SCT File No. SCT-3001-14

SPECIFIC CLAIMS TRIBUNAL

BETWEEN:

SHOAL LAKE NO. 40 FIRST NATION,

Claimant, and

ISKATEWIZAAGEGAN NO. 39 INDEPENDENT FIRST NATION,

Claimant,

v.

HER MAJESTY THE QUEEN IN RIGHT OF , as represented by the Minister of Crown-Indigenous Relations,

Respondent.

JOINT APPLICATION FOR EXTENSION OF STAY OF PROCEEDINGS

For purposes of the Case Management Conference (“CMC”) in this Claim scheduled for August 28, 2019, and pursuant to Specific Claims Tribunal Act and Rules of Procedure and Practice Direction#15, the Parties submit the following joint application for an extension of the stay of proceedings granted by this Tribunal on January 24, 2019:

I. SUMMARY OF PROGRESS TO DATE TOWARD A NEGOTIATED RESOLUTION

A. Meetings & Conference Calls

1. On March 4, 2019 and April 4, 2019 calls were held between legal counsel for Shoal Lake #40 First Nation (“Shoal Lake #40”) and Canada’s negotiator for the Claim to discuss next

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steps for negotiations and access to funding to support the Claimants’ participation in the negotiations.

2. On April 15, 2019, the Parties participated in a teleconference to discuss the work plan for the 2019-2020 fiscal year and upcoming meeting dates for the negotiation of the Claim.

3. An in-person meeting was tentatively scheduled between Shoal Lake #40 and Canada for April 16, 2019. The meeting was rescheduled to May 16, 2019 to enable Iskatewizaagegan No. 39 Independent First Nation (“Iskatewizaagegan”) to attend. Canada subsequently requested that the meeting be rescheduled to May 28, 2019, and then that the meeting be rescheduled to May 27, 2019.

4. On May 27, 2019 the Parties met in , to discuss the Claim, including the contents and next steps for the Terms of Reference (“TORs”) for the Claimants’ appraisal for the purpose of negotiating the Claim. During this meeting, the Parties were able to respectfully express their expectations for the negotiations, including the expectations that the negotiations are a means of expediently moving the Claim to conclusion, Canada’s openness to fully understand and appreciate Iskatewizaagegan’s and Shoal Lake #40’s positions and Canada’s willingness to discuss the inclusion of all islands as part of the Claim. Canada also committed to provide Iskatewizaagegan and Shoal Lake #40 with a PowerPoint presentation on the proposed Loss of Use compensation model before the next meeting between the Parties.

5. Specific action items from the May 27, 2019 meeting include a determination if Iskatewizaagegan and Shoal Lake #40 wish for the return of specific islands or ability to acquire other lands in compensation, the preparation and submission at the next meeting of Iskatewizaagegan’s and Shoal Lake #40’s legal memo on their respective perspectives and positions on the Claim, including their positions on alleged expropriation, the expectations as to compensatory lands and expectations of a settlement.

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6. A conference call was scheduled between the Parties for June 27, 2019 to advance negotiations for the Claim. The call was rescheduled at Canada’s request to July 10, 2019, but postponed at Iskatewizaagegan’s request following a death in the community.

7. On July 18, 2019 legal counsel for Shoal Lake #40 and Canada participated in a teleconference to discuss the TORs and appraisal.

8. On July 25, 2019 legal counsel for Shoal Lake #40 and Canada participated in a teleconference to discuss next steps for the negotiation of the Claim.

9. In addition to the above-noted meetings, the Parties engaged in email and telephone communications regarding the scheduling of meetings, completion of the TORs and next steps for the negotiation of the Claim.

B. 2019-2020 Work Plan

10. On May 26, 2019, Shoal Lake #40 provided Canada and Iskatewizaagegan with a proposed draft work plan for the 2019-2020 fiscal year.

11. On June 24, 2019 Iskatewizaagegan approved the draft work plan. The work plan has since been finalized and signed by the Parties. A copy of the work plan is attached to this application as Appendix “A.”

