Part 5 - Law-making Authority
Exercise of Law-making Authority
- The exercise of law-making authority by a First Nation shall be in accordance with its
First Nation gchi-naaknigewin and this Agreement.
-
- Subject to 18 (b) a First Nation law may provide for creation of offences and for
the imposition of penalties including fines, restitution and imprisonment for the
violation of First Nation law;
-
- a First Nation law may provide for terms of imprisonment for a
violation of First Nation laws, no greater than those that may be
imposed under section 787 (1) of the Criminal Code;
- a First Nation law, other than a law in relation to environmental
protection, may provide for a fine of up to $10,000.00 or the amount
applicable to summary conviction offences under section 787 (1) of the
Criminal Code, whichever is greater;
- a First Nation law in relation to environmental protection may provide
for a fine that is no greater than the fine that may be imposed for
offences punishable upon summary conviction under federal
environmental legislation; and
- a First Nation law may provide for use of alternative sentencing and
diversion, including community service orders, for the violation of First
Nation law.
- Each First Nation may do such things as may be necessarily incidental to the exercise of
its law-making authority or to enable the First Nation to carry out its responsibilities
pursuant to this Agreement.
Delegation by a First Nation
- The First Nations agree that if they choose to exercise authority, including law-making
authority, it shall be delegated to the United Anishnaabeg Councils in accordance with
First Nation gchi-naaknigewin and this Agreement in circumstances where:
- the enactment, implementation or enforcement of legislation is beyond their legal,
technical, management or administrative capacity;
- the development or delivery of governmental programs and services is beyond their
technical, management or administrative capacity;
- economies of scale could be achieved through eliminating overlap or duplication of
laws and governmental programs and services; and
- success of a program and service would be ensured by providing to e-dbendaagzijig
equal access and mechanisms of appeal and redress.
- A First Nation may delegate law-making authority to the United Anishnaabeg Councils,
in accordance with First Nation gchi-naaknigewin and this Agreement, provided that:
- an agreement has been entered into between the First Nation and the United
Anishnaabeg Councils that sets out the conditions upon which law-making
authority shall be delegated to and exercised by the United Anishnaabeg Councils;
and
- such delegation is authorized by First Nation gchi-naaknigewin or First Nation law,
or both.
- A First Nation may delegate law-making authority to any other government in
accordance with First Nation gchi-naaknigewin and this Agreement, as appropriate,
provided that:
- an agreement has been entered into between the First Nation and the government to
which law-making authority is being delegated that sets out the conditions upon
which law-making authority shall be delegated to and exercised by the other
government;
- such delegation is authorized by First Nation gchi-naaknigewin or First Nation law,
or both; and
- federal or provincial legislation is in place which recognizes the authority of that
government to make laws in relation to the subject matter delegated.
- The United Anishnaabeg Councils or any other government which has been delegated a
First Nation law-making authority shall not delegate that authority.
United Anishnaabeg Councils
- Except as otherwise agreed by the parties in respect of particular matters, the United
Anishnaabeg Councils is responsible for intergovernmental relations between the First
Nations and Canada, including but not limited to:
- dispute resolution;
- the fiscal relationship; and
- the implementation of this Agreement.
- On the coming into force of this Agreement, each First Nation shall delegate such
management and administration authority to the United Anishnaabeg Councils as may be
necessary to allow the United Anishnaabeg Councils to fulfill its responsibilities.
Relationship to Persons who are not E-dbendaagzid
- First Nation law or First Nation gchi-naaknigewin shall provide that persons who are not
e-dbendaagzid residing on First Nation land or having an interest in First Nation land
with mechanisms through which they may have input into proposed First Nation law and
proposed amendments to First Nation law that directly and significantly affect them.
- First Nation law made pursuant to clause 26 shall be in effect on the coming into force of
this Agreement.
Selection of Public Officials
- Each First Nation may make laws with respect to public officials, including but not
limited to, the eligibility and selection of public officials.
- In the event of a conflict between First Nation laws made in relation to selection of
public officials and federal laws, First Nation law shall prevail to the extent of the
conflict.
E-dbendaagzijig
- Each First Nation may make laws with respect to the determination of e-dbendaagzijig,
including but not limited to, eligibility criteria and a review mechanism for the
determination of e-dbendaagzijig.
