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1998 Legislative Session: 3rd Session, 36th Parliament
THIRD READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 22nd day of April, 1999
Ian D. Izard, Law Clerk
| BILL 51: NISGA'A FINAL AGREEMENT ACT -- SCHEDULE | CHAPTER 12 OF 22 |
1. If Nisga'a Lisims Government decides to provide policing within Nisga'a Lands, it may do so by:
a. making laws for a Nisga'a Police Board and a Nisga'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 Nisga'a Police Service:
a. be responsive to the needs and priorities of the Nisga'a Nation;
b. has the full range of police responsibilities and the authority to enforce Nisga'a laws, the laws of British Columbia, the criminal law, and other federal laws within Nisga'a lands; and
c. contributes to the administration of justice, the maintenance of social order, and public security.
3. If Nisga'a Lisims Government decides to establish a Nisga'a Police Service, Nisga'a Lisims Government will make laws to provide for the establishment, organization, composition, indemnification, and roles and responsibilities of a Nisga'a Police Board and a Nisga'a Police Service.
4. Nisga'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 Nisga'a Police Service,
ii. the swearing in of the members of the Nisga'a Police Service and the Nisga'a Police Board,
iii. use of force by members of the Nisga'a Police Service,
iv. discipline and dismissal procedures for members of the Nisga'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 Nisga'a Police Service,
ii. a code of conduct for members of the Nisga'a Police Service,
iii. appropriate mechanisms to ensure police independence, accountability, and competence, and
iv. police operations.
5. The Nisga'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 Nisga'a Police Service;
c. determine priorities and goals of the Nisga'a Police Service;
d. act as the employer of the members of the Nisga'a Police Service;
e. appoint members of the Nisga'a Police Service, including a chief constable who, under the direction of the Nisga'a Police Board, will have general supervision and command over the Nisga'a Police Service, and will have the powers and authorities necessary to direct the members of the Nisga'a Police Service;
f. make rules respecting standards for the administration of the Nisga'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 Nisga'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 Nisga'a Police Board may exercise its functions when the Lieutenant Governor in Council has:
a. approved the Nisga'a Police Board's structure and membership qualifications; and
b. appointed the Nisga'a Police Board's members.
7. An amendment to the Nisga'a Police Board's structure and membership qualifications will take effect when approved by the Lieutenant Governor in Council.
8. If Nisga'a Lisims Government has made laws in accordance with paragraphs 3 and 4, the Lieutenant Governor in Council will:
a. approve the Nisga'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 Nisga'a Police Board.
9. If, after Nisga'a Lisims Government makes a law under paragraph 3, the effect of a change in a provincial law is that the Nisga'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 Nisga'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 Nisga'a law is amended by Nisga'a Lisims Government.
10. The Lieutenant Governor in Council will appoint to the Nisga'a Police Board only individuals who have been recommended by Nisga'a Lisims Government, and will not revoke the appointment of any Nisga'a Police Board member, other than for cause, without the concurrence of Nisga'a Lisims Government.
11. When the Lieutenant Governor in Council has approved the structure and membership qualifications of the Nisga'a Police Board and appointed its members, Nisga'a Lisims Government:
a. will provide policing sufficient to maintain law and order within Nisga'a Lands;
b. will ensure that there are adequate physical resources for the proper operation of police services within Nisga'a lands; and
c. is jointly and severally liable for torts committed by members of the Nisga'a Police Service or by other employees of the Nisga'a Police Board in the performance of their duties.
12. The Nisga'a Police Board and its members are not liable for torts committed by members of the Nisga'a Police Service, or by other employees of the Nisga'a Police Board, in the performance of their duties.
13. A member of the Nisga'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 Nisga'a Police Service performs duties outside of Nisga'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 Nisga'a Lands, the constable will, if possible, notify the Nisga'a Police Service in advance, but in any case will notify the Nisga'a Police Service promptly after performing those duties.
