Bill S-212

1st Session, 41st Parliament,

60-61 Elizabeth II, 2011-2012

senate of canada

BILL S-212

An Act providing for the recognition of self-governing First Nations of Canada

Whereas the Royal Proclamation of 1763 recognizes that there were self-governing peoples living in the territory that is now known as Canada before the Europeans arrived;

Whereas history records that the Crown entered into legal relations with certain Nations, tribes and bodies of Indians;

Whereas these relations were premised not on conquest and unilateral control, but on principles established through convenants of treaty, allowing for co-existence, reciprocal support and the occupation of territory by the First Nations and by those who came after them, in the settlement that resulted in the establishment of the Dominion of Canada;

Whereas under Class 24 of section 91 of the Constitution Act, 1867, Parliament subsequently passed certain laws in relation to Indians and lands reserved for the Indians;

Whereas section 35 of the Constitution Act, 1982, recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada;

Whereas the Government of Canada recognizes the inherent right of self-government as an existing right within section 35 of the Constitution Act, 1982;

Whereas Canada has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which affirms the fundamental importance of the right to self-determination of all peoples and, in exercising that right, the right to autonomy or self-government;

Whereas Canada would be strengthened by a renewed relationship and reconciliation with First Nations based on the recognition of First Nations self-government as an existing Aboriginal right within section 35 of the Constitution Act, 1982;

And whereas Canada wishes to reconcile with First Nations by recognizing the governance of self-governing First Nations over their lands, peoples and resources;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the First Nations Self-Government Recognition Act.

INTERPRETATION

2. (1) The following definitions apply in this Act.

“citizen”, in relation to a recognized First Nation, means a citizen of the First Nation under its constitution.

“date of recognition”, in relation to a recognized First Nation, means the effective date on which a First Nation becomes a recognized First Nation under this Act, in accordance with subsections 12(1) and (2).

“elector”, in relation to a recognized First Nation, means a citizen of the First Nation who is an elector under the constitution of the First Nation.

“eligible voter”, in relation to a First Nation, means a member of the First Nation who is eligible, under subsection 7(1), to vote in a referendum held by the First Nation under Part 1.

“First Nation” means

(a) any body of people for whose use and benefit land has been reserved within the meaning of Class 24 of section 91 of the Constitution Act, 1867; or

(b) any body of people that has been determined by a court of competent jurisdiction or through an agreement with the Crown to be the holder of Aboriginal title to lands.

“First Nation lands”, in relation to a First Nation, means

(a) lands to which the First Nation has established Aboriginal title through an agreement with the Crown or a declaration issued by a court of competent jurisdiction,

(b) lands reserved for the Indians, within the meaning of Class 24 of section 91 of the Constitution Act, 1867, of the First Nation,

(c) lands set apart for the First Nation in the future as lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867,

(d) lands, the legal title to which is vested in Her Majesty, that have been set apart by Her Majesty for the use and benefit of the First Nation, including reserves, or

(e) lands acquired or owned by the First Nation, before or after it becomes recognized under this Act, that are declared by the Governor in Council to be First Nation lands,

and includes all the interests or rights in, and resources of, the lands.

“governing body” means

(a) in respect of a recognized First Nation, the governing body of the recognized First Nation as established under its constitution; and

(b) in respect of any other First Nation, the council of the band, as defined in subsection 2(1) of the Indian Act, of the First Nation.

“member”, in relation to a First Nation, means a person whose name appears on the Band List of the First Nation or who is entitled to have their name appear on the Band List.

“Minister” means the Minister of Indian Affairs and Northern Development.

“recognized First Nation” means

(a) a First Nation recognized under subsection 12(1);

(b) two or more First Nations that become a single recognized First Nation by amalgamation under Part 4; or

(c) each of the First Nations that result from a division of a recognized First Nation under Part 4.

“Verifier” means a person appointed as a Verifier under subsection 6(1).

(2) For the purposes of this Act, a reference to the province in which a First Nation is located is a reference to a province in which the First Nation is wholly or partially located.

HER MAJESTY

3. This Act is binding on Her Majesty in right of Canada, and any reference in this Act to Her Majesty means Her Majesty in right of Canada.

PURPOSE

4. The purpose of this Act is to provide for the recognition of self-governing First Nations by establishing a mechanism to

(a) recognize the rights and powers of First Nations, and their governments, institutions and other bodies; and

(b) support the establishment of, and exercise of powers by, First Nation governments.

PART 1

SELF-GOVERNMENT

Self-government Proposal

5. (1) Subject to section 11, a First Nation that proposes to become a recognized First Nation must develop a proposal for self-government and refer the proposal to its eligible voters for approval by referendum.

(2) A proposal for self-government must set out

(a) the identification of the First Nation;

(b) the name proposed for the First Nation when it becomes recognized under this Act;

(c) a description of the First Nation lands of the First Nation that is sufficient to determine their boundaries;

(d) the proposed constitution for the First Nation when it becomes recognized under this Act;

(e) the process to approve the proposal, including the rules for the conduct of the referendum;

(f) the approximate number of eligible voters for the referendum; and

(g) the name of the person who will be appointed as the election officer to conduct the referendum, and the names of a reasonable number of persons to act as replacement election officers in case the election officer is unable to conduct the referendum.

(3) The proposed constitution must provide for the following:

(a) a statement of values and principles of the First Nation;

(b) the requirements for citizenship in the First Nation and the procedure for determining whether a person is a citizen;

(c) a governing body for the First Nation, and its composition, powers, duties and functions;

(d) the rules and procedures relating to the selection and tenure of the members of the governing body;

(e) conflict of interest rules;

(f) the specific law-making powers of the First Nation, selected from among the matters in relation to which a First Nation may exercise law-making powers as provided in this Act;

(g) rules and procedures for the enactment and publication of laws;

(h) a system of financial management and accountability in accordance with subsection (4);

(i) the appeal or review of decisions of the governing body of the First Nation that affect legal rights or interests;

(j) the qualifications of electors of the First Nation;

(k) the holding of meetings of the governing body and other assemblies of the citizens;

(l) rules for the conduct of referenda of the First Nation;

(m) a process for the amendment of the constitution of the First Nation by its citizens; and

(n) any other matter relating to the governance of the First Nation that the First Nation proposes to include.

