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2004 Legislative Session: 5th Session, 37th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

HONOURABLE GEORGE ABBOTT

MINISTER OF SUSTAINABLE

RESOURCE MANAGEMENT

BILL 27 – 2004

AGRICULTURAL LAND COMMISSION

AMENDMENT ACT, 2004

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Section 1 of the Agricultural Land Commission Act, S.B.C. 2002, c. 36, is amended

(

a) by renumbering the

section as

section 1 (1),

(

b) in subsection (1) by adding the following

definitions:

"agreement in principle" means a non-binding agreement, negotiated among a first nation government, the Province and Canada in accordance with a process developed under the Treaty Commission Act , that

(

a) has been approved by each party in accordance with the approval process provided in the agreement in principle, and

(

b) contemplates that legislative authority over all or part of the proposed treaty settlement lands described in the agreement in principle will, under a final agreement or a governance agreement and an enactment of the Province or Canada, be provided to the first nation;

"enactment of the Province or Canada" includes an enactment as defined in the

Interpretation Act (Canada);

"first nation government" means,

(

a) in relation to treaty settlement lands, the governing body of the first nation that has legislative authority over the treaty settlement lands, and

(

b) in relation to proposed treaty settlement lands, an aboriginal governing body that

(

i) the first nation, in relation to which an agreement in principle applying to those lands has been entered into, has organized and established within its traditional territory in British Columbia, and

(ii) has been mandated by the members of that first nation to enter into treaty negotiations on their behalf in accordance with a process developed under the Treaty Commission Act ;

"law" , in relation to a first nation government described in paragraph (

a) of the definition of "first nation government", means the result of the exercise by the first nation government of legislative authority provided to the first nation under

(

a) an enactment of the Province or Canada, or

(

b) a final agreement or a governance agreement, negotiated among the first nation government, the Province and Canada in accordance with a process developed under the Treaty Commission Act , and an enactment of the Province or Canada;

"notice to suspend negotiations" means a notice to suspend negotiations sent by one party to an agreement in principle to the other parties;

"person" includes a first nation government;

"proposed treaty settlement lands" means land described in an agreement in principle as the land that will become, in whole or in part, the first nation's treaty settlement lands under a final agreement or a governance agreement and an enactment of the Province or Canada;

"treaty settlement lands" means land, other than land located within a reserve as defined in the Indian Act (Canada), that is subject to the legislative authority of a first nation under

(

a) an enactment of the Province or Canada, or

(

b) a final agreement or a governance agreement, negotiated

among the first nation government, the Province and Canada in accordance with

a process developed under the Treaty Commission Act , and an enactment

of the Province or Canada. ,

(

c) in subsection (1) by repealing the definition of ' "owner"

or "owner of land" ' and substituting the following:

"owner" , subject to subsection (2), means

(

a) in relation to land registered in the records of the land title office, the person registered in those records as the fee simple owner of the land,

(

b) in relation to treaty settlement lands,

(

i) if an agreement under this Act between a first nation government and the commission defines "owner" for the purposes of the application of this Act to the treaty settlement lands of the first nation, a person described by that definition, and

(ii) otherwise, the first nation government,

(

c) in relation to land vested in a municipality under

section 35 of the Community Charter , the municipality, and

(

d) in relation to Crown land, the government; ,

and

(

d) by adding the following subsections:

(2) For the purposes of an application under

section 17 (3), 20 (3), 21 (2) or 30 (1) in relation to proposed treaty settlement lands, the first nation government may apply as if it were the owner of those lands from the date that

(

a) an agreement in principle in relation to those lands is approved by each party to it in accordance with the agreement in principle, or

(

b) if a notice to suspend negotiations has earlier taken effect, an agreement among the parties to the agreement in principle to resume negotiations takes effect,

until the earlier of the following dates:

(

c) the date an enactment of the Province or Canada establishes all or part of the proposed treaty settlement lands as treaty settlement lands;

(

d) the date that a notice to suspend negotiations takes effect.

