Tsawwassen First Nation Final Agreement
CHAPTER 19 - FISCAL RELATIONS
1. The Parties acknowledge that they each have a role in supporting Tsawwassen First Nation, through direct or indirect financial support or through access to public programs and services, as set out in the Fiscal Financing Agreement or provided through other arrangements.
2. Every five years, or other periods as may be agreed, the Parties will negotiate and attempt to reach agreement on a Fiscal Financing Agreement that will:
a. set out the Agreed-Upon Programs and Services, including the recipients of those programs and services;
b. set out the responsibilities of each of the Parties in respect of the Agreed-Upon Programs and Services;
c. set out the funding in respect of the Agreed-Upon Programs and Services;
d. set out the contribution of Tsawwassen First Nation to the funding of the Agreed-Upon Programs and Services from its own source revenues as determined under clause 4 of this chapter;
e. set out mechanisms for the transfer of funds to Tsawwassen First Nation from Canada or British Columbia;
f. set out procedures for:
i. the collection and exchange of information, including statistical and financial information, required for the administration of Fiscal Financing Agreements;
ii. dispute resolution in relation to Fiscal Financing Agreements;
iii. the accountability requirements, including those in respect of reporting and audit, of Tsawwassen First Nation;
iv. negotiating the inclusion of additional programs and services to the list of the Agreed-Upon Programs and Services within the term of a Fiscal Financing Agreement;
v. addressing exceptional circumstances and emergencies; and
vi. negotiating subsequent Fiscal Financing Agreements; and
g. address other matters as agreed to by the Parties.
3. In negotiating a Fiscal Financing Agreement, the Parties will take into account:
a. the cost of providing, either directly or indirectly, the Agreed-Upon Programs and Services that are reasonably comparable to similar programs and services available in other communities of similar size and circumstance in south-western British Columbia;
b. efficiency and effectiveness, including opportunities for economies of scale, in the provision of the Agreed-Upon Programs and Services, which may include, where appropriate, cooperative arrangements with other governments, First Nations or existing service providers;
c. the existing levels of funding provided by Canada or British Columbia;
d. the costs of operating Tsawwassen Government;
e. the prevailing fiscal policies of Canada or British Columbia;
f. the location and accessibility of communities on Tsawwassen Lands;
g. the jurisdictions, authorities, programs and services assumed by Tsawwassen First Nation under this Agreement;
h. the desirability of reasonably stable, predictable and flexible fiscal arrangements;
i. the changes in price and volume, which may include the number of individuals eligible to receive the Agreed-Upon Programs and Services; and
j. other matters as agreed by the Parties.
4. From time to time, the Parties will negotiate and attempt to reach agreement on the own source revenue contribution of Tsawwassen First Nation to the funding of the Agreed-Upon Programs and Services under subclause 2.d, taking into account:
a. the capacity of Tsawwassen First Nation to generate revenues;
b. the existing Tsawwassen First Nation own source revenue arrangements negotiated under this Agreement;
c. the prevailing fiscal policies on the treatment of First Nation own source revenue in self government fiscal arrangements;
d. that own source revenue arrangements should not unreasonably reduce incentives for Tsawwassen First Nation to generate revenues;
e. that the reliance of Tsawwassen First Nation on fiscal transfers should decrease over time as it becomes more self-sufficient; and
f. other matters as agreed by the Parties.
5. In negotiating the own source revenue contribution of Tsawwassen First Nation to the funding of the Agreed-Upon Program and Services under clause 4, unless otherwise agreed:
a. own source revenue arrangements will not include:
i. the Capital Transfer, in the manner set out in the initial agreement in respect of own source revenues;
ii. the proceeds from the sale of Tsawwassen Lands;
iii. any federal or provincial payments under Fiscal Financing Agreements or other agreements for programs and services;
iv. the interest or income on funds received by Tsawwassen First Nation from Canada or British Columbia for a purpose related to the implementation of this Agreement and held in a special purpose fund as set out in the initial agreement in respect of own source revenues, or as agreed by the Parties from time to time, provided that the interest or income is used for a purpose or activity that is intended by the Parties to be funded from that special purpose fund;
v. the payments received as a result of the settlement in 2004 relating to Roberts Bank port facility and the Tsawwassen ferry terminal;
vi. gifts or charitable donations;
vii. the amounts received as compensation for specific losses or damages to property or assets;
viii. a Specific Claim Settlement; or
ix. other sources agreed by the Parties; and
b. own source revenue arrangements will not permit:
i. Canada to benefit from the decision of British Columbia to vacate tax room or to transfer revenues or tax authorities to Tsawwassen First Nation; or
ii. British Columbia to benefit from the decision of Canada to vacate tax room or to transfer revenues or tax authorities to Tsawwassen First Nation.
6. If the Parties do not reach agreement on a subsequent Fiscal Financing Agreement by the expiry date of an existing Fiscal Financing Agreement, the existing Fiscal Financing Agreement:
a. will continue in effect for up to two years from its original expiry date, or for such other period of time as the Parties may agree in writing; and
b. will terminate on the earlier of:
i. the expiry of the extended term determined in accordance with subclause 6.a; and
ii. the date of commencement of a subsequent Fiscal Financing Agreement.
7. The creation of Tsawwassen Government, the provision of Tsawwassen Government legislative authority under this Agreement, or the exercise of Tsawwassen Government legislative authority does not create or imply any financial obligation or service responsibility on the part of any Party, other than as set out in a Fiscal Financing Agreement.
