Table of Contents

CHAPTER 2 — GENERAL PROVISIONS

NATURE OF AGREEMENT

1.  This Agreement is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.

2.  This Agreement is binding on and can be relied on by the Parties.

3.  This Agreement is binding on and can be relied on by all Persons.

4.  Ratification of this Agreement by the Parties in accordance with the Ratification chapter is a condition precedent to the validity of this Agreement and, unless so ratified, this Agreement has no force or effect.

5.  Canada and British Columbia will recommend to Parliament and the Legislature of British Columbia, respectively, that Settlement Legislation provide that this Agreement is binding on, and can be relied on by, all Persons, and is approved, given effect, declared valid and has the force of law.

REPRESENTATION AND WARRANTY

6.  Tsawwassen First Nation represents and warrants to Canada and British Columbia that, in respect of the matters dealt with in this Agreement, Tsawwassen First Nation has the authority to enter, and it enters, into this Agreement on behalf of all Tsawwassen Individuals who, through Tsawwassen First Nation, have or may exercise any aboriginal rights, including aboriginal title, in Canada, or who may make any claim in respect of those rights.

7.  Canada and British Columbia represent and warrant to Tsawwassen First Nation that, in respect of the matters dealt with in this Agreement, they have the authority to enter, and they enter, into this Agreement within their respective authorities.

CONSTITUTION OF CANADA

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

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

b. the identity of Tsawwassen people as aboriginal people of Canada within the meaning of the Constitution Act, 1982; or

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

9.  The Canadian Charter of Rights and Freedoms applies to Tsawwassen Government in respect of all matters within its authority.

10.  There are no "Lands reserved for the Indians" within the meaning of the Constitution Act, 1867 for Tsawwassen First Nation, and there are no "reserves" as defined in the Indian Act for Tsawwassen First Nation, and, for greater certainty, Tsawwassen Lands and Other Tsawwassen Lands are not "Lands reserved for the Indians" within the meaning of the Constitution Act, 1867, and are not "reserves" as defined in the Indian Act.

FULL AND FINAL SETTLEMENT

11.  This Agreement constitutes the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of Tsawwassen First Nation.

SECTION 35 RIGHTS OF TSAWWASSEN FIRST NATION

12.  This Agreement exhaustively sets out the Section 35 Rights of Tsawwassen First Nation, their attributes, the geographic extent of those rights, and the limitations to those rights to which the Parties have agreed, and those rights are:

a. the aboriginal rights, including aboriginal title, modified as a result of this Agreement, in Canada, of Tsawwassen First Nation in and to Tsawwassen Lands and other lands and resources in Canada;

b. the jurisdictions, authorities and rights of Tsawwassen Government; and

c. the other Section 35 Rights of Tsawwassen First Nation.

MODIFICATION

13.  Despite the common law, as a result of this Agreement and the Settlement Legislation, the aboriginal rights, including the aboriginal title, of Tsawwassen First Nation, as they existed anywhere in Canada before the Effective Date, including their attributes and geographic extent, are modified, and continue as modified, as set out in this Agreement.

14.  For greater certainty, the aboriginal title of Tsawwassen First Nation anywhere that it existed in Canada before the Effective Date, including its attributes and geographic extent, is modified and continues as modified as the estates in fee simple to those areas identified in this Agreement as Tsawwassen Lands and Other Tsawwassen Lands.

PURPOSE OF MODIFICATION

15.  The purpose of the modification referred to in clause 13 is to ensure that as of the Effective Date:

a. Tsawwassen First Nation has, and can exercise, the Section 35 Rights of Tsawwassen First Nation set out in this Agreement, including their attributes, geographic extent and the limitations to those rights to which the Parties have agreed;

b. Canada, British Columbia and all other Persons can exercise their rights, authorities, jurisdictions and privileges in a manner that is consistent with this Agreement; and

c. Canada, British Columbia and all other Persons do not have any obligations in respect of any aboriginal rights, including aboriginal title, of Tsawwassen First Nation to the extent that those rights, including aboriginal title, might be in any way other than, or different in attributes or geographic extent from, the Section 35 Rights of Tsawwassen First Nation set out in this Agreement.

