The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 7th day of November, 2007
Ian D. Izard, Q.C., Law Clerk
1. Tsawwassen First Nation has the right to self-government, and the authority to make laws, as set out in this Agreement.
2. Tsawwassen Government, as provided for under the Tsawwassen Constitution and this Agreement, is the government of Tsawwassen First Nation.
3. The rights, powers, privileges and authorities of Tsawwassen First Nation will be exercised in accordance with Tsawwassen Laws, including the Tsawwassen Constitution, and with this Agreement.
4. For greater certainty, the authority of Tsawwassen Government to make laws in respect of a subject matter as set out in this Agreement includes the authority to make laws and do other things as may be necessarily incidental to exercising that authority.
5. Tsawwassen First Nation will act through Tsawwassen Government in exercising its rights, powers, privileges and authorities, and in carrying out its duties, functions and obligations.
6. Subject to requirements to make laws under this Agreement, Tsawwassen First Nation may exercise the law-making authorities set out in this Agreement over time.
7. Tsawwassen First Nation is a legal entity with the capacity, rights, powers, and privileges of a natural person including the ability to:
a. enter into contracts and agreements;
b. acquire and hold property or an interest in property, and sell or otherwise Dispose of that property or interest;
c. raise, spend, invest and borrow money;
d. sue and be sued; and
e. do other things ancillary to the exercise of its rights, powers and privileges.
8. Tsawwassen First Nation will have a Constitution, consistent with this Agreement, which will provide:
a. for a democratic Tsawwassen Government, including its duties, composition and membership;
b. that Tsawwassen Government will be democratically accountable with elections at least every five years;
c. that a majority of members of Tsawwassen Government will be elected;
d. that Tsawwassen Government may include elements of traditional governance;
e. for the role of advisory bodies in Tsawwassen Government;
f. that this Agreement sets out the authority of the Tsawwassen Government to make laws;
g. for a system of financial administration with standards comparable to those generally accepted for governments in Canada, through which Tsawwassen Government will be financially accountable to Tsawwassen Members;
h. for conflict of interest rules comparable to those generally accepted for governments of similar size in Canada;
i. for recognition and protection of rights and freedoms of Tsawwassen Members;
j. that every individual who is enrolled under this Agreement is entitled to be a Tsawwassen Member;
k. for a process for the enactment of laws by Tsawwassen Government;
l. for a process for challenging the validity of laws enacted by Tsawwassen Government;
m. that any law enacted by Tsawwassen Government that is inconsistent with the Tsawwassen Constitution is, to the extent of the inconsistency, of no force or effect;
n. for the establishment of Tsawwassen Public Institutions;
o. for conditions under which Tsawwassen First Nation may Dispose of land or interests in land;
p. for a process for the removal from office of members of Tsawwassen Government;
q. for a process for the amendment of the Tsawwassen Constitution; and
r. for other provisions.
9. The Tsawwassen Constitution, once ratified in accordance with this Agreement, comes into force on the Effective Date.
10. The individuals who were the Chief Councillor and Councillors of the Tsawwassen First Nation band council under the Indian Act on the day immediately before the Effective Date are the chief and legislative members, respectively, of Tsawwassen Government from the Effective Date until the office holders elected in the first election for Tsawwassen Government take office.
11. The first election for Tsawwassen Government will be held no later than six months after the Effective Date.
12. Elections for members of Tsawwassen Government will be held in accordance with the Tsawwassen Constitution and other Tsawwassen Laws.
13. Tsawwassen First Nation will establish procedures for appeal or review of administrative decisions made by Tsawwassen First Nation or a Tsawwassen Public Institution and, if those procedures provide for a right of appeal to a court for a decision made under a Tsawwassen Law, the Supreme Court of British Columbia has jurisdiction to hear those appeals.
14. An application may be made to the Supreme Court of British Columbia for judicial review of an administrative decision made by Tsawwassen First Nation or a Tsawwassen Public Institution under a Tsawwassen Law, and the Supreme Court of British Columbia has jurisdiction to hear any such application, but no such application may be brought until all procedures for appeal or review provided by Tsawwassen First Nation under clause 13, and applicable to that decision, have been exhausted.
15. The Judicial Review Procedure Act applies to an application for judicial review under clause 14, and Provincial Settlement Legislation will provide that the Judicial Review Procedure Act is amended to include Tsawwassen Law in the definition of enactment.
16. Tsawwassen Government will:
a. maintain a public registry of Tsawwassen Laws in the English language which version is authoritative and, at the discretion of Tsawwassen First Nation, in the Hun'qum'i'num language;
b. provide Canada and British Columbia with copies of Tsawwassen Laws as soon as practicable after they are enacted, unless otherwise agreed by the Parties; and
c. establish procedures for determining the coming into force and providing for the publication of Tsawwassen Laws.
17. Tsawwassen First Nation will provide that Tsawwassen Institutions will Consult with Non-Members in respect of decisions of Tsawwassen Institutions that directly and significantly affect those Non-Members.
18. Tsawwassen First Nation will provide that Non-Members may participate in the decision-making processes of a Tsawwassen Public Institution if the activities of that Tsawwassen Public Institution directly and significantly affect Non-Members.