(3) For the period that a first nation government is authorized to make an application in relation to proposed treaty settlement lands, the owner of that land may not make an application.

Section 5 (1) is amended by striking out " or local government. "

and substituting " , local government or first nation government. "

Section 13 is amended

(

a) in subsection (1) by adding the following paragraph:

(

e) the form and content of a first nation government's

plan that has the same or similar purposes as an official community plan of

a local government. , and

(

b) in subsections (2) and (3) by adding " or the first nation

government, as applicable, " after " local government ".

Section 17 is amended

(

a) in subsection (1) by striking out " for land within the local

government's jurisdiction, " and substituting " in respect of land

within the local government's jurisdiction or by a first nation government in

respect of the first nation's treaty settlement lands, ",

(

b) by repealing subsection (2) and substituting the following:

(2) For a matter under subsection (1), a public hearing must be held in the manner, and after giving the notice, required by the regulations, by

(

a) the commission, if the commission is acting on its own initiative,

(

b) the local government before making an application, and

(

c) the first nation government before making an application.

, and

(

c) by adding the following subsections:

(4) A decision of the commission granting an application under subsection (3) in relation to proposed treaty settlement lands may not be made effective unless and until those lands are established, in whole or in part, as treaty settlement lands.

(5) Unless a decision granting an application under subsection (3) first becomes effective under subsection (4), the decision expires on the earlier of the following dates:

(

a) the date the decision expires according to its terms;

(

b) the date that a notice to suspend negotiations takes effect.

Section 18 (

a) is amended by striking out everything before subparagraph

(

i) and substituting " a local government, a first nation government

or an authority, or a board or other agency established by a local government,

a first nation government or an authority, or a person or agency that enters

into an agreement under the Local Services Act may not ".

Section 25 is amended

(

a) in subsection (3) by striking out " An application under

this

section " and substituting " An application referred to in

subsection (1), except such an application from a first nation government, ",

(

b) by adding the following subsection:

(3.1) An application referred to in subsection (1) in

relation to treaty settlement lands may not proceed unless authorized by a law

of the first nation government of the first nation that has legislative authority

over the treaty settlement lands. ,

(

c) in subsection (4) by striking out " under this section, "

and substituting " referred to in subsection (1), ", and

(

d) by adding the following subsections:

(4.1) A decision of the commission under subsection (1) (

b) or (

c) in relation to proposed treaty settlement lands may not be made effective unless and until

(

a) those lands are established, in whole or in part, as treaty settlement lands, and

(

b) the first nation government in relation to those treaty settlement lands enacts a law approving the commission's decision and provides a certified copy of the law to the commission.

(4.2) Unless a decision under subsection (1) (

b) or (

c) first becomes effective under subsection (4.1), the decision expires on the earlier of the following dates:

(

a) the date the decision expires according to its terms;

(

b) the date that a notice to suspend negotiations takes effect.

Section 26 is amended

(

a) in subsection (1) by striking out " or an authority "

and substituting " , a first nation government or an authority "

and by striking out " or authority: " and substituting " ,

first nation government or authority: ",

(

b) in subsection (1) by adding the following paragraph:

(

c) a first nation government in respect of treaty settlement

lands. ,

(

c) in subsection (3) by striking out " or authority " and

substituting " , first nation government or authority ",

(

d) in subsection (4) by adding " and a decision of a first nation

government under this

section must be made by a law of the first nation government "

after " governing body of the authority ",

(

e) in subsection (5) by striking out " or an authority "

and substituting " , a first nation government or an authority "

and by striking out " or authority " and substituting " ,

first nation government or authority ",

(

f) in subsection (6) by adding " or first nation government "

before " under

section 34 (3) ",

(

g) in subsection (7) by striking out " or an authority "

and substituting " , a first nation government or an authority ",

(

h) in subsection (7) (

a) by striking out " or authority "

and substituting " , first nation government or authority ", and

(

i) by adding the following subsection:

(8) If the commission enters into an agreement under subsection (1) (

c) with a first nation government in relation to treaty settlement lands, that agreement or another agreement under this Act must include a definition of "owner" for the purposes of paragraph (b) (

i) of the definition of "owner" in

section 1 (1).

