Law:First Nations Jurisdiction over Education in British Columbia Act

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S.c. 2006, c. 10

Assented to 2006-12-12

An Act to provide for jurisdiction over education on First Nation lands in British Columbia

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the First Nations Jurisdiction over Education in British Columbia Act.


Interpretation

Definitions

2. (1) The following definitions apply in this Act.

“Authority”

« Autorité scolaire »

“Authority” means the First Nations Education Authority established by section 11.

“council of a participating First Nation”

« conseil de la première nation participante »

“council of a participating First Nation” has the same meaning as the expression “council of the band” in subsection 2(1) of the Indian Act.

“education”

« éducation »

“education” means education programs and services of a nature generally provided to students from kindergarten to grade 12.

“First Nation land”

« terres autochtones »

“First Nation land” means a “reserve”, as that term is defined in subsection 2(1) of the Indian Act, that is situated in British Columbia and that is set apart for a participating First Nation, and includes “first nation land” as that term is defined in subsection 2(1) of the First Nations Land Management Act.

“First Nation law”

« loi autochtone »

“First Nation law” means a law made under subsection 9(1).

“individual agreement”

« accord spécifique »

“individual agreement” means an agreement entered into between Her Majesty in right of Canada and a participating First Nation with respect to jurisdiction over education by the participating First Nation on First Nation land, and includes any amendments to the agreement made pursuant to its provisions.

“Minister”

« ministre »

“Minister” means the Minister of Indian Affairs and Northern Development.

“participating First Nation”

« première nation participante »

“participating First Nation” means a band named in the schedule.

Words and expressions in Indian Act

(2) Unless the context otherwise requires, words and expressions used in this Act have the same meaning as in the Indian Act.

Conflict with agreement

3. (1) In the event of a conflict between an individual agreement and any Act of Parliament, including this Act, the individual agreement prevails to the extent of the conflict.

Conflict with Act

(2) In the event of a conflict between this Act and any other Act of Parliament, this Act prevails to the extent of the conflict.


Purpose And Effect Of The Act

Purpose

4. The purpose of this Act and of orders of the Governor in Council made under this Act is to bring into effect individual agreements entered into with participating First Nations.

Bringing agreement into effect

5. (1) Once an individual agreement has been entered into, the Governor in Council may, by order, bring it into effect and add the name of the band that is party to it to the schedule.

Force of law of agreement

(2) An individual agreement is given the force of law by an order made under subsection (1).

Order in council — deletions from the schedule

6. The Governor in Council may, by order, delete the name of a participating First Nation from the schedule if the Minister is satisfied that the participating First Nation has entered into a comprehensive self-government agreement, a treaty or a land claims agreement, providing for jurisdiction over education.


Effect Of Individual Agreement

Persons and bodies subject to agreement

7. Persons and bodies have the powers, rights, privileges and benefits conferred on them by an individual agreement and are subject to any obligations and liabilities imposed on them by an individual agreement.

Agreement binding

8. An individual agreement is binding on and may be relied on by all persons.

Legislative powers

9. (1) A participating First Nation has, to the extent provided by an individual agreement, the power

(a) to enact laws respecting education on First Nation land; and

(b) to delegate to the Authority its power to make laws under paragraph (a).

Transferability

(2) A participating First Nation shall provide, or make provision for, education so as to allow students to transfer without academic penalty to an equivalent level in another school within the school system of British Columbia.

Scope of individual agreement

10. For greater certainty, nothing in this Act renders ineffective any provision, or any amendment made to a provision, of an indi-vidual agreement for which specific provision is not made in this Act.


First Nations Education Authority

Establishment

11. (1) There is hereby established in British Columbia the First Nations Education Authority, to be managed by a board of directors that consists of a minimum of six directors, including a President and a Vice-President.

Capacity, rights, powers and privileges

(2) The Authority has the capacity, rights, powers and privileges of a natural person, including the capacity

(a) to enter into contracts;

(b) to acquire, hold and dispose of property or an interest in property;

(c) to raise, invest or borrow money; and

(d) to sue and be sued in its own name.