19. The means of participation under clause 18 will include:
a. if members of a Tsawwassen Public Institution are elected, an opportunity for Non-Members to vote for and stand for election as a member of the Tsawwassen Public Institution with the ability to participate in discussions and to vote on matters that directly and significantly affect Non-Members;
b. if members of a Tsawwassen Public Institution are not elected, at least one member of the Tsawwassen Public Institution will be a Non-Member selected by Non-Members with the ability to participate in discussions and to vote on matters that directly and significantly affect Non-Members; or
c. other comparable measures.
20. Despite clause 19, Tsawwassen First Nation may provide that a majority of the members of the Tsawwassen Public Institution must be Tsawwassen Members.
21. Tsawwassen First Nation will establish the means of participation under clause 18 by law at the same time that it establishes a Tsawwassen Public Institution whose activities may directly and significantly affect Non-Members.
22. Tsawwassen First Nation will provide Non-Members with access to the appeal and review procedures established under clause 13 in respect of activities that directly and significantly affect Non-Members.
23. Before Tsawwassen Government brings into force any Tsawwassen Law in respect of:
a. adoption;
b. Child Protection Services;
c. health services;
d. social services;
e. Child Care services; or
f. kindergarten to grade 12 education,
Tsawwassen Government will give at least six months written notice of the proposed Tsawwassen Law to Canada and British Columbia.
24. Despite clause 23, after giving the notice referred to in clause 23, Tsawwassen Government may bring into force the Tsawwassen Law within the six month period if Canada and British Columbia agree.
25. The Parties may negotiate and attempt to reach agreements in respect of any of the matters set out in clause 26 or 27, but an agreement under those clauses is not a condition precedent to the exercise of law-making authority by Tsawwassen Government, and such authority may be exercised immediately following the six month notice period referred to in clause 23.
26. If Canada or British Columbia makes a request in writing within three months of being given notice under clause 23, Tsawwassen First Nation will Consult with Canada or British Columbia, as the case may be, in respect of:
a. options the Parties could take to address the interests of Tsawwassen First Nation through methods other than law-making;
b. immunity of individuals providing services or exercising authority under Tsawwassen Law;
c. readiness and quality assurance; and
d. other matters as the Parties may agree.
27. At the written request of any Party within three months of notice being provided under clause 23, the relevant Parties will discuss:
a. any transfer of cases and related documentation from federal or provincial institutions to Tsawwassen Institutions, including any confidentiality and privacy considerations;
b. any transfer of assets from federal or provincial institutions to Tsawwassen Institutions;
c. any appropriate amendments to Federal or Provincial Laws; and
d. other matters as the Parties may agree.
28. If, in the notice referred to in clause 23, Tsawwassen First Nation advises that it is proposing a Tsawwassen Law for reasons of emergency, Canada and British Columbia will respond as soon as practicable.
29. Subject to clause 35 or an agreement under clause 32, before British Columbia introduces legislation in the Legislative Assembly of British Columbia, or before the Lieutenant Governor in Council approves a regulation, British Columbia will notify, in writing, Tsawwassen First Nation if:
a. this Agreement provides for Tsawwassen Government law-making authority in respect of the subject matter of the legislation or regulation;
b. the legislation or regulation may affect the protections, immunities, limitations in respect of liability, remedies over, or rights referred to in clauses 163 and 164; or
c. the legislation or regulation may affect the rights, powers, duties, obligations, or the protections, immunities, limitations in respect of liability, remedies over, or rights referred to in clause 113;
except where this cannot be done for reasons of emergency or confidentiality.
30. If British Columbia does not notify Tsawwassen First Nation under clause 29 for reasons of emergency or confidentiality, British Columbia will notify, in writing, Tsawwassen First Nation, as soon as practicable, that it has introduced legislation in the Legislative Assembly of British Columbia, or deposited a regulation with the Registrar of Regulations.
31. Notifications under clauses 29 and 30 will include:
a. the nature and purpose of the proposed legislation or regulation; and
b. the date that the proposed legislation or regulation is anticipated to take effect, if it has not already done so.
32. Tsawwassen First Nation and British Columbia may negotiate and attempt to reach agreements establishing alternatives to the obligations that would otherwise apply under clauses 29, 30, 31 and 33.
33. Subject to clauses 34 and 35, or an agreement under clause 32, if Tsawwassen First Nation makes a written request to British Columbia, then British Columbia and Tsawwassen First Nation will discuss the effect, if any, of the legislation or regulation on:
a. a Tsawwassen Law; or
b. the matters referred to in subclauses 29.b and 29.c.
34. If British Columbia establishes a process providing for collective discussions with First Nation Governments in British Columbia concerning matters referred to in clause 33, Tsawwassen First Nation will participate in that process and the process will satisfy the obligations of British Columbia under clause 33.
35. If Tsawwassen First Nation is a member of a representative body and British Columbia has entered into an agreement with the body that provides for consultation in respect of matters referred to in clause 29, 30, 31, and 33, then consultations between British Columbia and that representative body in respect of a particular matter will satisfy the obligations on British Columbia to provide notice under clauses 29 and 30 and discussion under clause 33.
