BILL 40 – 2007
TSAWWASSEN FIRST NATION FINAL AGREEMENT ACT
Preamble
WHEREAS the recognition and reconciliation of the prior
presence of Aboriginal peoples and the assertion of sovereignty by the
Crown is of significant social and economic importance to all British
Columbians;
AND WHEREAS Canadian courts have stated that this
reconciliation is best achieved through negotiation and agreement,
rather than through litigation;
AND WHEREAS, in order to achieve this reconciliation,
representatives of the Tsawwassen First Nation, Canada and British
Columbia have negotiated the Tsawwassen First Nation Final Agreement in
a process facilitated by the British Columbia Treaty Commission;
AND WHEREAS British Columbia is building a New
Relationship with First Nations and working to close the social and
economic gaps that exist between Aboriginal and non-Aboriginal people;
AND WHEREAS the Tsawwassen First Nation Final Agreement
embodies the principles of this New Relationship, including mutual
respect, recognition and reconciliation of Aboriginal rights and title;
AND WHEREAS the Tsawwassen First Nation Final Agreement
requires that British Columbia enact legislation to give effect to the
Tsawwassen First Nation Final Agreement;
THEREFORE HER MAJESTY, by and
with the advice and consent of the Legislative Assembly of the Province
of British Columbia, enacts as follows:
Definitions
1
(1) In this Act, "Tsawwassen First Nation Final
Agreement" means the Tsawwassen First Nation Final
Agreement among the Tsawwassen First Nation, Her Majesty the Queen in
right of Canada and Her Majesty the Queen in right of British Columbia
set out in the Schedule, and includes
(a) that agreement as it is given
effect by an Act of Canada, and
(b) amendments to that agreement
made in accordance with it.
(2) Words and expressions used in
this Act have the same meanings as they have in the Tsawwassen First
Nation Final Agreement, unless the context requires otherwise.
Treaty and
land claims agreement
2
The Tsawwassen First Nation Final Agreement is a treaty and a land
claims agreement within the meaning of sections 25 and 35 of the Constitution
Act, 1982.
Tsawwassen
First Nation Final Agreement
3
(1) The Tsawwassen First Nation Final Agreement is approved, given
effect and declared valid and has the force of law.
(2) Without limiting subsection (1),
a person or body
(a) has the powers, rights,
privileges and benefits conferred, and
(b) must perform the duties and is
subject to the liabilities imposed
on the person or body by the
Tsawwassen First Nation Final Agreement.
(3) Nothing in this Act that
provides for a matter that is already provided for in the Tsawwassen
First Nation Final Agreement in any way limits this section.
Authorization
to sign Tsawwassen First Nation Final Agreement
4
The Lieutenant Governor in Council may authorize a member of the
Executive Council to sign the Tsawwassen First Nation Final Agreement.
Tsawwassen
First Nation Final Agreement binding and can be relied on
5
The Tsawwassen First Nation Final Agreement is binding on, and can be
relied on by, all persons.
Relationship
between final agreement and legislation
6
(1) As set out in clause 27 of Chapter 2 [General Provisions]
of the Tsawwassen First Nation Final Agreement, the Tsawwassen First
Nation Final Agreement prevails to the extent of an inconsistency with
Provincial Law.
(2) As set out in clause 28 of
Chapter 2 [General Provisions] of the Tsawwassen
First Nation Final Agreement, Provincial Settlement Legislation
prevails over other Provincial Law to the extent of a Conflict.
Tsawwassen
First Nation's ownership of lands
7
(1) In this section, "estate in fee simple"
means the estate in fee simple within the meaning of the Tsawwassen
First Nation Final Agreement.
(2) On the Effective Date, the
Tsawwassen First Nation owns the estate in fee simple in the following
lands:
(a) Tsawwassen Lands as identified
in clause 1 of Chapter 4 [Lands] of the
Tsawwassen First Nation Final Agreement;
(b) Other Tsawwassen Lands as
identified in clause 18 a. of that chapter.
(3) On the Effective Date, the soil
and freehold of
(a) the highways described in
paragraphs a. and b. of the definition of "Local Road" in the
Tsawwassen First Nation Final Agreement,
(b) the highways described in
paragraph a. of the definition of "Local Boundary Road" in that
agreement, and
(c) the highway known as Eagle Way
and legally described as Road Plan CLSR RD1801,
excluding any portion of those
highways that was located within the Former Tsawwassen Reserve, are,
without compensation to any person, transferred to and vested in the
government.
(4) The transfer and vesting under
subsection (3) are conclusively deemed to have occurred before the
registration of Tsawwassen Lands under section 25 of Schedule 1 of the Land
Title Act.