12. Pursuant to the work plan, the Parties anticipate completing the following activities:

• Three (3) in person full-day negotiation meetings to share information, discuss issues and pursue a settlement;

• Three (3) teleconference full-day negotiation meetings to share information, discuss issues and pursue a settlement;

• Three (3) community meetings for each of Iskatewizaagegan and Shoal Lake #40 to update and keep their respective communities informed of the negotiations and settlement terms; and

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• Update the appraisal report for land values that will be applied in a Loss of Use model.

13. The Parties finalized the work plan prior to receiving confirmation from Kent McPherson as to the anticipated date of the delivery of the Claimants’ appraisal. Consequently, the work plan does not include specific dates for the planned negotiation and community meetings. The Parties are currently discussing scheduling of the meetings set out in the work plan, as detailed below.

C. Negotiation Funding

14. Since the stay of proceedings was granted by this Tribunal, Iskatewizaagegan and Shoal Lake #40 have encountered difficulty in accessing funding to support its participation in negotiations for this Claim, including in respect of funding to update the TORs and commence the appraisal.

15. Between February and April 2019, Iskatewizaagegan and Shoal Lake #40 made several inquiries with Canada’s funding department to confirm whether they would be able to access funding to update the TORs and appraisal in the 2018-2019 fiscal year. Shoal Lake #40 received a response from Canada’s funding department on April 15, 2019, at which time Shoal Lake #40 was advised that no funding for the 2018-2019 fiscal year had been provided, but that Shoal Lake #40 could apply for reimbursement funding for any expenses incurred in that year. Iskatewizaagegan was similarly advised on May 31, 2019. Consequently, the Claimants did not receive funding from Canada in the 2018-2019 fiscal year.

16. Iskatewizaagegan and Shoal Lake #40 have since applied for funding for the 2019-2020 fiscal year. As of August 14th, Canada’s funding officer provided a loan funding agreement for the 2019-2020 fiscal year to Iskatewizaagegan for the first Nation’s review and signature, and is currently reviewing Shoal Lake #40 First Nation’s submission. While the Claimants have yet to receive funding for this fiscal year, they have decided, in the interests of moving forward with negotiations for the Claim, to proceed with updating the TORs and appraisal on the basis of the pending 2019-2020 applications.

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17. Iskatewizaagegan and Shoal Lake #40 are small with limited resources. While all parties are committed to moving forward with this Claim as expeditiously as possible, the challenges associated with the Claimants’ access to funding support from Canada has impeded progress on the negotiation of this Claim.

18. In the event that this application is granted, Iskatewizaagegan and Shoal Lake #40 will advise the Tribunal and Canada at their earliest opportunity if any further issues in relation to funding arise which could prevent or delay the completion of anticipated negotiation activities for the Claim.

D. Claimants’ Appraisal

19. As reported in January 2019, the Claimants intend to update and rely on the appraisal prepared in 2011 by Kent-Macpherson Appraisals & Consulting (“Kent-Macpherson”) for the purposes of negotiations for the resolution of the Claim.

20. On May 10, 2019, the Claimants instructed Kent-MacPherson to proceed with preparing draft updated TORs for the appraisal.

21. On June 28, 2019 Kent-MacPherson provided the Claimants with the draft updated TORs for review.

22. On July 19, 2019, Shoal Lake #40 advised Iskatewizaagegan that it had completed its review of the TORs and that, subject to any further changes from Iskatewizaagegan, the TORs could be finalized and work on the appraisal could commence.

23. On July 26, 2019 Iskatewizaagegan advised that it had completed its review and had no further changes to the TORs.

24. On July 26, 2019, the Claimants instructed Kent-MacPherson to proceed with the appraisal based on the TORs. The appraisal is now underway. Canada has been provided with a copy of the TORs. A copy of the TORs is attached to this application as Appendix “B.”

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E. Additional Information

25. The Parties have agreed to rely on the Negotiation Protocol as agreed to by the Parties during the previous negotiations for this Claim in 2011.

26. As the appraisal has not yet been delivered, no without-prejudice settlement offers have been made, nor have the negotiations yielded a memorandum of understanding on the terms of settlement.