36. Unless British Columbia agrees otherwise, Tsawwassen First Nation will retain the information provided under clauses 29 through 35 in strict confidence until such time, if ever, the proposed legislation is given first reading in the Legislative Assembly of British Columbia or the regulation is deposited with the Registrar of Regulations, as applicable.
37. The Parties acknowledge that nothing in clauses 29 through 35 is intended to interfere with the legislative process of British Columbia.
38. Despite any other provision of this Agreement, to the extent that provincial legislation or a regulation referred to in clause 29 affects the validity of a Tsawwassen Law, the Tsawwassen Law will be valid for a period of six months or until it is amended, whichever is the shorter period, after the coming into force of the provincial legislation or regulation.
39. Any law-making authority of Tsawwassen Government under this Agreement may be delegated by a Tsawwassen Law to:
a. a Tsawwassen Public Institution;
b. another First Nation Government in British Columbia;
c. a public institution established by one or more First Nation Governments in British Columbia;
d. British Columbia;
e. Canada;
f. a Local Government; or
g. a legal entity as agreed by the Parties,
if the delegation and the exercise of any law-making authority is in accordance with this Agreement and the Tsawwassen Constitution.
40. Any authority of Tsawwassen First Nation under this Agreement other than a law-making authority may be delegated by a Tsawwassen Law to:
a. any body set out in clause 39; or
b. a legal entity in Canada
if the delegation and the exercise of any delegated authority is in accordance with this Agreement and the Tsawwassen Constitution.
41. Any delegation under subclauses 39.b through 39.g or clause 40 requires the written consent of the delegate.
42. Tsawwassen First Nation may receive a delegated authority by agreement, including a law-making authority.
Tsawwassen Government
43. Tsawwassen Government may make laws in respect of the election, administration, management and operation of Tsawwassen Government including:
a. the establishment of Tsawwassen Public Institutions, including their respective powers, duties, composition and membership, but the registration or incorporation of the Tsawwassen Public Institution must be under Federal or Provincial Law;
b. the powers, duties, responsibilities, remuneration and indemnification of members, officials, employees and appointees of Tsawwassen Institutions;
c. the establishment of a Tsawwassen Corporation, but the registration or incorporation of the Tsawwassen Corporation must be under Federal or Provincial Law;
d. the financial administration of Tsawwassen First Nation and Tsawwassen Institutions; and
e. elections, by-elections and referenda.
44. In accordance with clause 22 of the General Provisions chapter, nothing in clause 43 confers authority on Tsawwassen Government to make laws in respect of labour relations and working conditions.
45. Tsawwassen Government will make laws to:
a. provide Tsawwassen Members with reasonable access to information in the custody or control of a Tsawwassen Institution; and
b. provide Persons other than Tsawwassen Members with reasonable access to information in the custody or control of a Tsawwassen Institution regarding matters that directly and significantly affect those Persons.
46. For greater certainty, a Tsawwassen Law made under clause 45 need not provide access to information of a kind that is generally unavailable under Federal or Provincial Law.
47. A Tsawwassen Law made under clause 43 or 45 prevails to the extent of a Conflict with a Federal or Provincial Law, except that a Federal or Provincial Law in respect of the protection of personal information prevails to the extent of a Conflict with a Tsawwassen Law made under clause 43 or 45.
48. Tsawwassen Government may make laws in respect of membership in Tsawwassen First Nation.
49. A Tsawwassen Law made under clause 48 prevails to the extent of a Conflict with a Federal or Provincial Law.
50. The conferring of membership in Tsawwassen First Nation does not:
a. confer or deny rights of entry into Canada, Canadian citizenship, or the right to be registered as an Indian under the Indian Act; or
b. except as set out in this Agreement or in Federal or Provincial Law, impose any obligation on Canada or British Columbia to provide rights or benefits.
51. Tsawwassen Government may make laws in respect of the use, possession, management and Disposition of:
a. assets located on Tsawwassen Lands;
b. assets located off Tsawwassen Lands; and
c. Other Tsawwassen Lands as an asset,
of Tsawwassen First Nation, a Tsawwassen Corporation or a Tsawwassen Public Institution.
52. For greater certainty, the law-making authority in clause 51 does not include the authority to make laws in respect of creditors' rights and remedies.
53. A Tsawwassen Law made under subclause 51.a prevails to the extent of a Conflict with a Federal or Provincial Law.
54. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under subclause 51.b or 51.c.
55. In determining a Child's best interests, all relevant factors will be considered including those factors that must be considered under the Adoption Act.
56. Tsawwassen Government may make laws in respect of:
a. adoption of Tsawwassen Children in British Columbia;
b. adoption in British Columbia by Tsawwassen Members of Children who reside on Tsawwassen Lands; and
c. adoption in British Columbia of Children of Tsawwassen Members in accordance with clause 60.
57. Tsawwassen Laws under clause 56 will:
a. expressly provide that the best interests of the Child are the paramount consideration in determining whether an adoption will take place; and
b. provide for the consent of individuals whose consent to a Child's adoption is required under Provincial Law, subject to the power of the court to dispense with such consent under Provincial Law.