(5) Section 35 of the Community
Charter does not apply in relation to land vested in the
government under subsection (3) of this section except any portion of
that land that is not, on the Effective Date, registered in the land
title office in the name of the Tsawwassen First Nation.
Judicial or
administrative proceedings
8
(1) As provided in clause 40 of Chapter 22 [Dispute
Resolution] of the Tsawwassen First Nation Final Agreement,
if, in any judicial or administrative proceeding, an issue arises in
respect of
(a) the interpretation or validity
of the Tsawwassen First Nation Final Agreement, or
(b) the validity or applicability
of Settlement Legislation or a Tsawwassen Law,
the issue must not be decided until
the party raising the issue has properly served notice on the Attorney
General of British Columbia, the Attorney General of Canada and the
Tsawwassen First Nation.
(2) The notice required under
subsection (1) must
(a) describe the judicial or
administrative proceeding in which the issue arises,
(b) state whether the issue arises
in respect of the matters referred to in subsection (1) (a) or (b) or
both,
(c) state the day on which the
issue is to be argued,
(d) give particulars necessary to
show the point to be argued, and
(e) be served at least 14 days
before the day of argument unless the court or tribunal authorizes a
shorter notice.
(3) As provided in clause 41 of
Chapter 22 [Dispute Resolution] of the Tsawwassen
First Nation Final Agreement, in a judicial or administrative
proceeding to which subsection (1) applies, the Attorney General of
British Columbia, the Attorney General of Canada and the Tsawwassen
First Nation may appear and participate in the proceeding as parties
with the same rights as any other party to the proceeding.
Agricultural
land reserve
9
(1) Despite sections 2 and 16 of the Agricultural Land
Commission Act, the following lands are excluded from the
agricultural land reserve:
(a) the lands described in clause
32 of Chapter 4 [Lands] of the Tsawwassen First
Nation Final Agreement;
(b) agricultural land, as defined
in the Agricultural Land Commission Act, that is
within the Former Tsawwassen Reserve.
(2) Despite section 2 of the Agricultural
Land Commission Act, on the Effective Date, the Agricultural
Land Commission must amend the land reserve plan in accordance with
subsection (1) and provide notice to the Tsawwassen First Nation and
the registrar of titles that the amendment has been made.
(3) Despite section 2 of the Agricultural
Land Commission Act, section 21 of that Act does not apply
in relation to a subdivision plan of Tsawwassen Lands deposited in the
land title office on the Effective Date for the purposes of registering
those lands in the name of the Tsawwassen First Nation.
Power to add
Tsawwassen First Nation to
Greater Vancouver Water District
10
(1) In this section:
"Board",
"Corporation" and "District"
have the same meanings as in section 2 of the Greater
Vancouver Water District Act;
"minister"
means the minister charged with the administration of the Greater
Vancouver Water District Act;
"Tsawwassen Indian Band"
means the band, as defined in the Indian Act
(Canada), named the Tsawwassen Indian Band.
(2) The membership of the Tsawwassen
First Nation in the Corporation and the provision of water to the
Tsawwassen First Nation by the Corporation must be
(a) on the terms and conditions
that, despite the Greater Vancouver Water District Act,
may be mutually agreed upon between the Board, on the recommendation of
the Commission under that Act, and the Tsawwassen Indian Band, or
(b) if the Board and the Tsawwassen
Indian Band cannot reach agreement under paragraph (a), on the terms
and conditions as may be ordered by the minister under subsection (3).
(3) If the Board and the Tsawwassen
Indian Band fail to agree on the terms and conditions under subsection
(2) (a), the Tsawwassen Indian Band may appeal to the minister and the
minister has full power and authority to settle, by order, the terms
and conditions upon which Tsawwassen Lands will be added to the
District and water will be provided to the Tsawwassen First Nation by
the Corporation, and the order, on becoming effective under subsection
(4), is final and binding upon the Tsawwassen First Nation and the
Corporation.
(4) An agreement under subsection
(2) or an order under subsection (3) becomes effective to add the
Tsawwassen Lands to the District on the date that both the following
have occurred:
(a) the Tsawwassen First Nation
has, by Tsawwassen Law, confirmed the agreement or order;
(b) a regulation under subsection
(5) is in effect,
and the Corporation must provide
water to the Tsawwassen First Nation on the terms and conditions agreed
or ordered, as the case may be.
(5) The minister may make
regulations as required to give effect to an agreement under subsection
(2) or an order under subsection (3), as the case may be, including
without limitation,
(a) specifying the provisions of
the Greater Vancouver Water District Act that
apply to the Tsawwassen First Nation as a member of the Corporation, and
(b) despite that Act, modifying
those provisions as necessary to give effect to the agreement or order.
