notice of the default from the Minister, by either Permittee, except that with respect to the payment provisions and conditions outlined in Articles 5 and 6, default with respect to such payments shall be rectified within thirty (30) days of the date of notice of the default from the Minister.
    2. Any act or omission which would be a default of any term or condition of this Permit if done or omitted by the Permittee(s) will be deemed to be an act or omission for which the Permittee(s) are responsible if done or omitted by any of their officers, directors, invitees, members, agents, employees or assigns, or by any other person, whether an individual, firm, partnership, association or corporation, for whom either Permittee is responsible at law.
25. Minerals
    1. Her Majesty, on behalf of the First Nation, may, with the consent of the First Nation, drill for, remove and dispose of petroleum, natural gas, and minerals in the Permit Area and adjacent portions, and for that purpose to drill wells, lay pipelines and build such tanks, stations and structures as may be necessary to carry out the said purpose and operations.
26. Assignment
    1. No assignment of either Permittee(s)’ rights under this Permit is valid without:
       1. first obtaining the written consent of each of the Minister and the Council, which consent shall not be unreasonably withheld; and
       2. the proposed assignee first entering into a written agreement with the Minister and the Band to be responsible for that Permittee’s obligations under this Permit.
27. Waiver
    1. No waiver on behalf of the Minister of any breach shall take place or be binding unless the same be expressed in writing and any waiver so expressed shall extend only to the particular breach to which such waiver will specifically relate and shall not be deemed to be a general waiver or to limit or affect the rights of the Minister with respect to any other breach.
28. Enurement
    1. All grants, covenants, conditions, provisos, agreements, rights, powers, privileges and liabilities herein contained will be read and construed as granted to, made and reserved by, imposed upon and undertaken by each of the Parties hereto and their respective successors and assigns.
29. Successors does not include assigns
    1. Any reference to the term "successors" in this Permit will not include any person who would otherwise require an assignment in order to acquire the rights granted herein.
30. Prior and Subsequent Rights
    1. The Permittee(s) hereby acknowledge and agree that notwithstanding anything to the contrary that may be elsewhere contained in this Permit:
       1. the Permittee(s)’ rights are authorized subject to all prior rights that the Minister has granted in respect of the Permit Area;
       2. the Minister may, at any time hereafter, enter into further Permits or other agreements with respect to the use of the Permit Area, as the Minister in his absolute discretion deems appropriate;
       3. the Permittee(s) for themselves and for their successors and assigns hereby release and forever discharge Her Majesty, Her officers, employees and agents and every person having an interest in, or rights or privileges to use the Reserve by, through or under Her Majesty including without limiting the generality of the foregoing the First Nation and its members and the Council and its members and all persons for whom the Band and the Council are responsible at law, and their respective heirs, executors, administrators, successors and assigns, as the case may be, jointly and severally, of and from any and all claims, demands, losses, costs damages, actions, suits or other proceedings whatsoever at law or in equity which the Permittee(s) and their respective successors or assigns can, shall or may have in consequence of or in any way arising out of the Minister at any time hereafter entering into further Permits or other agreements pursuant to subsection 30.1 (b).
31. Not joint venture
    1. Nothing in this Permit will be construed as making any of the Minister, the Permittee(s), the First Nation or the Council an agent or partner of, or joint venturer with, the other or others.
32. Interpretation
    1. All headings in this Permit have been inserted as a matter of convenience and for reference only and in no way define, limit or enlarge the scope or meaning of this Permit or any of its terms and conditions, and any reference to an article, section or subsection will mean an article, section or subsection of this Permit unless otherwise expressly provided.
    2. A reference to a party in this Permit will be read as if all required changes in the singular and plural and all grammatical changes rendered necessary by gender had been made.
    3. If a party is comprised of more than one person, then all agreements of that party will be joint and several.
33. Amendments
    1. This Permit constitutes the entire agreement between the parties hereto with respect to the subject matter and cannot be modified, amended or waived except by an instrument in writing duly executed and delivered by the parties or by their respective successors.
34. Indian Act
    1. The Permittee(s) and the Minister mutually covenant and agree that this Permit is given under section 28(2) of the Indian Act and the rights given hereby shall be construed as a licence only and shall not be deemed to grant, convey or confer on the Permittee(s) any right "in rem" or any estate or interest in the title to the land.
    2. Notwithstanding anything in this Permit, the Permittee(s) on behalf of themselves, their officers, servants, agents, tenants, licensees and invitees acknowledge and agree that this Permit does not confer or give rise to any greater right or rights upon the Permittee(s), their officers, servants, agents, licensees and invitees than the Minister is authorized to confer by section 28(2) of the Indian Act.
35. Notice
    1. All notices, consents and other communications under this Permit must be given in writing and delivered in accordance with this Article.
    2. All notices will be delivered to the other party and the First Nation and no notice will be effective until such delivery has been made.
    3. The addresses and fax numbers for delivery are:
       • To the Minister:

         Department of Indian Affairs and Northern Development
         Lands and Trust Services
         100 Anemki Drive, Suite 101
         Thunder Bay, Ontario
         P7J 1A5
         Telefone: Tel: 807-623-3534
         Fax: 807-623-7021

       • To the OFSC:

         [to be inserted]

       • To the ___SC:

         [to be inserted]

       • To the First Nation:

         Chief and Council
         Pic Mobert First Nation
         General Delivery
         Mobert, Ontario
         P0M 2J0
         Telephone: Tel: 807-822-2134
         Fax:  807-822-2850

       • Notice will be deemed to have been delivered:
         1. if delivery by hand, upon receipt;
         2. if sent by electronic transmission, 48 hours after the time of transmission, excluding from the calculation weekends and public holidays;
         3. if sent by registered mail, four (4) days after the mailing thereof, provided that if there is a postal strike or other disruption such notice will be delivered by hand or electronic transmission.
       • The parties may change their respective addresses for delivery by delivering notice of change as provided in this Article.
36. Corporate Authority
    1. Each Permittee warrant and represent to Her Majesty that:
       1. it has the corporate authority pursuant to its documents of incorporation to enter into this type of Permit or provide the within guarantee as the case may be and to perform all terms and agreements contained herein; and
       2. it is a company duly incorporated under the laws of Ontario and is a valid and subsisting company in good standing with respect to the filing of annual reports with the provincial corporate registry.
37. Resolution of Disputes
    1. In the event of a dispute concerning the interpretation of the terms and conditions of this Permit, including with respect to rights and remedies under Article 24, the Minister, the Permittee(s), and First Nation shall meet to discuss the issue in dispute and shall make all reasonable efforts to resolve the dispute.
    2. In the event the Minister and the Permittee(s) are unable to reach an agreement, including with respect to rights and remedies under Article 24, the matter in dispute may be referred by either party to the Federal Court of Canada for resolution pursuant to Section 17(3) of the Federal Court Act.
38. Time of Essence
    1. Time will be of the essence of this Permit and each of its terms and conditions.

In Witness Whereof the Parties have Signed Hereunder