Table of Contents

HONOURABLE MICHAEL DE JONG
MINISTER OF ABORIGINAL RELATIONS
AND RECONCILIATION

BILL 40 — 2007

TSAWWASSEN FIRST NATION
FINAL AGREEMENT ACT

Preamble

WHEREAS the recognition and reconciliation of the prior presence of Aboriginal peoples and the assertion of sovereignty by the Crown is of significant social and economic importance to all British Columbians;

AND WHEREAS Canadian courts have stated that this reconciliation is best achieved through negotiation and agreement, rather than through litigation;

AND WHEREAS, in order to achieve this reconciliation, representatives of the Tsawwassen First Nation, Canada and British Columbia have negotiated the Tsawwassen First Nation Final Agreement in a process facilitated by the British Columbia Treaty Commission;

AND WHEREAS British Columbia is building a New Relationship with First Nations and working to close the social and economic gaps that exist between Aboriginal and non-Aboriginal people;

AND WHEREAS the Tsawwassen First Nation Final Agreement embodies the principles of this New Relationship, including mutual respect, recognition and reconciliation of Aboriginal rights and title;

AND WHEREAS the Tsawwassen First Nation Final Agreement requires that British Columbia enact legislation to give effect to the Tsawwassen First Nation Final Agreement;

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

Definitions

1  (1) In this Act, "Tsawwassen First Nation Final Agreement" means the Tsawwassen First Nation Final Agreement among the Tsawwassen First Nation, Her Majesty the Queen in right of Canada and Her Majesty the Queen in right of British Columbia set out in the Schedule, and includes

(a) that agreement as it is given effect by an Act of Canada, and

(b) amendments to that agreement made in accordance with it.

(2) Words and expressions used in this Act have the same meanings as they have in the Tsawwassen First Nation Final Agreement, unless the context requires otherwise.

Treaty and land claims agreement

2  The Tsawwassen First Nation Final Agreement is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.

Tsawwassen First Nation Final Agreement

3  (1) The Tsawwassen First Nation Final Agreement is approved, given effect and declared valid and has the force of law.

(2) Without limiting subsection (1), a person or body

(a) has the powers, rights, privileges and benefits conferred, and

(b) must perform the duties and is subject to the liabilities imposed

on the person or body by the Tsawwassen First Nation Final Agreement.

(3) Nothing in this Act that provides for a matter that is already provided for in the Tsawwassen First Nation Final Agreement in any way limits this section.

Authorization to sign Tsawwassen First Nation Final Agreement

4  The Lieutenant Governor in Council may authorize a member of the Executive Council to sign the Tsawwassen First Nation Final Agreement.

Tsawwassen First Nation Final Agreement binding and can be relied on

5  The Tsawwassen First Nation Final Agreement is binding on, and can be relied on by, all persons.

Relationship between final agreement and legislation

6  (1) As set out in clause 27 of Chapter 2 [General Provisions] of the Tsawwassen First Nation Final Agreement, the Tsawwassen First Nation Final Agreement prevails to the extent of an inconsistency with Provincial Law.

(2) As set out in clause 28 of Chapter 2 [General Provisions] of the Tsawwassen First Nation Final Agreement, Provincial Settlement Legislation prevails over other Provincial Law to the extent of a Conflict.

Tsawwassen First Nation's ownership of lands

7  (1) In this section, "estate in fee simple" means the estate in fee simple within the meaning of the Tsawwassen First Nation Final Agreement.

(2) On the Effective Date, the Tsawwassen First Nation owns the estate in fee simple in the following lands:

(a) Tsawwassen Lands as identified in clause 1 of Chapter 4 [Lands] of the Tsawwassen First Nation Final Agreement;

(b) Other Tsawwassen Lands as identified in clause 18 a. of that chapter.

(3) On the Effective Date, the soil and freehold of

(a) the highways described in paragraphs a. and b. of the definition of "Local Road" in the Tsawwassen First Nation Final Agreement,

(b) the highways described in paragraph a. of the definition of "Local Boundary Road" in that agreement, and

(c) the highway known as Eagle Way and legally described as Road Plan CLSR RD1801,

excluding any portion of those highways that was located within the Former Tsawwassen Reserve, are, without compensation to any person, transferred to and vested in the government.

(4) The transfer and vesting under subsection (3) are conclusively deemed to have occurred before the registration of Tsawwassen Lands under section 25 of Schedule 1 of the Land Title Act.

