TURTLE ISLAND
TRUST AGREEMENT
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THIS AGREEMENT made as of the 20th day of December, 2005.
PATRICK GLASSFORD, DAVIE JOANISSE, PAUL LAMOTHE, RANDY MALCOLM, RICHARD ZOHR,
KIRBY WHITEDUCK, SHERRY KOHOKO, H. JERROW LAVALLEY, KAREN LEVESQUE,
JAMES
J. A. MENESS, RICHARD SARAZIN, and GREGORY J. SARAZIN,
DOREEN DAVIS, DAVIE JOANISSE and H. JERROW
LAVALLEY
WHEREAS, a Protocol Agreement was entered into on March 25, 2004, and an Addendum to that Agreement was signed on July 30, 2004 (the "Addendum");
ARTICLE 1
NAME OF TRUST
1.1
The trust evidenced by this Agreement shall be known as the
"Algonquin Treaty Negotiation Funding Trust" ("Trust").
ARTICLE 2
DEFINITIONS
2.1
In this Agreement, and in any instrument supplementary or ancillary
thereto:
(a) "Accountant"
means the chartered accountant appointed pursuant to paragraph 3.1(e) of Article
3 of this Agreement;
(b) "Act"
means the Income Tax Act (Canada) R.S.C. 1985, c. 1 (5th Supp.),
as amended from time to time;
(c) "Addendum"
means the Addendum to the Protocol Agreement signed on July 30, 2004;
(d) "Agreement"
means this Trust Agreement and any amendment to it and any instrument
supplemental or ancillary to it and any amendment
to such instrument;
(e) "Algonquins"
means the Algonquins of Ontario;
(f)
"ANR's" means the
Algonquin Negotiation Representatives who are elected as
specified in the Addendum and are both the Settlors and
the beneficiaries of this Trust;
(g) “Bookkeeper"
means the bookkeeper retained by the ANR's pursuant to paragraph 3.1 (c) of this Agreement;
(h) "Direction
of the ANR's", or "as directed by the ANR's" or "approved by
the ANR's" or "with the approval of the ANR's"
means agreement reached by them in accordance with paragraphs 18 through 21 of the
Terms of Reference;
(i)
"Canada" means Her
Majesty the Queen in right of Canada, as represented by the Minister of Indian Affairs and Northern Development;
(j)
"Funding Agreements"
means agreement(s) entered into with the Governments
for the purpose of funding the Treaty negotiations;
(k) "Governments" means the Governments of Canada and Ontario;
(1) "Ontario"
means Her Majesty the Queen in right of Ontario;
(m) "Settlors"
means the ANR's who are irrevocably settling this Trust for their benefit in their capacity as elected
Representatives of the
Algonquins of Ontario to be held and disbursed as provided for herein to enable
them to carryout their duties in that regard.
(n) "Terms
of Reference" means the Terms of Reference dated September 26, 2005,
signed by the ANR's;
(o) "Time
of Division" means the earliest of:
(i)
the date the Algonquins of Ontario enter into the Treaty;
(ii)
December 31, 2025; or
(iii) such other day as the Trustees, as directed by the ANR's, may at any time by deed appoint;
(p) "Treaty"
means the proposed tripartite agreement among the Algonquins, Canada and Ontario
in settlement of the Algonquins' historic claim
and long outstanding grievances and in determination of the title, rights and
interests in the land and natural resources within the Algonquin
territory;
(q) "Trust
Fund" means the property settled upon the Trustees by Canada and/or
Ontario as directed in writing, together with all amounts
accumulated by the Trustees and such additional property, which the Settlors or
any other person or corporation may at any time and from
time to time, with the
approval of the ANR's and the Trustees, transfer, assign, convey or deliver to
the Trustees to be held by them on the
trusts hereof, and includes all
property, real, personal or mixed, tangible or intangible, into which the same
may be converted by the Trustees
as directed by the ANR's, at any time or from
time to time, as well as any additions or
accretions thereto;
(r)
"Trustees" means any
and all original, appointed or substituted Trustees and includes, without limitation, a single Trustee;
(s)
"Workplans and Budgets"
means the Workplans and Budgets approved and submitted by the ANR's and approved by the Governments from
time to time
upon which the Governments'
funding is based.
ARTICLE 3
ALLOCATION OF TRUST FUND
3.1 Until the Time of Division
ANR's, and shall pay or make payable, or cause to be paid or made payable as prescribed herein, such amount(s) of the capital of the
Trust Fund to pay those costs and expenses incurred collectively by the ANR's in
accordance with the prescribed Funding Agreements
and Workplans and Budgets.