Section 27 (6) is amended by striking out " or an authority "

and substituting " , a first nation government or an authority ".

Section 29 is amended

(

a) in subsection (1) by striking out everything before paragraph (

a) and substituting the following " On the commission's own initiative or

on application by a local government in respect of land within the local government's

jurisdiction or by a first nation government in respect of the first nation's

treaty settlement land, the commission may ", and

(

b) by repealing subsection (2) and substituting the following:

(2) For a matter under subsection (1), a public hearing must be held in the manner, and after giving the notice, required by the regulations, by

(

a) the commission, if the commission is acting on its own initiative,

(

b) the local government before making an application, and

(

c) the first nation government before making an application.

Section 30 is amended

(

a) in subsection (4) by striking out " An application under

this

section " and substituting " An application under this section,

except an application from a first nation government, ", and

(

b) by adding the following subsections:

(4.1) An application under this

section in relation to treaty settlement lands may not proceed unless authorized by a law of the first nation government of the first nation that has legislative authority over the treaty settlement lands.

(5.1) A decision of the commission under subsection (2) (

b) or (

c) in relation to proposed treaty settlement lands may not be made effective unless and until

(

a) those lands are established, in whole or in part, as treaty settlement lands, and

(

b) the first nation government in relation to those treaty settlement lands enacts a law approving the commission's decision and provides a certified copy of the law to the commission.

(5.2) Unless a decision under subsection (2) (

b) or (

c) first becomes effective under subsection (5.1), the decision expires on the earlier of the following dates:

(

a) the date the decision expires according to its terms;

(

b) the date a notice to suspend negotiations takes effect.

Section 31 is amended by striking out " , bylaws of the local

government, " and substituting " , bylaws of the local government,

laws of the first nation government, ".

Section 32 is amended by striking out " local government "

and substituting " local government or first nation government ".

Section 33 (3) is amended by striking out " a local government

or " and substituting " a local government, a first nation government

or " and by striking out " the local government or " and by

substituting " the local government, first nation government or ".

Section 34 is amended

(

a) in subsection (2) by striking out " A local government "

and substituting " A local government or a first nation government ",

(

b) in subsection (3) by striking out " and " at the end

of paragraph (b), by adding " , and " at the end of paragraph (

c) and by adding the following paragraph:

(

d) to the first nation government, if the land described

in the application is in the treaty settlement lands of the first nation. ,

(

c) by adding the following subsection:

(3.1) Despite subsection (3), a first nation government that makes an application as the owner of proposed treaty settlement lands must do so by

(

a) submitting the application, and

(

b) except in the case of an application under

section 17 (3), paying the prescribed fee

to the commission. ,

(

d) in subsection (4) by striking out " A local government "

and substituting " A local government or a first nation government ",

(

e) in subsection (4) (

b) by striking out " the local government's

comments and recommendations concerning the application. " and substituting

" the comments and recommendations of the local government or the first

nation government in respect of the application. ",

(

f) by repealing subsection (5) and substituting the following:

(5) If

section 25 (3) or (3.1) or 30 (4) or (4.1) applies

in relation to an application or proposed application and the required resolution

or law is refused, the requirement in subsection (4) (

b) of this

section does

not apply. , and

(

g) in subsection (7) by striking out " local government "

and substituting " local government or first nation government ".

Section 35 is amended

(

a) in subsection (1) by striking out " A local government "

and substituting " A local government or first nation government ",

(

b) by repealing subsection (2) and substituting the following:

(2) Despite subsection (1), if

section 25 (3) or (3.1)

or 30 (4) or (4.1) applies in relation to an application or proposed application

and the required resolution or law is refused, the local government or first

nation government, as applicable, must return to the applicant the portion of

the application fee that would otherwise be remitted to the commission under

subsection (1) (

b) of this section. ,

(

c) in subsection (3) by striking out " local government officer "

and substituting " local government officer or the official designated

for this purpose by the first nation government ", and

(

d) in subsection (5) by striking out " local government "

in both places and substituting " local government or first nation government ".