(4) The proposed constitution must provide that

(a) the First Nation must maintain its accounts and prepare its consolidated financial statements annually in accordance with generally accepted accounting principles; and

(b) the financial statements must

(i) be audited, in accordance with generally accepted auditing standards, by an independent auditor who is a member in good standing of a corporation, institute or association of auditors incorporated under an Act of the legislature of a province,

(ii) include a statement of the remuneration and expenses paid to each member of the governing body, and

(iii) be made available to citizens of the First Nation within six months after the end of the fiscal year, and a copy provided to any person requesting one on payment of a reasonable fee.

Community Approval and Certification by Verifier

6. (1) A First Nation that proposes to become a recognized First Nation and the Minister must jointly appoint a Verifier.

(2) The First Nation must, within 30 days after the appointment of the Verifier, submit its proposal for self-government to the Verifier for confirmation.

(3) The Verifier must, within 15 days after receiving the proposal for self-government, determine whether the proposed constitution and the proposed process for the approval of the self-government proposal are in accordance with this Act, taking into account any concerns expressed to the Verifier by any eligible voter, and report to the First Nation and the Minister on the matter.

(4) If the Verifier confirms that the proposed constitution and the proposed approval process are in accordance with this Act, the First Nation may submit the self-government proposal to its eligible voters for approval in a referendum.

(5) A proposal that is, in the opinion of the Verifier, not in accordance with this Act may be amended by the First Nation and resubmitted to the Verifier for confirmation, and subsections (3) and (4) apply to the amended proposal.

7. (1) A member of the First Nation who is eighteen years of age or over on the day of the referendum is eligible to vote in the referendum.

(2) No vote may be exercised by proxy.

(3) The governing body of the First Nation must, at least 60 days before the day of the referendum, take reasonable measures to

(a) locate all eligible voters for the referendum and inform them of their right to vote and the means of exercising that right, and provide them with a copy of the self-government proposal; and

(b) ensure that other persons who have an interest or right in the First Nation lands described in the proposal for self-government are informed about the self-government proposal, this Act and the date set for the referendum.

8. (1) The Verifier must publish a notice of the date, time and place of the referendum.

(2) The Verifier, and any assistants that the Verifier may appoint, must observe the conduct of the referendum and must determine whether the referendum is conducted in accordance with the approval process confirmed by the Verifier under section 6.

9. (1) A self-government proposal that has been submitted to a referendum is approved if at least 50 per cent of the eligible voters of the First Nation participated in the referendum and at least 50 per cent of the eligible voters who participated voted to approve it.

(2) The governing body of the First Nation may, by resolution, increase the percentage of votes required under subsection (1) and, if it does so, must specify that percentage in the proposal for self-government under paragraph 5(2)(e).

10. (1) If the eligible voters of a First Nation vote in favour of a self-government proposal in accordance with section 9, the governing body of the First Nation must, without delay following the referendum, send to the Verifier a copy of the approved constitution and a declaration that the constitution was approved in accordance with that section.

(2) An eligible voter or the Minister may, within five days following a referendum, report any irregularity in the voting process to the Verifier.

(3) The Verifier must give the First Nation and the Minister a reasonable opportunity to make submissions on any reported irregularity in the voting process within 20 days following the referendum.

(4) Within 30 days following the referendum, the Verifier must send to the First Nation and the Minister the Verifier’s report on the conduct of the referendum.

(5) The Verifier must, after receiving a copy of the constitution and the declaration, certify the validity of the constitution and the declaration unless the Verifier is of the opinion that

(a) the approval process confirmed under section 6 was not followed or the approval process was otherwise irregular; and

(b) the proposal might not have been approved but for that irregularity.

(6) A defect or omission that is not of a substantial nature in the proposed constitution, the proposed approval process or in any other document or matter that precedes the approval process does not invalidate the approval process or its outcome.

(7) If the Verifier certifies the validity of the constitution and declaration under subsection (5), the Verifier must without delay send a copy of the certified constitution and a notice that the self-government proposal has been approved to the First Nation and to the Minister, and cause the notice and the constitution to be published in the First Nations Gazette.

(8) A certified constitution is deemed to have been validly approved by the First Nation.

11. (1) Despite sections 5 to 10, a First Nation that proposes to become a recognized First Nation may develop a proposal for self-government and, without holding a referendum, submit the proposal for community approval in any other manner agreed on by the First Nation and the Minister.

(2) Subject to subsection (3), the approval process described in subsection (1) must include a requirement that the self-government proposal receive the approval of at least 25 per cent of the eligible voters of the First Nation in order to be approved.

(3) The governing body of the First Nation may, by resolution, increase the percentage referred to in subsection (2) and, if it does so, must specify that percentage when setting out the approval process in the self-government proposal.

(4) A self-government proposal is approved if it has been approved by the community in the manner agreed on by the First Nation and the Minister in accordance with this section.

(5) Sections 5 to 10 apply, with any modifications that the circumstances require, to an approval process described in subsection (1).

Recognized First Nations

12. (1) Subject to subsection (2), if a self-government proposal for a First Nation to become a recognized First Nation has been approved in accordance with this Act, the First Nation becomes a recognized First Nation governed under its constitution and is recognized as self-governing.

(2) The recognition is effective on the day the constitution comes into force, and under the name that was set out in the self-government proposal under paragraph 5(2)(b).

(3) The constitution comes into force and has the force of law on the day it is certified or on any later day that may be specified in or under the constitution.

(4) Judicial notice is to be taken of the constitution.

(5) A copy of the constitution of a recognized First Nation must be maintained by the governing body of the First Nation for public inspection at a place designated by the governing body.

