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1998 Legislative Session: 3rd Session, 36th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

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

SCHEDULE

CHAPTER 2 OF 22

CHAPTER 2

GENERAL PROVISIONS

NATURE OF AGREEMENT

1. This Agreement is a treaty and a land claims agreement

within the meaning of sections 25 and 35 of the Constitution Act, 1982.

AGREEMENT IS BINDING

2. This Agreement is binding on the Parties.

3. The Parties are entitled to rely on this Agreement.

4. Canada and British Columbia will recommend to Parliament and

the Legislature of British Columbia, respectively, that settlement legislation provide

that this Agreement is binding on, and can be relied on by, all persons.

REPRESENTATION AND WARRANTY

5. The Nis g a'a Nation represents and warrants to Canada

and British Columbia that, in respect of the matters dealt with in this Agreement, it has

the authority to enter, and it enters, into this Agreement on behalf of all persons who

have any aboriginal rights, including aboriginal title, in Canada, or any claims to those

rights, based on their identity as Nis g a'a.

6. Canada and British Columbia represent and warrant to the Nis g a'a

Nation that, in respect of the matters dealt with in this Agreement, they have the

authority to enter into this Agreement within their respective authorities.

NIS G A'A CULTURE AND LANGUAGE

7. Nis g a'a citizens have the right to practice the Nis g a'a

culture, and to use the Nis g a'a language, in a manner consistent with this

Agreement.

CONSTITUTION OF CANADA

8. This Agreement does not alter the Constitution of Canada,

including:

a. the distribution of powers between Canada and British Columbia;

b. the identity of the Nis g a'a Nation as an aboriginal people

of Canada within the meaning of the Constitution Act, 1982; and

c. sections 25 and 35 of the Constitution Act, 1982.

9. The Canadian Charter of Rights and Freedoms applies

to Nis g a'a Government in respect of all matters within its authority, bearing in

mind the free and democratic nature of Nis g a'a Government as set out in this

Agreement.

10. There are no "lands reserved for the Indians"

within the meaning of the Constitution Act, 1867 for the Nis g a'a Nation, and

there are no "reserves" as defined in the Indian Act for the use and

benefit of a Nis g a'a Village, or an Indian band referred to in the Indian Act

Transition Chapter, and, for greater certainty, Nis g a'a Lands and Nis g a'a

Fee Simple Lands are not "lands reserved for the Indians" within the meaning of

the Constitution Act, 1867 , and are not "reserves" as defined

in the Indian Act.

APPLICATION OF FEDERAL AND PROVINCIAL

LAWS

11. If an authority of British Columbia referred to in this

Agreement is delegated from Canada and:

a. the delegation of that authority is revoked; or

b. if a superior court of a province, the Federal Court of Canada, or

the Supreme Court of Canada finally determines that the delegation of that authority is

invalid

the reference to British Columbia will be deemed to be a

reference to Canada.

12. If an authority of Canada referred to in this Agreement is

delegated from British Columbia and:

a. the delegation of that authority is revoked; or

b. if a superior court of a province, the Federal Court of Canada, or

the Supreme Court of Canada finally determines that the delegation of that authority is

invalid

the reference to Canada will be deemed to be a reference to

British Columbia.

13. Federal and provincial laws apply to the Nis g a'a

Nation, Nis g a'a Villages, Nis g a'a Institutions, Nis g a'a Corporations,

Nis g a'a citizens, Nis g a'a Lands, and Nis g a'a Fee Simple Lands, but:

a. in the event of an inconsistency or conflict between this

Agreement and the provisions of any federal or provincial law, this Agreement will prevail

to the extent of the inconsistency or conflict; and

b. in the event of an inconsistency or conflict between settlement

legislation and the provisions of any other federal or provincial law, the settlement

legislation will prevail to the extent of the inconsistency or conflict.

14. Any licence, permit, or other authorization, including the

Commercial Recreation Tenure required to be issued by Canada or British Columbia as a

result of this Agreement, will be issued under federal or provincial law, as the case may

be, and is not part of this Agreement, but in the event of an inconsistency or conflict

between this Agreement and:

a. that federal or provincial law; or

b. any term or condition of the licence, permit, or other

authorization

this Agreement will prevail to the extent of the inconsistency

or conflict.