Section 36 (1) is amended by striking out " under

section 34 "

and substituting " referred to in

section 34 ".

Section 38 is amended by striking out " a local government, "

and substituting " a local government, a first nation government, ".

Section 40 (4) is amended by striking out " local government "

and substituting " local government, a first nation government ".

Section 46 is amended

(

a) in subsection (1) by striking out " and " at the end

of paragraph (a), by adding " , and " at the end of paragraph (

b) and by adding the following paragraph:

(

c) a first nation government law respecting land use

within the treaty settlement lands of the first nation government. ,

(

b) by repealing subsection (2) and substituting the following:

(2) A local government in respect of its bylaws and a

first nation government in respect of its laws must ensure consistency with

this Act, the regulations and the orders of the commission. ,

(

c) in subsections (3), (4) and (6) by striking out " bylaw "

and substituting " local government bylaw or a first nation government

law ",

(

d) in subsection (5) by striking out " a bylaw " and substituting

" a local government bylaw or a first nation government law " and

by striking out " further bylaw, " and substituting " further

bylaw or law, ", and

(

e) in subsection (7) by striking out " bylaws " and substituting

" local government bylaws or first nation government laws ".

Section 48 is amended by striking out " a local government "

and substituting " a local government, a first nation government ".

Section 56 is amended

(

a) in subsection (1) by striking out " a local government "

and substituting " a local government, a first nation government ",

(

b) in subsection (1) (

a) and (

b) by striking out " the local

government " and substituting " the local government, first nation

government ", and

(

c) in subsection (2) by striking out " a local government "

and substituting " a local government or a first nation government "

and by striking out " the local government " and substituting " the

local government or first nation government ".

Section 58 (2) is amended

(

a) in paragraph (

b) by striking out " enactment; " and

substituting " enactment or a law of a first nation government; ",

(

b) by repealing paragraph (

g) and substituting the following:

(

g) respecting the manner of holding hearings and meetings,

obtaining public comment and prescribing notice requirements for applications,

hearing and other matters, which regulations may be different for different

categories of persons; ,

(

c) in paragraph (

h) by striking out " a local government, "

and substituting " a local government, a first nation government, ",

and

(

d) in paragraphs (

m) and (

o) by striking out " local government "

and substituting " local government or first nation government ".

Commencement

23 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Notes

SECTION 1: [Agricultural Land Commission Act,

section 1]

adds and amends

definitions to support the application of the Act to treaty

settlement lands and, to a limited extent, to proposed treaty settlement lands;

provides first nations that have entered into an agreement in principal

and are negotiating towards a final agreement with the status of "owner" in

relation to proposed treaty settlement lands.

SECTION 2: [Agricultural Land Commission Act,

section 5] adds knowledge of first nation

government as a qualification for appointment to the commission.

SECTION 3: [Agricultural Land Commission Act,

section 13] provides first nation governments

with the same powers as those provided to local governments in relation

to procedures for resolving disputes with the commission.

SECTION 4: [Agricultural Land Commission Act,

section 17]

provides first nations that have legislative authority over treaty settlement

lands with the same powers and obligations that local governments have in

relation to applications to the commission to include land within the local

government's jurisdiction in the agricultural land reserve;

delays the effect of decisions that grant inclusions to a first nation

government in relation to proposed treaty settlement lands until the first

nation reaches a final agreement with the Province and Canada and the necessary

legislation is enacted, and provides for the expiration of the decision if

the conditions are not met for the decision to become effective.

SECTION 5: [Agricultural Land Commission Act,

section 18] imposes on first nation

governments the same obligations with respect to the non-farm use of agricultural

lands as are imposed on local governments and authorities.