13. (1) A recognized First Nation has the capacity of a natural person, and the capacity to exercise its rights, powers and privileges and perform the functions of a government as described in its constitution and this Act.

(2) Subject to its constitution, a recognized First Nation acts through its governing body in exercising its powers and carrying out its duties and functions.

(3) A recognized First Nation may delegate any of its authority, other than law-making authority or authority in relation to matters required by the constitution to be determined in a specific manner, to

(a) a department, institution, agency or official of the government of the recognized First Nation; or

(b) another government, with the agreement of that other government.

Transitional Provisions

14. (1) The governing body of the First Nation that is in office immediately before the First Nation is recognized under this Act becomes the first governing body of the recognized First Nation until such time as a governing body of the recognized First Nation is selected in accordance with its constitution.

(2) The persons who are officers and employees of the First Nation immediately before the First Nation is recognized under this Act are deemed to be the duly appointed officers and employees of the recognized First Nation until confirmed or removed by its governing body.

(3) Except as otherwise specified by this Act, all existing legal and equitable duties and obligations of the Crown owed to the First Nation prior to its recognition under this Act continue to be owed to the First Nation after its recognition under this Act.

(4) Except as otherwise specified by this Act, all existing legal and equitable duties that are owed to the Crown by the First Nation prior to its recognition under this Act continue to be owed by the First Nation after its recognition under this Act.

(5) Rights of the Crown or any person in the First Nation lands of the First Nation that exist immediately before the First Nation is recognized under this Act, whether arising by law, grant or contract, are not affected by the recognition and continue according to their terms.

Law-making Powers

15. (1) Subject to this Act, a recognized First Nation has, to the extent provided by its constitution, the exclusive power to make laws in relation to those matters set out in any of paragraphs 5(3)(b) to (e) and (g) to (n).

(2) Subject to this Act, a recognized First Nation has, to the extent provided by its constitution, the power to make laws in relation to any of the following matters:

(a) provision of programs and services for its citizens in relation to their spiritual and cultural beliefs and practices;

(b) Aboriginal healers and traditional medicine;

(c) adoption of children who are citizens of the First Nation;

(d) guardianship, custody, care and placement of children of its citizens;

(e) provision of education programs and services for its citizens;

(f) solemnization of marriages where one or both of the parties to the marriage are citizens of the First Nation;

(g) matrimonial property on First Nation lands of the First Nation where one or both of the spouses are citizens of the First Nation; and

(h) inheritance, wills, intestacy and administration of estates of its citizens.

(3) Laws referred to in subsection (2) may be made applicable to the citizens of the First Nation whether or not they are on First Nation lands.

(4) Subject to this Act, a recognized First Nation has, to the extent provided by its constitution, the power to make laws in relation to any of the following matters:

(a) use, management, administration, control and protection of First Nation lands;

(b) use, management, administration, control and protection of natural resources that form part of First Nation lands;

(c) gathering, hunting and trapping and the protection of wildlife and their habitat;

(d) control or prevention of pollution and protection of the environment;

(e) licensing and regulation of persons or entities carrying on any business, trade, profession or other occupation;

(f) residency on First Nation lands, including matters related to residential tenancies;

(g) trespass on First Nation lands;

(h) public works and undertakings, including buildings, community infrastructure and local services;

(i) raising of revenues, as provided in Part 3; and

(j) generally all matters of a merely local or private nature on the First Nation lands of the recognized First Nation.

(5) Except as otherwise provided in this Act, in the event of a conflict between a First Nation law in relation to a matter set out in subsection (2) or (4) and a federal law, the First Nation law prevails to the extent of the conflict.

(6) Subject to this Act, a recognized First Nation has the power, to the extent provided by its constitution, to make laws in relation to any of the following matters:

(a) administration of justice, including the establishment and designation of courts and tribunals of criminal and civil jurisdiction;

(b) the establishment of administrative boards, tribunals, commissions or other administrative bodies;

(c) emergency preparedness;

(d) provision of health care and services;

(e) transportation, including the construction, maintenance and management of roads, the regulation of traffic, and the control or prohibition of the operation and use of vehicles;

(f) labour relations;

(g) agriculture;

(h) fishing and the protection of fisheries, fish and fish habitat;

(i) control or prohibition of the manufacture, supply, sale, exchange, transport, possession and consumption of intoxicants;

(j) control or prohibition of actions, activities and undertakings that constitute, or may constitute, a threat to public order, peace or safety; and

(k) gaming.

(7) In the event of a conflict between a First Nation law and a federal law in relation to a matter set out in subsection (6), the federal law prevails to the extent of the conflict.

(8) Subject to subsections (3) and (9), a law of a recognized First Nation applies to First Nation lands and all persons on the First Nation lands of the First Nation.

(9) A law of a recognized First Nation may be made applicable only to its citizens.

16. (1) A recognized First Nation may make laws that create offences punishable on summary conviction for contraventions of the laws of the First Nation and provide for the imposition of fines, imprisonment, restitution, community service and any other means for achieving compliance.

(2) Terms of imprisonment or fines for a contravention of a law of a recognized First Nation may be no greater than those that may be imposed under subsection 787(1) of the Criminal Code, except that a First Nation law in relation to environmental protection may provide for a fine that is no greater than the fine that may be imposed for an offence punishable upon summary conviction under federal environmental legislation.

(3) A recognized First Nation may make laws to provide for enforcement measures consistent with those set out in similar federal or provincial legislation, including inspections, searches, seizures, forfeitures, and compulsory sampling, testing and production of information.

(4) Subject to subsection 22(3), a recognized First Nation may, by law, adopt or incorporate by reference the laws of the province in which the First Nation is located relating to proceedings in respect of offences that are created by a law of the province, with such modifications as may be required.

(5) A recognized First Nation may make laws to establish a system of administrative penalties for the contravention of laws of the First Nation, including

(a) setting out the procedures for issuing a notice of violation and the contents of the notice;

(b) establishing the amount of the penalties; and

(c) designating the laws of the First Nation that are subject to enforcement under the system.

