Law:Kanesatake Interim Land Base Governance Act

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S.c. 2001, c. 8

Assented to 2001-06-14

An Act to implement an agreement between the Mohawks of Kanesatake and Her Majesty in right of Canada respecting governance of certain lands by the Mohawks of Kanesatake and to amend an Act in consequence

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

Short title

1. This Act may be cited as the Kanesatake Interim Land Base Governance Act.

Definitions

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

“Agreement”

« accord territorial »

“Agreement” means the “Agreement with respect to Kanesatake Governance of the Interim Land Base” between the Mohawks of Kanesatake and Her Majesty in right of Canada, signed on December 21, 2000 and tabled in Parliament on March 27, 2001.

“Council”

« conseil »

“Council” means the council of the band, known as the Mohawk Council of Kanesatake.

“Kanesatake Mohawk interim land base”

« territoire provisoire de Kanesatake »

“Kanesatake Mohawk interim land base” means the lands set out in the schedule to this Act.

“Kanesatake Mohawk law”

« lois des Mohawks de Kanesatake »

“Kanesatake Mohawk law” means a law enacted in accordance with the provisions of this Act.

“Kanesatake Mohawk neighbouring lands”

« terres mohawks avoisinantes »

“Kanesatake Mohawk neighbouring lands” means the lands in the Kanesatake Mohawk interim land base that are located in the sectors set out in Schedule B to the Agreement, in the area commonly known as the “Village of Oka”.

“Mohawks of Kanesatake”

« Mohawks de Kanesatake »

“Mohawks of Kanesatake” means the band known as the Mohawks of Kanesatake.

Reference to Municipality

(2) A reference in this Act to the Municipality of Oka includes any successor municipality.

Purpose

3. (1) The purpose of this Act is to implement the Agreement and, in doing so,

(a) to ensure that certain lands in the Kanesatake Mohawk interim land base constitute lands reserved for the Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867 but not a reserve within the meaning of the Indian Act;

(b) to provide a framework for the exercise of jurisdiction by the Mohawks of Kanesatake over the use and development of the lands in the Kanesatake Mohawk interim land base; and

(c) to establish principles to govern the harmonious use and development of Kanesatake Mohawk neighbouring lands and certain lands in the Municipality of Oka.

Aboriginal and treaty rights

(2) This Act does not address any aboriginal or treaty rights of the Mohawks of Kanesatake. Nothing in this Act is intended either to prejudice such rights or to represent a recognition of such rights by Her Majesty in right of Canada.

Status of and interests in lands

(a) address the constitutional status of any lands before this Act comes into effect; or

(b) alter existing jurisdiction over the creation or transfer of rights or interests in relation to lands in the Kanesatake Mohawk interim land base.

Lands reserved

4. The lands in the Kanesatake Mohawk interim land base, other than the lands known as Doncaster Reserve No. 17, are set aside for the use and benefit of the Mohawks of Kanesatake as lands reserved for the Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867 but not as a reserve within the meaning of the Indian Act.

Legal status and capacity

5. The Mohawks of Kanesatake have the capacity of a natural person and, in particular, may

(a) acquire and hold property;

(b) enter into contracts or agreements;

(c) borrow money;

(d) expend and invest money;

(e) be a party to legal proceedings; and

(f) do any other thing that is conducive to the exercise of the rights, powers and privileges associated with that capacity.

Exercise of jurisdiction and powers

6. The Mohawks of Kanesatake shall act through the Council in exercising the jurisdiction and powers under this Act.

Jurisdiction

7. (1) The Mohawks of Kanesatake have jurisdiction to make laws in relation to the use and development of the lands in the Kanesatake Mohawk interim land base, including in relation to

(a) the health and quality of life of residents;

(b) the protection and management of wildlife and fish;

(c) the observance of law and order and the prevention of disorderly conduct and nuisances;

(d) the prevention of trespass, including entry onto, or occupation of, the lands without lawful authority;

(e) residency;

(f) fire safety and fire protection services;

(g) the construction, maintenance, management and use of local works, including water supplies;

(h) the construction or alteration of buildings, including inspection in connection with the construction or alteration;

(i) zoning;

(j) waste management and public sanitation; and

(k) traffic regulation.

Offences

(2) This jurisdiction includes the power to create offences punishable on summary conviction and to provide for the following sanctions for those offences, namely, orders, fines, imprisonment and sanctions that are consistent with restorative justice objectives. However, a fine or period of imprisonment shall not exceed the limits established under subsection 787(1) of the Criminal Code.

Exclusion

(3) For greater certainty, this jurisdiction does not include jurisdiction in relation to the subject-matters referred to in class 27 of section 91 of the Constitution Act, 1867 or in relation to labour relations or working conditions.

Statutory Instruments Act

(4) The Statutory Instruments Act does not apply to Kanesatake Mohawk laws.