8. For greater certainty, where the Parties agree in the initial Fiscal Financing Agreement that Canada will provide Time Limited Federal Funding for any Tsawwassen First Nation responsibilities specified in that agreement and Canada duly provides the Time Limited Federal Funding, Canada has no obligation to negotiate and attempt to reach agreement on the provision of further funding for any of the responsibilities specified.
9. For greater certainty, where the Parties agree in the initial Fiscal Financing Agreement that British Columbia will provide Time Limited Provincial Funding for any Tsawwassen First Nation responsibilities specified in that agreement and British Columbia duly provides the Time Limited Provincial Funding, British Columbia has no obligation to negotiate and attempt to reach agreement on the provision of further funding for any of the responsibilities specified.
10. Any funding required for the purposes of a Fiscal Financing Agreement, or any other agreement that is reached as a result of negotiations that are required or permitted under any provision of this Agreement and that provides for financial obligations to be assumed by a Party, is subject to the appropriation of funds:
a. in the case of Canada, by Parliament;
b. in the case of British Columbia, by the Legislature of British Columbia; and
c. in the case of Tsawwassen First Nation, by Tsawwassen Government.
1. Tsawwassen Government may make laws in respect of:
a. Direct taxation of Tsawwassen Members within Tsawwassen Lands in order to raise revenue for Tsawwassen First Nation purposes;
b. the implementation of any taxation agreement entered into between Tsawwassen First Nation and Canada or British Columbia.
2. Tsawwassen Government powers provided for in subclause 1.a will not limit the taxation powers of Canada or British Columbia.
3. Despite clause 59 of the General Provisions chapter, any Tsawwassen Law made under this chapter or any exercise of power by Tsawwassen First Nation, is subject to and will conform with International Legal Obligations in respect of taxation, and clauses 30 through 34 of the General Provisions chapter do not apply in respect of International Legal Obligations in respect of taxation.
TAXATION POWERS AGREEMENTS
4. From time to time, at the request of Tsawwassen First Nation, Canada and British Columbia, together or separately, may negotiate and attempt to reach agreement with Tsawwassen First Nation in respect of:
a. the extent, if any, to which the power of Tsawwassen Government under subclause 1.a may be extended to apply to Persons, other than Tsawwassen Members, within Tsawwassen Lands; and
b. the manner in which the taxation powers of Tsawwassen Government under subclause 1.a, as extended by the application of subclause 4.a, will be coordinated with existing federal or provincial tax systems, including:
i. the amount of tax room that Canada or British Columbia may be prepared to vacate in favour of taxes imposed by Tsawwassen First Nation; and
ii. the terms and conditions under which Canada or British Columbia may administer, on behalf of Tsawwassen First Nation, taxes imposed by Tsawwassen First Nation.
5. Despite the provisions of the Governance chapter, Parties to an agreement under clause 4 may provide for an alternative approach to the appeal, enforcement or adjudication of a Tsawwassen Law in respect of taxation.
6. Tsawwassen Law with respect to taxation may provide for:
a. a fine that is greater than the limits set out in clause 133 of the Governance chapter; or
b. a term of imprisonment that is greater than the limit set out in clause 135 of the Governance chapter,
where there is an agreement to that effect as contemplated in clause 4.
7. Tsawwassen First Nation is not subject to capital taxation, including real property taxes and taxes on capital or wealth, in respect of the estate or interest of Tsawwassen First Nation in Tsawwassen Lands on which there are no improvements or on which there is a Designated Improvement.
8. In clause 7, "Designated Improvement" means:
a. a residence of a Tsawwassen Member;
b. an improvement, all or substantially all of which is used for a Public Purpose or a purpose ancillary or incidental to the Public Purpose, including:
i. a public governance or administration building, public meeting building, public hall, public school or other public educational institution, teacherage, public library, public health facility, public care facility, public seniors home, public museum, place of public worship, manse, fire hall, police facility, court, correction facility, public recreation facility, public park, or an improvement used for Tsawwassen cultural or spiritual purposes;
ii. works of public convenience constructed or operated for the benefit of Tsawwassen Members, occupiers of Tsawwassen Lands or persons visiting or in transit through Tsawwassen Lands, including public utility works, public works used to treat or deliver water or as part of a public sewer system, public roads, public bridges, public drainage ditches, traffic signals, street lights, public sidewalks, and public parking lots; or
iii. similar improvements;
c. an improvement that is used primarily for the management, protection or enhancement of a natural resource, including a forestry, fishery or wildlife resource, other than an improvement that is used primarily in harvesting or processing a natural resource for profit; and
d. forest resources and forest roads.
9. In subclause 8.b, "Public Purpose" does not include the provision of property or services primarily for the purpose of profit.
10. For the purposes of clauses 7 and 8:
a. for greater certainty, Tsawwassen Lands include the improvements on those lands; and
b. an improvement is deemed to be on the land that is necessarily ancillary to the use of the improvement.
11. For greater certainty, the exemption from taxation in clause 7 does not apply to a taxpayer other than Tsawwassen First Nation nor does it apply in respect of a disposition of Tsawwassen Lands or interests in those lands by Tsawwassen First Nation.
12. For Canada and British Columbia income tax purposes, proceeds of disposition received by Tsawwassen First Nation on expropriation of Tsawwassen Lands in accordance with the Lands chapter will not be taxable.
TRANSFER OF TSAWWASSEN CAPITAL
13. A transfer under this Agreement of Tsawwassen Capital and a recognition of ownership under this Agreement of Tsawwassen Capital is not taxable.