- E-dbendaagzid shall be named on a First Nation list.
- A First Nation list shall include persons whose names are on a Band List maintained by a
First Nation or the Registrar as defined by the Indian Act immediately prior to the
coming into force of this Agreement.
- A First Nation law may not remove e-dbendaagzid from a First Nation list only by
reason of a situation that existed or an action taken before the First Nation law came into
force.
- For greater certainty, on the coming into force of this Agreement, a First Nation shall
have authority with respect to its First Nation list, and Canada shall have no authority
with respect to the addition to or deletion from the First Nation list.
- The Citizenship Act and the Immigration Act and any other federal law containing
provisions dealing with Canadian citizenship and immigration shall apply to persons on
First Nation land, and in the event of conflict with First Nation law, the federal law shall
prevail.
- Subject to clause 35, in the event of a conflict between First Nation law made in relation
to e-dbendaagzijig and federal laws, First Nation law shall prevail to the extent of the
conflict.
E-naadziyang and anishnaabemwin
- Each First Nation may make laws with respect to e-naadziyang and anishnaabemwin on
First Nation land.
- In the event of a conflict between First Nation law made in relation to e-naadziyang and
anishnaabemwin and federal laws, First Nation law shall prevail to the extent of the
conflict.
Education
- Each First Nation may make laws with respect to primary, elementary and secondary
education on First Nation land for e-dbendaagzijig.
- First Nation education standards shall be at least equivalent to those established by
Ontario.
- Each First Nation shall have authority with respect to the management of post-secondary
education assistance programs for e-dbendaagzijig.
- In the event of a conflict between First Nation law made in relation to education and
federal laws, First Nation law shall prevail to the extent of the conflict.
Land
Law-Making Authority
-
- Each First Nation may make laws with respect to the development, conservation,
protection, management, use, possession, and disposition of First Nation land.
- Any exercise of authority by the First Nations over lands held jointly with a band
under the Indian Act or a first nation under the First Nations Land Management
Act shall be in accordance with an agreement between the parties for whom those
lands were set aside.
Rights, Powers and Privileges
- Subject to the provisions of this Agreement, a First Nation has:
- all the rights, powers and privileges of an owner in relation to First Nation land;
and
- the authority to grant interests and licences in relation to First Nation land, and to
manage its natural resources.
- For greater certainty, the fixed assets shall be transferred to each First Nation in
accordance with the provisions of this Agreement and the First Nation Specific
Agreement.
Division of Land Upon Breakdown of a Marriage
- A First Nation shall develop rules and procedures, applicable on the breakdown of a
marriage, for the use, occupancy and possession of First Nation land and the division of
interests in that land.
- The First Nation shall have a period of 12 months from the date of the coming into force
of this Agreement, or such other period as the parties may agree, to enact the rules and
procedures referred to in clause 46.
Title to and Protection of First Nation Land
- Title to First Nation land shall continue to be held by Canada for the use and benefit of
the First Nation.
- First Nation land shall continue to be lands reserved for Indians within the meaning of
section 91(24) of the Constitution Act, 1867.
- First Nation land shall not be sold, but First Nation land may be exchanged or conveyed
pursuant to clauses 55 to 63.
- Existing third-party interests and licences in First Nation land, other than interests and
licences of e-dbendaagzid, shall continue in force according to their terms and
conditions.
- The rights and obligations of Canada as grantor in respect of the interests and licences
referred to in clause 51, and further described in each First Nation Specific Agreement,
are transferred to the First Nations in accordance with those Agreements.
- Despite clause 51, any rights of e-dbendaagzid in lawful possession of land as defined
under the Indian Act, to transfer or lease those rights and to share in revenues generated
by such rights shall be set out in gchi-naaknigewin or First Nation law.
- On the coming into force of this Agreement, no interest or licence in relation to First
Nation land may be acquired or granted except in accordance with First Nation
gchi-naaknigewin or First Nation law.
Voluntary Exchange of First Nation Land
- A First Nation may exchange a parcel of First Nation land for another parcel of land, on
the condition that the other parcel of land becomes First Nation land. A land exchange
may also provide for additional compensation, including land that may not become First
Nation land, and may be subject to other terms and conditions.