RELEASE OF PAST CLAIMS

16.  Tsawwassen First Nation releases Canada, British Columbia and all other Persons from all claims, demands, actions or proceedings, of whatever kind, whether known or unknown, that Tsawwassen First Nation ever had, now has or may have in the future, relating to or arising from any act or omission before the Effective Date that may have affected, interfered with or infringed any aboriginal right, including aboriginal title, in Canada of Tsawwassen First Nation.

INDEMNITIES

17.  Tsawwassen First Nation will indemnify and forever save harmless Canada or British Columbia, as the case may be, from any and all damages, losses, liabilities, or costs excluding fees and disbursements of solicitors and other professional advisors, that Canada or British Columbia, respectively, may suffer or incur in connection with or as a result of any suit, action, cause of action, claim, proceeding or demand initiated or made before or after the Effective Date relating to or arising from:

a. the existence in Canada of an aboriginal right, including aboriginal title, of Tsawwassen First Nation, that is determined to be other than, or different in attributes or geographic extent from, the Section 35 Rights of Tsawwassen First Nation set out in this Agreement; or

b. any act or omission by Canada or British Columbia, before the Effective Date, that may have affected, interfered with or infringed any aboriginal right, including aboriginal title, in Canada of Tsawwassen First Nation.

18.  A Party who is the subject of a suit, action, cause of action, claim, proceeding or demand that may give rise to a requirement to provide payment to that Party under an indemnity as set out in this Agreement:

a. will vigorously defend the suit, action, cause of action, claim, proceeding or demand; and

b. will not settle or compromise the suit, action, cause of action, claim, proceeding or demand except with the consent of the Party who has granted the indemnity, which consent will not be arbitrarily or unreasonably withheld or delayed.

APPLICATION AND RELATIONSHIP OF FEDERAL LAW, PROVINCIAL LAW AND TSAWWASSEN LAW

19.  Federal Law, Provincial Law and Tsawwassen Law applies to Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Lands, Tsawwassen Government, Tsawwassen Public Institutions and Tsawwassen Corporations.

20.  Canada will recommend to Parliament that Federal Settlement Legislation include a provision that, to the extent that a Provincial Law does not apply of its own force to Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Lands, Tsawwassen Government, Tsawwassen Public Institutions or Tsawwassen Corporations, that law of British Columbia will, subject to the Federal Settlement Legislation and any other act of Parliament, apply in accordance with this Agreement to Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Lands, Tsawwassen Government, Tsawwassen Public Institutions and Tsawwassen Corporations, as the case may be.

21.  Except as otherwise provided in this Agreement, Tsawwassen Law does not apply to Canada or British Columbia.

22.  For greater certainty, the powers of Tsawwassen Government to make laws, set out in this Agreement, do not include the power to make laws in respect of criminal law, criminal procedure, Intellectual Property, the official languages of Canada, aeronautics, navigation and shipping, or labour relations and working conditions.

23.  Despite any other rule of priority in this Agreement, a Federal Law in relation to peace, order and good government, criminal law, human rights, the protection of the health and safety of all Canadians, or other matters of overriding national importance, prevails to the extent of a Conflict with a Tsawwassen Law.

24.  Despite any other rule of priority in this Agreement, Federal and Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law that has an incidental impact on a subject matter for which Tsawwassen Government:

a. has no power to make laws; or

b. has the power to make laws but in respect of which Federal and Provincial Laws prevail in the event of a Conflict.

25.  Despite any other rule of priority in this Agreement, Federal and Provincial Law prevails to the extent of a Conflict with a Tsawwassen Law that has a double aspect with any federal or provincial legislative jurisdiction for which Tsawwassen Government:

a. has no power to make laws; or

b. has the power to make laws but in respect of which Federal and Provincial Laws prevail in the event of a Conflict.

