TRADITIONAL KNOWLEDGE MASTER AGREEMENT

Traditional Knowledge Agreement made effective Click here to enter a date.

BETWEEN:

FORT MCKAY FIRST NATION

on its own behalf

(“Fort McKay”)

-and-

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a corporation incorporated under the laws of Alberta

(“Recipient”)

(collectively, the “Parties”)

WHEREAS:

Fort McKay, as defined herein, has Aboriginal and Treaty rights and interests within its Traditional Territory that are constitutionally protected under section 35(1) of the Constitution Act, 1982;

Fort McKay’s Aboriginal and Treaty rights include rights to ownership, protection and custody of its Traditional Knowledge, as defined herein, and that every such right includes the incidental right to teach such practices, customs and traditions to a younger generation to ensure their continuity;

The Recipient, as defined herein, owns, operates or has an interest in various existing and planned projects for the recovery, processing and transporting of oil sands in the Traditional Territory of Fort McKay;

The Recipient has legal and corporate responsibilities to minimize the impacts of its projects on the environment and Fort McKay and has agreed to incorporate Traditional Knowledge in the discharge of these responsibilities;

The Recipient periodically requires Traditional Knowledge to assess, manage and mitigate the impacts of its projects on Fort McKay and to meet its regulatory obligations and contractual obligation to Fort McKay;

Fort McKay wishes to facilitate the sharing of Traditional Knowledge by TK Holders, as defined herein, who in turn wish to participate in the protection of the environment, their Fort McKay and culture and to discharge their responsibilities as Traditional Stewards, as defined herein, of the land in a manner which is consistent with their values, and beliefs;

The Parties wish to set out the terms and principles by which they have agreed to gather, use and protect Traditional Knowledge; and

This Agreement will be supplemented with Traditional Knowledge restricted use agreements or other agreements specific to each use and purpose for which the Recipient receives Traditional Knowledge and for any publication of the Traditional Knowledge, without the prior knowledge and consent of Fort McKay.

WHEREFORE in consideration of the exchange of the promises and benefits as set out in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

DEFINITIONS

Confidential Information means all information provided by a Party in confidence and identified as confidential and includes all Traditional Knowledge.

Cultural Heritage Resource means an object, a site or the location of a traditional societal practice that is of historical, cultural or archaeological significance to the Members.

Fort McKay means Fort McKay First Nation.

Heritage Resources means any work of nature or of humans that is primarily of value to Fort McKay for its palaeontological, archaeological, prehistoric, historic, cultural, natural, scientific, religious or aesthetic interest including, but not limited to, a palaeontological, archaeological, prehistoric, historic or natural site, structure or object and includes historical and cultural records.

Members mean the individuals who are members of the Fort McKay First Nation.

Recipient means Click here to enter text.

Sacred Site means a site used or identified by the Members or Traditional Knowledge Holders for sacred purposes including but not limited to burial sites and sites of ceremonial, social and/or cultural significance.

Traditional Knowledge (“TK”) refers to knowledge systems, creations, innovations and stories and other cultural expressions which have generally been transmitted from generation to generation and are used to maintain the Fort McKay’s culture and way of life; are generally regarded as pertaining to the Fort McKay and its Members or their Traditional Territory; and are constantly evolving in response to a changing environment. Categories of TK include: scientific knowledge; technical knowledge; environmental and ecological knowledge; medicinal knowledge, including related medicines and remedies; biodiversity related knowledge; knowledge and oral transmission of history, literature, customary law and genealogy; expressions of legends, myths, history and other cultural knowledge and material in the form of music, dance, song, handicrafts, designs, stories and artwork; elements of languages, such as names, geographical indications and symbols; and moveable cultural properties.

Traditional Territory means the area of land depicted on the map attached to this Agreement as figure “A”.

Traditional Knowledge Holder means a Member who possesses particular TK.

Traditional Stewardship means the holistic interconnectedness between Members and the ecosystems within their Traditional Territory and the Members’ obligation and responsibility to preserve and maintain their role as stewards of these ecosystems through the maintenance of their culture, spiritual beliefs, and customary law.

PRINCIPLES

Traditional Stewardship. The Recipient acknowledges that the Members wish to continue to discharge their obligations as Traditional Stewards and respects the Members’ intention to fulfill these obligations.

Purpose. The purpose of this agreement is to facilitate Traditional Stewardship and joint environmental protection and management through the respectful sharing, preservation, and perpetuation of TK and integration of TK into decisions and programs for the operation the Recipient’s projects and mitigation of the impacts of its projects, for the long-term mutual benefit of the Recipient and Fort McKay.

Respect for TK. The Parties undertake to respect the integrity of TK and promote understanding of TK and its respectful use by government regulators, the Parties’ associates, affiliates, partners and the public.

Respect for TK Holders. The Recipient acknowledges the right of each TK Holder to what information will be shared, when and how it will be shared, and to determine the use that will be made of any shared TK; and the right to have the TK accurately and respectfully communicated, documented, accredited and preserved.

