PART X

WESTBANK LANDS AND LAND MANAGEMENT

Title and Interests in Westbank Lands

87. Title to all Westbank Lands shall continue to be held in the name of Her Majesty the Queen in Right of Canada for the use and benefit of Westbank First Nation.

88. Subject to sections 90 and 91, Licences and interests in Westbank Lands approved, created, granted or issued pursuant to the Indian Act and existing as of the Effective Date shall continue to have effect in accordance with their terms and conditions.

89. Subject to this Agreement, Westbank First Nation shall have the rights, powers, responsibilities and privileges of an owner in relation to Westbank Lands and may grant Licences and interests in Westbank Lands.

90. As of the Effective Date, the rights and obligations of Canada as grantor in respect of Licences and interests in Westbank Lands are transferred to Westbank First Nation.

91. Interests in Westbank Lands held on the Effective Date by Members pursuant to allotments under subsection 20(1) of the Indian Act are subject to the provisions of Westbank Law governing interests in Westbank Lands and sharing in natural resource revenues.

Exchange of Lands

92. Subject to sections 111 to 131, Westbank Lands shall not be alienated except for exchange of land in circumstances where:

1. Westbank First Nation shall receive lands of greater or equivalent size or value in consideration for the exchange taking into account all of its interests involved;



2. Canada is willing to set apart the lands received in exchange as a reserve defined under the Indian Act and as subsection 91(24) lands as set out in the Constitution Act, 1867;



3. Council has made full disclosure to its Members of all the circumstances surrounding the exchange. At least three community meetings shall be held where the proposed transactions are disclosed; and



4. the Members have approved the exchange in accordance with an approval process to be established in the Constitution for this purpose.

93.

1. Where the criteria in section 92 have been satisfied, Westbank First Nation can execute an authorization and direction to Canada to exchange title to the land.



2. Upon Canada receiving authorization and direction to exchange Westbank Land, Canada shall take the necessary steps to transfer and acquire the relevant titles to the lands in accordance with:



1. the authorization;
2. the terms and conditions of the exchange; and
3. procedural requirements applicable to acquisitions and dispositions of federal Crown lands.

94. Westbank First Nation shall be responsible for determining whether the criteria referred to in section 92 have been fulfilled. Westbank First Nation's determination shall be definitive and can be relied upon as such by Canada.

95. For greater certainty, the land alienated in accordance with sections 92 and 93 shall no longer be "Lands reserved for the Indians" under subsection 91(24) of the Constitution Act, 1867.

Register

96.

1. Westbank First Nation has jurisdiction to establish a lands register for Westbank Lands. Any register for Westbank Lands established by Westbank First Nation shall be at least equivalent to the register referred to in subsubsection 96(b)(i) existing prior to the exercise of this jurisdiction.



2. Until such time as Westbank First Nation exercises its jurisdiction to establish a lands register, interests in Westbank Lands are to be registered in:
1. a register to be known as the Westbank Lands Register established by Canada for the registration of interests in Westbank Lands, to be administered, subject to subsubsection 96(b)(ii), in the same manner as the Reserve Land Register established under the Indian Act; or
2. in an alternative register system established for the registration of interests in Westbank Lands pursuant to an agreement between Westbank First Nation and Canada.



3. In the event that an alternative register system has been established pursuant to subsubsection 96(b)(ii), the Westbank Lands Register referred to in subsubsection 96(b)(i) shall no longer register interests in Westbank Lands.

97. Either Westbank Lands register referred to in subsection 96(b) shall accommodate the registration of interests not accommodated specifically in the Indian Act, in accordance with criteria or procedures to be agreed upon by Canada and Westbank First Nation.

98. Document processing shall take place at a Westbank First Nation land registry office. Original documents concerning transactions affecting interests in Westbank Lands, once processed, shall be forwarded to the Westbank Lands Register or its successor referred to in subsubsection 96(b)(ii) for registration until Westbank First Nation exercises jurisdiction under subsection 96(a) to establish a lands register.

99. Interests in Westbank Lands existing as of the Effective Date shall be recognized and recorded in the Westbank Lands Register or its successor referred to in subsubsection 96(b)(ii).

100. Until such time as the coming into force of the Westbank Law enacted pursuant to jurisdiction described in subsection 96(a), section 21 of the Indian Act continues to apply.

101. Until the coming into force of the first Westbank Law enacted pursuant to subsection 96(a), any improvements to the Reserve Land Register administered under the Indian Act shall be applied to the Westbank Lands Register.

Additional Reserve Lands

102. Subject to Canada's policy for additions to reserve, as amended from time to time, lands acquired by Westbank First Nation may be transferred to Canada for the purpose of being set apart as lands reserved for Indians under subsection 91(24) of the Constitution Act, 1867 and as reserves for the use and benefit of Westbank First Nation within the meaning of that term under the Indian Act.