- Any exchange of First Nation land shall require approval by e-dbendaagzijig in
accordance with the process established in First Nation gchi-naaknigewin.
- First Nation land shall only be exchanged for land that Canada sets apart as First Nation
land. The approval of Canada shall be required with respect to title, exterior boundary
surveys and environmental assessment.
- To give effect to an exchange of First Nation land that is approved by a First Nation, the
First Nation shall execute an authorization and direction to Canada to transfer title to the
land.
- Pursuant to clause 58, Canada shall transfer title to the land in accordance with the First
Nation authorization and direction and the applicable terms and conditions of the
exchange.
- Canada may effect the exchange of land in complete reliance on the authorization and
direction, and, without limiting the generality of the foregoing, Canada is under no
obligation to:
- look into the procedures used by the First Nation leading to the issuance of the
authorization and direction;
- look into the adequacy of consideration agreed to by the First Nation; or
- consider whether it is in the interests of the First Nation to effect the exchange.
- A copy of the instrument transferring title to First Nation land shall be registered in the
sub-register of the Reserve Land register established under the Indian Act.
- Land received in exchange for First Nation land shall become both a reserve and First
Nation land as of the date of the exchange, or such later date as the First Nation may
specify. This does not apply to land that is received by the First Nation as additional
compensation and that is not intended to become First Nation land.
- Where an exchange of First Nation land is approved, the description of First Nation land
in the First Nation Specific Agreement shall be deemed to be amended to delete the
description of the First Nation land that was exchanged and amended to add the
description of the land received in exchange.
Immunity from Seizure
- First Nation land is not subject to seizure under legal process.
- The real and personal property of e-dbendaagzid or a First Nation situated on First
Nation land or on a reserve as defined by the Indian Act is not subject to charge, pledge,
mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of
any person other than e-dbendaagzid or a First Nation.
- A person who sells to a First Nation or e-dbendaagzid personal property under an
agreement whereby the right of property or right of possession thereto remains wholly or
in part in the seller may exercise those rights under the agreement despite the personal
property being situated on First Nation land.
- A leasehold interest in First Nation land that is designated land under the Indian Act before the coming into force of this Agreement is subject to charge, pledge, mortgage,
attachment, levy, seizure, distress and execution.
- First Nation gchi-naaknigewin may provide that other leasehold interests in any of its
First Nation land are subject to charge, pledge, mortgage, attachment, levy, seizure,
distress and execution.
-
- For the purposes of clauses 64 ,65 and 66, personal property that was:
- purchased by Canada with Indian moneys or moneys appropriated by
Parliament for the use and benefit of e-dbendaagzijig or First Nations, or
- given to e-dbendaagzijig or to a First Nation under a treaty or agreement
between a First Nation and Canada
shall be deemed always to be situated on First Nation land.
- For the purposes of clauses 65 and 66, e-dbendaagzid includes a member of a band
as defined in the Indian Act.
Compulsory Acquisition of First Nation Land by a First Nation
- Based on the principle of fair compensation, a First Nation may assume any interest in
its First Nation land by compulsory acquisition if deemed by the First Nation as
necessary for community works or other First Nation community purposes.
- A First Nation's power of compulsory acquisition of an interest in its First Nation land
shall be exercised in accordance with First Nation gchi-naaknigewin or First Nation law,
which shall include a mechanism to resolve disputes.
- Any interest in First Nation land that was obtained pursuant to section 35 of the Indian
Act, or any interest that has been acquired by Canada, or that is acquired by Canada after
this Agreement comes into force in accordance with this Agreement, is not subject to
compulsory acquisition by a First Nation.
Expropriation by Canada
- It is of fundamental importance not to reduce the amount and to maintain the integrity of
First Nation land, and Canada agrees that, as a general principle, First Nation land shall
not be expropriated.
- Despite clause 73, First Nation land may be expropriated only by Canada with the
consent of the Governor in Council, and only by and for the use of a federal department
or agency.
- The Governor in Council shall only consent to an expropriation of First Nation land if
the expropriation is justifiable and necessary for a federal public purpose that serves the
national interest.