14. For purposes of clause 13, an amount paid to a Tsawwassen Member is deemed to be a transfer of Tsawwassen Capital under this Agreement if the payment:
a. reasonably can be considered to be a distribution of a Capital Transfer received by Tsawwassen First Nation; and
b. becomes payable to the Tsawwassen Member within 90 days and is paid to the Tsawwassen Member within 270 days from the date that Tsawwassen First Nation receives the Capital Transfer.
15. For Canada and British Columbia income tax purposes, Tsawwassen Capital is deemed to have been acquired by Tsawwassen First Nation at a cost equal to its fair market value on the later of:
a. the Effective Date; and
b. the date of transfer of ownership or the date of recognition of ownership, as the case may be.
INDIAN ACT TAX EXEMPTION AND TRANSITIONAL EXEMPTION
16. Section 87 of the Indian Act will have no application to a Tsawwassen Member:
a. in respect of Transaction Taxes, as of the first day of the first month after the eighth anniversary of the Effective Date; and
b. in respect of all other taxes, as of the first day of the first calendar year after the 12th anniversary of the Effective Date.
17. Subject to subclauses 1.a and 4.a and clauses 18 to 21, as of the Effective Date, the following is exempt from taxation:
a. the interest of an Indian in Tsawwassen Lands that were Reserve lands or Surrendered Lands on the day before the Effective Date;
b. the personal property of an Indian situated on Tsawwassen Lands that were Reserve lands on the day before the Effective Date; and
c. an Indian in respect of the ownership, occupation, possession or use of any property referred to in subclause 17.a or 17.b.
18. Clause 17 will cease to be effective:
a. in respect of Transaction Taxes, as of the first day of the first month after the eighth anniversary of the Effective Date; and
b. in respect of all other taxes, as of the first day of the first calendar year after the 12th anniversary of the Effective Date.
19. Clause 17 will be interpreted to exempt an Indian in respect of a property or interest, or in respect of the ownership, occupation, possession or use thereof, in the same manner and under the same conditions in which section 87 of the Indian Act would have applied, but for this Agreement, if the property were situated on, or the interest were in, a Reserve.
20. Clause 17 only applies to an Indian during the period that section 87 of the Indian Act applies to the Indian.
21. If Tsawwassen First Nation imposes a tax within Tsawwassen Lands and concludes a tax agreement for that purpose with Canada or British Columbia as contemplated in clause 4, clause 17 does not apply to the extent that the Tsawwassen First Nation, Canada or British Columbia, as the case may be, imposes a tax that the particular taxation agreement specifies is applicable to Tsawwassen Members and other Indians within Tsawwassen Lands.
TAX TREATMENT AGREEMENT
22. The Parties will enter into a Tax Treatment Agreement, which will come into effect on the Effective Date.
23. Canada and British Columbia will recommend to Parliament and the Legislature of British Columbia, respectively, that the Tax Treatment Agreement be given effect and the force of law under federal and provincial legislation.
1. Enrolment under this Agreement does not:
a. confer or deny rights of entry into Canada, Canadian citizenship, or the right to be registered as an Indian under the Indian Act, or
b. except as set out in this Agreement or in any Federal or Provincial Law, impose any obligation on Canada or British Columbia to provide rights or benefits.
TSAWWASSEN ELIGIBILITY CRITERIA
2. An individual is eligible to be enrolled under this Agreement if that individual:
a. was a member or was entitled to be a member of the Tsawwassen First Nation band under the Indian Act as of the day before the Effective Date;
b. is of Tsawwassen First Nation ancestry;
c. was adopted under a law recognized in Canada, or under Tsawwassen First Nation customs, by an individual eligible to be enrolled; or
d. is a descendant of an individual eligible to be enrolled under subclause 2.a, 2.b or 2.c.
3. Despite subclause 2.d, where an individual having no aboriginal ancestry became a member of the Tsawwassen First Nation band under the Indian Act before April 17, 1985, because of marriage to a member of the Tsawwassen First Nation band under the Indian Act, and that individual subsequently has a child with another individual who is not eligible under clause 2, that child is not eligible to be enrolled.
APPLICATIONS FOR ENROLMENT UNDER THE ENROLMENT COMMITTEE
4. An applicant, on their own behalf, on behalf of a child under the age of 18, or on behalf of an adult whose affairs they have the legal authority to manage, may:
a. apply to the enrolment committee to be enrolled;
b. appeal a decision of the enrolment committee to the enrolment appeal board; or
c. seek judicial review of a decision of the enrolment appeal board.
5. Each applicant has the burden of demonstrating to the enrolment committee that the applicant meets the eligibility criteria set out in clause 2.
6. If an applicant requests that the name of an individual in relation to whom they submitted an application for enrolment be removed from the enrolment register, the enrolment committee will remove that name and will notify the applicant of the removal.
OTHER LAND CLAIMS AGREEMENTS
7. An applicant may not at the same time be enrolled under this Agreement if the applicant is:
a. a member of an aboriginal group that is a signatory to a treaty;
b. enrolled under another land claims agreement in Canada; or
c. on an Indian Act band list, other than that of the Tsawwassen First Nation band under the Indian Act.
8. An applicant, upon application, must notify the enrolment committee if the applicant, or an individual on behalf of whom the applicant is applying, falls within a category set out in clause 7.
9. The enrolment committee will be established by Tsawwassen First Nation at a time agreed upon by the Parties, and will consist of three representatives appointed by Tsawwassen First Nation.
10. Tsawwassen First Nation will notify Canada and British Columbia of the representatives on the enrolment committee, as soon as practicable upon their appointment.
