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1998 Legislative Session: 3rd Session, 36th Parliament

FIRST READING

The following electronic version is for informational

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The printed version remains the official version.

BILL 51: NIS G A'A FINAL AGREEMENT ACT –

SCHEDULE

CHAPTER 12 OF 22

CHAPTER 12

ADMINISTRATION OF JUSTICE

POLICE SERVICES

General

1. If Nis g a'a Lisims Government decides to provide policing within Nis g a'a Lands, it may do so by:

a. making laws for a Nis g a'a Police Board and a Nis g a'a Police Service under paragraph 3;

b. entering into agreements under which some or all of the policing will be provided by the provincial police service or other police services; or

c. both (

a) and (b).

2. The Parties' objectives are that a Nis g a'a Police Service:

a. be responsive to the needs and priorities of the Nis g a'a Nation;

b. has the full range of police responsibilities and the authority to enforce Nis g a'a laws, the laws of British Columbia, the criminal law, and other federal laws within Nis g a'a lands; and

c. contributes to the administration of justice, the maintenance of social order, and public security.

Establishment of Nis g a'a Police Board and Nis g a'a Police Service

3. If Nis g a'a Lisims Government decides to establish a Nis g a'a Police Service, Nis g a'a Lisims Government will make laws to provide for the establishment, organization, composition, indemnification, and roles and responsibilities of a Nis g a'a Police Board and a Nis g a'a Police Service.

4. Nis g a'a laws under paragraph 3 will include provisions:

a. in substantial conformity with provincial legislation in respect of:

i. minimum standards for certification of members of the Nis g a'a Police Service,

ii. the swearing in of the members of the Nis g a'a Police Service and the Nis g a'a Police Board,

iii. use of force by members of the Nis g a'a Police Service,

iv. discipline and dismissal procedures for members of the Nis g a'a Police Service, and

v. a public complaint procedure; and

b. compatible with provincial legislation in respect of:

i. selection standards for the members of the Nis g a'a Police Service,

ii. a code of conduct for members of the Nis g a'a Police Service,

iii. appropriate mechanisms to ensure police independence, accountability, and competence, and

iv. police operations.

Nis g a'a Police Board

5. The Nis g a'a Police Board will:

a. be independent and accountable in accordance with the standards that apply generally to police boards in British Columbia;

b. provide general direction and training to the Nis g a'a Police Service;

c. determine priorities and goals of the Nis g a'a Police Service;

d. act as the employer of the members of the Nis g a'a Police Service;

e. appoint members of the Nis g a'a Police Service, including a chief constable who, under the direction of the Nis g a'a Police Board, will have general supervision and command over the Nis g a'a Police Service, and will have the powers and authorities necessary to direct the members of the Nis g a'a Police Service;

f. make rules respecting standards for the administration of the Nis g a'a Police Service, the prevention of neglect and abuse by its members, and the efficient discharge of their duties and functions;

g. enforce the code of conduct established for the Nis g a'a Police Service and take any necessary disciplinary action; and

h. enter into agreements from time to time for training, specialized training, mutual support, assistance, and exchange of information and expertise.

6. The Nis g a'a Police Board may exercise its functions when the Lieutenant Governor in Council has:

a. approved the Nis g a'a Police Board's structure and membership qualifications; and

b. appointed the Nis g a'a Police Board's members.

7. An amendment to the Nis g a'a Police Board's structure and membership qualifications will take effect when approved by the Lieutenant Governor in Council.

8. If Nis g a'a Lisims Government has made laws in accordance with paragraphs 3 and 4, the Lieutenant Governor in Council will:

a. approve the Nis g a'a Police Board's structure and membership qualifications;

b. approve any amendment to the structure or membership qualifications; and

c. appoint the members of the Nis g a'a Police Board.