OTHER RIGHTS, BENEFITS, AND PROGRAMS

15. Nis g a'a citizens who are Canadian citizens or

permanent residents of Canada continue to be entitled to all of the rights and benefits of

other Canadian citizens or permanent residents of Canada, applicable to them from time to

time.

16. Subject to paragraph 6 of the Fiscal Relations Chapter,

nothing in this Agreement affects the ability of the Nis g a'a Nation, Nis g a'a

Villages, Nis g a'a Institutions, Nis g a'a Corporations or Nis g a'a

citizens to participate in, or benefit from, federal or provincial programs for aboriginal

people, registered Indians or other Indians, in accordance with general criteria

established for those programs from time to time.

17. Nothing in this Agreement affects the ability of the Nis g a'a

Nation, Nis g a'a Villages, Nis g a'a Institutions, Nis g a'a Corporations,

or Nis g a'a citizens to apply for or bid on any commercial, economic or other

activity or project for which they would otherwise be eligible.

18. Subject to the Indian Act Transition

Chapter and

paragraphs 5 and 6 of the Taxation Chapter, the Indian Act has no application to

the Nis g a'a Nation, Nis g a'a Villages, Nis g a'a Institutions, or Nis g a'a

citizens as of the effective date, except for the purpose of determining whether an

individual is an "Indian".

JUDICIAL DETERMINATIONS IN RESPECT OF

VALIDITY

19. If a superior court of a province, the Federal Court of

Canada, or the Supreme Court of Canada finally determines any provision of this Agreement

to be invalid or unenforceable:

a. the Parties will make best efforts to amend this Agreement to

remedy or replace the provision; and

b. the provision will be severable from this Agreement to the extent

of the invalidity or unenforceability, and the remainder of this Agreement will be

construed, to the extent possible, to give effect to the intent of the Parties.

20. No Party will challenge, or support a challenge to, the

validity of any provision of this Agreement.

21. A breach of this Agreement by a Party does not relieve any

Party from its obligations under this Agreement.

FULL AND FINAL SETTLEMENT

22. This Agreement constitutes the full and final settlement in

respect of the aboriginal rights, including aboriginal title, in Canada of the Nis g a'a

Nation.

NIS G A'A

SECTION 35 RIGHTS

23. This Agreement exhaustively sets out Nis g a'a

section

35 rights, the geographic extent of those rights, and the limitations to those rights, to

which the Parties have agreed, and those rights are:

a. the aboriginal rights, including aboriginal title, as modified by

this Agreement, in Canada of the Nis g a'a Nation and its people in and to Nis g a'a

Lands and other lands and resources in Canada;

b. the jurisdictions, authorities, and rights of Nis g a'a

Government; and

c. the other Nis g a'a

section 35 rights.

MODIFICATION

24. Notwithstanding the common law, as a result of this

Agreement and the settlement legislation, the aboriginal rights, including the aboriginal

title, of the Nis g a'a Nation, as they existed anywhere in Canada before the

effective date, including their attributes and geographic extent, are modified, and

continue as modified, as set out in this Agreement.

25. For greater certainty, the aboriginal title of the Nis g a'a

Nation anywhere that it existed in Canada before the effective date is modified and

continues as the estates in fee simple to those areas identified in this Agreement as Nis g a'a

Lands or Nis g a'a Fee Simple Lands.

RELEASE

26. If, despite this Agreement and the settlement legislation,

the Nis g a'a Nation has an aboriginal right, including aboriginal title, in Canada,

that is other than, or different in attributes or geographical extent from, the Nis g a'a

section 35 rights as set out in this Agreement, the Nis g a'a Nation releases that

aboriginal right to Canada to the extent that the aboriginal right is other than, or

different in attributes or geographical extent from, the Nis g a'a

section 35 rights

as set out in this Agreement.

27. The Nis g a'a Nation releases Canada, British Columbia

and all other persons from all claims, demands, actions, or proceedings, of whatever kind,

and whether known or unknown, that the Nis g a'a Nation ever had, now has or may have

in the future, relating to or arising from any act, or omission, before the effective date

that may have affected or infringed any aboriginal rights, including aboriginal title, in

Canada of the Nis g a'a Nation.

CONSULTATION

28. When Canada and British Columbia have consulted with or

provided information to the Nis g a'a Nation in respect of any activity, including a

resource development or extraction activity, in accordance with their obligations under

this Agreement and federal and provincial legislation, Canada and British Columbia will

not have any additional obligations under this Agreement to consult with or provide

information to the Nis g a'a Nation in respect of that activity.