(5) Section 35 of the Community Charter does not apply in relation to land vested in the government under subsection (3) of this section except any portion of that land that is not, on the Effective Date, registered in the land title office in the name of the Tsawwassen First Nation.

Judicial or administrative proceedings

8  (1) As provided in clause 40 of Chapter 22 [Dispute Resolution] of the Tsawwassen First Nation Final Agreement, if, in any judicial or administrative proceeding, an issue arises in respect of

(a) the interpretation or validity of the Tsawwassen First Nation Final Agreement, or

(b) the validity or applicability of Settlement Legislation or a Tsawwassen Law,

the issue must not be decided until the party raising the issue has properly served notice on the Attorney General of British Columbia, the Attorney General of Canada and the Tsawwassen First Nation.

(2) The notice required under subsection (1) must

(a) describe the judicial or administrative proceeding in which the issue arises,

(b) state whether the issue arises in respect of the matters referred to in subsection (1) (a) or (b) or both,

(c) state the day on which the issue is to be argued,

(d) give particulars necessary to show the point to be argued, and

(e) be served at least 14 days before the day of argument unless the court or tribunal authorizes a shorter notice.

(3) As provided in clause 41 of Chapter 22 [Dispute Resolution] of the Tsawwassen First Nation Final Agreement, in a judicial or administrative proceeding to which subsection (1) applies, the Attorney General of British Columbia, the Attorney General of Canada and the Tsawwassen First Nation may appear and participate in the proceeding as parties with the same rights as any other party to the proceeding.

Agricultural land reserve

9  (1) Despite sections 2 and 16 of the Agricultural Land Commission Act, the following lands are excluded from the agricultural land reserve:

(a) the lands described in clause 32 of Chapter 4 [Lands] of the Tsawwassen First Nation Final Agreement;

(b) agricultural land, as defined in the Agricultural Land Commission Act, that is within the Former Tsawwassen Reserve.

(2) Despite section 2 of the Agricultural Land Commission Act, on the Effective Date, the Agricultural Land Commission must amend the land reserve plan in accordance with subsection (1) and provide notice to the Tsawwassen First Nation and the registrar of titles that the amendment has been made.

(3) Despite section 2 of the Agricultural Land Commission Act, section 21 of that Act does not apply in relation to a subdivision plan of Tsawwassen Lands deposited in the land title office on the Effective Date for the purposes of registering those lands in the name of the Tsawwassen First Nation.

Power to add Tsawwassen First Nation to
Greater Vancouver Water District

10  (1) In this section:

"Board", "Corporation" and "District" have the same meanings as in section 2 of the Greater Vancouver Water District Act;

"minister" means the minister charged with the administration of the Greater Vancouver Water District Act;

"Tsawwassen Indian Band" means the band, as defined in the Indian Act (Canada), named the Tsawwassen Indian Band.

(2) The membership of the Tsawwassen First Nation in the Corporation and the provision of water to the Tsawwassen First Nation by the Corporation must be

(a) on the terms and conditions that, despite the Greater Vancouver Water District Act, may be mutually agreed upon between the Board, on the recommendation of the Commission under that Act, and the Tsawwassen Indian Band, or

(b) if the Board and the Tsawwassen Indian Band cannot reach agreement under paragraph (a), on the terms and conditions as may be ordered by the minister under subsection (3).

(3) If the Board and the Tsawwassen Indian Band fail to agree on the terms and conditions under subsection (2) (a), the Tsawwassen Indian Band may appeal to the minister and the minister has full power and authority to settle, by order, the terms and conditions upon which Tsawwassen Lands will be added to the District and water will be provided to the Tsawwassen First Nation by the Corporation, and the order, on becoming effective under subsection (4), is final and binding upon the Tsawwassen First Nation and the Corporation.

(4) An agreement under subsection (2) or an order under subsection (3) becomes effective to add the Tsawwassen Lands to the District on the date that both the following have occurred:

(a) the Tsawwassen First Nation has, by Tsawwassen Law, confirmed the agreement or order;

(b) a regulation under subsection (5) is in effect,

and the Corporation must provide water to the Tsawwassen First Nation on the terms and conditions agreed or ordered, as the case may be.

(5) The minister may make regulations as required to give effect to an agreement under subsection (2) or an order under subsection (3), as the case may be, including without limitation,

(a) specifying the provisions of the Greater Vancouver Water District Act that apply to the Tsawwassen First Nation as a member of the Corporation, and

(b) despite that Act, modifying those provisions as necessary to give effect to the agreement or order.