Confidentiality. The Recipient acknowledges that Members have information concerning their TK, including particular aspects of their culture, traditions, spiritual beliefs and customary laws that must be maintained and treated as confidential by the Recipient its members, alternates and/or agents thereof. This principle will be satisfied by meeting the obligations set out in this Agreement.

Support for TK Research. The Recipient acknowledges Fort McKay’s need to develop capacity for undertaking its own TK research and publications and in developing and utilizing its own collections and databases.

Implementing this Agreement. The Parties acknowledge that this agreement is a serious ongoing commitment by both Parties and the dedication of necessary resources to implement this Agreement and its purposes.

Non-Derogation. Nothing in this Agreement does or will abrogate, derogate or prejudice any of Fort McKay’s Aboriginal and Treaty rights, and interests in the Traditional Territory.

Non-Commercial Use. Nothing in this Agreement shall be construed as a grant by implication, estoppel, or otherwise, of a license of any kind by Fort McKay to the Recipient to make any commercial use of the TK or as a license under any patent, patent application, copyright, or any other intellectual property right.

RESPONSIBILITIES OF THE RECIPIENT

The Recipient shall do the following:

respect the privacy, dignity, cultures, practices, traditions and rights of Fort McKay and its Members;

recognize Fort McKay and its Members’ rights to ownership, protection and custody of their TK, including their rights to Heritage Resources;

offer to, and if accepted, respect the anonymity of the TK Holders;

obtain the written informed consent of the TK Holder prior to receiving any TK;

comply with any restrictions on the dissemination or use of transmitted TK as requested by the TK Holder;

respect Fort McKay protocols for communicating with elders, including the provision of tobacco and honoraria;

provide opportunities for Members to provide input into and participate in its programs and systems for designing, operating, managing its projects and in environmental management, mitigation, monitoring and reclamation;

seek to incorporate TK in its programs and systems for designing, operating, managing its projects and in environmental management, mitigation, monitoring and reclamation;

use TK where possible in data and information collection, the identification of environmental indicators, and in developing recommendations for environmental management and protection of Cultural Heritage Resources;

consider TK and Members’ spiritual and cultural values in the analysis and selection of alternatives for environmental management and mitigation programs and systems; and

provide Fort McKay with all data, information, records and reports collected or created with TK or incorporating or referencing TK.

The Recipient shall not, without the prior informed consent of Fort McKay:

use or permit the TK to be used by any other person or body other than for the purposes approved by Fort McKay;

knowingly collect any Cultural Heritage Resource objects or disclose Cultural Heritage Resources unless required by law. If disclosure is required by law, the Recipient will inform Fort McKay before disclosing the information to the relevant regulatory authorities;

disclose any aspect of the TK which is not publicly available, except in accordance with the terms of this Agreement;

seek to obtain any TK of the medicinal properties of plants from a TK Holder which is not publicly available; and

sell or claim rights to sell or otherwise obtain a financial benefit from the TK or any material or product derived from TK.

In the event of and upon becoming aware of any Sacred Site within the Traditional Territory, the Recipient will adhere to the following procedure:

not undertake any activities within the Traditional Territory which could reasonably be expected to damage or interfere with an identified Sacred Site;

disclose the location of the Sacred Site to Fort McKay or a designated representative thereof;

treat all information with respect to the Sacred Site as confidential to the benefit of the interests of the Members; and

seek the advice of Fort McKay regarding the Sacred Site.

RESPONSIBILITIES OF FORT MCKAY

Fort McKay shall do the following:

use reasonable efforts to secure the cooperation of the TK Holders;

in a timely manner, bring information, matters or issues of concern forward for discussion and resolution in order to meet the purposes of this Agreement;

provide advice and assistance to the Recipient, as necessary, to enable it to fulfill its responsibilities under this Agreement; and

collect and archive reports and records documenting TK transmitted and collected through this Agreement.

PRIOR INFORMED CONSENT

The Recipient must seek, obtain and maintain the prior informed consent of Fort McKay and TK Holders prior to collecting, receiving and using TK. The Recipient shall seek the consent of Fort McKay prior to using previously transmitted TK.

Informed consent shall include disclosure of the purposes for which the TK may be used, the manner in which it will be recorded, and consent to the specified purposes and recording.

The Recipient shall not publish, disclose or provide any TK to third parties without the written consent of Fort McKay.

The Recipient recognizes and respects that the TK is collectively owned, managed and controlled by the Fort McKay First Nation, through Fort McKay.

Unless authorized by Fort McKay, the Recipient will not approach individual TK Holders to obtain TK.

The Recipient acknowledges that Fort McKay or TK Holder may withdraw their prior informed consent in writing or by termination of this Agreement.

BENEFIT-SHARING

Benefits to Fort McKay relating to this Agreement may include, but are not limited to, the following:

provision of opportunities to Members to undertake Traditional Stewardship collaboratively with the Recipient and to participate in environmental management, monitoring, reclamation and decision making;

promotion of the understanding and wise use of TK in environmental decision making and conservation;

the ability to integrate TK in environmental decision making by the Recipient and government regulators; and

potential to create opportunities to protect and preserve the Fort McKay’s traditional activities and land use, culture and Fort McKay identity.