27. All issues requiring negotiation remain unsettled, but the parties have been having productive discussions and are confident that negotiations with a view towards settlement should continue.

28. The Parties have not utilized mediation.

II. SUMMARY OF MEASURES PLANNED TO ADVANCE NEGOTIATIONS DURING THE PERIOD OF THE PROPOSED STAY

A. Claimants’ Appraisal & Canada’s Review

29. Kent-MacPherson has advised that the Claimants’ updated appraisal will be completed by October 31, 2019. The Claimants intend to provide the appraisal to Canada by November 15, 2019.

30. Canada informed the Claimants at the in-person meeting of May 27, 2019 that Canada’s negotiation team has obtained services from Public Services and Procurement Canada (“PSPC”) to review the Claimants’ appraisal. Canada’s negotiation team advised PSPC that the Claimants anticipate providing Canada with the appraisal by November 15, 2019. PPSC will make best efforts to commence its review of the appraisal immediately upon receipt, and anticipates that the review will take approximately four weeks. While Canada is open to discussing the need for further studies after the Claimants’ appraisal is concluded, Canada

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currently has no plans to seek any further studies, other than seeking a review of the Claimants’ appraisal.

B. Meetings & Conference Calls

31. The 2019-2020 work plan provides for three full-day negotiation meetings and the equivalent of three full days of negotiation teleconferences between the Parties.

32. As minimal communication between the Parties will be required prior to the completion of the appraisal and Canada’s review, the majority of the meetings and teleconferences will be scheduled following the completion of these tasks. In the interim, the Parties will continue to communicate by email and teleconference as required on issues related to the negotiation.

33. Once the appraisal has been delivered and the timing of Canada’s review of the appraisal is confirmed, the Parties intend to meet in-person to discuss options for a negotiated resolution of the Claim. The Parties will make best efforts to meet as early as possible in 2020 following the completion of Canada’s review of the Claimants’ appraisal. The Parties are currently exploring potential dates for an in-person meeting in January 2020.

34. The Parties are prepared to provide this Tribunal with a further update on their progress in scheduling in-person meeting dates and conference calls in November 2019, following the delivery of the Claimants’ appraisal.

35. It is anticipated that at the meetings the Parties will discuss and seek to make progress on the following issues:

• issues arising from the Claimants’ appraisal and Canada’s review of the appraisal; • the alleged expropriation of the islands and lakebed on the side of the border affecting the claim; • the possible inclusion of other islands within the claim, if appropriate, and seeking of new mandate to facilitate settlement; • possibilities of return of islands identified in the Claim or possible compensatory islands or other lands for inclusion in the addition to reserve policy;

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• the appropriate compensation model and values; • next steps in achieving a negotiated resolution of the Claim, including any further studies or information that may be required; dates for the delivery of without-prejudice settlement offers, if applicable; the development of a memorandum of understanding on the terms of settlement, if applicable; and any identification of issues on which the parties may request the direction of this Tribunal.

36. Given that the completion of the appraisal is currently in progress and that Canada's review of the appraisal has not commenced, the Parties have not yet attempted to agree upon dates for presentation of offers and counteroffers. The Parties anticipate scheduling dates for the presentation of offers and counteroffers, if applicable, following the completion of the appraisal and Canada's review of the appraisal, and any further steps in negotiation as may be agreed upon by the parties.

III. ORDER SOUGHT

37. Under Practice Direction #15, the Parties respectfully request that the Tribunal extend the stay of proceedings for the Claim, subject to the Claim continuing to be case-managed by the Tribunal and the stay being renewed at the end of the six-month period on the consent of all parties and pursuant to the direction of the Tribunal.

3 8. The Parties will be prepared to speak to this joint application at the August 28, 2019 CMC.