(6) If, before the Effective Date, negotiations have not been concluded under subsection (2) (a) and an order has not been made under subsection (3), references in this section to the Tsawwassen Indian Band include the Tsawwassen First Nation.

Authorization to enter into agreements

11  The Lieutenant Governor in Council may authorize a member of the Executive Council to enter into, on behalf of Her Majesty the Queen in right of British Columbia, an agreement that is contemplated by the Tsawwassen First Nation Final Agreement.

Tax Treatment Agreement

12  (1) In this section, "Tax Treatment Agreement" means the tax treatment agreement referred to in clauses 22 and 23 of Chapter 20 [Taxation] of the Tsawwassen First Nation Final Agreement, substantially in the form tabled in the Legislative Assembly on the date this Act receives Third Reading.

(2) The Tax Treatment Agreement

(a) is approved, given effect and declared valid, and

(b) has the force of law during the period it is in effect.

(3) The minister charged with the administration of the Financial Administration Act is authorized to enter into the Tax Treatment Agreement on behalf of Her Majesty the Queen in right of British Columbia.

(4) As provided in clause 58 of Chapter 2 [General Provisions] of the Tsawwassen First Nation Final Agreement, the Tax Treatment Agreement does not form part of the Tsawwassen First Nation Final Agreement and is not a treaty or land claims agreement within the meaning of section 25 or 35 of the Constitution Act, 1982.

(5) The minister charged with the administration of this Act must publish the Tax Treatment Agreement in the Gazette.

Harvest Agreement

13  (1) In this section, "Harvest Agreement" means the Tsawwassen First Nation Harvest Agreement referred to in clause 102 of Chapter 9 [Fisheries] of the Tsawwassen First Nation Final Agreement, substantially in the form tabled in the Legislative Assembly on the date this Act receives Third Reading.

(2) The minister charged with the administration of the Fisheries Act has the authority to enter into the Harvest Agreement on behalf of Her Majesty the Queen in right of British Columbia.

(3) As provided in clause 103 of Chapter 9 [Fisheries] of the Tsawwassen First Nation Final Agreement, the Harvest Agreement does not form part of the Tsawwassen First Nation Final Agreement and is not a treaty or land claims agreement within the meaning of section 25 or 35 of the Constitution Act, 1982.

(4) The minister charged with the administration of this Act must publish the Harvest Agreement in the Gazette.

Harvest documents

14  The minister charged with the administration of the Wildlife Act has the authority to issue and amend licences, permits or other documents in respect of the Tsawwassen Fishing Right for the purposes of and in accordance with clauses 59 to 64 of Chapter 9 [Fisheries] of the Tsawwassen First Nation Final Agreement.

Collection of personal information

15  (1) In this section, "personal information" and "public body" have the same meanings as in the Freedom of Information and Protection of Privacy Act.

(2) A public body may collect personal information by a method authorized under the Tsawwassen First Nation Final Agreement.

Application of Municipal Finance Authority Act

16  The Municipal Finance Authority Act does not apply in relation to Tsawwassen Lands.

Retroactive effect of Chapters 21 and 24

17  (1) For the purposes of determining the eligibility of individuals for enrolment under the Tsawwassen First Nation Final Agreement, enrolling individuals under the Tsawwassen First Nation Final Agreement and ratifying that agreement by the Tsawwassen First Nation,

(a) Chapters 21 [Eligibility and Enrolment] and 24 [Ratification of the Final Agreement] of that agreement are conclusively deemed to have come into force on December 8, 2006 and are retroactive to the extent necessary to give them force and effect on and after that date,

(b) all things done that would have been validly done if Chapters 21 and 24 of the Tsawwassen First Nation Final Agreement had been in force on December 8, 2006 are conclusively deemed to have been validly done, and

(c) a person, committee or board is conclusively deemed to have had since December 8, 2006 the powers, privileges and immunities the person, committee or board would have had if Chapters 21 and 24 of the Tsawwassen First Nation Final Agreement had been in force on December 8, 2006.