- When making a decision to expropriate First Nation land, the Governor in Council, in
addition to other steps that may be required before making such a decision, shall at a
minimum follow these steps:
- consider using means other than expropriation and shall use those other means
where reasonably feasible;
- use non-First Nation land, where such land is reasonably available;
- make reasonable efforts to acquire the land through agreement with the First
Nation, rather than expropriation;
- expropriate only the smallest interest necessary and for the shortest time required;
and
- provide the First Nation with all information relevant to the expropriation.
- Prior to the Governor in Council consenting to the expropriation of First Nation land,
Canada shall make public a report on the reasons justifying the expropriation and the
steps taken in satisfaction of clauses 74 to 76.
- Where a First Nation objects to a proposed expropriation, it may refer the issue for a
neutral evaluation under the dispute resolution provisions of this Agreement within 60
days of receiving a copy of the report referred to in clause 77.
- An order of the Governor in Council consenting to the expropriation shall not be issued
earlier than:
- the end of the 60 day period referred to in clause 78; and
- the day the opinion or recommendation of an independent third party is released,
where the First Nation referred the proposed expropriation to a neutral evaluation
under clause 78.
Compensation by Canada
- In the event of the expropriation by Canada of First Nation land, Canada shall provide
compensation to the First Nation.
- The compensation shall include alternate land of equal or greater size or of comparable
value. If the alternate land is of less than comparable value, then additional
compensation shall be provided. The alternate land may be smaller than the land being
expropriated only if that does not result in the First Nation having less land area than
existed on the coming into force of this Agreement.
- The total value of the compensation provided by Canada shall be based on the combined
total of:
- the market value of the land or interest that is acquired;
- the replacement value of any improvement to the land that is acquired;
- the damages attributable to the disturbance;
- the value of any special economic advantage arising out of or incidental to the
occupation or use of the affected First Nation land to the extent that this value is
not otherwise compensated;
- damages for any reduction in the value of a remaining interest; and
- damages for any adverse effect on any cultural or other special value of the land.
- If the nature or value of the compensation cannot be agreed upon by the First Nation and
Canada then either party may refer the issue to arbitration under the dispute resolution
provisions of this Agreement.
- Any claim or encumbrance in respect of the interest expropriated by Canada may only be
claimed against the amount of compensation that is otherwise payable to the person or
entity whose interest is being expropriated.
- Interest on the compensation is payable from the date the expropriation takes effect, at
the same rate as for prejudgment interest in the Superior Court of Justice in the Province
of Ontario.
- Alternate lands accepted by a First Nation as part of the compensation shall be set apart by
Canada as First Nation land.
Status of Expropriated First Nation Land
- Where less than the full interest of a First Nation in its First Nation land is expropriated
by Canada:
- the land retains its status as First Nation land;
- the land remains subject to First Nation gchi-naaknigewin and to any First Nation
law that is otherwise applicable, except to the extent First Nation gchi-naaknigewin
or the First Nation law is inconsistent with the expropriation; and
- the First Nation may continue to use and occupy the land, except to the extent the
use or occupation is inconsistent with the expropriation.
Reversion or Return of Interest in First Nation Land
- Where an expropriated interest in First Nation land, which is less than the full interest of
the First Nation in the land, is no longer required by Canada for the purpose for which it
was expropriated, the interest in land shall revert to the First Nation.
- Where the full interest of a First Nation in its First Nation land was expropriated, but is
no longer required by Canada for the purpose for which it was expropriated, the land
shall be returned to the First Nation on terms negotiated by the First Nation and Canada
at the time of the expropriation or at a later date as agreed to by the parties.
- Where the terms and conditions of the return cannot be agreed upon by the First Nation
and Canada then either party may refer the issue to arbitration under the dispute
resolution provisions of this Agreement.
- The minister responsible for the expropriation may decide, without consent of the
Governor in Council, that the land is no longer required and determine the disposition of
any improvements.
Application of the Federal Expropriation Act
- Any provisions of the Federal Expropriation Act that are applicable to an expropriation
of First Nation land by Canada shall apply unless inconsistent with this Agreement.
Liability
- A First Nation shall not be liable for acts or omissions of Canada, or any person
authorized by Canada to act in relation to its First Nation land, that occurred before the
coming into force of this Agreement.