11. The enrolment committee will:
a. establish its procedures and set its time limits;
b. publish its procedures and time limits, including the eligibility criteria and a list of the documentation and information required of each applicant, in time for individuals to review before making their applications for enrolment;
c. provide an application form to any individual who wishes to apply for enrolment;
d. receive applications for enrolment;
e. consider and make a decision on each application, based on the eligibility criteria set out in clause 2;
f. before the date of the ratification vote, enrol applicants who meet the eligibility criteria and who meet the time limits set out in subclause 11.a;
g. maintain a record of those decisions;
h. provide written notification to each applicant and to the Parties of its decision in respect of each application and, if enrolment is refused, include written reasons for that decision;
i. establish and maintain an enrolment register containing the name of each individual who is enrolled;
j. add names to, delete names from, or amend names on, the enrolment register in accordance with this chapter and the decisions of the enrolment appeal board;
k. provide information in respect of an enrolment application, in confidence, on request of the Parties or of the enrolment appeal board, and the Parties acknowledge that such information is personal information as defined in federal and provincial privacy and access to information legislation, and agree to protect that personal information from subsequent disclosures to the extent possible under the law;
l. report to the Parties on the enrolment process as requested;
m. keep information about applications confidential; and
n. on request provide to the Parties without cost a true copy of the enrolment register.
12. After a decision by the enrolment committee and before any appeal of that decision is commenced, an applicant may submit new information to the enrolment committee.
13. The enrolment committee may, before an appeal of a decision is commenced, vary the decision on the basis of new information if it considers the decision was in error.
14. If the enrolment committee does not make a decision in respect of an application within the time established in its procedures, the application will be deemed to be refused and the refusal will constitute grounds for appeal to the enrolment appeal board.
15. Subject to this chapter, all decisions of the enrolment committee are final and binding.
16. In addition to the functions set out in clauses 11 through 15, the enrolment committee will provide the ratification committee with the name of each individual who is enrolled, and any other relevant information requested by the ratification committee in accordance with the Ratification chapter.
ENROLMENT APPEAL BOARD
17. Tsawwassen First Nation and Canada will each appoint one member to the enrolment appeal board and will jointly appoint a third member, and the members will select, from among themselves, a chairperson.
18. Tsawwassen First Nation and Canada will establish the enrolment appeal board at a date agreed upon by the Parties.
19. A member of the enrolment committee may not also be a member of the enrolment appeal board.
20. The enrolment appeal board will:
a. establish its procedures and set its time limits;
b. publish its procedures and time limits;
c. hear and determine any appeal brought under subclause 4.b or clause 14, including:
i. determining whether the appellant, or the individual on behalf of whom the appellant appealed, will be enrolled;
ii. re-hearing any matters arising from clauses 31 or 32; and
iii. maintaining a record of those decisions;
d. conduct hearings in public, unless it determines in a particular case that there are reasons for confidentiality that outweigh the public interest in having an open hearing;
e. provide written reasons for each decision to each appellant and to the Parties;
f. maintain a record of decisions and provide those decisions to the enrolment committee as required; and
g. provide a report to the Parties on the appeal process, as requested.
21. An applicant under clause 4, or a Party, may appeal by written notice to the enrolment appeal board:
a. any decision of the enrolment committee made under subclause 11.e or clause 13; and
b. any application that is deemed to be refused under clause 14.
22. On or after the Effective Date, the enrolment appeal board may:
a. require, by summons, any individual to appear before the enrolment appeal board as a witness and to produce any relevant document in their possession;
b. direct a witness to answer, on oath or solemn affirmation, any relevant question posed to the witness; and
c. re-hear an appeal that was completed before the Effective Date.
23. A judge of the Provincial Court of British Columbia, on application by the enrolment appeal board, may enforce a summons or direction under clause 22.
24. An appellant or Party, or a witness appearing before the enrolment appeal board, may be represented by counsel or an agent.
25. Subject to clauses 30 through 33, all decisions of the enrolment appeal board are final and binding.
26. No action lies against the enrolment appeal board, or any member of the enrolment appeal board, for anything done or omitted to be done in good faith in the performance or intended performance of a duty under this chapter.
27. Canada and British Columbia will provide to Tsawwassen First Nation an agreed amount of funding for the enrolment committee and the enrolment appeal board to carry out the functions referred to in clauses 9 through 22.
TRANSITION TO TSAWWASSEN GOVERNMENT
28. The enrolment committee and the enrolment appeal board will be dissolved when they have rendered final decisions in respect of those applications or appeals commenced before the Effective Date.
29. After the Effective Date, Tsawwassen First Nation will:
a. be responsible for an enrolment process and the administrative costs of that process;
b. maintain an enrolment register;
c. provide a copy of the enrolment register to Canada and British Columbia each year or as requested, without cost; and
d. provide information concerning enrolment to Canada and British Columbia as requested, without cost.
30. An applicant or a Party may apply to the Supreme Court of British Columbia to review a decision of the enrolment appeal board on the grounds that the enrolment appeal board:
a. acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
b. failed to observe procedural fairness;
c. erred in law; or
d. based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
31. On an application for judicial review under clause 30, the court may dismiss the application, set aside the decision, or refer the matter back to the enrolment appeal board for determination in accordance with any directions that the court considers appropriate.
32. If the enrolment appeal board fails to hear or decide an appeal within a reasonable time, an applicant or Party may apply to the Supreme Court of British Columbia for an order directing the enrolment appeal board to hear or decide the appeal, in accordance with any directions that the court considers appropriate.