9. If, after Nis g a'a Lisims Government makes a law under paragraph 3, the effect of a change in a provincial law is that the Nis g a'a law ceases to be:

a. in substantial conformity with provincial legislation in respect of the matters set out in subparagraph 4 (a); or

b. compatible with provincial legislation in respect of the matters set out in subparagraph 4 (

b) the Nis g a'a law will be deemed to incorporate the provincial law to the extent necessary for substantial conformity or compatibility, as the case may be, until the Nis g a'a law is amended by Nis g a'a Lisims Government.

10. The Lieutenant Governor in Council will appoint to the Nis g a'a Police Board only individuals who have been recommended by Nis g a'a Lisims Government, and will not revoke the appointment of any Nis g a'a Police Board member, other than for cause, without the concurrence of Nis g a'a Lisims Government.

11. When the Lieutenant Governor in Council has approved the structure and membership qualifications of the Nis g a'a Police Board and appointed its members, Nis g a'a Lisims Government:

a. will provide policing sufficient to maintain law and order within Nis g a'a Lands;

b. will ensure that there are adequate physical resources for the proper operation of police services within Nis g a'a lands; and

c. is jointly and severally liable for torts committed by members of the Nis g a'a Police Service or by other employees of the Nis g a'a Police Board in the performance of their duties.

12. The Nis g a'a Police Board and its members are not liable for torts committed by members of the Nis g a'a Police Service, or by other employees of the Nis g a'a Police Board, in the performance of their duties.

Nis g a'a Police Service

13. A member of the Nis g a'a Police Service:

a. has the powers, duties, privileges, liabilities and responsibilities of a peace officer according to law;

b. has the immunity from personal liability provided to police officers under provincial law; and

c. has authority throughout British Columbia while carrying out the powers, duties, privileges, and responsibilities that a police constable or peace officer is entitled or required to exercise or carry out according to law.

14. If a member of the Nis g a'a Police Service performs duties outside of Nis g a'a Lands, the member will, if possible, notify in advance the municipal police service or the provincial police service of the area in which the member performs duties, but in any case will promptly notify the municipal police service or provincial police service after performing those duties.

15. If a provincial or other police constable performs duties within Nis g a'a Lands, the constable will, if possible, notify the Nis g a'a Police Service in advance, but in any case will notify the Nis g a'a Police Service promptly after performing those duties.

16. The Nis g a'a Police Service and other police forces in British Columbia will respond to requests from one another for temporary assistance in accordance with federal and provincial law.

17. British Columbia will be jointly and severally liable with respect to torts committed by a member of the Nis g a'a Police Service in the performance of the member's duties outside of Nis g a'a Lands.

18. At the request of the Nis g a'a Nation, the Parties will, to the extent of their respective jurisdictions, negotiate and attempt to reach agreements or protocols as may be necessary to enable Nis g a'a Lisims Government to carry out its policing responsibilities, including agreements concerning:

a. the role and responsibility of the provincial police service in the provision of police services within Nis g a'a Lands;

b. mutual assistance and operational cooperation between the Nis g a'a Police Service and other police services;

c. other matters required by this Chapter; and

d. any other matters relating to police services.

19. If the Minister is of the opinion that:

a. effective policing in accordance with standards prevailing elsewhere in British Columbia is not being delivered within Nis g a'a Lands; or

b. it is necessary or desirable to ensure effective delivery of policing in accordance with standards prevailing elsewhere in British Columbia

the Minister, on terms approved by the Lieutenant Governor in Council, may provide or reorganize policing within Nis g a'a Lands by appointing individuals as constables, using the provincial police force to provide policing, or by other means.

20. The Minister will not exercise authority under paragraph 19 if that exercise discriminates against the Nis g a'a Police Service or is aimed at aboriginal police forces generally throughout British Columbia.

21. If practicable, before exercising authority under paragraph 19, the Minister will provide Nis g a'a Lisims Government with:

a. written notice of the reasons or circumstances that form the basis of the Minister's decision to provide or reorganize policing;

b. reasonable opportunity to show cause why no action should be taken; and

c. reasonable opportunity to correct or modify any Nis g a'a Lisims Government acts or omissions that form the basis for the Minister's decision to provide or reorganize policing.