RELATIONSHIP OF THIS AGREEMENT AND FEDERAL LAW, PROVINCIAL LAW AND TSAWWASSEN LAW

26.  Any Tsawwassen Law that is inconsistent with this Agreement is of no force or effect to the extent of the inconsistency.

27.  This Agreement prevails to the extent of an inconsistency with a Federal or Provincial Law.

28.  Federal Settlement Legislation prevails over other Federal Law to the extent of a Conflict, and Provincial Settlement Legislation prevails over other Provincial Law to the extent of a Conflict.

29.  A licence, permit or other authorization, to be issued by Canada or British Columbia as a result of this Agreement, will be issued under Federal or Provincial Law, as the case may be, and will not form part of this Agreement, and this Agreement prevails to the extent of any inconsistency with the licence, permit or other authorization.

INTERNATIONAL LEGAL OBLIGATIONS

30.  After the Effective Date, before consenting to be bound by a new International Treaty that would give rise to a new International Legal Obligation that may adversely affect a right of Tsawwassen First Nation under this Agreement, Canada will Consult with Tsawwassen First Nation in respect of the International Treaty, either separately or through a forum that Canada determines is appropriate.

31.  Where Canada informs Tsawwassen First Nation that it considers that a Tsawwassen Law or other exercise of power by Tsawwassen First Nation causes Canada to be unable to perform an International Legal Obligation, Tsawwassen First Nation and Canada will discuss remedial measures to enable Canada to perform the International Legal Obligation. Subject to clause 32, Tsawwassen First Nation will remedy the Tsawwassen Law or other exercise of power to the extent necessary to enable Canada to perform the International Legal Obligation.

32.  Where Canada and Tsawwassen First Nation disagree over whether a Tsawwassen Law or other exercise of power by Tsawwassen First Nation causes Canada to be unable to perform an International Legal Obligation, the dispute will be resolved under the Dispute Resolution chapter of this Agreement, including the arbitration provisions, and:

a. if the arbitrator, having taken into account all relevant considerations, including any reservations and exceptions taken by Canada, determines that the Tsawwassen Law or other exercise of power by Tsawwassen First Nation does not cause Canada to be unable to perform the International Legal Obligation, or that the remedial measures are sufficient to enable Canada to perform the International Legal Obligation, Canada will not take any further action for this reason aimed at changing the Tsawwassen Law or other exercise of power; or

b. if the arbitrator, having taken into account all relevant considerations including any reservations and exceptions available to Canada, determines that the Tsawwassen Law or other exercise of power causes Canada to be unable to perform the International Legal Obligation, or that the remedial measures are insufficient to enable Canada to perform the International Legal Obligation, Tsawwassen First Nation will remedy the Tsawwassen Law or other exercise of power to the extent necessary to enable Canada to perform the International Legal Obligation.

33.  Canada will Consult with Tsawwassen First Nation in respect of the development of positions taken by Canada before an International Tribunal where a Tsawwassen Law or other exercise of power by Tsawwassen First Nation has given rise to an issue concerning the performance of an International Legal Obligation of Canada. Canada's positions before the International Tribunal will take into account the commitment of the Parties to the integrity of this Agreement.

34.  Despite clause 32, if there is a finding of an International Tribunal of non-performance of an International Legal Obligation of Canada attributable to a Tsawwassen Law or other exercise of power by Tsawwassen First Nation, Tsawwassen First Nation will, at the request of Canada, remedy the Tsawwassen Law or action to enable Canada to perform the International Legal Obligation consistent with the compliance of Canada, including Federal or Provincial Law, as applicable, in respect of that International Legal Obligation.

OTHER RIGHTS, BENEFITS AND PROGRAMS

35.  Tsawwassen Members who are Canadian citizens or permanent residents of Canada continue to be entitled to all the rights and benefits of other Canadian citizens or permanent residents of Canada applicable to them from time to time.