(6) A maximum penalty established under paragraph (5)(b) may not exceed that which may be imposed for the breach of a comparable federal or provincial law.

17. (1) Subject to subsection (2), whenever a recognized First Nation intends to commence to exercise its law-making powers under any one or more of paragraphs 15(2)(a) to (h), 15(4)(a) to (j) and 15(6)(a) to (k), the First Nation must, before doing so, notify the Minister of its intention, and upon receiving notification the Minister must enter into negotiations with the First Nation for an agreement respecting the exercise of those powers.

(2) If the First Nation and the Minister agree that an agreement referred to in subsection (1) is not, in the circumstances, required in respect of the commencement of the exercise of a law-making power, the Minister need not enter into negotiations with the First Nation for an agreement respecting the power in question, and subsections (3) to (5) do not apply to the exercise of that law-making power.

(3) The Minister must use his or her best efforts to negotiate an agreement with the First Nation, including terms and conditions respecting the exercise of the law-making power and any financial transfers associated with the implementation and enforcement of laws that are made under that power.

(4) A recognized First Nation may exercise the law-making powers in respect of which notification was given under subsection (1) in accordance with the terms and conditions of the agreement entered into by the First Nation with the Minister.

(5) The Minister must make any regulations that are necessary to give effect to the agreement.

18. (1) The laws of a recognized First Nation must be enacted in the manner provided for in its constitution.

(2) Unless otherwise provided in its constitution or laws, a law of a recognized First Nation comes into force at the beginning of the day following its enactment or at such later time as is specified in the law.

19. A recognized First Nation may make laws or do such other things as may be necessarily incidental to the exercise of jurisdiction set out in this Act or to enable a recognized First Nation to exercise its rights or to carry out its responsibilities under this Act.

Publication and Proof of First Nation Laws

20. (1) Laws of a recognized First Nation must be in writing and available to the public.

(2) A recognized First Nation must maintain a register of all laws enacted by it.

(3) On the enactment of a law by a recognized First Nation, the original of the law must be deposited in the register.

(4) A recognized First Nation must cause the laws it enacts to be published in the First Nations Gazette and, in addition, must make its laws available to the public by

(a) making them freely available on the Internet; or

(b) making them available for scrutiny by the public during normal business hours at the main office of the governing body of the First Nation and providing copies on request at a reasonable charge per page.

(5) Failure to publish a law in the First Nations Gazette does not affect the validity of the law.

(6) The Statutory Instruments Act does not apply to a law of a recognized First Nation, or to any orders, rules, or resolutions of the governing body of the First Nation.

(7) Judicial notice is to be taken of the laws of a recognized First Nation.

(8) In any proceedings, a copy of the law of a recognized First Nation certified as a true copy of the law by an officer of the government of the recognized First Nation is, without proof of that officer’s signature or official character, evidence of its enactment on the date specified in the law.

Enforcement of First Nation Laws

21. (1) The governing body of a recognized First Nation may

(a) appoint and assign duties to government officials, or contract with non-government officials, for the enforcement of First Nation laws on First Nation lands;

(b) appoint officials as Commissioners for the taking of oaths in relation to matters under the jurisdiction of the recognized First Nation; and

(c) in order to provide policing services on First Nation lands,

(i) establish a police force, or

(ii) enter into an agreement with the Government of Canada or with the government of a province for the provision of policing services.

(2) Nothing in this Act affects the enforcement of federal or provincial laws on the First Nation lands of a recognized First Nation.

22. (1) For the purpose of prosecuting offences under the laws of a recognized First Nation, the First Nation may

(a) retain its own prosecutor;

(b) enter into an agreement with the Government of Canada to arrange for a federal agent to prosecute offences; or

(c) enter into an agreement with the Government of Canada and the government of the province in which the First Nation is located to arrange for a provincial prosecutor.

(2) Prosecutions involving a law of a recognized First Nation may be heard before a justice of the peace appointed under this Act, a provincial court of the province in which the First Nation is located, a court established under this Act, or any other court of competent jurisdiction.

(3) The summary conviction procedures of Part XXVII of the Criminal Code apply to the prosecution of offences under a law of a recognized First Nation.

23. Every fine, penalty, or forfeiture and interest thereon imposed under a law of a recognized First Nation or pursuant to this Act in respect of the First Nation belongs to the First Nation.

Administration of Justice

24. (1) A recognized First Nation may appoint justices of the peace to ensure the enforcement of the laws of the First Nation, including the adjudication of offences for contraventions of those laws.

(2) A justice of the peace appointed by a First Nation is to have tenure and remuneration, and be subject to conditions of removal, that reflect the independence of the office of justice of the peace in the province in which the First Nation is located.

(3) A justice of the peace appointed by a First Nation may, in respect of the enforcement of the laws of the First Nation,

(a) perform all the duties and functions, and exercise all the powers, of a justice of the peace appointed for the province in which the First Nation is located; and

(b) exercise any additional powers required to perform his or her duties and functions under this Act, the constitution and the laws of the First Nation.

(4) An appeal lies from a decision of a justice of the peace in the manner in which an appeal lies in summary conviction proceedings under Part XXVII of the Criminal Code and the provisions of that Part relating to appeals apply to appeals under this section.

25. A law of a recognized First Nation establishing a court or tribunal pursuant to its constitution must provide for

(a) security of tenure for members of the court or tribunal sufficient to ensure their independence and the appearance of independence from the governing body of the First Nation;

(b) a system of remuneration for members of the court or tribunal that is independent of any assessment by the governing body, the citizens of the First Nation or any member of the court or tribunal;

(c) a fair and impartial mechanism to remove a member of the court or tribunal in the event of serious misconduct;

(d) the application of the rules of evidence in proceedings before the court or tribunal in the same manner as in the province in which the First Nation is located; and

(e) a system for the prosecution of charges by the First Nation or, where the First Nation does not act, by an informant or by the Attorney General of Canada.