58. If Tsawwassen Government makes laws under clause 56, Tsawwassen First Nation will:
a. develop operational and practice standards that promote the best interests of the Child;
b. participate in British Columbia's information management systems, or establish an information management system that is compatible with British Columbia's information management systems, concerning the management, storage and disposal of adoption records and the safeguarding of personal adoption information; and
c. provide British Columbia and Canada with a record of all adoptions occurring under Tsawwassen Law.
59. A Tsawwassen Law made under clause 56 applies to the adoption of a Tsawwassen Child residing off Tsawwassen Lands if:
a. the Tsawwassen Child has not been placed for adoption under the Adoption Act, and all of the following consent to the application of Tsawwassen Law to the adoption:
i. the parents of the Tsawwassen Child;
ii. if the Tsawwassen Child has reached the age where consent to adoption is required under the Adoption Act, the Tsawwassen Child; and
iii. if the Tsawwassen Child is not under the guardianship of a Director, the guardian of the Tsawwassen Child;
b. a Director designated under the Child, Family and Community Service Act is guardian of the Tsawwassen Child, and the Director consents in accordance with subclauses 62.c and 62.d; or
c. a court dispenses with the requirement for the consent referred to in subclause 59.a, in accordance with the criteria that would be used by that court in an application to dispense with the requirement for a parent's or guardian's consent to an adoption under Provincial Law.
60. A Tsawwassen Law made under clause 56 applies to the adoption of a Child of a Tsawwassen Member or a Child residing on Tsawwassen Lands who is not a Tsawwassen Child if:
a. before the Child is placed for adoption under Tsawwassen Law, all of the following consent to the application of Tsawwassen Law to the adoption:
i. the parents of the Child;
ii. if the Child has reached the age where consent to adoption is required under the Adoption Act, the Child; and
iii. if the Child is not under the guardianship of a Director, the guardian of the Child;
b. a Director designated under the Child, Family and Community Service Act is guardian of the Child and the Director consents to the application of Tsawwassen Law to the adoption of that Child provided that it is in the best interests of the Child; or
c. a court dispenses with the requirement for the consent referred to in subclause 60.a, in accordance with the criteria that would be used by that court in an application to dispense with the requirement for a parent's or guardian's consent to an adoption under Provincial Law.
61. The Parties will negotiate and attempt to reach agreement on the information that will be included in the record provided under subclause 58.c.
62. If a Director designated under the Child, Family and Community Service Act, or a successor to that position, becomes the guardian of a Tsawwassen Child, the Director will:
a. provide notice to Tsawwassen First Nation that the Director is the guardian of the Tsawwassen Child;
b. provide notice to Tsawwassen First Nation when the Director applies for a continuing custody order for the Tsawwassen Child, provide Tsawwassen First Nation with a copy of the continuing custody order once the order is made and make reasonable efforts to involve Tsawwassen First Nation in planning for the Tsawwassen Child;
c. if requested by Tsawwassen First Nation, consent to the application of Tsawwassen Law to the adoption of the Tsawwassen Child provided that it is in the best interests of the Tsawwassen Child; and
d. in determining the best interests of the Tsawwassen Child under subclause 62.c., the Director will consider the importance of preserving the Tsawwassen Child's cultural identity.
63. A Tsawwassen Law made under clause 56 prevails to the extent of a Conflict with a Federal or Provincial Law.
64. Before placing a Tsawwassen Child for adoption, an adoption agency must make reasonable efforts to:
a. obtain information about the Tsawwassen Child's cultural identity; and
b. discuss with the designated representative of Tsawwassen First Nation, the placement of the Tsawwassen Child.
65. Subclause 64.b does not apply if the Tsawwassen Child has reached the age where consent to adoption is required under the Adoption Act and the Tsawwassen Child objects to the discussion taking place, or if the birth parent or other guardian of the Tsawwassen Child who requested that the Tsawwassen Child be placed for adoption objects to the discussion taking place.
66. Nothing in this Agreement prevents Tsawwassen First Nation from sharing information with any Person in respect of an adoption occurring under Tsawwassen Law, with the written permission of the adoptive parents, birth parents and the adoptee if over the age of majority under Provincial Law.
67. Tsawwassen First Nation has standing in any judicial proceedings in British Columbia in which custody of a Tsawwassen Child is in dispute and the court will take judicial notice of Tsawwassen Law and will consider any evidence and representations in respect of Tsawwassen Law and Tsawwassen First Nation customs in addition to any other matters it is required by law to consider.
68. The participation of Tsawwassen First Nation in proceedings referred to in clause 67 will be in accordance with the applicable rules of court and will not affect the ability of the court to control its process.
69. Tsawwassen Government may make laws in respect of Child Protection Services on Tsawwassen Lands with respect to:
a. Tsawwassen Children; and
b. Children who are not Tsawwassen Children, subject to an agreement under clause 75 between Tsawwassen First Nation and British Columbia.
70. Tsawwassen Laws under clause 69 will:
a. expressly provide that the Tsawwassen Law will be interpreted and administered such that the Safety and Well-Being of Children are the paramount considerations; and
b. not preclude the reporting under Provincial Law of a Child in Need of Protection.