Restriction — Doncaster Reserve No. 17

8. (1) Jurisdiction shall not be exercised under section 7 with respect to the lands known as Doncaster Reserve No. 17 except in accordance with an agreement between the Mohawks of Kanesatake and Kahnawake, and exercise of the jurisdiction with respect to those lands shall be subject to Her Majesty in right of Canada agreeing to take any measures that may be necessary to implement that agreement.

Application of the Indian Act

(2) To the extent that a Kanesatake Mohawk law enacted in accordance with subsection (1) makes provision for any matter for which provision is made by the Indian Act, the Indian Act does not apply to the Mohawks of Kanesatake or to members of the Mohawks of Kanesatake.

Restriction — land governance code

9. (1) Before jurisdiction under section 7 is exercised, the Mohawks of Kanesatake shall adopt a land governance code that sets out the principles, processes and rules to which the exercise of jurisdiction is subject.

Mandatory elements of the code

(2) The code shall

(a) establish processes for the preparation, enactment and publication of Kanesatake Mohawk laws;

(b) establish processes for the assessment and approval of proposed uses and development of lands in the Kanesatake Mohawk interim land base;

(c) establish principles and rules, including conflict of interest rules, to ensure the accountability of the Council to members of the Mohawks of Kanesatake;

(d) provide for rights of appeal and redress in relation to decisions and other measures taken by the Council under the authority of Kanesatake Mohawk laws; and

(e) include a procedure to amend the code.

Statutory Instruments Act

(3) The Statutory Instruments Act does not apply to the land governance code.

Land use plan

10. The Mohawks of Kanesatake shall adopt a plan that establishes general policies governing land use for the Kanesatake Mohawk interim land base before any process preliminary to the granting of an authorization is undertaken in relation to the proposed use of any of the lands in the land base for

(a) a commercial or industrial activity that results in or may result in an adverse impact on the environment;

(b) the storage or transportation of any dangerous materials; or

(c) waste disposal.

Environmental protection

11. (1) If federal laws contain no standards of environmental protection with respect to a matter, a Kanesatake Mohawk law, or an action or measure taken by the Council, with respect to that matter shall be consistent with the standards of environmental protection that apply generally in the province with respect to the matter.

Exclusion

(2) For the purposes of subsection (1), environmental protection does not include environmental assessment.

Stricter standards

(3) Nothing in subsection (1) precludes the Mohawks of Kanesatake or the Council from setting or applying standards that are stricter than the provincial standards.

Kanesatake Mohawk neighbouring lands

12. Until the Mohawks of Kanesatake make a Kanesatake Mohawk law that allows a land use on, or that establishes a land use standard that applies to, one or more of the lots or land sites that constitute Kanesatake Mohawk neighbouring lands, no person shall alter an existing land use, building or structure on that lot or land site or those lots or land sites unless the alteration complies with the land uses or the land use standards set out in Schedule B to the Agreement for the applicable sector.

Harmonization arrangement — Kanesatake Mohawk neighbouring lands

13. (1) Before the Mohawks of Kanesatake make any Kanesatake Mohawk law that allows a land use, or establishes a land use standard, that is significantly different from the uses or standards set out in Schedule B to the Agreement for the applicable sector, they shall enter into a harmonization arrangement with the Municipality of Oka.

Content of harmonization arrangement

(2) The harmonization arrangement

(a) shall establish the reciprocal obligations of the parties to harmonize, with respect to land use or land use standards, the Kanesatake Mohawk laws that apply to Kanesatake Mohawk neighbouring lands and the municipal by-laws that apply to the properties in the Municipality of Oka that adjoin Kanesatake Mohawk neighbouring lands;

(b) shall establish a dispute resolution process, which may include arbitration, to resolve any disagreement between the parties in relation to the arrangement; and

(c) may determine criteria for compatibility between those Kanesatake Mohawk laws and municipal by-laws.

Exception

(3) Subsection (1) does not apply in relation to any of the sectors in Schedule B to the Agreement if the Municipality of Oka, before entering into a harmonization arrangement, amends a municipal by-law to allow a land use or to establish a land use standard in any sector that is significantly different from the uses or standards set out in that Schedule for that sector, without being legally obliged by a provincial law to amend the by-law for that purpose.

Enactment despite harmonization arrangement

(4) The Mohawks of Kanesatake may, in relation to any of the sectors in Schedule B to the Agreement, make Kanesatake Mohawk laws despite the terms of the harmonization arrangement if, without the agreement of the Mohawks of Kanesatake, the Municipality of Oka

(a) in breach of its obligations under the arrangement, amends or repeals a municipal by-law with respect to land use or land use standards without being legally obliged by a provincial law to amend or repeal the by-law; or

(b) condones any use, activity or construction on a property in the Municipality of Oka that contravenes a municipal by-law with respect to land use or land use standards and that significantly prejudices any right or interest of an occupant of Kanesatake Mohawk neighbouring lands.