PROVINCIAL LAW

29. Canada will recommend to Parliament that federal settlement

legislation include a provision that, to the extent that a law of British Columbia does

not apply of its own force to the Nis g a'a Nation, Nis g a'a Villages, Nis g a'a

Institutions, Nis g a'a Corporations, or Nis g a'a citizens, that law of British

Columbia will, subject to the federal settlement legislation and any other Act of

Parliament, apply in accordance with this Agreement to the Nis g a'a Nation, Nis g a'a

Villages, Nis g a'a Institutions, Nis g a'a Corporations, or Nis g a'a

citizens, as the case may be.

INDEMNITIES

30. The Nis g a'a Nation will indemnify and save harmless

Canada or British Columbia, as the case may be, from any:

a. costs, excluding fees and disbursements of solicitors and other

professional advisors;

b. damages;

c. losses; or

d. liabilities

that Canada or British Columbia, respectively, may suffer or

incur in connection with, or as a result of, any claims, demands, actions, or proceedings

relating to, or arising out of, any act, or omission, before the effective date that may

have affected or infringed any aboriginal rights, including aboriginal title, in Canada of

the Nis g a'a Nation.

31. The Nis g a'a Nation will indemnify and save harmless

Canada or British Columbia, as the case may be, from any:

a. costs, excluding fees and disbursements of solicitors and other

professional advisors;

b. damages;

c. losses; or

d. liabilities

that Canada or British Columbia, respectively, may suffer or

incur in connection with or as a result of any claims, demands, actions, or proceedings

relating to, or arising out of, the existence of an aboriginal right, including aboriginal

title, in Canada of the Nis g a'a Nation, that is other than, or different in

attributes or geographical extent from, the Nis g a'a

section 35 rights as set out in

this Agreement.

32. A Party who is the subject of a claim, demand, action, or

proceeding that may give rise to a requirement to provide payment to that Party pursuant

to an indemnity under this Agreement:

a. will vigorously defend the claim, demand, action, or proceeding;

and

b. will not settle or compromise the claim, demand, action, or

proceeding except with the consent of the Party who has granted that indemnity, which

consent will not be arbitrarily or unreasonably withheld or delayed.

OTHER ABORIGINAL PEOPLE

33. Nothing in this Agreement affects, recognizes, or provides

any rights under

section 35 of the Constitution Act, 1982 for any aboriginal people

other than the Nis g a'a Nation.

34. If a superior court of a province, the Federal Court of

Canada, or the Supreme Court of Canada finally determines that any aboriginal people,

other than the Nis g a'a Nation, has rights under

section 35 of the Constitution

Act, 1982 that are adversely affected by a provision of this Agreement:

a. the provision will operate and have effect to the extent that it

does not adversely affect those rights; and

b. if the provision cannot operate and have effect in a way that it

does not adversely affect those rights, the Parties will make best efforts to amend this

Agreement to remedy or replace the provision.

35. If Canada or British Columbia enters into a treaty or a

land claims agreement, within the meaning of sections 25 and 35 of the Constitution

Act, 1982 , with another aboriginal people, and that treaty or land claims agreement

adversely affects Nis g a'a

section 35 rights as set out in this Agreement:

a. Canada or British Columbia, or both, as the case may be, will

provide the Nis g a'a Nation with additional or replacement rights or other

appropriate remedies;

b. at the request of the Nis g a'a Nation, the Parties will

negotiate and attempt to reach agreement on the provision of those additional or

replacement rights or other appropriate remedies; and

c. if the Parties are unable to reach agreement on the provision of

the additional or replacement rights or other appropriate remedies, the provision of those

additional or replacement rights or remedies will be determined in accordance with Stage

Three of the Dispute Resolution Chapter.

AMENDMENT PROVISIONS

36. Except for any provision of this Agreement that provides

that an amendment requires the consent of only the Nis g a'a Nation and either Canada

or British Columbia, all amendments to this Agreement require the consent of all three

Parties.

37. Canada will give consent to an amendment to this Agreement

by order of the Governor in Council.

38. British Columbia will give consent to an amendment to this

Agreement by resolution of the Legislature of British Columbia.