Dated: August 21, 2019 Dated: August 21, 2019

KATE GUNN

First Peoples Law Corporation 15 Seventh Street South 55 East Cordova Street, Suite 502 Kenora, Ontario POX 1CO Vancouver, British Columbia V6A OAS

Tel: 604-685-4240 Tel: 807-466-3929 9

Fax: 604-681-0912 Fax: 807-789-1663 Email: [email protected] Email: [email protected]

Counsel for the Claimant, Shoal Lake No. 40 Counsel for the Claimant, Iskatewizaagegan First Nation No. 39 Independent First Nation

Dated: August 21, 2019

ATTORNEY GENERAL OF CANADA

Department of Justice Canada Prairie Region – Winnipeg Office 310 Broadway, Suite 301 Winnipeg, Manitoba R3C 0S6

Per: Jean-Daniel Boulet Tel: 204-230-9576 Fax: 204-984-5910 Email: [email protected]

Counsel for the Respondent

SL39).pdf 10

Appendix A Work Plan

May 27, 2019 - DRAFT

WITHOUT PREJUDICE

DRAFT 2019-2020 WORK PLAN

SECTION A - APPLICATION INFORMATION

First Nation: Shoal Lake #40 First Nation lskatewizaagegan No. 39 Independent Nation

Claim Name: Garden Islands Specific Claim

Primary Contact: Shoal Lake #40 First Nation - Bruce Mcivor lskatewizaagegan No. 39 Independent Nation - Terence Douglas

Budget Completed: To be attached

Brief Claim Description:

The Garden Islands Claim relates to Canada's failure to set aside seven garden islands as reserve lands for Shoal Lake #40 First Nation and the lskatewizaagegan No. 39 Independent Nation pursuant to Treaty #3, and for the unlawful expropriation of 4.5 of the garden islands for the Greater Winnipeg Water District. lskatewizaagegan No. 39 Independent Nation initially filed their claim in 1989 and Shoal Lake #40 initially filed their claim in 1991 for negotiations with the Specific Claims Branch. The claim was accepted for negotiation by Canada in 2005. Negotiations were undertaken by the Parties from 2009 to 2012 but the parties did not reach agreement on compensation. Negotiations ended in 2012.

In 2014 Shoal Lake #40 filed the claim against Canada with the Specific Claims Tribunal. In the claim Shoal Lake #40 seeks compensation and damages from Canada for Canada's breaches of its treaty and legal obligations in relation to the garden islands. lskatewizaagegan No. 39 Independent Nation was added as a party to the claim in 2016.

Following the receipt of oral evidence from lskatewizaagegan No. 39 and Shoal Lake #40, Canada admitted additional liability in respect of the claim, including that Canada had a treaty obligation to add the garden islands located in Ontario to reserve and failed to do so, and that lskatewizaagegan No. 39 Independent Nation and Shoal Lake #40 First Nation are owed a share of the current unimproved market value of the garden islands located in Ontario. May 27, 2019 - DRAFT

In 2018 the parties agreed to re-enter negotiations for the resolution of the claim. As part of the agreement to re-enter negotiations Canada committed to consider considering all issues of liability as presented by lskatewizaagegan No. 39 Independent Nation and Shoal Lake #40 First Nation negotiations and as contained the Declarations of Claim filed with the Tribunal.

In July 2018 the parties submitted a joint request to the Tribunal that the proceeding before the Tribunal be stayed for six months or until December 2018 to allow the parties to work towards a negotiated resolution. In February 2019 the Tribunal ordered that the claim be placed in further abeyance until July 2019.

SECTION B - NEGOTIATION TEAM

Shoal Lake #40 First Nation:

• Chief Erwin Redsky- lead negotiator • Shoal Lake #40 Councillor (name to be determined) • Shoal Lake #40 Elder (name to be determined) • Cuyler Cotton- researcher/ policy advisor • Bruce Mcivor- legal counsel

lskatewizaagegan No. 39 Independent Nation

• Gerald Lewis - Chief • Councillor Fred Green - lead negotiator • Basil Greene ~ elder • Edward Mandamin - researcher/ policy advisor • Terence Douglas - legal counsel

SECTION C-ANTICIPATED SCHEDULE OF ACTIVITIES

Meetings:

Face to Face Negotiation Meetings: 9 days total (67.5 hrs for each First Nation)