Benefits to the Recipient of this Agreement includes, but is not limited to, the following:

Fort McKay’s advice and assistance;

opportunities to meaningfully consult with Members;

enhanced ability to sustainably operate its projects and mitigate their impacts on the environment and Members;

ability to complete environmental and socio-economic impact assessments and applications for approvals for its projects; and

opportunities to verify and validate TK provided by Members and TK Holders.

Mutual Benefits to the Parties include, but are not limited to, the following:

protecting and enhancing Fort McKay’s cultural pursuits and traditional activities;

protecting areas of traditional use and sites of cultural importance to Fort McKay;

preserving TK; and

furthering the development of a positive, beneficial and harmonious relationship between the Parties.

CONFIDENTIALITY

Unless otherwise agreed by the Parties, neither Party will disclose, divulge, or otherwise communicate to a third party any Confidential Information received from the other party nor use such Confidential Information for any purpose, except as required by law. If disclosure is required by law, the disclosing Party will provide written notice of the required disclosure as soon as reasonably possible.

Where TK that is confidential is required or requested by a third party, the Parties will make reasonable efforts to engage, negotiate and conclude an agreement with the third party that will safeguard that TK from public disclosure.

The Recipient agrees that unauthorized disclosure of Confidential Information, including TK that is given to the Recipient in confidence, will cause irreparable harm to the Community and accordingly, Fort McKay shall have the right to seek and obtain injunctive relief to protect the Community’s rights and interest in its TK, Cultural Heritage Resources, Heritage Resources and Traditional Territory. Such remedy shall be in addition to all other remedies available in law or in equity.

Upon request from Fort McKay, the Recipient agrees to provide written support of any application or request made by Fort McKay to the regulators for any restrictions on disclosure of TK found in the Recipient’s reports or records.

OWNERSHIP

Fort McKay and its Members shall remain the exclusive owners of the TK. The Recipient acknowledges and agrees that it has no interest whatsoever in the ownership of the TK, including any intellectual property rights thereunder. The Recipient hereby waives any intellectual property and/or any other rights that the Recipient may have with respect to the TK. If, notwithstanding the foregoing, rights to TK are recognized by a third party as residing in the Recipient, the Recipient will take all reasonable efforts to waive or transfer all or any such rights to the benefit of Fort McKay First Nation.

The Recipient will be able to use the TK for the purposes agreed to by Fort McKay and TK Holders as set out in the informed consent procedures. For clarity, the Parties do not intend that this use of the TK includes any grant of ownership to the Recipient.

PROCESS MATTERS

Prior to the release by the Recipient to any third party of any report or record that includes TK from Fort McKay or Members, a copy of the report or record will be provided to Fort McKay and to the TK Holder(s) with reasonable opportunity to review and verify the accuracy and appropriateness of the information related to TK, including any interpretation and analysis of the TK. If Fort McKay or the TK Holder(s) identifies any concerns with the report or record, they will notify the Recipient of their concerns and both Parties shall discuss the concerns prior to the release of the report or record.

Except for final reports containing TK that are approved by Fort McKay, the Recipient shall return all records, including writings, records (e.g., maps, audio and video files), and notes documenting TK to Fort McKay and shall not retain any copies of the same.

TERM, EXPIRY, AMENDMENT AND ASSIGNMENT

The Parties agree that this Agreement is a document of a “living nature” and may be amended from time to time to continue to achieve its purposes or such other purposes as may be agreed upon by the Parties in writing from time to time.

This Agreement may be amended by agreement of the Parties in writing.

This Agreement continues until terminated in writing by either Party. The provisions governing consent, confidentiality, ownership and Sacred Sites will survive termination of this Agreement.

This Agreement may not be assigned without the written consent of the other Party.

MISCELLANEOUS

Fort McKay’s Sustainability Department represents the interests of Fort McKay First Nation for purposes of this Agreement and is authorized to perform the responsibilities of Fort McKay as provided by this Agreement.

The Recipient shall ensure its directors, officers, employees, agents, contractors, affiliates, partners and subsidiaries comply with the terms and principles of this agreement.

The recitals form part of this Agreement.

The Parties deem this Agreement to be approved when it is executed.

The Parties agree that this Agreement may be executed in separate counterparts, each of which so executed shall be deemed to be an original. Such counterparts together shall constitute one and the same instrument and, notwithstanding the date of execution, shall be deemed to bear the effective date set forth above.

Any costs associated with the collection, use and preservation of TK will be subject to a separate agreement.

This Agreement may be executed in any number of counterparts or by facsimile, each of which will together, for all purposes, constitute one and the same instrument, binding on the parties, and each of which will together be deemed to be an original, notwithstanding that all of the parties are not signatory to the same counterpart or facsimile.

TO EVIDENCE THEIR AGREEMENT each of the Parties has executed this Agreement on the date first appearing above.

Click here to enter text., by its duly authorized representative:	Fort McKay, by its duly authorized representative:
By: ____________________________________ Click here to enter text.	By: ______________________________________ Alvaro Pinto Executive Director of Fort McKay First Nation Sustainability Department