22. If it is not practicable for the Minister to comply with paragraph 21 before exercising authority under paragraph 19, the Minister, after exercising that authority, will forthwith provide Nis g a'a Lisims Government with the notice and opportunities described in paragraph 21.

COMMUNITY CORRECTION SERVICES

23. Nis g a'a Lisims Government may appoint one or more persons to provide community correction services in respect of persons charged with, or convicted of, offences under Nis g a'a laws.

24. At the request of the Nis g a'a Nation, the Nis g a'a Nation and British Columbia will negotiate and attempt to reach agreements to enable the persons appointed under paragraph 23 to provide community correction services within Nis g a'a Lands under provincial legislation.

25. An agreement under paragraph 24 will contain provisions:

a. ensuring that community correction services are delivered in accordance with generally accepted standards;

b. confirming the authority of the official charged with the responsibility for investigations, inspections, and standards under provincial legislation; and

c. for Nis g a'a Lisims Government to provide community correction services consistent with the needs and priorities of the Nis g a'a Nation.

26. The Nis g a'a Nation and British Columbia may enter into agreements to enable the persons appointed under paragraph 23 to provide community correction services outside Nis g a'a Lands under provincial legislation.

27. Persons performing duties under agreements referred to in paragraphs 24 to 26 will comply with all provincial standards respecting professional, personal, and other qualifications, except as modified by those agreements.

28. The Nis g a'a Nation and Canada may enter into agreements:

a. to enable the persons appointed under paragraph 23 to provide community correction services under federal legislation; and

b. for the provision of services or programs for adult and young offenders, including their care and custody.

29. This Agreement does not authorize Nis g a'a Government to establish places of confinement, other than jails or lockups operated by the Nis g a'a Police Service, or as provided for under an agreement referred to in paragraph 28.

NIS G A'A COURT

General

30. Nis g a'a Lisims Government may make laws to provide for the constitution, maintenance, and organization of a Nis g a'a Court for the better administration of Nis g a'a laws.

31. Until Nis g a'a Lisims Government establishes a Nis g a'a Court that has been approved by the Lieutenant Governor in Council, prosecutions under Nis g a'a laws will be heard in the Provincial Court of British Columbia.

32. Any fines collected in respect of a penalty imposed on a person by the Provincial Court of British Columbia for a violation of a Nis g a'a law will be paid to Nis g a'a Lisims Government on a similar basis as British Columbia makes payments to Canada for fines that may be collected by British Columbia for a violation of a federal law.

Establishment of Nis g a'a Court

33. If Nis g a'a Lisims Government decides to establish a Nis g a'a Court, Nis g a'a Lisims Government will make laws to:

a. ensure that the Nis g a'a Court and its judges comply with generally recognized principles in respect of judicial fairness, independence, and impartiality;

b. provide for means of supervision of judges of the Nis g a'a Court by the Judicial Council of British Columbia or other similar means; and

c. provide procedures for appeals from decisions of the Nis g a'a Court.

34. The Nis g a'a Court may exercise its functions when the Lieutenant Governor in Council has approved the Nis g a'a Court's structure, procedures, and method of selection of judges of the Nis g a'a Court.

35. An amendment to the Nis g a'a Court's structure, procedures, or method of selection of judges of the Nis g a'a Court will take effect when approved by the Lieutenant Governor in Council.

36. The Lieutenant Governor in Council will approve the Nis g a'a Court's structure, procedures, and the method of selection of the judges of the Nis g a'a Court or any amendment to the structure, procedures, or method of selection of judges of the Nis g a'a Court, if Nis g a'a Lisims Government has made laws in accordance with paragraph 33.

