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Agreements, Treaties and Settlements - Canada
Signed 15 March 2004
The Tsawwassen First Nation Agreement in Principle represents the fifth stage of treaty negotiations between the Tsawwassen First Nation and Canada and British Columbia. Although it is not legally binding, the Agreement in Principle reflects a broad consensus between the three parties on the provisions it contains. It is estimated that Final Agreement negotiations may take between 18 months and two years.
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1. Tsawwassen are Coast Salish People who speak a dialect of the Hun’qum’i’num language and who assert that their heritage, history and culture, including their language and religion, are tied to the lands and waters surrounding Roberts Bank, the Fraser River, Fraser River estuary, Pitt Lake, Pitt River, Serpentine River, Nicomekl River, Boundary Bay and the Gulf Islands, as stated in their Statement of Intent submitted to the British Columbia Treaty Commission.
2. The Parties share a common objective of reconciliation on the basis of mutual understanding and respect.
3. Before the Final Agreement, the Parties will negotiate and attempt to reach agreement on clauses to be included in the Final Agreement relating to recognition and acknowledgement of Tsawwassen First Nation’s rights and objectives, including those under the Final Agreement in respect of cultural materials, heritage resources, forest resources, and connections to land and the environment.
4. The arrangements to be set out in the Final Agreement will reflect a government-to-government relationship between the Parties within the framework of the Constitution of Canada.
5. This Agreement in Principle will not restrict Tsawwassen First Nation from participating in any other process that may exist or be established to implement rights asserted by First Nations.
6. This Agreement in Principle and the Final Agreement will not affect the identity of Tsawwassen People as aboriginal people of Canada.
7. This Agreement in Principle will not affect the ability of Tsawwassen First Nation members to exercise, or benefit from, any constitutional rights for aboriginal people that may be applicable to them.
8. This Agreement in Principle will not affect the ability of Tsawwassen First Nation members to participate in or benefit from government programs for registered Indians, other Indians or aboriginal people in accordance with conditions in effect from time to time.
9. This Agreement in Principle and the Final Agreement will not affect the ability of Tsawwassen People who are Canadian citizens or permanent residents to continue to be entitled to all of the rights and benefits applicable to Canadian citizens or permanent residents from time to time.
10. Nothing in the Final Agreement will affect the ability of Tsawwassen First Nation or Tsawwassen People to apply for or bid on any commercial, economic or other activity or project for which they would otherwise be eligible.
11. This Agreement in Principle will form the basis for concluding the Final Agreement, and as soon as practicable after the approval of this Agreement in Principle, the Parties will begin to negotiate the Final Agreement.
12. The Parties acknowledge and agree that the Agreement in Principle and for greater certainty any of its provisions are not legally binding on any of the Parties and are without prejudice to the respective legal positions of the Parties before the Effective Date. Neither the Agreement in Principle nor any related communication over the course of these negotiations will be used against any of the Parties in any court proceeding or any other forum or be construed as creating, abrogating, negating, denying, recognizing, defining, or amending any rights or obligations of any of the Parties except as expressly provided for in the Final Agreement or a governance agreement and only on the Effective Date.
13. From the Effective Date, the Final Agreement will be a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.
14. From the Effective Date, the Final Agreement will be binding on the Parties and the Parties will be entitled to rely on it.
15. The Final Agreement will provide that Canada and British Columbia will recommend to Parliament and the Legislative Assembly of British Columbia, respectively, that settlement legislation provide that the Final Agreement is approved, given effect, declared valid and has the force of law.
16. The Parties acknowledge that, from the Effective Date, the Final Agreement will be binding on and can be relied on by all persons.
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19. The Final Agreement will not alter the Constitution of Canada, including:
a. the distribution of powers between Canada and British Columbia;
b. the identity of Tsawwassen People as aboriginal people of Canada within the meaning of the Constitution Act, 1982; and
c. sections 25 and 35 of the Constitution Act, 1982.
20. The Final Agreement will provide that the Canadian Charter of Rights and Freedoms applies to the Tsawwassen Government in respect of all matters within its authority.
21. After the Effective Date, there will be no ‘Lands reserved for the Indians’ within the meaning of the Constitution Act, 1867 for Tsawwassen First Nation, and there will be no ‘reserves’ as defined in the Indian Act for Tsawwassen First Nation.
22. The Final Agreement will provide that Federal Law, Provincial Law and Tsawwassen Law will apply to Tsawwassen First Nation, Tsawwassen Government, Tsawwassen Public Institutions, Tsawwassen Members, Tsawwassen Lands and Tsawwassen First Nation assets.