39. If federal or provincial legislation is required to give

effect to an amendment to this Agreement, Canada or British Columbia, as the case may be,

will take all reasonable steps to enact the legislation.

40. The Nis g a'a Nation will give consent to an amendment

to this Agreement by a resolution adopted by at least two thirds of the elected members of

Nis g a'a Lisims Government.

41. An amendment to this Agreement takes effect on a date

agreed to by the parties to the amendment, but if no date is agreed to, on the date that

the last Party required to consent to the amendment gives its consent.

42. Notwithstanding paragraphs 37 to 41, if the Nis g a'a

Nation adds land to Nis g a'a Lands in accordance with paragraph 9 or 11 of the Lands

Chapter, Appendix A will be deemed to be amended upon receipt by Canada and British

Columbia of the written notice referred to in paragraph 9 or 11 of the Lands Chapter.

43. Notwithstanding paragraphs 37 to 41, whenever:

a. this Agreement provides:

i. that the Nis g a'a Nation and Canada or British Columbia

will negotiate and attempt to reach agreement in respect of a matter that will result in

an amendment to this Agreement, including a change to an Appendix, and

ii. that if agreement is not reached, the matter will be finally

determined by arbitration under the Dispute Resolution Chapter; and

b. those Parties have negotiated an agreement or the matter is

determined by arbitration

this Agreement will be deemed to be amended on the date the

agreement or arbitrator's decision takes effect, as the case may be.

FREEDOM OF INFORMATION AND PRIVACY

44. For the purposes of federal and provincial access to

information and privacy legislation, information that Nis g a'a Government provides

to Canada or British Columbia in confidence is deemed to be information received or

obtained in confidence from another government.

45. If Nis g a'a Government requests disclosure of

information from Canada or British Columbia, the request will be evaluated as if it were a

request by a province for disclosure of that information, but Canada and British Columbia

are not required to disclose to Nis g a'a Government information that is only

available to a particular province or particular provinces.

46. The Parties may enter into agreements in respect of any one

or more of the collection, protection, retention, use, disclosure, and confidentiality of

personal, general, or other information.

47. Canada or British Columbia may provide information to Nis g a'a

Government in confidence if Nis g a'a Lisims Government has made a law or has entered

into an agreement with Canada or British Columbia, as the case may be, under which the

confidentiality of the information will be protected.

48. Notwithstanding any other provision of this Agreement:

a. Canada and British Columbia are not required to disclose any

information that they are required to withhold under any federal or provincial law;

b. if federal or provincial legislation allows the disclosure of

certain information only if specified conditions for disclosure are satisfied, Canada and

British Columbia are not required to disclose that information unless those conditions are

satisfied; and

c. the Parties are not required to disclose any information that may

be withheld under a privilege at law or under sections 37 to 39 of the Canada Evidence

Act .

OBLIGATION TO NEGOTIATE

49. Whenever the Parties are obliged under any provision of

this Agreement to negotiate and attempt to reach agreement, unless the Parties otherwise

agree, all Parties will participate in the negotiations.

50. Whenever this Agreement provides that the Parties, or any

of them, "will negotiate and attempt to reach agreement", those negotiations

will be conducted as set out in the Dispute Resolution Chapter, but, the Parties or any of

them, are not obliged to proceed to Stage Three of the Dispute Resolution

Chapter unless,

in a particular case, they are required to do so under paragraph 28 of the Dispute

Resolution Chapter.

51. Except as set out in this Agreement, an agreement that is

reached as a result of negotiations that are required or permitted under any paragraph of

this Agreement is not part of this Agreement.

CONFLICT AND INCONSISTENCY

52. In this Agreement:

a. there is a conflict between laws if compliance with one law would

be a breach of the other law; and

b. laws are not inconsistent merely because they make provision for

the same subject matter.

53. If a Nis g a'a law has an incidental impact on a

subject matter in respect of which Nis g a'a Government does not have jurisdiction to

make laws, and there is an inconsistency or conflict between that incidental impact and a

federal or provincial law in respect of that subject matter, the federal or provincial law

prevails to the extent of the inconsistency or conflict.

ENTIRE AGREEMENT

54. This Agreement is the entire agreement among the Parties in

respect of the subject matter of this Agreement and, except as set out in this Agreement,

there is no representation, warranty, collateral agreement, condition, right, or

obligation affecting this Agreement.