26. (1) Subject to the constitution of a recognized First Nation or the establishment of any court or tribunal by the First Nation under its constitution, a federal court of competent jurisdiction or a court of competent jurisdiction in a province in which the First Nation is located, as the case may be, has jurisdiction with respect to the enforcement of the laws of the First Nation.

(2) A decision of a court or tribunal established by a recognized First Nation may be appealed to

(a) the Federal Court of Appeal; or

(b) the Court of Appeal of the province in which the First Nation is located.

PART 2

FIRST NATION LANDS

27. (1) Title to First Nation lands is not affected by this Act.

(2) For greater certainty, title to First Nation lands that are reserves under the Indian Act continues to be held by Her Majesty for the use and benefit of the recognized First Nation.

28. (1) Licences and interests in First Nation lands approved, created, granted or issued pursuant to the Indian Act and existing as of the date of recognition of the First Nation continue to have effect in accordance with their terms and conditions.

(2) A recognized First Nation has all the rights, powers, responsibilities and privileges of an owner in relation to its First Nation lands and may grant licences and interests in its First Nation lands.

(3) On the date of recognition, the rights and obligations of Her Majesty as grantor in respect of licences and interests in First Nation lands are transferred to the recognized First Nation.

(4) Interests in First Nation lands held on the date of recognition by its citizens pursuant to allotments under subsection 20(1) of the Indian Act are subject to the provisions of any law of the recognized First Nation governing interests in First Nation lands.

29. No First Nation lands of a recognized First Nation, or any interest in such lands, may be alienated to another government except in accordance with this Act and the regulations.

30. (1) No interest in any part of the First Nation lands of a recognized First Nation may be alienated except where it is exchanged for an interest in other lands in accordance with subsection (2).

(2) A recognized First Nation may exchange an interest in its First Nation lands only if

(a) it will receive an interest in lands of greater or equivalent size or value in consideration for the exchange;

(b) Her Majesty is willing to set apart the lands in which the interest is received as “lands reserved for the Indians” under Class 24 of section 91 of the Constitution Act, 1867;

(c) the governing body of the First Nation has taken reasonable measures to inform its citizens of the reasons for the exchange; and

(d) the citizens of the First Nation have approved the exchange in accordance with the approval process established by a law of the First Nation for this purpose.

31. (1) An interest in First Nation lands may only be expropriated by Her Majesty if

(a) the Governor in Council has consented to the expropriation; and

(b) the land is for the use of a federal department or agency.

(2) The Governor in Council may consent to an expropriation of interests in First Nation lands only if

(a) the expropriation is justifiable and necessary for a federal public purpose that serves the national interest;

(b) the expropriated land is of the smallest size required;

(c) the expropriation is for the shortest time possible; and

(d) replacement lands and fair compensation have been provided to the First Nation.

32. (1) A recognized First Nation may by law provide for the registration of interests in its First Nation lands.

(2) Until such time as the laws of a recognized First Nation provide for the registration of interests in its First Nation lands, interests in First Nations lands must be registered in

(a) a land registry maintained by the Minister for that purpose; or

(b) a system established for the registration of interests in First Nation lands pursuant to an agreement between the recognized First Nation and the Minister.

PART 3

FISCAL RELATIONS

33. (1) A recognized First Nation may under a law of the First Nation raise moneys by way of

(a) fees, charges, royalties, permits, licences or other non-tax means;

(b) the direct taxation of its citizens; and

(c) the taxation of persons other than its citizens, to the extent agreed to by the First Nation and the Government of Canada.

(2) Moneys raised by a recognized First Nation must be administered in accordance with the constitution and the financial administration laws of the First Nation.

34. (1) A recognized First Nation may

(a) receive moneys from Her Majesty, from provincial governments and from other entities;

(b) expend, invest, assign or commit moneys received;

(c) borrow moneys, including issuing bonds, temporary debentures, promissory notes or similar forms of obligations; and

(d) perform any other functions regarding financial management and administration that may be required from time to time.

(2) For greater certainty, a recognized First Nation that is a borrowing member of the First Nations Finance Authority is subject to the First Nations Fiscal and Statistical Management Act.

35. (1) Section 87 of the Indian Act applies, subject to subsection (2) and with such modifications as the circumstances require, to a recognized First Nation, its First Nation lands, and its citizens who are Indians within the meaning of that Act.

(2) For the purpose of subsection (1), the reference in section 87 of the Indian Act to a band is to be read as a reference to a recognized First Nation and references to a reserve or to reserve lands are to be read as references to First Nation lands.

36. (1) The Minister must enter into a self-government financial transfer agreement with a recognized First Nation under which funding is provided by the Government of Canada to the recognized First Nation over such period of time, and subject to such terms and conditions, as are specified in the agreement.

(2) Annual transfers provided under the agreement must be transferred to the recognized First Nation at least 60 days before the beginning of the First Nation's fiscal year, unless the agreement provides otherwise.

(3) Federal transfers must be administered in accordance with the provisions of the self-government financial transfer agreement.

37. (1) The purposes of the federal transfers are to

(a) promote equal opportunities for the well-being of the citizens of the recognized First Nation;

(b) further economic, social, cultural and linguistic development in the First Nation to reduce disparities in opportunities among Aboriginal peoples and between Aboriginal peoples and other Canadians; and

(c) ensure that the recognized First Nation can provide public services at levels reasonably comparable to those available to other Canadians.

(2) The capacity of a recognized First Nation to raise its own revenues must be taken into consideration in determining and administering the federal transfers, after a reasonable transition period that allows the recognized First Nation to make substantial progress on the objectives set out in paragraphs (1)(a) to (c).

38. (1) Moneys held by Her Majesty for the use and benefit of a First Nation must be subjected to audited accounting and then transferred to the First Nation within 90 days after it becomes a recognized First Nation.

(2) Her Majesty remains responsible for moneys referred to in subsection (1) until the control of the moneys has been transferred to the recognized First Nation.