• 3 full day negotiation meetings (dates to be determined) • 6 days internal for each First Nation preparation/follow up meetings

Negotiation Conference Calls: 9 days total (67.5 hrs for each First Nation)

• Equivalent of 3 full days of negotiation teleconferences for each First Nation (dates to be determined) • 6 days internal for each First Nation preparation/ follow up meetings May 27, 2019 - DRAFT

First Nation Community Meetings: 3 days total (27.5 hrs for each First Nation)

• 3 full-day internal for each First Nation community meetings

Legal Work: 30 days total (240 hours for each First Nation legal counsel)

• Prepare for and attend negotiation meetings with Shoal Lake #40 First Nation, lskatewizaagegan No. 39 Independent Nation and Canada; • Legal Counsel to prepare for and attend internal meetings with respective clients; • Conduct legal research and analysis regarding liability and compensation issues related to the claim; • Instruct appraiser regarding preparation of expert report; • Correspondence and other communications with Shoal Lake #40 First Nation, lskatewizaagegan No. 39 Independent Nation and Canada; and • Draft settlement agreement

Consultants/Experts: 12.5 days total (100 hours)

• Appraiser to provide expert report updating valuation report prepared in previous negotiations for the claim

SECTION D - OTHER INFORMATION

• Appraiser's report will be prepared jointly on behalf of Shoal Lake #40 First Nation and lskatewizaagegan No. 39 Independent Nation.

SECTION E - WORK PLAN SUBMISSION

This work plan is intended to be submitted by the Shoal Lake #40 First Nation and lskatewizaagegan No. 39 Independent Nation along with separate budgets from each First Nation to the Negotiation Support Directorate for 2018-2019 Negotiation Loan Support Funding. Costs will be assessed against the Specific Claims Negotiation Cost Guidelines and the total maximum annual allocation indicated in the guidelines.

REVIEWED BY: REVIEWED BY: A~ c::>\z-.: c::I? Chief Erwin Redsky Chief Gerald Lewis Shoal Lake #40 First Nation lskatewizaagegan No. 39 Independent Nation

Date: Date: L ,. 2- 'f~' 'f May 27, 2019-DRAFT

REVIEWED BY:

John Scime Negotiator, Specific Claims Branch 11

Appendix B Terms of Reference

WITHOUT PREJUDICE

ISKATEWIZAAGEGAN NO. 39 FIRST NATION AND SHOAL LAKE NO. 40 FIRST NATION – GARDEN ISLANDS SPECIFIC CLAIM

Updated Current Unimproved Market Value Appraisal and Loss of Use Terms of Reference

PART A – INTRODUCTION

1. PURPOSE OF REPORT

The purpose of the report is to provide an updated estimate of the current unimproved market value and loss of use of the islands which are the subject lands of the Garden Islands Claims submitted by the Shoal Lake 40 First Nation and the Iskatewizaagegan #39 Independent First Nation. The lands are more particularly described in Part C. The report is intended to provide an update of the appraisal originally prepared by Kent-Macpherson, dated November 17, 2011.

2. DEFINED TERMS

Appraiser: The contractor or entity retained to complete this appraisal.

Canada: Her Majesty the Queen in Right of Canada, as represented by the Minister of Indian Affairs and Northern Development.

Claim Lands: The Claims relate to seven Garden Islands located in Indian Bay, Shoal Lake, identified on a sketch by Pither, Appendix A, as “A”, “B”, “C”, “D”, “E”, and “F” and the large island labelled “garden” (“Garden Islands”). Four of the Garden Islands are located in Manitoba, two are located in Ontario, and one straddles the border between Manitoba and Ontario.

Current: In relation to unimproved market value, means the effective date of the appraisal.

Highest and Best In relation to the current unimproved market value appraisal, means the Use: reasonably probable and legal use of land or an unimproved property which is physically possible, appropriately supported and financially feasible, and that results in the highest value.