National building standards

14. Any construction that takes place on lands in the Kanesatake Mohawk interim land base shall comply with the building standards contained in the National Building Code of Canada 1995, issued by the Canadian Commission on Building and Fire Codes of the National Research Council of Canada, as amended from time to time.

Prosecution

15. (1) The Mohawks of Kanesatake may prosecute an offence committed under a Kanesatake Mohawk law in a court of competent jurisdiction.

Contraventions Act

(2) The Mohawks of Kanesatake may adopt the procedure applicable under the Contraventions Act for the prosecution of contraventions, subject to the necessary modifications.

Power to appoint justices of the peace

16. (1) To ensure the enforcement of Kanesatake Mohawk laws, the Mohawks of Kanesatake may appoint justices of the peace to adjudicate offences for contraventions of those laws.

Agreement with Her Majesty

(2) The Mohawks of Kanesatake shall not appoint any justices of the peace except in accordance with an agreement with Her Majesty in right of Canada that addresses the following matters:

(a) the jurisdiction and qualifications of the justices of the peace;

(b) the independence and impartiality, including the financial security and security of tenure, of the justices of the peace;

(c) the supervision of the justices of the peace;

(d) the right to appeal any decision of a justice of the peace; and

(e) the relationship between the justices of the peace and the existing justice system and its institutions.

Provincial laws that do not apply of their own force and municipal by-laws

17. (1) A provincial law to which section 88 of the Indian Act applies, or a municipal by-law, does not apply to the extent that it is inconsistent or conflicts with this Act or with a Kanesatake Mohawk law, or to the extent that it makes provision for any matter for which provision is made by or under this Act.

Other provincial laws

(2) In the event of an inconsistency or conflict between a Kanesatake Mohawk law and any other provincial law, the Kanesatake Mohawk law prevails to the extent of the inconsistency or conflict.

Federal laws

(3) In the event of an inconsistency or conflict between a Kanesatake Mohawk law and a federal law, the federal law prevails to the extent of the inconsistency or conflict.

Evidence

18. In any proceeding, a copy of a Kanesatake Mohawk law that appears to be certified as a true copy by a duly authorized officer of the Council is, without proof of the officer’s signature or official character, evidence of its enactment on the date specified in the law.

Amendment to schedule

19. (1) The Governor in Council may, by order, add to the schedule to this Act a reference to lands that the Mohawks of Kanesatake and Her Majesty in right of Canada agree should be added to the Kanesatake Mohawk interim land base.

Amendment of plan

(2) The Mohawks of Kanesatake shall revise the plan referred to in section 10 to include the lands added to the schedule to this Act before any process preliminary to the granting of an authorization is undertaken in relation to the proposed use of the added lands for any of the activities referred to in paragraphs 10(a) to (c).

Existing rights or interests

Canada Lands Surveys Act

21. (1) For the purposes of subsection 29(3) of the Canada Lands Surveys Act, in relation to lands in the Kanesatake Mohawk interim land base, the survey and plans must be satisfactory to the Council rather than to the Minister of Indian Affairs and Northern Development.

Exception

(2) Subsection (1) does not apply in relation to boundaries between the Kanesatake Mohawk interim land base and other lands.

Deposit of copies

22. (1) The Minister of Indian Affairs and Northern Development shall cause a copy of each of the following documents, and of any amendment to them, certified by the Minister as a true copy, to be deposited in the library of the Department of Indian Affairs and Northern Development situated in the National Capital Region, and in the regional office of that Department closest to the Kanesatake Mohawk interim land base or in any other place designated by the Minister:

(a) the Agreement;

(b) the agreement referred to in subsection 16(2); and

(c) the Management Agreement entered into between Her Majesty in right of Canada and Kanesatake Orihwa’shon:a Development Corporation on June 30, 1999.

Access

(2) The copies shall be made available for inspection by any person at any time during normal business hours.

Council office

23. (1) The Council shall keep at its office a copy, certified by it as a true copy, of each of the documents referred to in subsection 22(1), of the land governance code, and of any amendment to them.

Access

(2) The copies shall be made available for inspection by any member of the Mohawks of Kanesatake at any time during normal business hours.


Amendment To Canada Lands Surveys Act

24. (Amendment)

Schedule

(Subsection 2(1) and section 19)

Kanesatake Mohawk Interim Land Base


4.Lands described in Article 2.1.1 of the Management Agreement entered into between Her Majesty in right of Canada and Kanesatake Orihwa’shon:a Development Corporation on June 30, 1999
1. Kanesatake Indian Lands No. 16
2. Lands, known as Doncaster Reserve No. 17, that are set apart for the Mohawks of Kanesatake and Kahnawake
3. Lands known as “Assenenson”, “Chemin du Milieu” or “Centre Road”

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