71. If Tsawwassen Government makes laws under clause 69, Tsawwassen First Nation will:
a. develop operational and practice standards intended to ensure the Safety and Well-Being of Children;
b. participate in British Columbia's information management systems, or establish an information management system that is compatible with British Columbia's information management systems, concerning Children in Need of Protection and Children in Care;
c. allow for mutual sharing of information with British Columbia concerning Children in Need of Protection and Children in Care; and
d. establish and maintain a system for the management, storage and disposal of Child Protection Service records and the safeguarding of personal Child Protection Services information.
72. Tsawwassen First Nation and British Columbia acknowledge that the information shared under subclause 71.c is personal information, as defined in federal and provincial privacy and access to information legislation, and agree to protect that personal information from subsequent disclosures to the extent possible under law.
73. Despite a Tsawwassen Law made under clause 69, if there is an emergency in which a Child on Tsawwassen Lands is a Child in Need of Protection, British Columbia may act to protect the Child and, in those circumstances, unless British Columbia and Tsawwassen First Nation agree otherwise in writing, British Columbia, as appropriate, will refer the matter to Tsawwassen First Nation after the emergency.
74. A Tsawwassen Law made under clause 69 prevails to the extent of a Conflict with a Federal or Provincial Law.
75. At the request of Tsawwassen First Nation, Tsawwassen First Nation and British Columbia will negotiate and attempt to reach agreements in respect of Child Protection Services for:
a. Tsawwassen Children who do not reside on Tsawwassen Lands; or
b. Children who reside on Tsawwassen Lands who are not Tsawwassen Children.
76. Where the Director becomes the guardian of a Tsawwassen Child, the Director will make reasonable efforts to include Tsawwassen First Nation in planning for the Tsawwassen Child, including adoption planning.
77. Tsawwassen Government may make laws in respect of education in the culture of Tsawwassen First Nation and the Hun'qum'i'num language provided by a Tsawwassen Institution or a person appointed by Tsawwassen First Nation on Tsawwassen Lands including:
a. the certification and accreditation of teachers of the culture of Tsawwassen First Nation and the Hun'qum'i'num language; and
b. the development of the curriculum for teaching the culture of Tsawwassen First Nation and the Hun'qum'i'num language.
78. Tsawwassen Government may make laws in respect of kindergarten to grade 12 education provided by a Tsawwassen Institution on Tsawwassen Lands.
79. A Tsawwassen Law made under clause 78 will:
a. establish curriculum, examination, and other standards that permit students to transfer between school systems at a similar level of achievement and permit students to enter the provincial post-secondary education systems; and
b. provide for the certification and accreditation of teachers, by a Tsawwassen Public Institution, or by a body recognized by British Columbia, in accordance with standards comparable to standards applicable to individuals who teach in public or provincially-funded independent schools in British Columbia.
80. Tsawwassen Government may make laws in respect of kindergarten to grade 12 home education of Tsawwassen Members on Tsawwassen Lands.
81. A Tsawwassen Law made under clause 77, 78 or 80 prevails to the extent of a Conflict with a Federal or Provincial Law.
82. If Tsawwassen Government makes a Law under clause 78, at the request of Tsawwassen First Nation or British Columbia, those Parties will negotiate and attempt to reach agreement concerning the provision of kindergarten to grade 12 education to:
a. individuals, other than Tsawwassen Members, residing on Tsawwassen Lands; and
b. Tsawwassen Members residing off Tsawwassen Lands.
Post-Secondary Education and Training
83. Tsawwassen Government may make laws in respect of post-secondary education provided by a Tsawwassen Institution on Tsawwassen Lands including:
a. the establishment of post-secondary education institutions with the ability to grant degrees, diplomas or certificates;
b. the determination of the curriculum for post-secondary education institutions established by Tsawwassen Government; and
c. the provision for and coordination of adult education programs including but not limited to employment training services.
84. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 83.
85. Tsawwassen Government may make laws in respect of the authorization of individuals to practise as aboriginal healers on Tsawwassen Lands.
86. Tsawwassen Government authority to make laws under clause 85 does not include the authority to regulate:
a. medical or health practices that, or practitioners who, require licensing or certification under Federal or Provincial Law; or
b. products or substances that are regulated under Federal or Provincial Law.
87. Tsawwassen Laws made under clause 85 will establish standards:
a. in respect of competence, ethics and quality of practice that are reasonably required to protect the public; and
b. that are reasonably required to safeguard personal client information.
88. A Tsawwassen Law made under clause 85 prevails to the extent of a Conflict with a Federal or Provincial Law.
89. Tsawwassen Government may make laws in respect of health services, including public health, provided by a Tsawwassen Institution on Tsawwassen Lands.
90. Tsawwassen Laws made under clause 89 will take into account the protection, improvement and promotion of public and individual health and safety.
91. At the request of any Party, the Parties will negotiate and attempt to reach agreement for the delivery and administration by a Tsawwassen Institution of federal and provincial health services and programs for individuals residing on Tsawwassen Lands.
92. Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 89.
93. Despite clause 92, a Tsawwassen Law made under clause 89 in respect of the organization and structure of Tsawwassen Institutions used to deliver health services on Tsawwassen Lands prevails to the extent of a Conflict with a Federal or Provincial Law.