- Canada shall not be liable for acts or omissions of the First Nation, or any person
authorized by the First Nation to act in relation to its First Nation land, that occur after
the coming into force of this Agreement.
- Canada shall indemnify a First Nation for any loss arising from any acts or omissions by
Canada, or any person or entity acting on behalf of Canada in respect of First Nation
land, that occurred before the coming into force of this Agreement.
- A First Nation shall indemnify Canada for any loss arising from any acts or omissions by
a First Nation, or any person or entity acting on behalf of a First Nation in respect of
First Nation land, that occur after the coming into force of this Agreement.
- The party which is the subject of a claim, demand, action, or proceeding that may give
rise to a requirement to provide payment to that party pursuant to an indemnity under
this Agreement:
- shall vigorously defend the claim, demand, action, or proceeding; and
- shall not settle or compromise the claim, demand, action, or proceeding except
with the consent of the party which has granted that indemnity, which consent shall
not be arbitrarily or unreasonably withheld or delayed.
Land Register
- Until such time as a First Nation makes a law to establish a land register, interests in
First Nation land are to be registered in the sub-register of the Reserve Land Register
established under the Indian Act.
- The Governor in Council may, on the recommendation of the Minister, make regulations
respecting the administration of the sub-register of the Reserve Land Register, the
registration of interests and licences in it and the recording of any other matter, including
but not limited to regulations respecting:
- the effects of registering interests and licences, including priorities;
- the payment of fees for the registration of interests and licences and for any other
service in relation to the sub-register of the Reserve Land Register;
- the appointment, remuneration, powers, functions and duties of officers and
employees who administer the sub-register of the Reserve Land Register; and
- the keeping, by officers and employees, of documents that are not registrable.
Laws
- Subject to clause 104, in the event of a conflict between First Nation law made in
relation to First Nation land and federal laws, First Nation law shall prevail to the extent
of the conflict.
Natural Resources
- Each First Nation may make laws with respect to the development, conservation,
protection, management, use, possession and disposition of renewable and
non-renewable natural resources, to the extent that the resources are under the
jurisdiction of Canada and are part of First Nation land.
- Without limiting the generality of clause 101, a First Nation may exercise its authority in
relation to the following types of activities relating to natural resources, to the extent that
these resources are under the authority of Canada and are part of First Nation land,
including but not limited to:
- the development of an inventory and natural resource use plan, with provisions for
harvesting rights and responsibilities;
- the disposition of rights and interests in natural resources;
- subject to clause 105, the preservation, harvesting, renewal and management of
wildlife, including game, birds, fur bearing animals and their natural habitat;
- the preservation, harvesting and management of forest resources; and
- the management, exploration, exploitation, development and disposition of the
surface and sub-surface resources.
- Nothing in this Agreement provides law-making authority to either party, nor shall affect
or extend any rights of either party, related to fish or fish habitat or navigable waters.
104. Federal legislation enacting international agreements related to natural resources
including but not limited to:
- the Migratory Birds Convention Act;
- federal legislation over prospecting for, mining, refining and handling of uranium;
and
- federal legislation relating to endangered species or setting out obligations with
respect to the collection and reporting of statistics of natural resources in Canada,
shall prevail in the event of conflict with First Nation law to the extent of the conflict.
- Subject to clause 104, in the event of a conflict between First Nation law made in
relation to natural resources and federal laws, First Nation law shall prevail to the extent
of the conflict.
Environmental Protection
- Each First Nation may make laws with respect to environmental protection on First
Nation land.
- A First Nation law may provide for enforcement measures consistent with federal
environmental laws, such as the power to inspect, search and seize and order compulsory
sampling, testing and the production of information.
- The Canadian Environmental Protection Act and any other federal legislation
concerning environmental protection and First Nation law with respect to environmental
protection shall apply on First Nation land.
- In the event of a conflict between a First Nation law made in relation to environmental
protection and federal laws, the federal laws shall prevail to the extent of the conflict.
Environmental Emergencies
- Subject to clause 145, nothing in this Agreement affects any environmental emergency
agreement or arrangement that has been or may be entered into for the protection of the
environment on First Nation land.