(3) No person has, by reason only of citizenship in a recognized First Nation, any claim to, or any power to dispose of, encumber, sever or require a transfer of any interest in, any of the moneys of the recognized First Nation.

(4) All moneys transferred by Her Majesty under this section to a recognized First Nation are deemed to be situated on the First Nation lands of the recognized First Nation.

PART 4

ORGANIZATIONAL OPTIONS

39. (1) A recognized First Nation may authorize its division into two or more recognized First Nations.

(2) A recognized First Nation that proposes to divide must develop a division proposal in accordance with section 5, with such modifications as the circumstances require.

(3) The proposal for division must include provisions to facilitate the transition of the recognized First Nation from being one entity to becoming two or more recognized First Nations.

(4) A division of a recognized First Nation may be effected only with the approval of the First Nation electors, in a referendum in which the division is approved by the electors in the number and majority specified in section 9.

(5) Sections 5 to 10 apply to a proposal and approval for division, with such modifications as the circumstances require.

(6) Upon division, the original recognized First Nation ceases to exist as an entity.

40. (1) A recognized First Nation may authorize its amalgamation with another recognized First Nation or any other First Nation.

(2) First Nations that propose to amalgamate must develop an amalgamation proposal in accordance with section 5, with such modifications as the circumstances require.

(3) The proposal for amalgamation must include provisions to facilitate the transition of the First Nations from being separate entities to becoming a single recognized First Nation.

(4) An amalgamation of recognized First Nations may be effected only with the separate approval of the electors of each recognized First Nation, in a referendum in which the amalgamation is approved by the electors in the number and majority specified in section 9.

(5) An amalgamation of a recognized First Nation and a First Nation that is not a recognized First Nation under this Act may be effected only with

(a) the approval of the electors of the recognized First Nation in a referendum in which the amalgamation is approved by the electors in the number and majority specified in section 9; and

(b) the approval of the eligible voters of the other First Nation in a referendum in which the amalgamation is approved by the eligible voters of the First Nation in the number and majority specified in section 9.

(6) Sections 5 to 10 apply to a proposal for amalgamation, with such modifications as the circumstances require.

(7) Upon amalgamation, the individual First Nations cease to exist as separate entities and continue as a single recognized First Nation.

41. (1) Any two or more recognized First Nations may, by an agreement ratified through a law passed by each of those First Nations, establish a confederation of First Nations to which the recognized First Nations that are parties to the agreement delegate legislative and administrative powers.

(2) A confederation of First Nations has the power to make laws in relation to those matters in respect of which legislative powers are delegated to it by the recognized First Nations that established it.

(3) A confederation of First Nations is a self-governing body with the capacity of a natural person and with the capacity to exercise the powers and privileges and perform the functions of a government that are delegated to it in accordance with this section.

(4) The provisions of this Act that apply to a recognized First Nation apply, with such modifications as the circumstances require, to a confederation of First Nations.

PART 5

GENERAL

Rights and Liabilities

42. For greater certainty, nothing in this Act nor any action taken under it is a waiver of the status of citizens of a recognized First Nation as Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.

43. (1) Unless otherwise provided in the constitution or a law of a recognized First Nation, section 89 of the Indian Act applies, subject to subsection (2) and with such modifications as the circumstances require, to a recognized First Nation, its First Nation lands and its citizens who are Indians within the meaning of that Act.

(2) For the purpose of subsection (1), the references in section 89 of the Indian Act to a band are to be read as references to a recognized First Nation and the references to a reserve are to be read as references to First Nation lands.

Liability

44. (1) A recognized First Nation is not liable in respect of anything done or omitted to be done, before its recognition under this Act, by Her Majesty or any person or body authorized by Her Majesty to act in relation to the First Nation.

(2) Her Majesty must indemnify a recognized First Nation for any loss suffered by the First Nation as a result of an act or omission described in subsection (1).

(3) Her Majesty is not liable in respect of anything done or omitted to be done, after the recognition of a First Nation under this Act, by the First Nation or any person or body authorized by the First Nation to act on its behalf.

(4) The First Nation must indemnify Her Majesty for any loss suffered by Her Majesty as a result of an act or omission described in subsection (3).

45. (1) No individual is personally liable for any debt, obligation or act of a recognized First Nation by reason only of being a member of its governing body unless the debt, obligation or act is in contravention of this Act, the constitution or a law of the recognized First Nation, and the individual knowingly consents to, authorizes or engages in the contravention.

(2) No individual is personally liable for any debt, obligation or act of a recognized First Nation by reason only of being a citizen of the First Nation.

(3) No civil proceedings lie against a member of the governing body of a recognized First Nation or an employee of a recognized First Nation for anything done, or omitted to be done, during the course of the exercise or purported exercise in good faith of any power or the performance or purported performance in good faith of any duty of that person in accordance with this Act, the constitution of the recognized First Nation or a law of the recognized First Nation.

(4) Despite subsections (1) to (3), a recognized First Nation may, in the exercise of its law-making powers under subsection 15(1), make laws concerning the personal immunity from civil liability of employees, officers or members of the governing body and other institutions of the First Nation.

(5) For greater certainty, the government of a recognized First Nation and its institutions are considered public bodies for the purpose of tort claims against the government of the recognized First Nation and its institutions, and the laws of a recognized First Nation may include limitations on any claims made against the First Nation and its government and other institutions.

Immunity and Judicial Review

46. (1) No criminal or civil proceedings lie against a Verifier appointed under this Act who is, in good faith, exercising a power or performing a duty or function in accordance with this Act for anything done or omitted to be done during the course of the exercise or purported exercise of any power or the performance or purported performance of any duty or function of that person in accordance with this Act.

(2) Every determination under this Act by a Verifier is final, and no order may be made, process entered or proceedings taken in any court, whether by way of injunction, certiorari, prohibition, mandamus, quo warranto or otherwise, to question, review or prohibit such a determination.

(3) No order may be made, process entered or proceedings taken in any court, whether by way of injunction, certiorari, prohibition, mandamus, quo warranto or otherwise, to question, review or prohibit any other action under this Act by a Verifier.