94. Tsawwassen Government may make laws in respect of social services provided by a Tsawwassen Institution, including income assistance, services related to family and community life, and housing.
95. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 94.
96. Tsawwassen Government authority under clause 94 does not include the authority to make laws in respect of the licensing and regulation of facility-based services provided off Tsawwassen Lands.
97. At the request of any Party, the Parties will negotiate and attempt to reach agreement in respect of:
a. exchanging information for the purpose of avoiding double payments and related matters; and
b. administration and delivery by a Tsawwassen Institution of federal and provincial social services and programs for individuals residing on Tsawwassen Lands.
98. Tsawwassen Laws under clause 94 may require individuals collecting income assistance from a Tsawwassen Institution to participate in work programs or other similar programs.
99. Tsawwassen Government may make laws in respect of Family Development Services provided by a Tsawwassen Institution on Tsawwassen Lands.
100. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 99.
101. Tsawwassen Government may make laws in respect of the prohibition of, and the terms and conditions for, the sale, exchange, possession, manufacture or consumption of liquor, on Tsawwassen Lands.
102. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 101.
103. Tsawwassen First Nation, its agents and assignees have:
a. the exclusive right to sell liquor on Tsawwassen Lands in accordance with Federal and Provincial Law; and
b. the right to purchase liquor from the British Columbia Liquor Distribution Branch, or its successors, in accordance with Federal and Provincial Law.
104. British Columbia will approve an application made, in accordance with Provincial Law, by Tsawwassen First Nation, its agents or assignees for a licence, permit, or other authority to sell liquor on Tsawwassen Lands.
105. Despite subclause 103.a, if Tsawwassen First Nation consents, British Columbia may issue to a person other than Tsawwassen First Nation, its agents or assignees a licence, permit, or other authority to sell liquor on Tsawwassen Land.
106. British Columbia will, in accordance with Provincial Law, authorize persons designated by Tsawwassen First Nation to approve or deny applications for special occasion licences or temporary permits to sell liquor on Tsawwassen Lands.
107. Tsawwassen Government may make laws in respect of solemnization of marriages within British Columbia by individuals designated by Tsawwassen First Nation to solemnize marriages.
108. Individuals designated by Tsawwassen First Nation to solemnize marriages:
a. will be appointed by British Columbia as individuals authorized to solemnize marriages; and
b. have the authority to solemnize marriages under Provincial Law and Tsawwassen Law, and have all the associated rights, duties and responsibilities of a marriage commissioner under the provincial Marriage Act.
109. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 107.
Judicial Proceedings in Respect of Matrimonial Property
110. Tsawwassen First Nation has standing in any judicial proceedings in which the treatment of interests in Tsawwassen Lands upon the breakdown of a marriage involving at least one Tsawwassen Member is in dispute, and the court will consider any evidence and representations in respect of Tsawwassen Law which may restrict the alienation of Tsawwassen Lands to Tsawwassen Members in addition to any other matters it is required by law to consider.
111. The participation of Tsawwassen First Nation in proceedings referred to in clause 110 will be in accordance with the applicable rules of court and will not affect the ability of the court to control its process.
112. Tsawwassen Government may make laws in respect of Child Care services on Tsawwassen Lands.
113. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 112.
114. Tsawwassen First Nation has:
a. the rights, powers, duties and obligations; and
b. the protections, immunities and limitations in respect of liability,
of a local authority under Federal and Provincial Law in respect of emergency preparedness and emergency measures on Tsawwassen Lands.
115. Tsawwassen Government may make laws in respect of the rights, powers, duties, and obligations of Tsawwassen First Nation under clause 114.
116. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 115.
117. For greater certainty, Tsawwassen First Nation may declare a state of local emergency, and exercise the powers of a local authority in respect of local emergencies in accordance with Federal and Provincial Law in respect of emergency measures, but any declaration and any exercise of those powers is subject to the authority of Canada and British Columbia set out in that Federal and Provincial Law.
118. Nothing in this Agreement affects the authority of:
a. Canada to declare a national emergency; or
b. British Columbia to declare a provincial emergency,
in accordance with Federal or Provincial Law.
119. Tsawwassen Government may make laws in respect of the regulation, licensing, and prohibition of businesses on Tsawwassen Lands, which laws may impose licence fees or other fees.
120. For greater certainty, the authority to make laws under clause 119 includes the authority to prohibit:
a. a public show, exhibition, carnival, or performance of any kind or in any particular location;
b. the operation of places of amusement to which the public has access; and
c. professional boxing, professional wrestling and other professional athletic contests.
121. For greater certainty, the authority to make laws under clause 119 does not include the authority to make laws in respect of the accreditation, certification, or professional conduct of professions and trades except as provided in clauses 77, 78 and 80.
122. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 119.
123. The British Columbia Building Code applies to Tsawwassen Lands.
124. Tsawwassen Government may make laws in respect of buildings and structures on Tsawwassen Lands, but Tsawwassen Laws must not establish standards for buildings or structures to which the British Columbia Building Code applies that are additional to or different from the standards established by the British Columbia Building Code.
