Law:Nisga’a Final Agreement Act

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S.c. 2000, c. 7

Assented to 2000-04-13

An Act to give effect to the Nisga’a Final Agreement

Preamble

Whereas the reconciliation between the prior presence of aboriginal peoples and the assertion of sovereignty by the Crown is of significant social and economic importance to Canadians;

Whereas Canadian courts have stated that this reconciliation is best achieved through negotiation and agreement, rather than through litigation or conflict;

Whereas representatives of the Nisga’a Nation, Her Majesty in right of Canada and Her Majesty in right of British Columbia have negotiated the Nisga’a Final Agreement to achieve this reconciliation and to establish a new relationship among them;

Whereas the Constitution of Canada is the supreme law of Canada;

Whereas the Nisga’a Final Agreement states that the Agreement does not alter the Constitution of Canada;

Whereas the Nisga’a Final Agreement states that the Canadian Charter of Rights and Freedoms applies to Nisga’a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga’a Government as set out in the Agreement;

And Whereas the enactment of federal legislation is required by the Nisga’a Final Agreement to give effect to the Agreement;

Now, Therefore, 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 Nisga’a Final Agreement Act.


Interpretation

Definitions

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

“Nisga’a Final Agreement”

« Accord définitif nisga’a »

“Nisga’a Final Agreement” means the Nisga’a Final Agreement signed on behalf of the Nisga’a Nation and Her Majesty in right of British Columbia on April 27, 1999 and on behalf of Her Majesty in right of Canada on May 4, 1999 and laid before the House of Commons on October 19, 1999, and includes any amendments made to that Agreement from time to time in accordance with its provisions.

“settlement legislation”

« législation de mise en vigueur »

“settlement legislation” means the Acts of Parliament and the Acts of the Legislature of British Columbia that give effect to the Nisga’a Final Agreement, including this Act and the Nisga’a Final Agreement Act (British Columbia).

“Taxation Agreement”

« accord fiscal »

“Taxation Agreement” means the Nisga’a Nation Taxation Agreement, laid before the House of Commons on October 19, 1999, and entered into on the effective date of the Nisga’a Final Agreement by the Nisga’a Nation, Her Majesty in right of Canada and Her Majesty in right of British Columbia, as provided for by paragraph 21 of the Taxation Chapter of the Nisga’a Final Agreement, and includes any amendments made to the Nisga’a Nation Taxation Agreement from time to time in accordance with its provisions.

Expressions defined in Agreement

(2) Words and expressions used in this Act have the same meaning as in the Nisga’a Final Agreement, unless the context requires otherwise.

Constitution Act, 1982

3. The Nisga’a Final Agreement is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.


NISGA’A FINAL AGREEMENT

Nisga’a Final Agreement

4. (1) The Nisga’a Final Agreement is approved, given effect and declared valid and has the force of law.

Rights and duties

(2) Without limiting the application of subsection (1), a person or body has the powers, rights, privileges and benefits conferred on the person or body by the Nisga’a Final Agreement and shall perform the duties and is subject to the liabilities imposed on the person or body by that Agreement.

Saving

(3) No provision made by this Act for a matter that is already provided for in the Nisga’a Final Agreement limits the application of this section.

Agreement binding

5. The Nisga’a Final Agreement is binding on, and can be relied on by, all persons.

Conflict between Agreement and laws

6. In the event of an inconsistency or conflict between the Nisga’a Final Agreement and the provisions of any federal or provincial law, including this Act, that Agreement prevails to the extent of the inconsistency or conflict.

Aboriginal rights

7. (1) Notwithstanding the common law, as a result of the Nisga’a Final Agreement and the settlement legislation, the aboriginal rights, including the aboriginal title, of the Nisga’a Nation, as they existed anywhere in Canada before the effective date of that Agreement, including their attributes and geographic extent, are modified, and continue as modified, as set out in that Agreement.

Aboriginal title

(2) For greater certainty, the aboriginal title of the Nisga’a Nation anywhere that it existed in Canada before the effective date of the Nisga’a Final Agreement is modified and continues as the estates in fee simple to those areas identified in that Agreement as Nisga’a Lands or Nisga’a Fee Simple Lands.

Interpretation

(3) The express derogation from the common law contained in subsection (1), which is also contained in paragraph 24 of the General Provisions Chapter of the Nisga’a Final Agreement, shall not be construed so as to limit the effect on the common law of any other provision of this or any other Act that does not contain an express derogation from the common law.

Fee simple estate

8. On the effective date of the Nisga’a Final Agreement, the Nisga’a Nation owns the estate in fee simple, as set out in the Lands Chapter of that Agreement, in

(a) the Nisga’a Lands identified in paragraphs 1 and 2 of the Lands Chapter of that Agreement; and

(b) Category A Lands and Category B Lands.


General

Appropriation

9. There shall be paid out of the Consolidated Revenue Fund the sums that are required to meet the obligations of Canada under the Capital Transfer and Negotiation Loan Repayment Chapter and the Fisheries Chapter of the Nisga’a Final Agreement.