23. The Final Agreement will provide that Canada will recommend to Parliament that federal settlement legislation include a provision that, to the extent that a valid law of British Columbia does not apply of its own force to Tsawwassen First Nation, Tsawwassen Government, Tsawwassen Lands, Tsawwassen Public Institutions, or Tsawwassen Members, that law of British Columbia will, subject to the federal settlement legislation and any other Act of Parliament, apply in accordance with the Final Agreement to Tsawwassen First Nation, Tsawwassen Government, Tsawwassen Lands, Tsawwassen Public Institutions, or Tsawwassen Members, as the case may be.
24. In the Final Agreement, the Parties will address aspects of the relationship of Federal Law, Provincial Law and Tsawwassen Law.
25. In the event of a Conflict between a Tsawwassen Law and a Federal Law in relation to peace, order and good government, criminal law, human rights, and the protection of the health and safety of all Canadians, or other matters of overriding national importance, the Federal Law will prevail to the extent of the Conflict.
26. Tsawwassen First Nation power to make laws will not include:
a. criminal law;
b. criminal procedure;
c. Intellectual Property; or
d. official languages of Canada.
27. If a Tsawwassen Law has an incidental impact on, or if one of the aspects of a Tsawwassen Law is in respect of, a subject matter over which:
a. Tsawwassen First Nation does not have power to make laws under the Final Agreement; or
b. Tsawwassen First Nation does have power to make laws under the Final Agreement but for which Federal Law or Provincial Law prevails to the extent of a Conflict, and if that impact or aspect of the Tsawwassen Law is in Conflict with a Federal Law or Provincial Law, then the Federal Law or Provincial Law will prevail to the extent of the Conflict.
28. Unless otherwise provided in the Final Agreement, Tsawwassen Law will not apply to Canada or British Columbia.
29. A Tsawwassen Law that is inconsistent or in Conflict with the Final Agreement will be of no force or effect to the extent of the inconsistency or Conflict.
30. The Final Agreement will provide that if there is an inconsistency or a Conflict between the Final Agreement and the provisions of any Federal Law or Provincial Law, the Final Agreement will prevail to the extent of the inconsistency or Conflict.
31. The Final Agreement will provide that if there is an inconsistency or a Conflict between federal settlement legislation and the provisions of any other Federal Law, the federal settlement legislation will prevail to the extent of the inconsistency or Conflict.
32. The Final Agreement will provide that if there is an inconsistency or a Conflict between provincial settlement legislation and the provisions of any Provincial Law, the provincial settlement legislation will prevail to the extent of the inconsistency or Conflict.
33. Any licence, permit or other authorization, to be issued by Canada or British Columbia under the Final Agreement, will be issued under Federal Law or Provincial Law, as the case may be, and will not form part of the Final Agreement, but the Final Agreement will prevail to the extent of any Conflict with the licence, permit or other authorization.
34. In the Final Agreement, the Parties will address the issues of:
a. application of Federal Law and Provincial Law in respect of human rights; and
b. the consistency of Tsawwassen Law and actions with Canada's international legal obligations.
35. The Final Agreement will provide that, subject to transitional provisions, the Indian Act will not apply to Tsawwassen First Nation, Tsawwassen Government or Tsawwassen Members, except for the purpose of determining whether an individual is an ‘Indian’ within the meaning of that Act.
36. The Final Agreement will provide that if a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada finally determines any provision of the Final Agreement to be invalid or unenforceable:
a. the Parties will make best efforts to amend the Final Agreement to remedy or replace the provision; and
b. the provision will be severable from the Final Agreement to the extent of the invalidity or unenforceability and the remainder of the Final Agreement will be construed, to the extent possible, to give effect to the intent of the Parties.
37. The Final Agreement will provide that no Party will challenge, or support a challenge to, the validity of any provision of the Final Agreement.
38. The Final Agreement will provide that a breach of the Final Agreement by a Party will not relieve any Party from its obligations under the Final Agreement.
39. The Final Agreement will be the full and final settlement of any:
a. Aboriginal Land Right;
b. Aboriginal Self-Government Land Right relating to a matter set out in the Final Agreement;
c. other aboriginal right relating to a matter set out in the Final Agreement; and
d. right added to the Final Agreement as part of the orderly process described in clause 48, that Tsawwassen First Nation may have.