37. Nis g a'a Lisims Government will appoint the judges of the Nis g a'a Court.

Nis g a'a Court

38. The Nis g a'a Court may exercise the powers and perform all the duties conferred or imposed on it by or under Nis g a'a laws, in respect of:

a. the review of administrative decisions of Nis g a'a Public Institutions;

b. the adjudication of prosecutions under Nis g a'a laws; and

c. the adjudication of disputes arising under Nis g a'a laws between Nis g a'a citizens on Nis g a'a Lands that would be within the jurisdiction of the Provincial Court of British Columbia if the disputes arose under provincial law.

39. The Nis g a'a Court may adjudicate in respect of a dispute not referred to in paragraph 38 if the parties to that dispute, before commencing the proceeding in the Nis g a'a Court, agree:

a. to accept the Nis g a'a Court's authority to decide the dispute and to grant the remedies as between the parties sought in the proceeding; and

b. that any order of the Nis g a'a Court will be final and binding, except for an appeal under paragraph 48.

40. In addition to the matters set out in paragraphs 38 and 39, the Nis g a'a Court may exercise jurisdiction that may be assigned to the Nis g a'a Court by federal or provincial law.

41. The Nis g a'a Court:

a. may impose penalties and other remedies under the laws of Nis g a'a Government, British Columbia, or Canada in accordance with generally accepted principles of sentencing;

b. in disputes under subparagraph 38 (c), may make any order that could be made by the Provincial Court of British Columbia if the disputes arose under provincial law;

c. in disputes under paragraph 39, may grant the remedies sought by the parties;

d. may apply traditional Nis g a'a methods and values, such as using Nis g a'a elders to assist in adjudicating and sentencing, and emphasizing restitution; and

e. may issue process, such as summons, subpoenas, and warrants.

42. Any process issued by the Nis g a'a Court has the same force and effect as process issued by the Provincial Court of British Columbia.

43. In proceedings in which an accused person may receive a sentence of imprisonment under Nis g a'a law, the accused person may elect to be tried in the Provincial Court of British Columbia.

44. The Nis g a'a Court may not impose on a person who is not a Nis g a'a citizen a sanction or penalty different in nature from those generally imposed by provincial or superior courts in Canada, without the person's consent.

Appeals

45. An appeal from a final decision of the Nis g a'a Court in respect of prosecutions under Nis g a'a laws may be taken to the Supreme Court of British Columbia on the same basis as

summary conviction appeals under the Criminal Code of Canada.

46. An appeal from a final decision of the Nis g a'a Court in respect of a review of an administrative decision under subparagraph 38 (

a) may be taken to the Supreme Court of British Columbia on an error of law or jurisdiction.

47. An appeal from a decision of the Nis g a'a Court in respect of a matter under subparagraph 38 (

c) may be taken to the Supreme Court of British Columbia on the same basis as a similar decision could be appealed from the Provincial Court of British Columbia.

48. An appeal from a final decision of the Nis g a'a Court in respect of a matter under paragraph 39 may be taken to the Supreme Court of British Columbia on an error of law or jurisdiction.

Enforcement

49. An order of the Nis g a'a Court may be registered in the Supreme Court of British Columbia and, once registered, will be enforceable as an order of the Supreme Court of British Columbia.

Other

50. The Lieutenant Governor in Council, upon recommendation of Nis g a'a Lisims Government and with the concurrence of the persons or bodies required under provincial law, may appoint a judge of the Nis g a'a Court as a provincial court judge, justice of the peace, or referee.

51. Nis g a'a Lisims Government is responsible for the prosecution of all matters arising from Nis g a'a laws, including appeals, and may carry out this responsibility by:

a. appointing or retaining individuals to conduct prosecutions and appeals, in a manner consistent with the principle of prosecutorial independence and consistent with the overall authority and role of the Attorney General in the administration of justice in British Columbia;

b. entering into agreements with Canada or British Columbia in respect of the conduct of prosecutions and appeals; or

c. both (

a) and (b).

REVIEW

52. The Parties will review this

Chapter no later than 10 years after the effective date, and may amend this

Chapter if all Parties agree.

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