125. At the request of Tsawwassen First Nation, British Columbia will negotiate and attempt to reach an agreement to enable Tsawwassen Government to establish standards for buildings or structures that are additional to or different from the standards established by the British Columbia Building Code.
126. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 124.
127. Tsawwassen Government may make laws in respect of public works and related services on Tsawwassen Lands.
128. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 127.
Traffic, Parking, Transportation and Highways
129. Tsawwassen Government may make laws in respect of traffic, parking, transportation and highways on Tsawwassen Lands to the same extent as Local Governments have authority to make laws in respect of traffic, parking, transportation and highways in municipalities in British Columbia.
130. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 129.
Public Order, Peace and Safety
131. Tsawwassen Government may make laws in respect of the regulation, control or prohibition of any actions, activities or undertakings on Tsawwassen Lands that constitute, or may constitute, a nuisance, a trespass, a danger to public health, or a threat to public order, peace or safety including:
a. in respect of animals;
b. requirements regarding the discharge of firearms, the use of bows and arrows, knives and other weapons, firecrackers, fireworks, explosives; and
c. public games, sports, races and athletic contests.
132. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 131.
133. Subject to clauses 134, 135 and 136, and clause 6 of the Taxation chapter, a Tsawwassen Law may provide for the imposition of penalties, including fines, restitution and imprisonment, for the violation of Tsawwassen Law.
134. Subject to clause 135, and clause 6 of the Taxation chapter, a Tsawwassen Law may provide for a fine of up to ten thousand dollars ($10,000) or the general limit for summary conviction offences under section 787 of the Criminal Code, whichever is greater.
135. A Tsawwassen Law in respect of the protection of the Environment may provide for a fine that is not greater than that imposed for comparable offences punishable upon summary conviction under the Canadian Environmental Protection Act.
136. Subject to clause 6 of the Taxation chapter, a Tsawwassen Law may provide for a term of imprisonment for a violation of a Tsawwassen Law that is not greater than the general limit for summary conviction offences under section 787 of the Criminal Code.
Adoption of Federal or Provincial Laws
137. Tsawwassen Government may adopt Federal or Provincial Law in respect of matters within Tsawwassen Government law-making authority set out in this Agreement.
Enforcement of Tsawwassen Laws
138. Tsawwassen First Nation is responsible for any enforcement of Tsawwassen Law.
139. At the request of Tsawwassen First Nation, to the extent of their respective jurisdictions, the Parties will negotiate and attempt to reach agreement in respect of the enforcement of Tsawwassen Law by federal or provincial enforcement officials or police forces.
140. Tsawwassen Government may make laws for the enforcement of Tsawwassen Law including the appointment of officials to enforce Tsawwassen Law. Powers of enforcement for those officials will not exceed those provided by Federal or Provincial Law for enforcing similar laws in British Columbia.
141. Tsawwassen Government law-making authority does not include:
a. the authority to establish a police force;
b. authorizing the carriage or use of firearms by enforcement officials; or
c. the authority to establish a court.
142. Nothing in this Agreement prevents Tsawwassen First Nation from establishing a police force under Provincial Law.
143. After receiving a written request from Tsawwassen First Nation, the Parties will discuss and explore options for the establishment of a court, other than a provincial court with inherent jurisdiction or a federal court, to adjudicate offences and other matters arising under Tsawwassen Laws or laws of other First Nation Governments in British Columbia.
144. If Tsawwassen First Nation appoints officials to enforce Tsawwassen Law, Tsawwassen First Nation will:
a. ensure that any Tsawwassen First Nation enforcement officials are appropriately trained to carry out their duties having regard to training requirements for other enforcement officers carrying out similar duties in British Columbia; and
b. establish procedures for responding to complaints against Tsawwassen First Nation enforcement officials.
145. A Federal or Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law made under clause 140.
146. Tsawwassen First Nation may, by a proceeding brought in the Supreme Court of British Columbia, enforce, or prevent or restrain the contravention of, Tsawwassen Law.
Adjudication of Tsawwassen Laws
147. The Provincial Court of British Columbia has jurisdiction to hear prosecutions of offences under Tsawwassen Law.
148. The summary conviction proceedings of the Offence Act apply to prosecutions of offences under Tsawwassen Law.
149. Tsawwassen First Nation is responsible for all aspects of any prosecution under Tsawwassen Law, 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; or
b. entering into agreements with Canada or British Columbia in respect of the conduct of prosecutions and appeals.
150. Unless the Parties agree otherwise, British Columbia will pay any fines collected, in respect of a penalty imposed on a person by the Provincial Court of British Columbia or the Supreme Court of British Columbia, as the case may be, for an offence under a Tsawwassen Law, to Tsawwassen First Nation on a similar basis as British Columbia makes payments to Canada for fines that may be collected by British Columbia in respect of an offence under a Federal Law.
151. The Provincial Court of British Columbia or the Supreme Court of British Columbia, as the case may be, has jurisdiction to hear legal disputes arising between individuals under Tsawwassen Law.
Community Correctional Services
152. A Tsawwassen Institution may provide Community Correctional Services for individuals charged with, or found guilty of, an offence under Tsawwassen Law.