40. There is an outstanding issue among the Parties as to full and final settlement of Aboriginal Self-Government Land Rights not relating to matters set out in the Final Agreement, which the Parties will resolve in the Final Agreement.
41. For greater certainty, the Final Agreement will provide that the rights and authorities set out in a governance agreement are not rights modified in the Final Agreement.
42. The Final Agreement will comprehensively set out Tsawwassen First Nation’s section 35 land rights, section 35 self-government land rights relating to matters set out in the Final Agreement, and other section 35 rights relating to matters set out in the Final Agreement.
43. The Final Agreement will modify any:
a. Aboriginal Land Right;
b. Aboriginal Self-Government Land Right relating to a matter set out in the Final Agreement; and
c. other aboriginal right relating to a matter set out in the Final Agreement, that Tsawwassen First Nation may have, into the rights set out in the Final Agreement.
44. Tsawwassen First Nation will release Canada and British Columbia from all claims in relation to past infringements of any aboriginal rights of Tsawwassen First Nation, which infringement occurred before the Effective Date.
45. Tsawwassen First Nation will indemnify Canada and British Columbia in respect of liability for claims relating to past infringements of aboriginal rights, including aboriginal title, of Tsawwassen First Nation. Any indemnities will exclude fees and disbursements of lawyers and other professional advisors.
46. Tsawwassen First Nation will indemnify Canada and British Columbia in respect of liability for claims regarding the existence of any aboriginal rights, including aboriginal title, of Tsawwassen First Nation that are different in attribute or geographic extent from the section 35 rights contained in the Final Agreement. Any indemnities will exclude fees and disbursements of lawyers and other professional advisors.
47. A governance agreement will set out the agreement of Tsawwassen First Nation not to assert or exercise any rights other than as set out in a governance agreement, for as long as that agreement is in force. This is not intended to affect the exercise of rights under the Final Agreement.
48. Before the Final Agreement, the Parties will negotiate and attempt to reach agreement on a process concerning rights that Tsawwassen First Nation wishes to exercise that are not rights addressed in a governance agreement or modified into a right set out in the Final Agreement.
49. Before the Final Agreement, the Parties will work together to identify an acceptable back-up legal technique in support of the modification technique to achieve the certainty which the Parties seek.
50. Where Canada and British Columbia have Consulted or provided information to Tsawwassen First Nation as required by the Final Agreement, Canada and British Columbia will have no additional Consultation obligations under the Final Agreement.
51. Nothing in the Final Agreement will affect, recognize or provide any rights under section 35 of the Constitution Act, 1982 for any aboriginal people other than Tsawwassen First Nation.
52. If a court determines that a provision of the Final Agreement adversely affects an aboriginal or treaty right of another aboriginal group, that provision will not operate to the extent of the adverse effect and the Parties will make best efforts to remedy or replace that provision.
53. The Final Agreement will set out provisions for negotiating appropriate remedies for Tsawwassen First Nation where Tsawwassen First Nation’s rights under the Final Agreement are adversely affected by a future treaty with another aboriginal group.
54. The Final Agreement will set out arrangements between the Parties relating to privacy and access to information requirements of the Parties.
55. The provisions in the General Provisions chapter of the Final Agreement will prevail over the provisions in the other chapters of the Final Agreement to the extent of any inconsistency or Conflict.
56. There will be no presumption that doubtful expressions, terms or provisions in the Final Agreement are to be resolved in favour of any particular Party.
57. The Final Agreement will set out other provisions concerning interpretation of the Final Agreement.
58. In this Agreement in Principle, a reference to a statute includes every amendment to it, every regulation made under it, and any law enacted in substitution for, or in replacement of it.
59. For greater certainty, the Parties acknowledge that the Official Languages Act applies to the Final Agreement, including the execution of the Final Agreement.
60. Before the Effective Date, the Parties will explore the use of Treaty Related Measures or other agreements to provide Tsawwassen First Nation with early access to benefits to be provided under the Final Agreement.
61. The Parties acknowledge that Tsawwassen First Nation is engaged in litigation, against Canada and British Columbia as well as other parties, which is proceeding in the Vancouver Court Registry under No. S021209 (‘the Litigation’). Tsawwassen First Nation acknowledges and agrees that to the extent that the Litigation is related to claims of aboriginal rights or title by Tsawwassen First Nation, the Litigation must be finally resolved no later than Final Agreement.
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The full text of the Agreement in Principle and other information about the treaty negotiation process are available online at
<http://www.bctreaty.net/nations_2/tsawwassen.html> .
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2004/22.html