Regulations

10. The Governor in Council may make any regulations or orders that the Governor in Council considers necessary or advisable for the purpose of carrying out any of the provisions of the Nisga’a Final Agreement or of the Taxation Agreement.

Judicial notice of Agreements

11. (1) Judicial notice shall be taken of the Nisga’a Final Agreement and the Taxation Agreement.

Publication of Agreements

(2) The Nisga’a Final Agreement and the Taxation Agreement shall be published by the Queen’s Printer.

Evidence

(3) A copy of the Nisga’a Final Agreement or the Taxation Agreement published by the Queen’s Printer is evidence of that Agreement, and a copy purporting to be published by the Queen’s Printer shall be deemed to be so published, unless the contrary is shown.

Judicial notice of Nisga’a laws

12. (1) Judicial notice shall be taken of Nisga’a laws.

Evidence of Nisga’a law

(2) A copy of a Nisga’a law purporting to be deposited in the public registry of Nisga’a laws referred to in the Nisga’a Government Chapter of the Nisga’a Final Agreement is evidence of that law and of its contents, unless the contrary is shown.

Harvest Agreement

13. (1) The Minister of Fisheries and Oceans has the authority, on behalf of Her Majesty in right of Canada, to enter into the Harvest Agreement described in the Fisheries Chapter of the Nisga’a Final Agreement.

Not a treaty

(2) The Harvest Agreement does not form part of the Nisga’a Final Agreement, and it is not a treaty or a land claims agreement within the meaning of section 25 or 35 of the Constitution Act, 1982.

Taxation Agreement given effect

14. (1) The Taxation Agreement is approved, given effect and declared valid.

Force of law

(2) Paragraphs 1, 4 to 15, 28 to 32 and 34 to 36 of the Taxation Agreement have the force of law during the period that the Agreement, by its terms, is in force.

Saving

(3) Nothing in the Taxation Agreement or in this Act limits any entitlement of the Nisga’a Nation, a Nisga’a Village or a Nisga’a government corporation to any benefit available to it under a federal law of general application.

Transfers of capital

(4) A transfer of Nisga’a capital, other than cash, between or among two or more of the Nisga’a Nation, Nisga’a Villages and Nisga’a government corporations, is not taxable under a federal law during the period that the Taxation Agreement, by its terms, is in force.

Definitions

(5) For the purposes of subsections (3) and (4) and the paragraphs of the Taxation Agreement referred to in subsection (2), the definitions in the Taxation Agreement have the force of law.

Not a treaty

(6) The Taxation Agreement does not form part of the Nisga’a Final Agreement, and it is not a treaty or a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.


Laws Of British Columbia

Application of laws

15. To the extent that a law of British Columbia does not apply of its own force to the Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions, Nisga’a Corporations or Nisga’a citizens, that law applies, subject to this Act and any other Act of Parliament, in accordance with the Nisga’a Final Agreement to the Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions, Nisga’a Corporations or Nisga’a citizens, as the case may be.


Application Of Other Acts

Indian Act

16. Subject to the Indian Act Transition Chapter and paragraphs 5 and 6 of the Taxation Chapter of the Nisga’a Final Agreement, the Indian Act does not apply to the Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions or Nisga’a citizens as of the effective date of that Agreement, except for the purpose of determining whether an individual is an “Indian”.

Section 126 of Criminal Code

17. For greater certainty, section 126 of the Criminal Code does not apply in respect of anything required to be done or forbidden to be done by or under the Nisga’a Final Agreement.

Statutory Instruments Act

18. For greater certainty, neither Nisga’a laws nor any instruments made under the Nisga’a Final Agreement are statutory instruments within the meaning of the Statutory Instruments Act.

Federal Courts Act

19. For greater certainty, no Nisga’a Institution or Nisga’a Court, and no body or person appointed by Nisga’a Government having, exercising or purporting to exercise jurisdiction or powers conferred by or under a Nisga’a law, is a federal board, commission or other tribunal within the meaning of theFederal Courts Act.

2000, c. 7, s. 19; 2002, c. 8, s. 182.

Previous Version

Legal Proceedings

Notice of issues arising

20. (1) If, in any judicial or administrative proceeding, an issue arises in respect of

(a) the interpretation or validity of the Nisga’a Final Agreement, or

(b) the validity or applicability of any settlement legislation or any Nisga’a law,

the issue shall not be decided until the party raising the issue has properly served notice on the Attorney General of Canada, the Attorney General of British Columbia and the Nisga’a Lisims Government.

Content of notice

(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 paragraph (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 fourteen days before the day of argument, unless the court or tribunal authorizes a shorter period.

Participation in proceedings

(3) In any judicial or administrative proceeding to which subsection (1) applies, the Attorney General of Canada, the Attorney General of British Columbia and the Nisga’a Lisims Government may appear and participate in the proceeding as parties with the same rights as any other party.

Saving

(4) For greater certainty, subsections (2) and (3) do not require that an oral hearing be held where one is not otherwise required.


Related Amendments

21. to 26. (Amendments)


Coming Into Force

Order of Governor in Council


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