SECTION 6: [Agricultural Land Commission Act,

section 25]

imposes a parallel requirement for the formal approval of a first nation

government in respect of first nation owner non-farm use or subdivision applications

in relation to treaty settlement lands as is imposed for formal local government

approval in respect of owner non-farm use or subdivision applications in relation

to land within the jurisdiction of the local government;

delays the effect of decisions that grant applications to a first nation

government in relation to proposed treaty settlement lands until the first

nation reaches a final agreement with the Province and Canada, the necessary

legislation is enacted, the first nation government enacts a law approving

the commission's decision and provides a certified copy of that law to the

commission;

provides for the expiration of the decision if the conditions are not met

for the decision to become effective.

SECTION 7: [Agricultural Land Commission Act,

section 26] authorizes the delegation to

a first nation government of a first nation that has treaty settlement lands of the

commission's powers in relation to those treaty settlement lands if the first

nation government and the commission have agreed on who is an owner for the

purposes of exercising those powers.

SECTION 8: [Agricultural Land Commission Act,

section 27] prohibits the chief executive

officer of the commission from exercising powers that have been delegated to

a first nation government.

SECTION 9: [Agricultural Land Commission Act,

section 29] authorizes a first nation

government in relation to treaty settlement lands to make applications for

exclusion of agricultural lands on the same basis as a local government.

SECTION 10: [Agricultural Land Commission Act,

section 30]

imposes a parallel requirement for the formal approval of a first nation

government in respect of first nation owner exclusion applications in relation

to treaty settlement lands as is imposed in respect of owner exclusion applications

in relation to land within the jurisdiction of a local government for formal

local government approval;

delays the effect of decisions that grant applications to a first nation

government in relation to proposed treaty settlement lands until the first

nation reaches a final agreement with the Province and Canada, the necessary

legislation is enacted, the first nation government enacts a law approving

the commission's decision and provides a certified copy of that law to the

commission;

provides for the expiration of the decision if the conditions are not met

for the decision to become effective.

SECTION 11: [Agricultural Land Commission Act,

section 31] imposes the same conditions

on first nation governments, both as governments and owners, as are imposed

on local governments and owners in relation to local governments.

SECTION 12: [Agricultural Land Commission Act,

section 32] entitles first nations to the

same notification of exclusions as that to which a local government is entitled.

SECTION 13: [Agricultural Land Commission Act,

section 33] imposes the same obligations

on a first nation government acting on authority delegated under

section

26 as are imposed on a local government in the same circumstances.

SECTION 14: [Agricultural Land Commission Act,

section 34] makes the application procedures

provided in the

section in relation to local governments apply in relation

to first nation governments.

SECTION 15: [Agricultural Land Commission Act,

section 35] makes the rules about application

fees that apply to local governments apply similarly to first nation

governments.

SECTION 16: [Agricultural Land Commission Act,

section 36] makes a housekeeping

amendment.

SECTION 17: [Agricultural Land Commission Act,

section 38] authorizes the commission to

enter into an agreement with a first nation government.

SECTION 18: [Agricultural Land Commission Act,

section 40] authorizes a first nation

government to request that the Lieutenant Governor in Council refer a matter

to the board.

SECTION 19: [Agricultural Land Commission Act,

section 46] imposes the same obligation

on a first nation government as is imposed on a local government to ensure that

its laws are consistent with the Act, the regulations and orders of the commission.

SECTION 20: [Agricultural Land Commission Act,

section 48] authorizes a first nation

government to require security for compliance with conditions of an approval

from the person to whom the approval was granted.

SECTION 21: [Agricultural Land Commission Act,

section 56] provides first nation governments

that exercise the powers of the commission under an agreement under

section 26 of the Act with the same enforcement powers as a local government

or an authority in the same circumstances.

SECTION 22: [Agricultural Land Commission Act,

section 58] makes regulations under the

Act apply to a first nation and authorizes different procedures, for obtaining

public input before decisions in relation to applications are made, for different

categories of persons.

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© 2004: Queen's Printer, Victoria, British Columbia, Canada