(6) If, before the Effective Date,
negotiations have not been concluded under subsection (2) (a) and an
order has not been made under subsection (3), references in this
section to the Tsawwassen Indian Band include the Tsawwassen First
Nation.
Authorization
to enter into agreements
11
The Lieutenant Governor in Council may authorize a member of the
Executive Council to enter into, on behalf of Her Majesty the Queen in
right of British Columbia, an agreement that is contemplated by the
Tsawwassen First Nation Final Agreement.
Tax
Treatment Agreement
12
(1) In this section, "Tax Treatment Agreement"
means the tax treatment agreement referred to in clauses 22 and 23 of
Chapter 20 [Taxation] of the Tsawwassen First
Nation Final Agreement, substantially in the form tabled in the
Legislative Assembly on the date this Act receives First Reading.
(2) The Tax Treatment Agreement
(a) is approved, given effect and
declared valid, and
(b) has the force of law during the
period it is in effect.
(3) The minister charged with the
administration of the Financial Administration Act
is authorized to enter into the Tax Treatment Agreement on behalf of
Her Majesty the Queen in right of British Columbia.
(4) As provided in clause 58 of
Chapter 2 [General Provisions] of the Tsawwassen
First Nation Final Agreement, the Tax Treatment Agreement does not form
part of the Tsawwassen First Nation Final Agreement and is not a treaty
or land claims agreement within the meaning of section 25 or 35 of the Constitution
Act, 1982.
(5) The minister charged with the
administration of this Act must publish the Tax Treatment Agreement in
the Gazette.
Harvest
Agreement
13
(1) In this section, "Harvest Agreement"
means the Tsawwassen First Nation Harvest Agreement referred to in
clause 102 of Chapter 9 [Fisheries] of the
Tsawwassen First Nation Final Agreement, substantially in the form
tabled in the Legislative Assembly on the date this Act receives First
Reading.
(2) The minister charged with the
administration of the Fisheries Act has the
authority to enter into the Harvest Agreement on behalf of Her Majesty
the Queen in right of British Columbia.
(3) As provided in clause 103 of
Chapter 9 [Fisheries] of the Tsawwassen First
Nation Final Agreement, the Harvest Agreement does not form part of the
Tsawwassen First Nation Final Agreement and is not a treaty or land
claims agreement within the meaning of section 25 or 35 of the Constitution
Act, 1982.
(4) The minister charged with the
administration of this Act must publish the Harvest Agreement in the
Gazette.
Harvest
documents
14
The minister charged with the administration of the Wildlife
Act has the authority to issue and amend licences, permits
or other documents in respect of the Tsawwassen Fishing Right for the
purposes of and in accordance with clauses 59 to 64 of
Chapter 9 [Fisheries] of the Tsawwassen
First Nation Final Agreement.
Collection
of personal information
15
(1) In this section, "personal information"
and "public body" have the same meanings
as in the Freedom of Information and Protection of Privacy
Act.
(2) A public body may collect
personal information by a method authorized under the Tsawwassen First
Nation Final Agreement.
Application
of Municipal Finance Authority Act
16
The Municipal Finance Authority Act does not
apply in relation to Tsawwassen Lands.
Retroactive
effect of Chapters 21 and 24
17
(1) For the purposes of determining the eligibility of individuals for
enrolment under the Tsawwassen First Nation Final Agreement, enrolling
individuals under the Tsawwassen First Nation Final Agreement and
ratifying that agreement by the Tsawwassen First Nation,
(a) Chapters 21 [Eligibility
and Enrolment] and 24 [Ratification of the Final
Agreement] of that agreement are conclusively deemed to have
come into force on December 8, 2006 and are retroactive to the extent
necessary to give them force and effect on and after that date,
(b) all things done that would have
been validly done if Chapters 21 and 24 of the Tsawwassen First Nation
Final Agreement had been in force on December 8, 2006
are conclusively deemed to have been validly done, and
(c) a person, committee or board is
conclusively deemed to have had since
December 8, 2006 the powers, privileges and
immunities the person, committee or board would have had if Chapters 21
and 24 of the Tsawwassen First Nation Final Agreement had been in force
on December 8, 2006.
(2) Each of the following bodies,
despite the Personal Information Protection Act,
is conclusively deemed to have had, on and after December 8, 2006,
lawful authority to collect, use and disclose personal information as
necessary for determining the eligibility of individuals for enrolment
under the Tsawwassen First Nation Final Agreement, enrolling
individuals under the Tsawwassen First Nation Final Agreement and
ratifying that agreement by the Tsawwassen First Nation, all in
accordance with the processes required by that agreement:
(a) the enrolment committee
established under clause 9 of Chapter 21 [Eligibility and
Enrolment] of the Tsawwassen First Nation Final Agreement;
(b) the enrolment appeal board
established under clauses 17 and 18 of Chapter 21 of the
Tsawwassen First Nation Final Agreement;
(c) the ratification committee
established under clause 7 of Chapter 24 [Ratification of
the Final Agreement] of the Tsawwassen First Nation Final
Agreement.