33. An applicant or Party may apply for judicial review within 60 days of receiving notification of the decision of the enrolment appeal board or a longer time as determined by the court.
1. The Parties share the following objectives:
a. to cooperate with each other to develop harmonious working relationships;
b. to prevent or minimize Disagreements;
c. to identify Disagreements quickly and resolve them in the most expeditious and cost-effective manner; and
d. to resolve Disagreements in a non-adversarial, collaborative and informal atmosphere.
2. Except as otherwise provided, participating Parties may agree to vary a procedural requirement contained in this chapter, or in Appendix P, as it applies to a particular Disagreement.
3. Participating Parties may agree to, or the Supreme Court of British Columbia, on application, may order:
a. the abridgment of a time limit; or
b. the extension of a time limit, despite the expiration of that time limit
in this chapter or in Appendix P.
SCOPE: WHEN THIS CHAPTER APPLIES TO A DISAGREEMENT
4. In this chapter, and in Appendix P, a Party is deemed to be directly engaged in a Disagreement if another Party, acting reasonably, gives the first Party a written notice requiring it to participate in a process described in this chapter to resolve the Disagreement.
5. This chapter is not intended to apply to all conflicts or disputes between or among the Parties, but is limited to the conflicts or disputes described in clause 6.
6. This chapter only applies to:
a. a conflict or dispute in respect of:
i. the interpretation, application, or implementation of this Agreement, or
ii. a breach or anticipated breach of this Agreement;
b. a conflict or dispute, where provided for in this Agreement; or
c. negotiations required to be conducted under any provision of this Agreement that provides that the Parties, or any of them, "will negotiate and attempt to reach agreement".
7. This chapter does not apply to:
a. an agreement between or among the Parties other than this Agreement, unless the Parties have agreed that this chapter applies to that agreement;
b. the implementation plan; or
c. conflicts or disputes, where excluded from this chapter.
8. Nothing in this chapter limits the application of a dispute resolution process, under a Federal or Provincial Law, to a conflict or dispute involving a person if that conflict or dispute is not a Disagreement.
9. Nothing in a Federal Law or Provincial Law limits the right of a Party to refer a Disagreement to this chapter.
DISAGREEMENTS TO GO THROUGH STAGES
10. The Parties desire and expect that most Disagreements will be resolved by informal discussions between or among the Parties, without the necessity of invoking this chapter.
11. Subject to the provisions of this Agreement, Disagreements not resolved informally will progress, until resolved, through the following stages:
a. Stage One: formal, unassisted efforts to reach agreement between or among the Parties in collaborative negotiations under Appendix P–1;
b. Stage Two: structured efforts to reach agreement between or among the Parties with the assistance of a Neutral, who has no authority to resolve the dispute, in a facilitated process under Appendix P–2, P–3, P–4 or P–5 as applicable; and
c. Stage Three: final adjudication in arbitral proceedings under Appendix P-6, or in judicial proceedings.
12. Except as otherwise provided, no Party may refer a Disagreement to final adjudication in Stage Three without first proceeding through Stage One and a facilitated process in Stage Two as required in this chapter.
13. Nothing in this chapter prevents a Party from commencing arbitral or judicial proceedings at any time:
a. to prevent the loss of a right to commence proceedings due to the expiration of a limitation period; or
b. to obtain interlocutory or interim relief that is otherwise available pending resolution of the Disagreement under this chapter.
STAGE ONE: COLLABORATIVE NEGOTIATIONS
14. If a Disagreement is not resolved by informal discussion and a Party directly engaged in the Disagreement wishes to invoke this chapter, that Party will deliver a written notice, as required under Appendix P–1, as soon as practicable to the other Parties, requiring the commencement of collaborative negotiations.
15. Upon receiving the notice under clause 14, a Party directly engaged in the Disagreement will participate in the collaborative negotiations.
16. A Party not directly engaged in the Disagreement may participate in the collaborative negotiations by giving written notice to the other Parties, preferably before the collaborative negotiations commence.
17. If the Parties have commenced negotiations in the circumstances described in subclause 6.c then, for all purposes under this chapter, those negotiations will be deemed collaborative negotiations and the particular matter under negotiation will be considered a Disagreement.
18. Collaborative negotiations terminate in the circumstances set out in Appendix P–1.
STAGE TWO: FACILITATED PROCESSES
19. Within 15 days of termination of collaborative negotiations that have not resolved the Disagreement, a Party directly engaged in a Disagreement by delivering a notice to the other Parties may require the commencement of a facilitated process.
20. A notice under clause 19:
a. will include the name of the Party or Parties directly engaged in the Disagreement and a summary of the particulars of the Disagreement; and
b. may propose the use of a particular facilitated process described in clause 23.
21. Upon receiving a notice under clause 19, a Party directly engaged in the Disagreement will participate in a facilitated process described in clause 23.
22. A Party not directly engaged in the Disagreement may participate in the facilitated process by giving written notice to the other Parties within 15 days of delivery of a notice under clause 19.
23. Within 30 days after delivery of a notice under clause 19, the Parties directly engaged in the Disagreement will attempt to agree to use one of the following processes:
a. mediation under Appendix P–2;
b. technical advisory panel under Appendix P–3;
c. neutral evaluation under Appendix P–4;
d. elders advisory council under Appendix P–5; or
e. any other non-binding dispute resolution process assisted by a Neutral
and if they fail to agree, they will be deemed to have selected mediation under Appendix P–2.