(b)
The Trustees shall direct that payment of all funding instalments from
the Governments arising from the Funding Agreements be deposited
into a Trust Account maintained at the offices of Blaney, McMurtry LLP or
such other account as is deemed appropriate by the Trustees
and as directed
by the ANR's. Monies to be paid out of such Trust Account to pay those
costs and expenses referred to in paragraph
3.1(a) above, shall be paid
in accordance with the written authorization of all of the Trustees,
which authorization shall be in the form of
the Payment Authorization
Form attached hereto as Schedule "B" or such other form as is
approved by the ANR's.
(c)
The Trustees shall, upon the direction of the ANR's, retain, on behalf of
the Trust, the services of an independent and qualified Bookkeeper.
The Bookkeeper shall:
(i)
liase with
administrative details associated with the Governments' funding pursuant to the Funding Agreements and the Workplans and
Budgets;
(ii)
review and document all costs and expenses incurred collectively by the ANR's pursuant to the Funding Agreements and the
Workplans and Budgets from time to time;
(iii) recommend
to the Trustees, in writing, payments of those costs and expenses which are in accordance with the Workplans and
Budgets, and forward to the Trustees for their execution a duly completed Payment Authorization Form for payment of those costs
and expenses in accordance with Schedule "B";
(iv) maintain
the books and records of the Trust;
(v)
liase with and assist the Accountant referred to in paragraph
3.1(e); and
(vi) provide
quarterly reports to the ANR's detailing the funds received and invested, and the expenditures made out of the Trust.
(d)
The books and records of the Trust shall be available for inspection by
the ANR's during normal business hours at the offices of the
Bookkeeper;
(e)
The Trustees shall, upon approval of the ANR's, retain on behalf of
the Trust, the services of an independent Accountant. The role of the
Accountant shall be to prepare an annual audited financial statement for
the Trust for presentation to Canada, Ontario and the ANR's, and
to assist
the Bookkeeper in implementing the Funding Agreements and the Workplans and Budgets and in satisfying the Governments'
requirements for
financial statements;
(f) The Trustees shall, upon the direction of the ANR's, be entitled to
assume, on behalf of the Trust, the aggregate amount of all outstanding
loans
from Canada and/or Ontario in connection with the negotiation and settlement
of the Treaty, as same appears on the books of Algonquins
of Pikwàkanagàn First Nation and the Algonquin Nation Negotiation Directorate as at
the date of execution of this Agreement. The Trustees
shall also, upon
the direction of the ANR's without personal liability, further be entitled
to pledge the Trust Fund as security for such loan
assumption and such further loan funding as may be required and shall execute such
documents as are reasonably required for such purpose.
(g)
In the event that the ANR's are successful in negotiating and settling
the terms of the Treaty, the ANR's and Trustees agree that the aggregate
of
all outstanding loans from Canada and Ontario (constituting both the assumption of the loans referred to in paragraph 3.1(f) above and all
further loan funding settled upon the Trustees by Canada and/or Ontario),
shall constitute a first charge against any amount to be paid by
Canada
and/or Ontario on settlement of the Treaty or as otherwise specified in
the Funding Agreements and the Treaty.
3.2
At the Time of Division, what remains of the Trust Fund shall be paid,
upon approval
of the ANR's, to Canada and/or Ontario, as the Trustees may
agree in writing with Canada and/or Ontario, respectively.
ARTICLE 4
DECISIONS OF TRUSTEES
4.1
Unless otherwise specified, all decisions of the Trustees as permitted by
this Agreement
in connection with the administration of this Trust shall be made
by unanimous consent of the Trustees and shall be binding upon all
persons concerned.
4.2
All agreements and all other instruments in writing made on behalf and
purporting to bind this Trust shall be signed by the Trustees and upon the direction
of the ANR's
shall be binding upon those persons concerned.
ARTICLE 5
REPLACEMENT AND ADDITIONAL TRUSTEES
5.1
In the event that any Trustee:
(i) dies;
(ii)
refuses, or becomes unable to act or to continue to act;
(iii) resigns
as a Trustee;
(iv) is
no longer an ANR;
(v)
becomes mentally incapable of managing his/her affairs;
(vi) is
declared bankrupt, insolvent, or mentally incompetent;
(vii) ceases
to be a resident of Canada within the meaning of the Income Tax Act; or
(viii) becomes
a citizen of the United States of America
or becomes a resident of the United States of America within the meaning of the
Internal
Revenue Code (US.;
(ix) for any other reason deemed appropriate and approved by the ANR's;
before the Trust Fund has been fully distributed (hereinafter called
the "Retiring Trustee"), such Retiring Trustee shall, immediately
upon the
happening of such event, cease to be a Trustee hereof and a
replacement Trustee(s) shall be appointed who shall be approved by the ANR's
which appointment shall be recorded by an instrument in writing, so that
there shall at all times be three (3) Trustees of this Trust.