55. The Schedules and Appendices to this Agreement form part of

this Agreement.

INTERPRETATION

56. Except as set out in this Agreement, in the event of an

inconsistency or conflict between a provision of this

Chapter and any other provision of

this Agreement, the provision of this

Chapter prevails to the extent of the inconsistency

or conflict.

57. There is no presumption that doubtful expressions, terms or

provisions in this Agreement are to be resolved in favour of any particular Party.

58. In this Agreement:

a. the use of the word "will" denotes an obligation that,

unless this Agreement provides to the contrary, must be carried out as soon as practicable

after the effective date or the event that gives rise to the obligation;

b. unless it is otherwise clear from the context, the use of the word

"including" means "including, but not limited to", and the use of the

word "includes" means "includes, but is not limited to";

c. unless it is otherwise clear from the context, a reference to a

"Chapter", "paragraph", "subparagraph",

"Schedule", or "Appendix" means a chapter, paragraph, subparagraph,

schedule, or appendix, respectively, of this Agreement;

d. unless it is otherwise clear from the context, a reference in a

chapter of this Agreement to a "paragraph", "subparagraph", or

"Schedule" means a paragraph, subparagraph, or

schedule of that chapter;

e. headings and subheadings are for convenience only, do not form a

part of this Agreement, and in no way define, limit, alter, or enlarge the scope or

meaning of any provision of this Agreement;

f. a reference to a statute includes every amendment to it, every

regulation made under it, and any law enacted in substitution for, or in replacement of,

it;

g. unless it is otherwise clear from the context,

"provincial" refers to the province of British Columbia; and

h. unless it is otherwise clear from the context, the use of the

singular includes the plural, and the use of the plural includes the singular.

NO IMPLIED WAIVER

59. A provision of this Agreement, or the performance by a

Party of an obligation under this Agreement, may not be waived unless the waiver is in

writing and signed by the Party or Parties giving the waiver.

60. No written waiver of a provision of this Agreement, of

performance by a Party of an obligation under this Agreement, or of default by a Party of

an obligation under this Agreement, will be a waiver of any other provision, obligation,

or subsequent default.

TIME OF THE ESSENCE

61. Time is of the essence in this Agreement.

ASSIGNMENT

62. Unless otherwise agreed to by the Parties, this Agreement

may not be assigned, either in whole or in part, by any Party.

ENUREMENT

63. This Agreement will enure to the benefit of and be binding

upon the Parties and their respective permitted assigns.

NOTICE

64. In paragraphs 65 to 68, "communication" includes

a notice, document, request, approval, authorization, or consent.

65. Unless otherwise set out in this Agreement, a communication

between or among the Parties under this Agreement must be:

a. delivered personally or by courier;

b. transmitted by fax; or

c. mailed by prepaid registered post in Canada.

66. A communication will be considered to have been given,

made, or delivered, and received:

a. if delivered personally or by courier, at the start of business on

the next business day after the business day on which it was received by the addressee or

a responsible representative of the addressee;

b. if transmitted by fax and the sender receives confirmation of the

transmission, at the start of business on the business day next following the day on which

it was transmitted; or

c. if mailed by prepaid registered post in Canada, when the postal

receipt is acknowledged by the addressee.

67. In addition to the provisions of paragraphs 65 and 66, the

Parties may agree to give, make, or deliver a communication by means other than those

provided in paragraph 65.

68. The Parties will provide to each other addresses for

delivery of communications under this Agreement, and subject to paragraph 69, will deliver

a communication to the address provided by each other Party.

69. If no other address for delivery of a particular

communication has been provided by a Party, a communication will be delivered, mailed to

the address, or transmitted to the fax number, of the intended recipient as set out below:

For:

Canada

Attention:

Minister of Indian Affairs and Northern Development

House of Commons

Room 583, Confederation Building

Ottawa, Ottawa

K1A 0A6

Fax Number:

(819) 953-4941

For:

British Columbia

Attention:

Minister of Aboriginal Affairs

Room 325, Parliament Buildings

Victoria, British Columbia

V8V 1X4

Fax Number:

(250) 356-1124

For:

Nis g a'a Nation

Attention:

President

P.O. Box 231

New Aiyansh, British Columbia

V0J 1A0

Fax Number:

(250) 633-2367

70. A Party may change its address or fax number by giving a

notice of the change to the other Parties.

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