24. A facilitated process terminates:
a. in the circumstances set out in the applicable Appendix; or
b. as agreed by the participating Parties, if an Appendix does not apply.
25. In order to enhance the prospect of reaching agreement, the Parties participating in collaborative negotiations or a negotiation component of a facilitated process will:
a. at the request of a participating Party, provide timely disclosure of sufficient information and documents to enable a full examination of the subject matter being negotiated;
b. make every reasonable effort to appoint negotiating representatives who have sufficient authority to reach an agreement, or who have ready access to such authority; and
c. negotiate in good faith.
26. Any agreement reached in a process under this chapter
a. will be:
i. recorded in writing;
ii. signed by authorized representatives of the Parties to the agreement; and
iii. delivered to all Parties; and
b. is binding only on the Parties who have signed the agreement.
STAGE THREE: ADJUDICATION – ARBITRATION
27. After the later of termination of collaborative negotiations, or of a required facilitated process, in respect of a Disagreement arising out of any provision of this Agreement that provides that a matter will be "finally determined by arbitration", the Disagreement will, on the delivery of a notice by a Party directly engaged in the Disagreement, to all Parties as required under Appendix P–6, be referred to and finally resolved by arbitration in accordance with that Appendix.
28. After the later of termination of collaborative negotiations, or a required facilitated process, in respect of any Disagreement, other than a Disagreement referred to in clause 27, and with the written agreement of all the Parties directly engaged in the Disagreement, the Disagreement will be referred to, and finally resolved by, arbitration in accordance with Appendix P–6.
29. Where two Parties make a written agreement under clause 28, they will deliver a copy of the agreement as soon as practicable to the Party that is not directly engaged in the Disagreement.
30. Upon delivering a written notice to the participating Parties to the arbitration within 15 days after receiving a notice under clause 27 or copy of a written agreement under clause 28, a Party not directly engaged in the Disagreement is entitled to be, and will be added as, a party to the arbitration of that Disagreement whether or not that Party has participated in collaborative negotiations or a required facilitated process.
31. Despite clause 30, an arbitral tribunal may make an order adding a Party as a participating Party at any time, if the arbitral tribunal considers that:
a. the participating Parties will not be unduly prejudiced; or
b. the issues stated in the pleadings are materially different from those identified in the notice to arbitrate under clause 27 or the written agreement to arbitrate under clause 28,
and, in that event, the arbitral tribunal may make any order it considers appropriate or necessary in the circumstances in respect of conditions, including the payment of costs, upon which the Party may be added.
EFFECT OF ARBITRAL AWARD
32. An arbitral award is final and binding on all Parties whether or not a Party has participated in the arbitration.
33. Despite clause 32, an arbitral award is not binding on a Party that has not participated in the arbitration if:
a. the Party did not receive copies of:
i. the notice of arbitration or agreement to arbitrate; or
ii. the pleadings and any amendments or supplements to the pleadings; or
b. the arbitral tribunal refused to add the Party as a participating Party to the arbitration under clause 31.
APPLICATION OF LEGISLATION
34. No legislation of any Party in respect of arbitration, except the Settlement Legislation, applies to an arbitration conducted under this chapter.
35. A court must not intervene or offer assistance in an arbitration or review an arbitral award under this chapter except as provided in Appendix P–6.
STAGE THREE: ADJUDICATION – JUDICIAL PROCEEDINGS
36. Nothing in this chapter creates a cause of action where none otherwise exists.
37. Subject to clause 38, at any time a Party may commence proceedings in the Supreme Court of British Columbia in respect of a Disagreement.
38. A Party may not commence judicial proceedings in respect of a Disagreement if the Disagreement:
a. is required to be referred to arbitration under clause 27 or has been agreed to be referred to arbitration under clause 28;
b. has not been referred to collaborative negotiations or a facilitated process as required under this chapter; or
c. has been referred to collaborative negotiations or a facilitated process that has not yet been terminated.
39. Nothing in subclause 38.a prevents an arbitral tribunal or the participating Parties from requesting the Supreme Court of British Columbia to make a ruling respecting a question of law as permitted in Appendix P–6.
NOTICE TO PARTIES
40. If, in any judicial or administrative proceeding, an issue arises in respect of:
a. the interpretation or validity of this Agreement; or
b. the validity, or applicability of:
i. any Settlement Legislation; or
ii. any Tsawwassen Law,
the issue will 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 Tsawwassen First Nation.
41. In any judicial or administrative proceeding to which clause 40 applies, the Attorney General of British Columbia, the Attorney General of Canada, and Tsawwassen First Nation may appear and participate in the proceedings as parties with the same rights as any other party.
42. Except as provided otherwise in the Appendices, each participating Party will bear the costs of its own participation, representation, and appointments in collaborative negotiations, a facilitated process, or an arbitration, conducted under this chapter.
43. Subject to clause 42 and except as provided otherwise in the Appendices, the participating Parties will share equally all costs of collaborative negotiations, a facilitated process, or an arbitration, conducted under this chapter.
44. For purposes of clause 43, "costs" include:
a. fees of the Neutrals;
b. costs of hearing and meeting rooms;
c. actual and reasonable costs of communications, accommodation;
d. meals, and travel of the Neutrals;
e. costs of required secretarial and administrative support for the Neutrals, as permitted in the Appendices; and
f. administration fees of a Neutral Appointing Authority.
1. Any Party may propose an amendment to this Agreement.
2. Before proceeding with an amendment to this Agreement, the Parties will attempt to find other means to address the interests of the Party proposing the amendment.