Governance of Westbank Lands

103. Westbank First Nation has jurisdiction in relation to the management, administration, government, control, regulation, use and protection of Westbank Lands. This jurisdiction includes jurisdiction over foreshore and waterbeds where these areas form part of Westbank Lands, but does not include Minerals which are addressed in Part XII.

This jurisdiction includes:

1. the creation of interests in Westbank Lands;



2. procedures for the transfer or disposition of interests in Westbank Lands;



3. procedures in accordance with the Constitution for encumbering interests in Westbank Lands, including rules affecting the exemption referred to in section 89 of the Indian Act;



4. expropriation of interests in Westbank Lands for community purposes in accordance with section 105;



5. treatment of interests in Westbank Lands on marriage breakdown in accordance with section 108;



6. zoning and land use planning;



7. use, construction, maintenance, repair and demolition of buildings and other structures;



8. access to Westbank Lands subject to sections 106 and 107;



9. trespass on Westbank Lands; and



10. residency on Westbank Lands.

104. Westbank First Nation may cause surveys to be made of Westbank Lands in accordance with the Canada Lands Surveys Act and the Canada Lands Surveyors Act.

Expropriation for Community Purposes

105. Westbank First Nation has jurisdiction in relation to expropriation of interests in Westbank Lands for a Community Purpose subject to the following principles:

1. Westbank First Nation shall provide fair compensation to the interest holder and a mechanism to resolve disputes in relation to compensation it pays; and



2. the following interests in Westbank Lands are not subject to Westbank expropriations:



1. interests obtained pursuant to section 35 of the Indian Act; and
2. interests in Westbank Lands held by Canada.
   

Access

106. The exercise of jurisdiction by Westbank First Nation in relation to access to Westbank Lands shall not prevent those persons with rights or interests in Westbank Lands from being able to access those lands associated with those rights or interests.

107.

1. Persons acting in an official capacity pursuant to lawful authority shall have access to Westbank Lands. Such access shall be without charge except as provided for under the lawful authority for access. Such persons shall comply with Westbank Law enacted pursuant to subsection 103(h) where such compliance does not unduly interfere with the carrying out of their duties. Subject to subsection107(b), Canada shall give prior notice of the exercise of such access to Council when it is reasonable to do so.



2. Peace officers, federal investigators and law enforcement officers carrying out duties under the law of Canada are not required to provide notice as referred to in subsection 107(a).

Treatment of Interests in Westbank Lands on Marriage Breakdown

108.

1. Westbank First Nation has jurisdiction in relation to treatment of interests in Westbank Lands on marriage breakdown involving at least one Member and shall enact a law within twelve months of the Effective Date setting out rules and procedures applicable on the breakdown of a marriage to use, occupancy and possession of Westbank Lands and the division of interests in these lands.



2. For greater certainty, the laws referred to in subsection 108(a) shall not discriminate on the basis of sex but may distinguish as between Members and non-Members for the purpose of determining what type of interest in Westbank Lands may be held by an individual.



3. Any dispute between Canada and Westbank First Nation in respect of this section shall be subject to arbitration following the rules provided in section 271.

Procedures to Transfer by Testamentary Disposition or Succession

109.

1. The Constitution shall include procedures that apply to the transfer, by testamentary disposition or succession, of any interest in Westbank Lands.



2. For greater certainty, the procedures in the Constitution referred to in subsection 109(a) shall not be considered an exercise of jurisdiction underPart VIII.

Priority of Land and Land Management Law

110. Except as otherwise provided in this Agreement, in the event of a conflict between Westbank Law in relation to Westbank Lands and land management and federal law, Westbank Law shall prevail to the extent of the conflict.

Federal Expropriation

111. The Parties declare that it is of fundamental importance to maintain the amount and integrity of Westbank Lands, and they therefore agree, as a general principle, that Westbank Lands will not be expropriated.

112. Notwithstanding the general principle against expropriation, interests in Westbank Lands may be expropriated in accordance with federal legislation:

1. only with the consent of the Governor-in-Council; and



2. only for the use of a federal department, agency or other entity as described in the legislation.

113. The Governor-in-Council shall only consent to an expropriation of interests in Westbank Lands if the expropriation is justifiable in accordance with section 114 and necessary for a federal public purpose that serves the national interest.