(3) A body referred to in subsection
(2) of this section must comply with section 35 of the Personal
Information Protection Act in relation to the personal
information referred to in subsection (2) of this section as if the
body were an organization as defined in that Act.
(4) This section must not be
construed as lacking retroactive effect in relation to any matter
because it makes no specific reference to that matter.
Power to
make orders and regulations
18
The Lieutenant Governor in Council may make orders and regulations that
the Lieutenant Governor in Council considers necessary or advisable for
the purpose of carrying out any provision of the Tsawwassen First
Nation Final Agreement.
Interim
regulations
19
(1) Despite this or any other Act, after consulting with the Tsawwassen
First Nation, the Lieutenant Governor in Council may make regulations
consistent with the Tsawwassen First Nation Final Agreement as follows:
(a) respecting any matter that the
Lieutenant Governor in Council considers is not provided for, or is not
sufficiently provided for, in this Act or another Act affected by the
Tsawwassen First Nation Final Agreement, an agreement contemplated by
the Tsawwassen First Nation Final Agreement or this Act;
(b) making provisions the
Lieutenant Governor in Council considers necessary or advisable for the
purpose of more effectively bringing into operation the Tsawwassen
First Nation Final Agreement, or an agreement contemplated by the
Tsawwassen First Nation Final Agreement, in accordance with its terms,
including, without limitation, provisions giving authority to a person
or body, or restricting the authority of a person or body, in
accordance with that agreement;
(c) making provisions the
Lieutenant Governor in Council considers necessary or advisable for the
purpose of preventing, minimizing or otherwise addressing any
transitional difficulties encountered in bringing into effect the
Tsawwassen First Nation Final Agreement, an agreement contemplated by
the Tsawwassen First Nation Final Agreement, this Act or an Act
affected by the Tsawwassen First Nation Final Agreement or other
agreement, including, without limitation, provisions making an
exception to or a modification of a provision in an Act or providing
for the continued application of a previous enactment;
(d) resolving any errors,
inconsistencies or ambiguities in this Act or another Act that arise in
relation to the Tsawwassen First Nation Final Agreement or an agreement
contemplated by the Tsawwassen First Nation Final Agreement.
(2) A regulation under subsection
(1) may be made retroactive to a date not earlier than the Effective
Date.
(3) To the extent of any conflict
between a regulation under subsection (1) and another enactment, the
regulation prevails.
(4) A regulation under subsection
(1) ceases to have effect at the end of the last day of the next
session of the Legislative Assembly after the regulation is made.
(5) A regulation may not be made
under subsection (1) if a regulation having the same effect has been
made under that subsection.
(6) Regulations under subsection (1)
may only be made
(a) in relation to a tax, for 2
years after the date on which the exemption from the tax for Tsawwassen
Members ends under clause 16 or 18 of Chapter 20 [Taxation]
of the Tsawwassen First Nation Final Agreement,
(b) in relation to the membership
of the Tsawwassen First Nation in the Greater Vancouver Water District
and the provision of services to the Tsawwassen First Nation under the Greater
Vancouver Water District Act, for 2 years after the date an
agreement or order, as the case may be, under section 10 of this Act is
effective in accordance with that section, and
(c) in relation to any other
matter, for 2 years after the Effective Date.
Transition
-- GVRD regional growth strategy
20
The land use plan of the Tsawwassen First Nation in effect on the
Effective Date is conclusively deemed to be consistent with the Greater
Vancouver Regional District's regional growth strategy until the date
the Tsawwassen First Nation amends or replaces that land use plan after
the Effective Date.
Commencement
21
The provisions of this Act referred to in column 1 of the following
table come into force as set out in column 2 of the table:
| Item |
Column 1
Provisions of Act |
Column 2
Commencement |
| 1 |
Anything not elsewhere
covered by this table |
The date of Royal Assent |
| 2 |
Sections 1 to 3, 5 to 9 and
11 to 16 |
By regulation of the
Lieutenant Governor in Council |
| 3 |
Section 17 |
December 8, 2006 |
| 4 |
Sections 18 to 20 |
By regulation of the
Lieutenant Governor in Council |
SCHEDULE
See PDF of the Tsawwassen First Nation Final Agreement: Agreement
Explanatory Note
This Bill enacts the Tsawwassen First Nation
Final Agreement Act to satisfy British Columbia's obligation
under the Tsawwassen First Nation Final Agreement to enact settlement
legislation giving effect to and ratifying that agreement.
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