3. Amendments to this Agreement require the consent of all Parties.
4. Where the Parties agree to amend this Agreement, they will determine the form and wording of the amendment, including additions, substitutions and deletions.
5. Canada will give consent to an amendment to this Agreement by order of the Governor in Council.
6. British Columbia will give consent to an amendment to this Agreement by resolution of the Legislative Assembly of British Columbia.
7. Where federal or provincial legislation is required to give effect to an amendment to this Agreement, Canada or British Columbia, as the case may be, will take all reasonable steps to enact the legislation.
8. Tsawwassen First Nation will give consent to an amendment to this Agreement by a resolution of the legislative members of Tsawwassen Government.
9. Unless the Parties agree otherwise, an amendment to this Agreement takes effect once the consent requirements under clauses 3, 5, 6 and 8 are completed and any legislation required under clause 7 has been brought into force.
10. Each Party will give notice to the other Parties when consent in accordance with clause 5, 6 or 8, as applicable, has been given and when any legislation referred to in clause 7, if applicable, has been brought into force.
11. Despite the requirement for consent referred to in clauses 3, 5, 6, 8 and 9, where this Agreement provides that the Parties will amend this Agreement upon the happening of an event, the Parties will take all further steps necessary, including those referred to in clause 4, to conclude and give effect to the amendment.
12. The Parties agree to take the necessary steps to implement an amendment to this Agreement as soon as possible after the amendment takes effect.
13. Each Party will be responsible for publishing all amendments to this Agreement.
DEPOSIT OF AGREEMENT
14. The Parties will deposit a copy of this Agreement and any amendments to this Agreement, including any instruments giving effect to an amendment, in the following locations:
a. by Canada, in:
i. the Library of Parliament;
ii. the library of the Department of Indian Affairs and Northern Development in the National Capital Region; and
iii. the library of the regional office of the Department of Indian Affairs and Northern Development in British Columbia;
b. by British Columbia, in the Legislative Library of British Columbia;
c. by Tsawwassen First Nation, in its main office; and
d. any other location agreed by the Parties.
15. The Parties recognize and acknowledge that this Agreement provides a foundation for an ongoing relationship among the Parties and commit to conducting a periodic review of this Agreement in accordance with clauses 16 through 23.
16. Sixty days before each Periodic Review Date, each Party will provide the other Parties with written notice if the Party wishes to discuss a matter contemplated by clause 17 and if no notice is provided the Parties will forgo engaging in a review for that Review Period.
17. The purpose of the periodic review is to provide an opportunity for the Parties to meet and discuss:
a. the practicability of the harmonization of the legal and administrative systems of Canada and British Columbia with those of Tsawwassen First Nation, including law-making authorities that are being exercised by Tsawwassen First Nation under this Agreement;
b. the practicability of processes established by the Parties in accordance with this Agreement; and
c. other matters in respect of the implementation of the provisions of this Agreement as the Parties may agree in writing.
18. Unless the Parties agree otherwise, the discussion under clause 17 will take place on the Periodic Review Date and such other dates as the Parties agree, but will not exceed the applicable Review Period, and within 60 days of the end of that discussion each Party will provide the other Parties with its written response on any matter discussed during that Review Period.
19. Unless the Parties agree otherwise, the periodic review and all discussions and information relating to the matter of the periodic review are without prejudice to the respective legal positions of the Parties.
20. Nothing made or done in respect of a periodic review, including the discussions or the responses provided by the Parties, creates any legally binding rights or obligations.
21. Except for the commitment of the Parties to meet and provide written responses as set out in clause 18, neither the periodic review process nor the decisions or actions of the Parties relating in any way to the periodic review process are:
a. subject to the process set out in the Dispute Resolution chapter; or
b. reviewable by a court or in any other forum.
22. For greater certainty, none of the Parties is required to agree to amend this Agreement or any agreement contemplated by this Agreement as a result of a periodic review. Where the Parties agree to amend this Agreement, any such amendment will be made in accordance with this chapter. Where the Parties agree to amend an agreement contemplated by this Agreement, the agreement will be amended in accordance with its terms.
23. Each of the Parties will be responsible for its own costs in relation to a periodic review process.
1. This Agreement will be submitted to the Parties for ratification after it has been initialled by the chief negotiators for the Parties.
RATIFICATION BY TSAWWASSEN FIRST NATION
2. Ratification of this Agreement by Tsawwassen First Nation requires:
a. that Tsawwassen Individuals have a reasonable opportunity to review this Agreement;
b. a vote, by way of a secret ballot, conducted by the ratification committee as set out in clauses 3, 4, 5 and 9;
c. that a majority of those individuals who are eligible to vote under clauses 4 and 5 vote in favour of this Agreement;
d. ratification of the Tsawwassen Constitution through the process set out in clause 3; and
e. that this Agreement be signed by the authorized representative of Tsawwassen First Nation.
RATIFICATION OF THE TSAWWASSEN CONSTITUTION
3. Ratification of the Tsawwassen Constitution by Tsawwassen First Nation requires:
a. that Tsawwassen Individuals have a reasonable opportunity to review the Tsawwassen Constitution;
b. a vote, by way of a secret ballot; and
c. that a majority of those individuals who are eligible to vote under clauses 4 and 5 vote in favour of the Tsawwassen Constitution.
4. An individual is eligible to vote if the individual is:
a. a Tsawwassen Member; and
b. at least 18 years of age on the last scheduled day of voting in the vote referred to in clause 2.