114. The Governor in Council shall not consent to an expropriation unless satisfied that:

1. alternatives to expropriation have been considered and such alternatives are not reasonably feasible;



2. there are no non-Westbank Lands reasonably available;



3. reasonable efforts have been made to acquire the interest in land through agreement with Westbank First Nation;



4. the interest being taken is the smallest reasonably necessary and the term for which it is taken is the shortest reasonably required; and



5. Westbank First Nation has been provided with information relevant to the expropriation.

115. Prior to the Governor-in-Council issuing an order consenting to the expropriation of Westbank Lands, Canada shall make public a report on the reasons justifying the expropriation and the steps taken in satisfaction of this expropriation procedure and shall provide a copy of the report to Westbank First Nation.

116. Where Westbank First Nation objects to a proposed expropriation, it may refer the issue to a mediator under Part XXX within 60 days of receiving a copy of the report referred to in section 115.

117. An order of the Governor-in-Council consenting to the expropriation shall not be issued earlier than:

1. (a) the end of the 60 day period referred to in section 116; and



2. (b) the day the opinion or recommendation of the mediator is released, where Westbank First Nation referred the proposed expropriation to a mediator under section 116.

Compensation by Canada

118. Where an interest in Westbank Lands is expropriated under sections 111 to 117, compensation shall be provided to Westbank First Nation consisting of:

1. land; and



2. any additional compensation required to achieve the total compensation determined under section 120.

119. Land provided to Westbank First Nation as compensation may be of an area that is less than the area of the land in which an interest has been expropriated only if the total area of the land comprised in Westbank Lands is not less following the expropriation than at the Effective Date.

120. The total compensation shall be determined taking into account the following factors:

1. the market value of the expropriated interest or of the land in which an interest has been expropriated;



2. the replacement value of any improvement to the land;



3. any expenses or losses resulting from a disturbance attributable to the expropriation;



4. any reduction in the value of any interest in Westbank Lands that is not expropriated;



5. any adverse effect on any cultural or other special value of the land to the Westbank First Nation; and



6. the value of any special economic advantage arising out of or incidental to the occupation or use of the land to the extent that value is not otherwise compensated.

121. If the value and nature of the compensation cannot be agreed upon by Canada or the entity described in subsection 112(b) and Westbank First Nation, either party may refer a dispute on compensation to binding arbitration under Part XXX, other than for expropriation under the National Energy Board Act.

122. For expropriation under the National Energy Board Act:

1. disputes over compensation shall be referred to a board, committee, panel or other body authorized by the National Energy Board Act to settle disputes in respect of expropriation;



2. the board, committee, panel or other body referred to under subsection 122(a) shall include at least one nominee of Westbank First Nation; and



3. the board, committee, panel or other body referred to under subsection 122(a) shall be comprised of persons who have knowledge of, and experience related to the criteria set out in section 120.

123. Any claim or encumbrance in respect of the interest expropriated may only be claimed against the amount of compensation that is otherwise payable to the person or entity whose interest is being expropriated.

124. Interest on the compensation is payable from the date the expropriation takes effect, at the same rate as for prejudgment interest in the Supreme Court of British Columbia.

Status of Westbank Lands

125. Where less than the full interest of the Westbank First Nation in Westbank Lands is expropriated:

1. the land retains its status as Westbank Lands;



2. the land remains subject to Westbank Law that is otherwise applicable, except to the extent that such Westbank Law is inconsistent with the expropriation; and,



3. Westbank First Nation may continue to use and occupy the land, except to the extent the use or occupation is inconsistent with the expropriation.

126. Alternate lands accepted by Westbank First Nation from Canada as part of the compensation shall become Westbank Lands and shall be set apart by Canada as a reserve within the meaning of that term defined in the Indian Act, and as subsection 91(24) lands as set out in the Constitution Act, 1867.

Reversion of Interest in Westbank Lands

127. Where an expropriated interest in Westbank Lands, which is less than the full interest of Westbank First Nation in Westbank Lands, is no longer required by Canada or the entity described in section 112(b) for the purpose for which it was expropriated, the interest in land shall revert to Westbank First Nation.

128. The Minister responsible for the expropriating department or agency may, without the consent of the Governor-in-Council, decide that the land is no longer required and determine the disposition of any improvements.

Return of Full Interest in Westbank Lands

129. Where an interest in Westbank Lands was expropriated but is no longer required by Canada or the entity described in the legislation for the purpose for which it was expropriated, the land shall be returned to Westbank First Nation on terms negotiated by Westbank First Nation and Canada, and where appropriate, the entity described in the legislation.

130. Where the terms and conditions of the return cannot be agreed upon by Westbank First Nation and Canada and, where appropriate, the entity described in the legislation, either party may refer the dispute to arbitration under Part XXX.

131. The Minister responsible for the expropriating department or agency may, without the consent of the Governor-in-Council, decide that the land is no longer required and determine the disposition of any improvements.

Application of Expropriation Act

132. Any provisions of the Expropriation Act that are applicable to an expropriation of Westbank Lands by Canada continue to apply unless inconsistent with this Agreement.

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