Iskatewizaagegan 39: The Iskatewizaagegan #39 Independent First Nation, a “band” within the meaning of the Indian Act. WITHOUT PREJUDICE

Market Value: The most probable price estimated in terms of money which the land would bring if exposed for sale on the open market, by a willing seller, allowing reasonable time to find a willing buyer, neither buyer nor seller acting under compulsion, both having full knowledge of the uses and purposes to which the land is adopted and for which it is capable of being used.

Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: • buyer and seller are typically motivated; • “reasonable time” has passed as at the effective date of the appraisal and both parties are well informed, and; • payment is made in cash and normal financing is available; • the Claim Lands are assumed not to have Reserve status and to be part of the municipality in which they are located.

Negotiations: Double bilateral negotiations between Canada and (1) the Shoal Lake 40 First Nation, and (2) the Iskatewizaagegan #39 Independent First Nation relating to their Shoal Lake Garden Islands Claims.

Negotiators: The team of persons appointed by each of the Shoal Lake 40 First Nation, the Iskatewizaagegan #39 Independent First Nation and Canada to act on their behalf in the Negotiations.

Parties: In the context of the study process, the parties are the Shoal Lake No. 40 First Nation, the Iskatewizaagegan #39 Independent First Nation and Canada.

Shoal Lake 40: The Shoal Lake No. 40 First Nation, a “band” within the meaning of the Indian Act.

Terms of Reference: Instructions for the completion of this update of the appraisal and loss of use study as contained in this document.

Unimproved: No regard shall be had for on site encumbrances, easements or rights of way other than those improvements already in existence in the year 1875 and public services through the Claim Lands such as federal or provincial highways and roads, municipal roads, railways, canals, electrical lines, telephone and television cable, gas line rights of way, microwave facilities and existing surface drainage ditches in conjunction with these services. The Appraiser shall consider the Claims Lands subject to zoning, official plan or local government restrictions or limitations, which would currently apply to the use of the Claim Lands.

WITHOUT PREJUDICE

PART B – CONTEXT OF STUDY

The report is being prepared in the context of negotiations for the settlement of the Garden Islands Specific Claims of the Iskatewizaagegan No. 39 First Nation (“Iskatewizaagegan 39”) and the Shoal Lake No. 40 First Nation (“Shoal Lake 40”, collectively, “the First Nations”) with the Government of Canada (“Canada”).

The First Nations agree to jointly instruct one Appraiser to complete the report. The report will include an updated estimate of current unimproved market value, and an estimate of compensation for loss of use from 1875 to present (based upon the historical values concluded within the original report dated November 17, 2011).

PART C – BACKGROUND

Iskatewizaagegan 39 submitted a specific claim relating to the Garden Islands in 1989 and Shoal Lake 40 submitted a specific claim relating to the Garden Islands in 1991 (“the Claims”). The Claims relate to seven Garden Islands located in Indian Bay, Shoal Lake, identified on a sketch by Pither, Appendix A, as “A”, “B”, “C”, “D”, “E”, and “F” and the large island labelled “garden” (“Garden Islands”). Four of the Garden Islands are located in Manitoba, two are located in Ontario, and one straddles the border between Manitoba and Ontario.

The Claims allege that contrary to the terms of Treaty 3 in 1873, Canada failed to reserve the Garden Islands for the use and benefit of the First Nations.

The Claims were accepted for negotiation by Canada as set out in Canada’s letters to the First Nations dated March 7, 2005. In those letters, Canada accepted the Claims on the basis of an outstanding obligation for the non-fulfilment of treaty obligations to set aside the Garden Islands. The negotiation of the Claims will proceed on the basis that Iskatewizaagegan 39 and Shoal Lake 40 each have a 50% interest in the Garden Islands.

Since the Claims were filed with the Specific Claims Tribunal, Canada has made further admissions of liability. In a further letter to the First Nations dated April 16, 2018, Canada confirmed that it would consider all issues of liability as presented by the First Nations in negotiations and as contained in the Declaration of Claim filed by the First Nations in SCT File No.: SCT-3001-14.