36.  Subject to clause 37, nothing in this Agreement affects the ability of Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Government, Tsawwassen Public Institutions or Tsawwassen Corporations to participate in or benefit from federal or provincial programs for registered Indians, other Indians or aboriginal people in accordance with criteria in effect from time to time.

37.  Tsawwassen Members are eligible to participate in programs established by Canada or British Columbia and to receive public services from Canada or British Columbia, in accordance with general criteria established for those programs or public services from time to time, to the extent that the Tsawwassen First Nation has not assumed responsibility for those programs or public services under a Fiscal Financing Agreement or other funding agreement.

38.  Nothing in this Agreement affects the ability of Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Government, Tsawwassen Public Institutions or Tsawwassen Corporations to apply for or bid on any commercial, economic or other activity or project for which they would otherwise be eligible.

39.  Subject to the Transition chapter and clause 16 of the Taxation chapter, the Indian Act has no application to Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Government or Tsawwassen Public Institutions, except for the purpose of determining whether an individual is an "Indian" within the meaning of the Indian Act.

40.  Subject to clause 5 of the Transition chapter, the Framework Agreement on First Nation Land Management, the First Nations Land Management Act and the Tsawwassen First Nation Land Code have no application to Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Lands, Tsawwassen Government or Tsawwassen Public Institutions.

41.  For so long as the First Nations Land Management Act is in force, Canada will indemnify Tsawwassen First Nation, in respect of lands that immediately before the Effective Date comprised the Former Tsawwassen Reserve, in the same manner and under the same conditions as would be the case if the First Nations Land Management Act applied to those lands.

JUDICIAL DETERMINATIONS IN RESPECT OF VALIDITY

42.  If a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada finally determines any provision of this Agreement to be invalid or unenforceable:

a. the Parties will make best efforts to amend this Agreement to remedy or replace the provision; and

b. the provision will be severable from this Agreement to the extent of the invalidity or unenforceability and the remainder of the Agreement will be construed, to the extent possible, to give effect to the intent of the Parties.

43.  No Party will challenge, or support a challenge to, the validity of this Agreement or any provision of this Agreement.

44.  A breach of this Agreement by a Party does not relieve any Party from its obligations under this Agreement.

CONSULTATION

45.  In respect of a Section 35 Right of Tsawwassen First Nation, the following is an exhaustive list of the consultation obligations of Canada and British Columbia:

a. as provided in this Agreement;

b. as may be provided in federal or provincial legislation;

c. as may be provided in an agreement with Tsawwassen First Nation other than this Agreement; and

d. as may be required under the common law in relation to an infringement of that right.

46.  For greater certainty, the exercise of a power or authority, or an action taken, by Canada or British Columbia that is consistent with or in accordance with this Agreement is not an infringement of the Section 35 Rights of Tsawwassen First Nation and will not be subject to any obligation to consult except as set out in subclause 45.a, 45.b or 45.c.

OTHER ABORIGINAL PEOPLE

47.  Nothing in this Agreement affects, recognizes or provides any rights under section 35 of the Constitution Act, 1982 for any aboriginal people other than Tsawwassen First Nation.

48.  If a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada finally determines that any aboriginal people, other than Tsawwassen First Nation, have rights under section 35 of the Constitution Act, 1982 that are adversely affected by a provision of this Agreement:

a. the provision will operate and have effect to the extent that it does not adversely affect those rights; and

b. if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.

49.  If Canada or British Columbia enters into a treaty or a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982 with any other aboriginal people and that treaty or land claims agreement adversely affects the Section 35 Rights of Tsawwassen First Nation as set out in this Agreement:

a. Canada or British Columbia, as the case may be, will provide Tsawwassen First Nation with additional or replacement rights or other appropriate remedies;

b. at the request of Tsawwassen First Nation, the Parties will negotiate and attempt to reach agreement on the provision of those additional or replacement rights or other appropriate remedies; and

c. if the Parties are unable to reach agreement on the provision of the additional or replacement rights or other appropriate remedies, the provision of those additional or replacement rights or remedies will be resolved in accordance with the Dispute Resolution chapter.