(4) Despite subsections (2) and (3), the Attorney General of Canada or anyone directly affected by the matter in respect of which relief is sought may make an application under the Federal Courts Act on any of the grounds referred to in paragraph 18.1(4)(a) or (b) of that Act for any relief against a Verifier, by way of an injunction or declaration or by way of an order in the nature of certiorari, prohibition, mandamus or quo warranto.

General Provisions Respecting Laws

47. (1) Except as otherwise provided in this Act, but despite subsection 50(1), the provisions of the Indian Act or any other Act specifically applicable to Indians or lands reserved for Indians and the regulations made thereunder, do not apply to a recognized First Nation or to its citizens, First Nation lands, moneys or assets.

(2) During any time that a recognized First Nation has no provision in its constitution or laws for a matter covered by any of the following provisions, the following provisions apply to the recognized First Nation:

(a) the Indian Band Election Regulations, the Indian Referendum Regulations, or the Indian Band Council Procedure Regulations, as the case may be, made under the Indian Act;

(b) sections 20 to 34 and sections 37 to 41 of the Indian Act as they relate to designation of lands;

(c) section 114, paragraphs 115(a) to (c) and sections 116 to 122 of the Indian Act as if the references in those provisions to the Minister, a band or a reserve were, respectively, references to the governing body of the recognized First Nation, the recognized First Nation or First Nation lands of the recognized First Nation;

(d) sections 42 to 50 of the Indian Act, with such modifications as the circumstances require; and

(e) sections 5 to 7, 51, 52 and 52.2 to 52.5 of the Indian Act.

(3) A reference in subsection (2) to a provision of the Indian Act or a regulation made under it is a reference to the provision as it read immediately before the coming into force of this Act.

48. (1) A recognized First Nation may incorporate in its laws any provision of an Act of Parliament that is

(a) specifically applicable to Indians or lands reserved for Indians; and

(b) not within the legislative power of the recognized First Nation.

(2) A law of a recognized First Nation that incorporates a provision of an Act referred to in subsection (1) may make such alterations in the language of the provision as may be required to express the law in language compatible with the laws of the recognized First Nation, but without changing the substance of the provision.

(3) After its making, a law described in subsection (1)

(a) may be repealed at any time by the recognized First Nation, and

(b) may be amended only to reflect any changes made by Parliament in the provision of the Act that was incorporated in the law,

and subsection (2) applies to any amendment to that law.

49. Provincial laws of general application do not apply to a recognized First Nation, its governing body, its First Nation lands or its citizens to the extent that those laws are inconsistent or in conflict with

(a) the constitution or laws of the recognized First Nation; or

(b) this Act or any other Act of Parliament.

50. (1) Federal laws continue to apply to a recognized First Nation, its governing body, its First Nation lands and its citizens.

(2) In the event of a conflict between the constitution or law of a recognized First Nation and a federal law, the constitution or law of the recognized First Nation prevails to the extent of the conflict, unless otherwise provided in this Act.

51. For greater certainty,

(a) the fiduciary relationship between Her Majesty and a recognized First Nation continues after the First Nation's date of recognition; and

(b) as a recognized First Nation exercises its law-making powers and authority following recognition, fiduciary obligations owed by Her Majesty to the recognized First Nation will be as determined by the common law respecting fiduciary relationships.

52. Except to the extent of any inconsistency with this Act, with any law of a recognized First Nation or with any provision of its constitution, a by-law of the First Nation made under the Indian Act, other than a by-law made under section 83 of that Act, that is in force immediately before the First Nation becomes a recognized First Nation continues in force as a law of the recognized First Nation until it is replaced by a law enacted by that recognized First Nation.

53. Except to the extent of any inconsistency with this Act, with any law of a recognized First Nation or with any provision of its constitution, a Land Code of the First Nation adopted under the Framework Agreement on First Nation Land Management and the First Nations Land Management Act, that is in force immediately before the First Nation becomes a recognized First Nation continues in force as a law of the recognized First Nation until it is replaced by a law enacted by that recognized First Nation.

54. (1) Except to the extent of any inconsistency with this Act, with any law of a recognized First Nation or with any provision of its constitution, a law respecting the financial administration of the First Nation made under the First Nations Fiscal and Statistical Management Act that is in force immediately before the First Nation becomes a recognized First Nation continues in force as a law of the recognized First Nation until it is replaced by a law enacted by that recognized First Nation.

(2) A recognized First Nation that is named in the schedule to the First Nations Fiscal and Statistical Management Act is deemed to have entered into an agreement with the Government of Canada under paragraph 33(1)(c) of this Act with respect to the power to make laws over taxation, and the First Nations Fiscal and Statistical Management Act applies to that recognized First Nation.

(3) Except to the extent of any inconsistency with this Act, with any law of a recognized First Nation or with any provision of its constitution, a local revenue law made under the First Nations Fiscal and Statistical Management Act that is in force immediately before the First Nation becomes a recognized First Nation continues in force as a law made under that Act until it is replaced by a law enacted by the recognized First Nation.

(4) Any law made by the First Nation in respect of matters referred to in this section must be made in accordance with the First Nations Fiscal and Statistical Management Act.

55. (1) Unless a law of a recognized First Nation otherwise provides, the Indian Oil and Gas Act and any regulations made under that Act apply to the recognized First Nation, its First Nation lands, its governing body, its citizens and its agents, whether incorporated or not, and to a First Nation corporation wholly owned by the recognized First Nation.

(2) In subsection (1), “First Nation corporation” means a corporation incorporated under a law of Canada or a province, or under a law of a recognized First Nation, that has its head office on and carries on its business principally on the First Nation lands of the recognized First Nation and of which the majority of the shares are held by

(a) the recognized First Nation, a citizen of the recognized First Nation, another First Nation or a citizen of the First Nation, or any combination thereof, or a corporation that is controlled by, or all the shares of which are beneficially or legally owned by, any of them or any combination of them; or

(b) a person who holds the shares of the corporation for the benefit of the recognized First Nation, a citizen of the recognized First Nation, another First Nation or a citizen of the First Nation, or any combination of them.