Canada has acknowledged that the measure of damages should be based on principles for unlawful takings as set out in the Specific Claim Policy, compensation criteria #1, namely that the First Nations WITHOUT PREJUDICE will be compensated for the losses they have incurred as a consequence of Canada’s breach of its lawful obligations and that compensation will be based on legal principles.

PART D – CLAIM VALUATION AND ASSESSMENT

The First Nations and Canada have agreed that the report will be undertaken jointly for Iskatewizaagegan 39 and Shoal Lake 40 by independent consultants. The First Nations require:

(a) an updated estimate of the current unimproved market value of the Garden Islands;

(b) an estimate of the First Nations’ net economic loss of use of the Garden Islands from 1875 until the present.

1. UPDATED APPRAISAL OF CURRENT UNIMPROVED MARKET VALUE

The Appraiser is required to conduct the appraisal update as follows:

(a) Update the previous (November 2011) estimate of the current unimproved market value of the Garden Islands, based upon recent real estate market trends and current market values.

(b) As with the previous appraisal the Appraiser will estimate the value of the Claim Lands without the effect of the Shoal Lake Restricted Area Order dated October 12, 1978.

(c) As with the previous appraisal, the Appraiser will not include a valuation of any resources on the Garden Islands (e.g. timber and minerals) or an estimate of any ‘special value to owner’ of the lands.

2. VALUATION OF LOSS OF USE

The Appraiser will conduct the loss of use valuation as follows:

(a) “Loss of Use” means the net, total, cumulative, amount that the First Nations may have lost based on the reasonably probable use of the Garden Islands by the First Nations.

(b) The Appraiser will select the most appropriate methodology to estimate the value of the First Nations’ loss of use of the Garden Islands from 1875 to the present based on the historical values concluded within the 2011 report and the updated current unimproved market value. WITHOUT PREJUDICE

PART E – GENERAL

1. CLIENT

These Terms of Reference are being issued jointly by Shoal Lake 40 and Iskaketwizaagegan 39. The study is being funded through contribution agreements between Canada and the First Nations. Together, the First Nations will be the contracting party with the Consultant.

2. CONSULTANT AS INDEPENDENT CONTRACTOR

The Appraiser’s status is that of an independent contractor undertaking the appraisal jointly for the First Nations.

3. ASSUMPTIONS

(a) The Appraiser shall detail all assumptions being made throughout the complete appraisal and consistently apply these assumptions throughout the appraisal.

(b) Parcels of land within an “en bloc” land holding may be considered as being appropriate for different land use categories if there is imminent demand for the various uses based on highest and best use principles. Separate values are to be estimated for each such use recognizing all the costs necessary to create the use. The value of the whole is to be the sum of the parts.

(c) The Appraiser shall estimate market value based on appropriate parcel sizes and no discount shall apply as a result of the overall size of the subject lands of the Claims.

4. OWNERSHIP OF INFORMATION & CONFIDENTIALITY REQUIREMENTS

(a) The First Nations will provide to the Appraiser copies of the Claims and relevant background documents. In addition, the First Nations may provide to the Appraiser any oral history, documents or other evidence arising from the loss assessment studies to be conducted by the First Nations. WITHOUT PREJUDICE

(b) All information gathered during the studies and all reports will remain the joint property of Shoal Lake 40 and Iskatewizaagegan 39.

(c) During the valuation studies and until an agreement on the Claim is reached, the Appraiser shall perform the work in confidence. Other than for purposes associated with conducting the studies, there shall be no communication concerning the studies, study progress or study findings other than to each of the Negotiators or other consultants undertaking related assessment studies.

(d) These studies and reports are to be conducted on a “without prejudice” basis and are produced in the context of negotiations. They are prepared with the intention of encouraging settlement of the issues between the Parties only, and are not intended to constitute admission or facts or liability by either Party.

PART F - CONFIDENTIALITY

The Appraiser and any consultants employed by the Appraiser will treat confidentially and not disclose any information obtained by the Appraiser and consultants relating to the Claims, Claims negotiations and Claims appraisal to any other party without the express and written consent of Shoal Lake 40 and Iskatewizaagegan 39.