INFORMATION AND PRIVACY

50.  For the purposes of federal and provincial access to information and privacy legislation, information that Tsawwassen First Nation provides to Canada or British Columbia in confidence is deemed to be information received or obtained in confidence from another government.

51.  If Tsawwassen First Nation requests disclosure of information from Canada or British Columbia, the request will be evaluated as if it were a request by a province for disclosure of that information, but Canada and British Columbia are not required to disclose to Tsawwassen First Nation information that is only available to a particular province or particular provinces.

52.  The Parties may enter into agreements in respect of any one or more of the collection, protection, retention, use, disclosure and confidentiality of personal, general or other information.

53.  Canada or British Columbia may provide information to Tsawwassen First Nation in confidence if Tsawwassen Government has made a law or Tsawwassen First Nation has entered into an agreement with Canada or British Columbia, as the case may be, under which the confidentiality of the information will be protected.

54.  Despite any other provision of this Agreement:

a. Canada and British Columbia are not required to disclose information that they are required or authorized to withhold under Federal or Provincial Law, including under sections 37 to 39 of the Canada Evidence Act; and

b. if federal or provincial legislation allows the disclosure of certain information only if specified conditions for disclosure are satisfied, Canada and British Columbia are not required to disclose that information unless those conditions are satisfied.

55.  The Parties are not required to disclose any information that may be withheld at law, including a privilege at law.

OBLIGATION TO NEGOTIATE

56.  Where the Parties are obliged under any provision of this Agreement to negotiate and attempt to reach agreement, all Parties will participate in the negotiations unless they agree otherwise.

57.  Where this Agreement provides that the Parties, or any two of them, "will negotiate and attempt to reach agreement", those negotiations will be conducted as set out in the Dispute Resolution chapter, but no Party is obliged to proceed to Stage Three of the Dispute Resolution chapter unless they are required to do so in accordance with clause 27 of the Dispute Resolution chapter.

OTHER AGREEMENTS

58.  An agreement, plan, guideline or other document made by a Party or Parties, that is referred to in, or contemplated by, this Agreement, including an agreement that is reached as a result of negotiations that under this Agreement are required or permitted, is not part of this Agreement, is not a treaty or land claims agreement and does not create, recognize or affirm aboriginal or treaty rights within the meaning of sections 25 and 35 of the Constitution Act, 1982.

INTERPRETATION

59.  The provisions in this chapter prevail over the provisions in the other chapters of this Agreement to the extent of any inconsistency.

60.  There will be no presumption that doubtful expressions, terms or provisions in this Agreement are to be resolved in favour of any particular Party.

61.  If an authority of British Columbia that is referred to in this Agreement is delegated from Canada and:

a. the delegation of that authority is revoked; or

b. if a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada finally determines that the delegation of that authority is invalid,

then the reference to British Columbia will be deemed to be a reference to Canada.

62.  If an authority of Canada that is referred to in this Agreement is delegated from British Columbia and:

a. the delegation of that authority is revoked; or

b. if a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada finally determines that the delegation of that authority is invalid,

then the reference to Canada will be deemed to be a reference to British Columbia.

63.  The schedules and appendices to this Agreement form part of this Agreement.

64.  Unless the context requires otherwise, in this Agreement:

a. the word "will" denotes an obligation that, unless this Agreement provides otherwise, must be carried out as soon as practicable after the Effective Date or the event that gives rise to the obligation;

b. the word "or" is used in its inclusive sense, meaning A or B, or both A and B; and the word "and" is used in its joint sense, meaning A and B, but not either alone;

c. the word "including" means "including, but not limited to", and the word "includes" means "includes, but is not limited to";

d. a reference to a "chapter", "clause", "subclause", "schedule" or "appendix" means a chapter, clause, subclause, schedule or appendix, respectively, of this Agreement;

e. a reference in a chapter of this Agreement to a "clause", "subclause", "schedule" or "appendix" means a clause, subclause, schedule or appendix, respectively, of that chapter;

f. the word "provincial" refers to the province of British Columbia;

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

h. a reference to "harvest" includes attempts to harvest and a reference to "gather" includes attempts to gather.