153. At the request of Tsawwassen First Nation, Tsawwassen First Nation and British Columbia may negotiate and attempt to reach agreement to provide Community Correctional Services on Tsawwassen Lands for individuals charged with, or found guilty of, an offence under Federal or Provincial Law.
154. Tsawwassen First Nation and British Columbia may negotiate and attempt to reach agreement for Tsawwassen First Nation to provide rehabilitative community based programs and interventions off Tsawwassen Lands for Tsawwassen Members charged with, or found guilty of, an offence under a Federal or Provincial Law.
155. Tsawwassen First Nation and Canada may negotiate and attempt to reach agreement for persons appointed by a Tsawwassen Institution to provide Community Correctional Services to adult Tsawwassen Members released from a federal penitentiary or who are subject to a long-term supervision order, including parole, temporary absence supervision, or other similar service delivered by Canada.
156. This Agreement does not authorize Tsawwassen First Nation to establish or maintain places of confinement, except for police jails or lock-ups operated by a police service established under Provincial Law.
Members of Tsawwassen Government
157. No action for damages lies or may be instituted against an elected or appointed member or former member of Tsawwassen Government for:
a. anything said or done or omitted to be said or done by or on behalf of Tsawwassen First Nation or Tsawwassen Government by someone other than that elected or appointed member or former member while he or she is or was a member;
b. any alleged neglect or default in the performance, or intended performance, of a duty or the exercise of a power, of Tsawwassen First Nation or Tsawwassen Government while that person is, or was, a member;
c. anything said or done or omitted to be said or done by that person in the performance, or intended performance, of the person's duty or the exercise of the person's power; or
d. any alleged neglect or default in the performance, or intended performance, of that person's duty or exercise of that person's power.
158. Subclauses 157.c and 157.d do not provide a defence if:
a. the person has, in relation to the conduct that is the subject matter of the action, been guilty of dishonesty, gross negligence or malicious or wilful misconduct; or
b. the cause of action is libel or slander.
159. Subclauses 157.c and 157.d do not absolve Tsawwassen First Nation from vicarious liability arising out of a tort committed by a member or former member of Tsawwassen Government for which Tsawwassen First Nation would have been liable had that clause not been in effect.
160. No action for damages lies or may be instituted against a Tsawwassen Public Officer or former Tsawwassen Public Officer for:
a. anything said or done or omitted to be said or done in the performance, or intended performance, of the officer's duty or the exercise of the officer's power; or
b. any alleged neglect or default in the performance, or intended performance, of that officer's duty or exercise of that officer's power.
161. Clause 160 does not provide a defence if:
a. the Tsawwassen Public Officer has, in relation to the conduct that is the subject matter of the action, been guilty of dishonesty, gross negligence or malicious or wilful misconduct; or
b. the cause of action is libel or slander.
162. Clause 160 does not absolve any of the corporations or bodies referred to in the definition of Tsawwassen Public Officer from vicarious liability arising out of a tort committed by a Tsawwassen Public Officer for which the corporation or body would have been liable had that clause not been in effect.
163. Despite clause 160, a Tsawwassen Public Officer does not have protections, immunities or limitations in respect of liability, in respect of the provision of a service, if no persons delivering reasonably similar programs or services under Federal or Provincial Law have protections, immunities, limitations in respect of liability and rights under Federal or Provincial Law, except as may be otherwise provided under Federal or Provincial Law.
Tsawwassen First Nation and Tsawwassen Government
164. Tsawwassen First Nation and Tsawwassen Government have the protections, immunities, limitations in respect of liability, remedies over, and rights provided to a municipality and its municipal council under Part 7 of the Local Government Act.
165. Subject to the provisions of this Agreement, Tsawwassen First Nation has the protections, immunities, limitations in respect of liability, remedies over, and rights provided to a municipality under the Occupiers Liability Act, and, for greater certainty, has those protections, immunities, limitations in respect of liability, remedies over, and rights, in respect of a road on Tsawwassen Lands used by the public, or by industrial or resource users, if Tsawwassen First Nation is the occupier of that road.
Realization of Security Against Property of Tsawwassen First Nation
166. Without limiting clause 164, but subject to clauses 7 and 8 of the Lands chapter, no real or personal property of Tsawwassen First Nation or a Tsawwassen Public Institution is subject to seizure or sale under a Writ of Execution, order for sale or other process without leave of the Supreme Court of British Columbia, and the court, in granting or refusing leave under this clause, may:
a. permit the issuance of the writ, make the order or allow the other process at a time and on conditions the court considers proper; or
b. refuse to permit the writ to be issued or suspend action under it, or deny the order or other process, on terms and conditions the court considers proper or expedient.
167. In determining how to proceed under clause 166, the court must have regard to:
a. any reputed insolvency of Tsawwassen First Nation;
b. any security afforded to the judgment creditor by the registration of the judgment;
c. the effect on delivery of programs or services by Tsawwassen First Nation that are not provided by municipalities in British Columbia, and the funding of those programs or services;
d. any immunities from seizure of property of Tsawwassen First Nation under this Agreement; and
e. whether the judgment creditor has exhausted all other remedies, including the seizure of personal property and remedies against Other Tsawwassen Lands.