5.2 A resignation by a Trustee shall be made by an instrument in writing on
notice to the ANR's, and shall be effective from that date.
5.3
All instruments in writing relating to the appointment or replacement
Trustees shall
be attached to this Agreement and shall be sufficient evidence of
the facts
to which such
instruments relate.
5.4
At any time and from time to time with the approval of the ANR's any one
or more of
the Trustees may be removed and replaced with another
ANR, provided that
at all
times there shall be three (3) Trustees of this Trust;
5.5
Any ANR pursuant to this Article 5 of this Agreement shall, upon
acceptance of such appointment, be vested with the Trust Fund and with all the trusts,
powers, authorities,
duties and obligations herein contained, along with the continuing Trustee or Trustees without further assignment, transfer or
conveyance of
any kind or any order of any court or tribunal whatsoever as if such person or
trust company were an original party to this Agreement.
ARTICLE 6
AMENDMENTS TO AND ACCEPTANCE OF TRUST
6.1
This Trust may be amended, varied or altered in any manner whatsoever
from time to time and at any time upon the direction of the ANR's by deed,
provided
always that no such
amendment, variation or alteration shall:
(a)
take effect if it would be regarded as having the effect of revoking
this Agreement;
(b)
change the beneficial entitlement of the ANR's or diminish their
potential entitlement hereunder; or
(c)
amend or delete this Section 6.1 of this Article 6 of this Agreement.
6.2
The Trustees, by joining in the execution of this Agreement, signify
their acceptance of this Trust and the duties and obligations contained herein.
ARTICLE 7
TRUST IRREVOCABLE
7.1
This Trust shall be irrevocable by the Settlors.
ARTICLE 8
ENUREMENT AND BINDING
8.1
This Agreement shall enure to the benefit of and be binding on the
parties hereto.
ARTICLE 9
SCHEDULES "A" and "B"
9.1
The provisions of Schedules "A" and "B" annexed
hereto, containing three (3) pages
altogether, shall for all purposes form part of and be read as
part of
this Agreement; provided, however, that if any conflict appears between the
provisions of this Agreement
itself and Schedules "A" and "B",
the provisions of
this Agreement shall apply.
ARTICLE 10
GOVERNING LAW
10.1 Subject
to any express provision to the contrary in this Agreement, this Agreement shall be construed and take effect in accordance with the laws
of
Ontario, the courts of which shall be the forum for the administration thereof.
ARTICLE 11
FURTHER ASSURANCES
11.1 Each
of the parties agrees to do all such things and execute all such further
deeds, instruments, documents, and assurances necessary or desirable
to
implement the provisions hereof.
11.2 Nothing within this Agreement shall be deemed to derogate from or diminish the authority, responsibility and obligations of the ANR's.
ARTICLE 12
INTERPRETATION
12.1 In
this Agreement:
(a)
Context:
Where the context permits, the singular includes the plural and the
masculine includes
the feminine and vice versa.
(b)
Headings:
The headings in this Agreement are for convenience only and
do not form part of this Agreement.
IN WITNESS WHEREOF,
this agreement is executed with effect as of and from December 20, 2005.
SIGNED, SEALED AND
DELIVERED
in the presence
of Clifford Bastien Jr, Settlor
Katherine Cannon, Settlor
Robert Craftchick, Settlor
Doreen Davis, Settlor
Patrick Glassford, Settlor
Davie Joanise, Settlor
Paul Lamothe, Settlor
Randy Malcolm, Settlor
Richard Zohr, Settlor
Kirby Whiteduck, Settlor
Sherry Kohoko, Settlor
H. Jerrow Lavalley, Settlor
Karen Levesque, Settlor
James J. A. Meness, Settlor
Gregory J. Sarazin, Settlor
Richard Sarazin, Settlor
SCHEDULE "A"
1.
ADDITIONAL AUTHORITIES OF THE TRUSTEES
In addition to the authority as prescribed by the Agreement and by law the Trustees shall have all powers conferred by law, the Trustees shall have, in carrying out the administration of this Trust, the power to exercise and perform all acts of legal ownership with respect to the Trust Fund, subject to the terms of the Trust, from time to time and with the same effect as if the Trustees were the absolute owners of the Trust Fund, and such powers shall, without limitation, include the following powers which may be exercised from time to time by the Trustees.
(1)
Payment Of Debts:
To prevent or withhold distributions of the capital of the Trust Fund,
whether such distributions may be directed pursuant to this Agreement, by statute,
by
any Court, or by operation of
law or equity, prior to the repayment or liquidation from the Trust Fund of any debt, note, bond, mortgage, pledge,
obligation or
other encumbrance or liability incurred by this Trust or by the Trustees in
the administration of
this Trust.