Intergovernmental Agreements
- Subject to this Agreement, before making any First Nation law with respect to
environmental protection, a First Nation and Canada shall enter into an agreement in
relation to environmental protection.
Environmental Assessment
- Each First Nation may make laws with respect to environmental assessment of proposed
projects on First Nation land.
- Any laws made pursuant to clause 112, which may among other things establish an
environmental assessment process, shall maintain or exceed the requirements of the
Canadian Environmental Assessment Act.
- First Nation law with respect to environmental assessment shall provide for a
determination of projects on First Nation land that are subject to an environmental
assessment, provided that such a determination does not lead to the exclusion of projects
that would otherwise be subject to an environmental assessment under the Canadian
Environmental Assessment Act.
- A project subject to an environmental assessment shall not be authorized until an
environmental assessment is completed in accordance with the law made pursuant to
clause 112.
- The First Nation environmental assessment process shall be structured to promote the
implementation of the principle that proponents are responsible for costs associated with
the environmental assessment process including the preparation of the environmental
impact statement, mitigation measures, follow-up programs and public consultation.
- For greater certainty, the First Nation environmental assessment process shall provide:
- that the following factors are taken into consideration in the environmental
assessment process:
- the environmental effects of the project, including the environmental effects
of malfunctions or accidents that may occur in connection with the project
and any cumulative environmental effects that are likely to result from the
project in combination with other projects or activities that have been or shall
be carried out;
- the significance of the environmental effects;
- comments received from the public in accordance with laws made pursuant
to clause 112;
- measures that are technically and economically feasible and that would
mitigate any significant adverse environmental effects of the project; and
- where projects are likely to have significant adverse environmental effects,
provide for the consideration of the following additional factors:
- the purpose of the project;
- alternative means of carrying out the project that are technically feasible
and the environmental effects of any such alternative means;
- the need for, and the requirements of, any follow-up program in respect
of the project; and
- the capacity of renewable resources that are likely to be significantly
affected by the project to meet the needs of the present and those of the
future;
- an opportunity for public participation and public access to the environmental
assessment information;
- an opportunity for a full public review where a project is likely to have significant
adverse environmental effects; and
- for a requirement that decision makers take the environmental assessment report,
and where applicable the implementation of the mitigation measures, into
consideration prior to taking any action or making any decision that would enable
the project to be carried out in whole or in part.
- The First Nations shall enact laws pursuant to clause 112 within one year, or such further
time as the parties may agree to, after the First Nations exercise law-making authority
with respect to First Nation land.
- The parties agree that appropriate measures shall be taken in order to avoid unnecessary
overlap and duplication in the conduct of the environmental assessment where a project
on the First Nation land is subject to more than one environmental assessment process.
Efforts to harmonize environmental assessment requirements shall be premised on the
objective of achieving a single environmental assessment for each project, resulting in
increased certainty, accountability and predictability in environmental assessment.
- Until the First Nations make laws pursuant to clause 112, the First Nations shall ensure
that:
- projects on First Nation land which are subject to an environmental assessment
under the Canadian Environmental Assessment Act are assessed before they are
authorized by the First Nation;
- the environmental assessment reflects those elements contained in clause 117;
- proposed projects that are likely to have significant adverse environmental effects
are not authorized before they are subject to public review; and
- where a project is subject to public review, the factors outlined in clause 117(a) are
taken into consideration and the public is given full opportunity to participate in
the review.
- The Canadian Environmental Assessment Act shall apply on First Nation land consistent
with clause 119.
- In the event of a conflict between First Nation law made in relation to environmental
assessment and federal laws, federal laws shall prevail to the extent of the conflict.
Public Works and Infrastructure
- Subject to clause 126, each First Nation may make laws with respect to public works and
community infrastructure on First Nation land.
- First Nation law-making authority pursuant to clause 123 may extend over the design,
construction, renovation, acquisition, operation and maintenance of facilities, networks
or structures related to, among other things:
- water and sanitation systems;
- waste disposal;
- energy supply and distribution;
- fire protection;
- transportation infrastructure; and
- community services.
- A First Nation may enter into agreements with any government, public agency, or private
corporation for planning, delivery, or any other aspect of public works and infrastructure.
- First Nation public works and infrastructure standards shall be at least equivalent to
those established by Canada or Ontario.