Not agent of Her Majesty

12. The Authority is not an agent of Her Majesty.

Appointment of directors

13. (1) Each participating First Nation has the right to appoint two directors to the board of directors, at least one of whom shall be a member of the participating First Nation, for an initial term of two years. Directors may be reappointed, for a term fixed by the board, for second or subsequent terms.

Removal from office

(2) A director holds office at the pleasure of the participating First Nation that appointed them, but they may be removed by the board of directors at any time for cause or for a ground set out in the board’s rules.

Appointment of President and Vice-President

14. The board of directors shall appoint a President and a Vice-President, from among the directors, to hold office at the pleasure of the board for an initial term not exceeding two years, and they may be reappointed for terms of appointment to be established by the board.

Rules of procedure

15. The board of directors may make rules that are consistent with this Act for the purpose of carrying out the Authority’s work,

(a) specifying the grounds for the removal of directors in addition to those generally recognized by law;

(b) conducting and managing its internal administrative affairs; and

(c) specifying the duties of its officers, directors and employees and of persons retained by it.

Head office

16. The Authority’s head office shall be in British Columbia.

Staff

17. (1) The Authority may

(a) hire any persons that are necessary to conduct its work; and

(b) determine the duties of those persons and the conditions of their employment.

Salaries and benefits

(2) Persons hired under subsection (1) shall be paid the salary and benefits fixed by the Authority.


Purpose And Powers Of The Authority

Mandate

18. The purpose of the Authority is to assist participating First Nations in developing the capacity to provide education on First Nation land and to provide for any other matters related to education that may be agreed to by the Authority and a participating First Nation in accordance with an individual agreement.

Education co-management agreements

19. (1) In furthering its purpose, the Authority shall, if requested by a participating First Nation and in accordance with an individual agreement, enter into a co-management agreement in respect of education with that participating First Nation.

Education standards

(2) The Authority shall, as provided for by a co-management agreement,

(a) establish standards that are applicable to education provided by a participating First Nation on First Nation land for curriculum and examinations for courses necessary to meet graduation requirements;

(b) provide a teacher certification process for teachers providing educational instruction in schools operated by a participating First Nation on First Nation land, other than teachers who teach only the language and culture of the participating First Nation;

(c) provide, upon request by a participating First Nation, a teacher certification process for teachers who teach only the language and culture of the participating First Nation in schools operated by the participating First Nation on First Nation land;

(d) provide a process for certifying schools that are operated by a participating First Nation on First Nation land; and

(e) perform any other duties that are consistent with the individual agreement and this Act.

Consultation with province

(3) The Authority shall consult with the competent authorities in British Columbia regarding standards established under paragraph (2)(a).

Delegation

20. The Authority may exercise the jurisdiction over education that is delegated to it by a participating First Nation in accordance with an individual agreement.

Other First Nations

21. (1) The board of directors may authorize the Authority to enter into agreements in respect of education with any First Nation in British Columbia other than a participating First Nation if that First Nation has entered into a comprehensive self-government agreement, a treaty or a land claims agreement, providing for jurisdiction over education.

Agreements with other First Nations

(2) If the Authority has been authorized by the board of directors to enter into agreements under subsection (1), the Authority may, if requested by a First Nation described in subsection (1) and in accordance with a comprehensive self-government agreement, a treaty or a land claims agreement, providing for jurisdiction over education, enter into an agreement in respect of education with that First Nation.

Delegated jurisdiction

(3) If the Authority has entered into an agreement with a First Nation under subsection (2), the Authority shall exercise the jurisdiction over education that is delegated to it by that First Nation in British Columbia in a manner consistent with subsection 19(2).

Additional directors

(4) If the Authority has entered into an agreement with a First Nation under subsection (2), that First Nation has the right to appoint two directors to the board of directors, at least one of whom shall be a member of that First Nation. A director holds office at the pleasure of the First Nation that appointed them, but may be removed by the board for cause or for a ground set out in the board’s rules.

Terms of appointment

(5) A director appointed under subsection (4) holds office for an initial term of two years and may be reappointed for a second or subsequent term, for a term of appointment fixed by the board of directors.