5. A Tsawwassen Individual, who is not yet a Tsawwassen Member and whose name is therefore not included on the official voters list, is eligible to vote if that individual:
a. provides the voting officer with a completed enrolment application form or evidence satisfactory to the voting officer that the individual has submitted an enrolment application form to the enrolment committee;
b. provides evidence satisfactory to the voting officer that the individual meets the requirement set out in subclause 4.b; and
c. declares in writing that the individual meets the eligibility criteria set out in the Eligibility and Enrolment chapter.
6. The ballot of an individual described in clause 5 counts in determining the outcome of the ratification vote only if the enrolment committee notifies the ratification committee that the individual is a Tsawwassen Individual.
7. The Parties will establish a ratification committee, consisting of one representative appointed by each Party, to be responsible for the ratification process set out in this chapter.
8. Canada and British Columbia will provide to Tsawwassen First Nation an agreed amount of funding for the ratification committee to carry out the functions referred to in clause 9.
9. Conduct of the ratification vote requires that the ratification committee:
a. establish and publish its procedures;
b. set its time limits;
c. take reasonable steps to provide Tsawwassen Individuals the opportunity to review this Agreement;
d. prepare and post a preliminary list, at least 60 days before the first day of voting, of individuals who are eligible to vote, based upon the information provided by the enrolment committee;
e. at least 21 days before the first day of voting, prepare and post an official voters list, consisting of the names of individuals whose names were provided by the enrolment committee and who are determined by the ratification committee as eligible to vote;
f. approve the form and content of the ballot;
g. authorize and provide general direction to voting officers;
h. conduct the vote on the day or days determined by the ratification committee;
i. update the official voters list by:
i. at any time before the end of voting, adding to the official voters list the names of individuals who are eligible to vote under this chapter;
ii. adding to the official voters list the name of each individual who votes in accordance with clause 5 and whose vote counts in accordance with clause 6;
iii. removing from the official voters list the name of each individual who died on or before the last day of voting without having voted; and
iv. removing from the official voters list the name of each individual who did not vote and for whom is provided, within seven days of the last scheduled day of voting, certification by a qualified medical practitioner that the individual was physically or mentally incapacitated to the point that they could not have voted on the dates set for voting;
j. after updating the official voters list in accordance with subclause 9.i, establish a final voters list;
k. count the vote; and
l. report the final results to the Parties.
MINOR CHANGES BEFORE SIGNING
10. Before the Parties sign this Agreement, the chief negotiators for the Parties may agree to make minor changes to this Agreement.
RATIFICATION BY BRITISH COLUMBIA
11. Ratification of this Agreement by British Columbia requires:
a. that this Agreement be signed by a Minister of the Crown authorized by the Lieutenant Governor in Council; and
b. the coming into force of Provincial Settlement Legislation.
12. British Columbia will Consult with Tsawwassen First Nation in respect of the development of the Provincial Settlement Legislation.
RATIFICATION BY CANADA
13. Ratification of this Agreement by Canada requires:
a. that this Agreement be signed by a Minister authorized by the federal Cabinet to do so; and
b. the coming into force of Federal Settlement Legislation.
14. Canada will Consult with Tsawwassen First Nation in respect of the development of the Federal Settlement Legislation.
1. The implementation plan for this Agreement takes effect on the Effective Date and has a term of 10 years, unless renewed or extended by the Parties on the recommendation of the implementation committee.
2. The implementation plan:
a. identifies its purposes;
b. identifies the obligations of the Parties;
c. identifies the activities to be undertaken to fulfill those obligations and the responsible Party;
d. identifies the timelines, including when activities will be completed;
e. specifies how the implementation plan may be amended;
f. specifies how the implementation plan may be renewed or extended; and
g. addresses other matters as the Parties may agree.
3. Without limiting clause 58 of the General Provisions chapter, the implementation plan:
a. does not create legal obligations;
b. does not alter any rights or obligations set out in this Agreement;
c. does not preclude any Party from asserting that rights or obligations exist under this Agreement even though they are not referred to in the implementation plan; and
d. is not to be used to interpret this Agreement.
4. On the Effective Date, the Parties will establish an implementation committee for a 10 year term that may be renewed or extended if the Parties agree.
5. The implementation committee consists of one member appointed by each Party, and additional representatives may participate in meetings to support or assist a member. The Parties will each appoint their first member of the implementation committee on the Effective Date.
6. The implementation committee will:
a. provide a forum for the Parties to discuss the implementation of this Agreement;
b. establish its own procedures and operating guidelines;
c. monitor and oversee the operation of the implementation plan;
d. review implementation progress;
e. assist in resolution of any implementation problems;
f. recommend revisions to the implementation plan;
g. develop a communications strategy in respect of the implementation and content of this Agreement;
h. provide for the preparation of annual reports on the implementation of this Agreement;
i. before the expiry of the implementation plan, advise the Parties on further implementation measures required and recommend whether the implementation plan should be renewed or extended; and
j. undertake other activities as the Parties may agree.
Chapter 4 LANDS - Page 41
Clause 8 f. Replace "165" with "166".
Chapter 13 PROVINCIAL PARKS AND GATHERING - Page 119
Clause 1 Replace "set out in Appendix M-2" with "outlined in Appendix M-1 that are within the areas listed in Appendix M-2".
Chapter 16 GOVERNANCE - Page 141
Clause 29 b. Replace "163 and 164" with "164 and 165".
Chapter 20 TAXATION - Page 184
Clause 6 a. Replace "133" with "134".
Clause 6 b. Replace "135" with "136".
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