16. The Nisga'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 Nisga'a Police Service in the performance of the member's duties outside of Nisga'a Lands.
18. At the request of the Nisga'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 Nisga'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 Nisga'a Lands;
b. mutual assistance and operational cooperation between the Nisga'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 Nisga'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 Nisga'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 Nisga'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 Nisga'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 Nisga'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 Nisga'a Lisims Government with the notice and opportunities described in paragraph 21.
23. Nisga'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 Nisga'a laws.
24. At the request of the Nisga'a Nation, the Nisga'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 Nisga'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 Nisga'a Lisims Government to provide community correction services consistent with the needs and priorities of the Nisga'a Nation.
26. The Nisga'a Nation and British Columbia may enter into agreements to enable the persons appointed under paragraph 23 to provide community correction services outside Nisga'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 Nisga'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 Nisga'a Government to establish places of confinement, other than jails or lockups operated by the Nisga'a Police Service, or as provided for under an agreement referred to in paragraph 28.
30. Nisga'a Lisims Government may make laws to provide for the constitution, maintenance, and organization of a Nisga'a Court for the better administration of Nisga'a laws.
31. Until Nisga'a Lisims Government establishes a Nisga'a Court that has been approved by the Lieutenant Governor in Council, prosecutions under Nisga'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 Nisga'a law will be paid to Nisga'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.
33. If Nisga'a Lisims Government decides to establish a Nisga'a Court, Nisga'a Lisims Government will make laws to:
a. ensure that the Nisga'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 Nisga'a Court by the Judicial Council of British Columbia or other similar means; and
c. provide procedures for appeals from decisions of the Nisga'a Court.
34. The Nisga'a Court may exercise its functions when the Lieutenant Governor in Council has approved the Nisga'a Court's structure, procedures, and method of selection of judges of the Nisga'a Court.
35. An amendment to the Nisga'a Court's structure, procedures, or method of selection of judges of the Nisga'a Court will take effect when approved by the Lieutenant Governor in Council.
36. The Lieutenant Governor in Council will approve the Nisga'a Court's structure, procedures, and the method of selection of the judges of the Nisga'a Court or any amendment to the structure, procedures, or method of selection of judges of the Nisga'a Court, if Nisga'a Lisims Government has made laws in accordance with paragraph 33.
37. Nisga'a Lisims Government will appoint the judges of the Nisga'a Court.
38. The Nisga'a Court may exercise the powers and perform all the duties conferred or imposed on it by or under Nisga'a laws, in respect of:
a. the review of administrative decisions of Nisga'a Public Institutions;
b. the adjudication of prosecutions under Nisga'a laws; and
c. the adjudication of disputes arising under Nisga'a laws between Nisga'a citizens on Nisga'a Lands that would be within the jurisdiction of the Provincial Court of British Columbia if the disputes arose under provincial law.
39. The Nisga'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 Nisga'a Court, agree:
a. to accept the Nisga'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 Nisga'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 Nisga'a Court may exercise jurisdiction that may be assigned to the Nisga'a Court by federal or provincial law.
41. The Nisga'a Court:
a. may impose penalties and other remedies under the laws of Nisga'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 Nisga'a methods and values, such as using Nisga'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 Nisga'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 Nisga'a law, the accused person may elect to be tried in the Provincial Court of British Columbia.
44. The Nisga'a Court may not impose on a person who is not a Nisga'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.
45. An appeal from a final decision of the Nisga'a Court in respect of prosecutions under Nisga'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 Nisga'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 Nisga'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 Nisga'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.
49. An order of the Nisga'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.
50. The Lieutenant Governor in Council, upon recommendation of Nisga'a Lisims Government and with the concurrence of the persons or bodies required under provincial law, may appoint a judge of the Nisga'a Court as a provincial court judge, justice of the peace, or referee.
51. Nisga'a Lisims Government is responsible for the prosecution of all matters arising from Nisga'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).
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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