Community Education Authority

Establishment

22. (1) A participating First Nation may, on its own or jointly with other participating First Nations, establish a Community Education Authority to operate, administer and manage the education system of the participating First Nation on First Nation land in accordance with an individual agreement.

Powers, rights and duties

(2) A Community Education Authority has the powers, rights, privileges and benefits conferred on it by a participating First Nation and shall perform the duties — and be subject to the liabilities — imposed on it by a First Nation law in accordance with an individual agreement.


Other Acts

Indian Act

23. On the coming into force of a First Nation law, sections 114 to 122 of the Indian Act cease to apply to the participating First Nation and its members.


Liability

Participating First Nation not liable

24. (1) A participating First Nation is not liable in respect of anything done or omitted to be done by Her Majesty, or any person or body authorized by Her Majesty to act, in the exercise of their powers, duties and functions in relation to education.

Indemnification of participating First Nation

(2) Her Majesty shall indemnify a participating First Nation for any loss suffered by the participating First Nation as a result of an act or omission described in subsection (1).

Her Majesty not liable

(3) Her Majesty is not liable in respect of anything done or omitted to be done by a participating First Nation, or any person or body authorized by the participating First Nation to act, in the exercise of their powers, duties and functions in relation to education.

Indemnification of Her Majesty

(4) The participating First Nation shall indemnify Her Majesty for any loss suffered by Her Majesty as a result of an act or omission described in subsection (3).


MINISTER’S DUTIES AND POWERS

Schools

25. (1) The Minister may, in accordance with this Act, establish and maintain schools on First Nation land.

Deposit of copies

(2) The Minister shall cause a copy of each individual agreement and of any amendment made to the individual agreement, certified by the Minister to be a true copy, to be deposited in the library of the Department of Indian Affairs and Northern Development situated in the National Capital Region, as described in the schedule to the National Capital Act, and in any regional offices of that Department and other places that the Minister considers advisable.


General

Judicial notice of individual agreements

26. Judicial notice shall be taken of each individual agreement.

Judicial notice of First Nation laws

27. (1) Judicial notice shall be taken of First Nation laws.

Evidence of First Nation laws

(2) A copy of a First Nation law purporting to be deposited in the public registry of First Nation laws referred to in an individual agreement is evidence of that law and of its contents, unless the contrary is shown.

Statutory Instruments Act

28. For greater certainty, First Nation laws are not statutory instruments within the meaning of the Statutory Instruments Act.

Federal Courts Act

29. For greater certainty, no body established by this Act or by a First Nation law is a federal board, commission or other tribunal as defined in subsection 2(1) of the Federal Courts Act.

Notice of court or tribunal proceedings

30. (1) A party in any proceeding before a court or tribunal shall serve notice in writing on the Attorney General of Canada and the participating First Nation of any issue raised by that party in respect of

(a) the interpretation or validity of an individual agreement; or

(b) the validity or applicability of this Act or of a First Nation law.

Content of notice

(2) A notice shall identify the proceeding in which the issue arises, state whether it arises in relation to paragraph (1)(a) or (b), give particulars of the point to be argued and, if a date has been fixed for argument, give the date.

Attachments

(3) A notice shall be accompanied by copies of all pleadings and other documents pertaining to the issue that have been filed with the court or tribunal.

Time of service

(4) A notice shall be served within seven days after the issue is first raised by a party to the proceeding, whether in the initial pleadings or otherwise, and the issue may not be argued sooner than 14 days after service unless the court or tribunal allows a shorter period.

Participation in proceedings

(5) In any proceeding to which subsection (1) applies, the Attorney General of Canada and the participating First Nation may appear and participate with the same rights as any other party.


Orders And Regulations

Orders in council

31. (1) The Governor in Council may make orders and regulations that are necessary to implement individual agreements entered into after the day on which this subsection comes into force.

Regulation- making authority

(2) The Governor in Council may make regulations to establish standards for buildings and equipment, and the inspection of buildings and equipment, used by schools administered under this Act.


Consequential Amendments

Access to Information Act

32. (Amendment)


Privacy Act

33. (Amendments)

34. (Amendment)


Coming Into Force

Order in council

Schedule

(Subsection 2(1) and sections 5 and 6)

Participating First Nations


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