(2)
Retaining Agents/Employees:
Upon the direction of the ANR's to employ or retain and pay any
agents, managers, bookkeepers, accountants, employees, or other persons, firms
or corporations
in connection with the administration of this Trust or any asset forming part of the Trust Fund, and to delegate duties and powers to them
without liability for such delegation.
(3)
Retaining Experts:
Upon the direction of the ANR's to obtain and act on the opinion or
advice of, or information obtained from, any solicitor, accountant, financial
advisor,
broker, or other expert and the Trustees shall not be responsible
for any loss occasioned by so acting or not acting, as the case may be,
without
diminution of compensation as Trustees.
(4)
Instituting/Settling Actions:
Upon the direction of the ANR's to institute, prosecute, defend,
compromise and settle any suits or actions or other proceedings affecting the Trustees
or the Trust Fund or any part thereof and to submit any
matters to arbitration.
(5)
Operating Accounts:
Upon the direction of the ANR's to open and operate accounts at any bank
or trust company
in Canada; to deposit any cash balances therein; to
draw, make, endorse,
deposit, or deal in cheques, bills of exchange, promissory notes, drafts
or any other mercantile, commercial or security
documents of any nature or kind; to
enter into contracts or agreements of any nature or kind with such bank or trust
company and, for such purposes,
all of the Trustees may designate, in writing,
any Trustee or Trustees or any other person or persons as the signing authority
or authorities for any such
accounts.
2.
LIABILITY OF TRUSTEES
(1)
Responsibility:
The Trustees shall not be responsible for the acts or defaults of each
other (or any predecessor Trustee), for any error in judgement or mistake of law
or for
any act of omission or commission which does not amount to actual fraud or which
does not
constitute wilful misconduct or wilful breach in the
administration of
this Trust.
No Trustee shall be required to take any proceedings, in court or
otherwise, against any other Trustee for any breach or
alleged breach of trust
committed by such other
Trustee.
(2)
Exoneration:
The Trustees shall be exonerated from any responsibility or liability for
loss or damage occasioned
to the Trust Fund through a bona fide exercise by
them of any of the powers and discretions authorized by this Agreement or by law.
(3)
Personal Liability:
The Trustees shall not be personally liable for any monies to become due
from or arising out of claims against the Trust Fund to the extent specified in
this Agreement.
The Trustees shall have power to bind the Trust Fund without rendering themselves personally liable.
(4)
Indemnification:
The Trustees (including any individual who has acted as a Trustee) shall
be indemnified out of the Trust Fund and saved harmless with respect to all
fines, penalties,
claims, costs, expenses and other charges which may arise or be incurred in the course of the administration or settlement of this trust.
(5)
Reimbursement Of Expenses:
Subject to the direction of the ANR's the Trustees may be reimbursed for
all proper
expenses incurred by them in the administration of this Trust and to
fix
the amount
of and pay themselves reasonable compensation out of the Trust Fund for their services in connection with the administration of this Trust
from
time to time.
SCHEDULE "B"
PAYMENT AUTHORIZATION FORM
TO:
(NAME OF PARTY HOLDING THE TRUST ACCOUNT)
RE:
Algonquin Treaty Negotiation Funding Trust
This constitutes our approval and your authorization to
issue cheques in payment of the following amounts:
This authorization may be executed and delivered by
facsimile and such execution and delivery shall be legal and binding as if the
facsimile copy contained our original signatures.
This authorization may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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TOTAL PAYABLE:
DATED the day
of
, 200 ,
_________________________________
______________________________
Trustee
Trustee
Trustee
DATED: December
20, 2005
CLIFFORD BASTIEN,
JR., KATHERINE CANNON, ROBERT CRAFTCHICK
DOREEN DAVIS, PATRICK GLASSFORD, DAVIE JOANISSE,
PAUL LAMOTHE, RANDY
MALCOLM, RICHARD ZOHR, KIRBY WHITEDUCK,
SHERRY KOHOKO, H. JERROW LAVALLEY, KAREN LEVESQUE,
JAMES J. A. MENESS, RICHARD SARAZIN, and GREGORY J. SARAZIN
-
and -
DOREEN DAVIS,
DAVIE JOANISSE and H. JERROW LAVALLEY
TRUST
AGREEMENT
BLANEY, MCMURTRY
LLP
Christopher J. Clapperton
Barristers & Solicitors
2 Queen Street East
Suite 1500
Toronto, Ontario
M5C 3G5
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Page created by: muckwa
Changes last made on:
March 18, 2006.
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