- In the event of a conflict between First Nation law made in relation to public works and
infrastructure and federal laws, First Nation law shall prevail to the extent of the conflict.
Traffic and Transportation
- Each First Nation may make laws with respect to traffic and transportation on First
Nation land.
- First Nation standards for health, safety and technical codes regarding traffic or
transportation shall be at least equivalent to those established by Canada or Ontario.
- In the event of a conflict between First Nation law made in relation to traffic and
transportation and federal laws, federal laws shall prevail in relation to transportation,
and First Nation law shall prevail in relation to traffic, including the control or
prohibition, and operation and use of vehicles on First Nation land.
Economic Development and Operation of Business
- Each First Nation may make laws on First Nation land with respect to:
- licensing of business;
- regulation and prohibition of the operation of business; and
- affirmative action initiatives.
- In the event of conflict between First Nation law made in relation to clause 131 and
federal laws, First Nation law shall prevail to the extent of the conflict.
- For greater certainty, the power of a First Nation to make laws as set out in this
Agreement, includes the power to make laws in relation to economic development and
the establishment of institutions to increase opportunity for economic development.
Enforcement and Adjudication of First Nation Law
Adjudication
- The Federal Court (Trial Division) shall have jurisdiction for judicial review of decisions
of bodies referred to in or established in accordance with this Agreement, First Nation
gchi-naaknigewin, United Anishnaabeg Councils gchi-naaknigewin or First Nation law,
provided all internal appeal mechanisms have been exhausted.
- The Ontario Court of Justice shall have jurisdiction in respect of violations of First
Nation law.
- The Ontario Superior Court of Justice shall have jurisdiction to hear and determine
proceeding for:
- civil matters arising under First Nation law; and
- appeal of decisions of the Ontario Court of Justice in relation to matters referred to
in clause 135.
Procedures
- A First Nation may make laws with respect to the enforcement of First Nation laws,
including:
- adopting the summary conviction procedures of Part XXVII of the Criminal Code; or
- adopting the laws of Ontario relating to proceedings in respect of offences that are
created by a law of Ontario, with such modifications as may be required.
Disposition of Fines
- Where a fine is imposed in respect of a First Nation law and where the proceeding is
instituted at the instance of the First Nation, the fine belongs to that First Nation.
Prosecutions
- The First Nations are responsible for the prosecution of violations of First Nation law,
and may appoint individuals to conduct such prosecution in a manner consistent with the
relevant principles of prosecutorial independence.
Proof of Laws
- In any proceedings, evidence of a First Nation law may be given by the production of a
copy of the law, certified to be a true copy by a person authorized by the First Nation,
without proof of that person's signature or official character.
Public Order, Peace and Safety
- Each First Nation may make laws with respect to the control or prohibition of any
actions, activities or undertakings on First Nation land that constitute, or may constitute,
a threat to public order, peace or safety or a danger to public health.
- In the event of a conflict between First Nation law made in relation to public order,
peace and safety and federal laws, federal laws shall prevail to the extent of the conflict.
Future Negotiations
- The First Nations and Canada shall negotiate with respect to the following subject areas,
in accordance with a process agreed to by the First Nations and Canada:
- agriculture;
- additions to First Nation land;
- traditional health practices;
- labour relations;
- wills and estates; and
- such other matters as the parties may agree.
- The First Nations may enter into government-to-government negotiations of an
administrative nature with federal departments and agencies on other subject matters
where possible and practicable for the First Nations and the agency or department.
- The First Nations, Canada and Ontario may negotiate with respect to the following
subject areas to the extent that these subject areas are not provided for in any other
provision of this Agreement:
- administration of justice, including policing and corrections services;
- education, including pre-school and post secondary;
- emergency preparedness and emergency response;
- fish and fish habitat;
- gaming;
- health;
- repatriation of First Nation artifacts, objects and property related to e-naadziyang
that may be in the possession of Ontario;
- social services;
- training; and
- such other matters as First Nations, Canada and Ontario may agree.
- The negotiations cited in clause 145 shall be conducted in accordance with a process
agreed to by the First Nations, Canada and Ontario.
- The parties shall negotiate the issue of the determination of Indian status in the context
of a change in Canada's policy or legislation.
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