65.  In this Agreement:

a. the word "Consult" with an upper case "C" is to be interpreted with reference to the defined term "Consult" under the Definitions chapter, and the word "consult" with a lower case "c" is to be given its ordinary meaning;

b. headings and subheadings are for convenience only, do not form a part of this Agreement and in no way define, limit, alter or enlarge the scope or meaning of any provision of this Agreement;

c. a reference to a statute includes every amendment to it, every regulation made under it, every amendment to a regulation made under it, and any law enacted in substitution for it or in replacement of it; and

d. where a word is defined, other parts of speech and grammatical forms of the same word have corresponding meanings.

OFFICIAL LANGUAGES

66.  For greater certainty, the Parties acknowledge that the Official Languages Act applies to this Agreement, including the execution of this Agreement.

EARLY IMPLEMENTATION

67.  The Parties may agree to provide to Tsawwassen First Nation access to benefits provided for under this Agreement after the signing of this Agreement but before the Effective Date, and those benefits will be treated as if they were provided on the Effective Date, unless the Parties otherwise agree.

ENTIRE AGREEMENT

68.  This Agreement is the entire agreement among the Parties in respect of the subject matter of this Agreement and, except as set out in this Agreement, there is no representation, warranty, collateral agreement, condition, right or obligation affecting this Agreement.

NO IMPLIED WAIVER

69.  Waiver by a Party of any provision of this Agreement in one instance does not constitute a waiver in any other instance, and any waiver must be in writing.

ASSIGNMENT

70.  Unless otherwise agreed by the Parties, this Agreement may not be assigned, either in whole or in part, by any Party.

ENUREMENT

71.  This Agreement will enure to the benefit of and be binding upon the Parties and their respective permitted assigns.

NOTICE

72.  In clauses 73 through 77, "Communication" includes a written notice, document, request, approval, authorization or consent.

73.  Unless otherwise set out in this Agreement, a Communication must be:

a. delivered personally or by courier;

b. transmitted by facsimile or electronic mail; or

c. mailed by any method for which confirmation of delivery is provided.

74.  A Communication will be considered to have been given, made or delivered, and received:

a. if delivered personally or by courier, at the start of business on the next business day after the business day on which it was received by the addressee or a responsible representative of the addressee;

b. if transmitted by facsimile or electronic mail and the sender receives confirmation of the transmission, at the start of business on the next business day after the business day on which it was transmitted; or

c. if mailed by any method for which confirmation of delivery is provided, when receipt is acknowledged by the addressee.

75.  The Parties may agree to give, make or deliver a Communication by means other than those provided in clause 73.

76.  The Parties will provide to each other addresses for delivery of Communications under this Agreement and, subject to clause 77, will deliver a Communication to the address provided by each Party.

77.  If no other address for delivery of a particular Communication has been provided by a Party, a Communication will be delivered, mailed to the postal address, or transmitted to the facsimile number, of the intended recipient as set out below:

For: Canada
Attention: Minister of Indian Affairs and
Northern Development
House of Commons
Room 583, Confederation Building
Ottawa, Ontario
K1A 0A6
Fax: (819) 953-4941

For: British Columbia
Attention: Minister of Aboriginal Relations and Reconciliation
Room 310, Parliament Buildings
PO Box 9052 Stn Prov Govt
Victoria, British Columbia
V8W 9E2
Fax: (250) 953-4856

For: Tsawwassen First Nation
Attention: Chief, Tsawwassen First Nation
131 North Tsawwassen Drive
Delta, British Columbia
V4M 4G2
Fax: (604) 943-9226