56. Except to the extent of any inconsistency with this Act, with any law of a recognized First Nation or with any provision of its constitution, a law or code made under the First Nations Oil and Gas and Moneys Management Act that is in force immediately before the First Nation becomes a recognized First Nation continues in force as a law of the recognized First Nation until it is replaced by a law enacted by that recognized First Nation.

57. Except to the extent of any inconsistency with this Act, any regulation made under the First Nations Commercial and Industrial Development Act that applies to a recognized First Nation and that is in force immediately before the First Nation becomes a recognized First Nation continues in force as a law of the recognized First Nation until it is replaced by a law enacted by that recognized First Nation.

58. (1) Unless a law of a recognized First Nation otherwise provides, the Canada Lands Surveys Act and any regulations made under that Act apply to First Nation lands of the recognized First Nation.

(2) A recognized First Nation may cause surveys to be made of its First Nation lands in accordance with the Canada Lands Surveys Act and the Canada Lands Surveyors Act.

(3) For the purposes of subsection 29(3) of the Canada Lands Surveyors Act, in relation to the First Nation lands of a recognized First Nation, surveys and plans must be satisfactory to the governing body of the recognized First Nation rather than to the Minister.

(4) Subsection (3) does not apply in relation to boundaries between the First Nations lands of a recognized First Nation and other lands.

59. (1) The environmental standards established by or under any Act of Parliament or the legislature of a province apply in respect of the First Nation lands of a recognized First Nation until the recognized First Nation enacts its own environmental laws.

(2) If a recognized First Nation enacts environmental standards, the standards must be no less stringent and no less protective of the environment than the least stringent of the environmental standards that would be otherwise applicable under federal or provincial law.

Amendments to Acts

60. No Minister of the Crown may introduce in a House of Parliament any bill, including a bill to amend this or any other Act of Parliament, that would affect any right of a recognized First Nation under this Act before providing the recognized First Nation with a reasonable opportunity to consider the proposed bill and giving due consideration to any representations made by the First Nation.

Saving

61. A person who had a right to membership in a First Nation immediately before that First Nation became a recognized First Nation under this Act may not be deprived of citizenship in the recognized First Nation by reason only of a situation that existed, or an action that was taken, before the First Nation became a recognized First Nation under this Act.

Regulations

62. The Governor in Council may, on the recommendation of the Minister and having due regard to any representations made by First Nations to the Minister, make regulations

(a) with respect to the appointment and conduct of a Verifier, including

(i) qualifications of the Verifier,

(ii) terms and conditions for the engagement of the Verifier,

(iii) the form of certificates and notices to be issued by the Verifier, and

(iv) powers of the Verifier to compel information and conduct inquiries into the conduct of a referendum or other approval process;

(b) to give effect to any agreement entered into with a recognized First Nation to recognize additional law-making powers or other powers of the First Nation, including

(i) adapting any provision of this Act or of any regulation made under this Act, and

(ii) restricting the application of any provision of this Act or of any regulation made under this Act;

(c) with respect to the alienation of interests in the First Nation lands of a recognized First Nation, including

(i) procedures in respect of land exchanges and additions to First Nation lands,

(ii) compensation to be provided to a First Nation where Her Majesty seeks to expropriate First Nation lands,

(iii) the status of lands once exchanged or expropriated,

(iv) reversionary interest in First Nation lands,

(v) the return of lands to a First Nation when the lands are no longer required for the purposes for which they are expropriated, and

(vi) the resolution of disputes, including mediation and arbitration — including binding arbitration;

(d) with respect to the fiscal relations between a recognized First Nation and Her Majesty, including

(i) giving effect to any tax or revenue sharing agreement between a First Nation and Her Majesty,

(ii) the coordination of the administration of the tax system of a First Nation and the federal tax system, and

(iii) the terms and conditions of federal transfers to recognized First Nations and the calculation of those transfers; and

(e) generally, for carrying out the purposes and provisions of this Act.

PART 6

CONSEQUENTIAL AMENDMENTS AND COMING INTO FORCE

Consequential Amendments

Access to Information Act

63. Subsection 13(3) of the Access to Information Act is amended by striking out “or” at the end of paragraph (f), by adding “or” at the end of paragraph (g) and by adding the following after paragraph (g):

Fishing and Recreational Harbours Act

64. The definition “agency” in section 2 of the Fishing and Recreational Harbours Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

Indian Act

65. The portion of subsection 87(1) of the Indian Act before paragraph (a) is replaced by the following:

87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, section 5 of the First Nations Fiscal and Statistical Management Act and subsection 33(1) of the First Nations Self-Government Recognition Act, the following property is exempt from taxation:

Lobbying Act

66. Subsection 4(1) of the Lobbying Act is amended by adding the following after paragraph (c):

Payments in Lieu of Taxes Act

67. The definition “taxing authority” in subsection 2(1) of the Payments in Lieu of Taxes Act is amended by adding the following after paragraph (b):

Privacy Act

68. (1) Paragraph 8(2)(f) of the Privacy Act is replaced by the following:

(f) under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province, the governing body of a recognized First Nation within the meaning of the First Nations Self-Government Recognition Act, the council of the Westbank First Nation, the council of a participating First Nation — as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act —, the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, for the purpose of administering or enforcing any law or carrying out a lawful investigation;

(2) Subsection 8(6) of the Act is amended by striking out “or” at the end of paragraph (c), by adding “or” at the end of paragraph (d) and by adding the following after paragraph (d):

69. Subsection 19(1) of the Act is amended by striking out “or” at the end of paragraph (e), by adding “or” at the end of paragraph (f) and by adding the following after paragraph (f):

COMING INTO FORCE

70. This Act comes into force on the day that is one year after the day on which it receives royal assent or on any earlier day that may be fixed by order of the Governor in Council.