(2) Each of the following bodies, despite the Personal Information Protection Act, is conclusively deemed to have had, on and after December 8, 2006, lawful authority to collect, use and disclose personal information as necessary for determining the eligibility of individuals for enrolment under the Tsawwassen First Nation Final Agreement, enrolling individuals under the Tsawwassen First Nation Final Agreement and ratifying that agreement by the Tsawwassen First Nation, all in accordance with the processes required by that agreement:

(a) the enrolment committee established under clause 9 of Chapter 21 [Eligibility and Enrolment] of the Tsawwassen First Nation Final Agreement;

(b) the enrolment appeal board established under clauses 17 and 18 of Chapter 21 of the Tsawwassen First Nation Final Agreement;

(c) the ratification committee established under clause 7 of Chapter 24 [Ratification of the Final Agreement] of the Tsawwassen First Nation Final Agreement.

(3) A body referred to in subsection (2) of this section must comply with section 35 of the Personal Information Protection Act in relation to the personal information referred to in subsection (2) of this section as if the body were an organization as defined in that Act.

(4) This section must not be construed as lacking retroactive effect in relation to any matter because it makes no specific reference to that matter.

Power to make orders and regulations

18  The Lieutenant Governor in Council may make orders and regulations that the Lieutenant Governor in Council considers necessary or advisable for the purpose of carrying out any provision of the Tsawwassen First Nation Final Agreement.

Interim regulations

19  (1) Despite this or any other Act, after consulting with the Tsawwassen First Nation, the Lieutenant Governor in Council may make regulations consistent with the Tsawwassen First Nation Final Agreement as follows:

(a) respecting any matter that the Lieutenant Governor in Council considers is not provided for, or is not sufficiently provided for, in this Act or another Act affected by the Tsawwassen First Nation Final Agreement, an agreement contemplated by the Tsawwassen First Nation Final Agreement or this Act;

(b) making provisions the Lieutenant Governor in Council considers necessary or advisable for the purpose of more effectively bringing into operation the Tsawwassen First Nation Final Agreement, or an agreement contemplated by the Tsawwassen First Nation Final Agreement, in accordance with its terms, including, without limitation, provisions giving authority to a person or body, or restricting the authority of a person or body, in accordance with that agreement;

(c) making provisions the Lieutenant Governor in Council considers necessary or advisable for the purpose of preventing, minimizing or otherwise addressing any transitional difficulties encountered in bringing into effect the Tsawwassen First Nation Final Agreement, an agreement contemplated by the Tsawwassen First Nation Final Agreement, this Act or an Act affected by the Tsawwassen First Nation Final Agreement or other agreement, including, without limitation, provisions making an exception to or a modification of a provision in an Act or providing for the continued application of a previous enactment;

(d) resolving any errors, inconsistencies or ambiguities in this Act or another Act that arise in relation to the Tsawwassen First Nation Final Agreement or an agreement contemplated by the Tsawwassen First Nation Final Agreement.

(2) A regulation under subsection (1) may be made retroactive to a date not earlier than the Effective Date.

(3) To the extent of any conflict between a regulation under subsection (1) and another enactment, the regulation prevails.

(4) A regulation under subsection (1) ceases to have effect at the end of the last day of the next session of the Legislative Assembly after the regulation is made.

(5) A regulation may not be made under subsection (1) if a regulation having the same effect has been made under that subsection.

(6) Regulations under subsection (1) may only be made

(a) in relation to a tax, for 2 years after the date on which the exemption from the tax for Tsawwassen Members ends under clause 16 or 18 of Chapter 20 [Taxation] of the Tsawwassen First Nation Final Agreement,

(b) in relation to the membership of the Tsawwassen First Nation in the Greater Vancouver Water District and the provision of services to the Tsawwassen First Nation under the Greater Vancouver Water District Act, for 2 years after the date an agreement or order, as the case may be, under section 10 of this Act is effective in accordance with that section, and

(c) in relation to any other matter, for 2 years after the Effective Date.

Transition — GVRD regional growth strategy

20  The land use plan of the Tsawwassen First Nation in effect on the Effective Date is conclusively deemed to be consistent with the Greater Vancouver Regional District's regional growth strategy until the date the Tsawwassen First Nation amends or replaces that land use plan after the Effective Date.

Commencement

21  The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

Item Column 1
Provisions of Act
Column 2
Commencement
1 Anything not elsewhere covered by this table The date of Royal Assent
2 Sections 1 to 3, 5 to 9 and 11 to 16 By regulation of the Lieutenant Governor in Council
3 Section 17 December 8, 2006
4 Sections 18 to 20 By regulation of the Lieutenant Governor in Council