shíshálh Nation Self-Government Act

An Act respecting shíshálh Nation self-government Preamble Whereas the Government of Canada is committed to achieving reconciliation with the shíshálh Nation and other First Nations, through renewed nation-to-nation relationships based on recognition of rights, respect, cooperation and partnership, responding, to the extent of its authority, to the Calls to Action in the Final Report of the Truth and Reconciliation Commission of Canada and the Calls for Justice in the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, and implementing the United Nations Declaration on the Rights of Indigenous Peoples; Whereas the Government of Canada recognizes that the inherent right of self-government is a right recognized and affirmed by section 35 of the Constitution Act, 1982; Whereas the Government of Canada also recognizes the shíshálh Nation’s unique connection to the land and resources, and that maintaining this connection is essential to the preservation of the Nation’s culture, health, economy, laws, systems of governance and, consequently, to the future of the Nation; Whereas the members of the Indian Act Sechelt band, in a referendum held on March 15, 1986, approved of the enactment of legislation substantially as set out in the Sechelt Indian Band Self-Government Act, as it read on October 9, 1986, for the purpose of enabling the Sechelt Indian Band to exercise self-government over its lands, and the transfer by Her Majesty in right of Canada to the Sechelt Indian Band of fee simple title in all Sechelt reserve lands, recognizing that the Sechelt Indian Band would assume complete responsibility, in accordance with the Sechelt Indian Band Self-Government Act, as it read on that date, for the management, administration and control of all Sechelt lands; And whereas it is appropriate, based on collaborative exchanges between the Government of Canada and the shíshálh Nation, to include in this Act certain elements provided for in self-government agreements; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title This Act may be cited as the shíshálh Nation Self-Government Act. Definitions In this Act, Band[Repealed, 2022, c. 9, s. 12] Council means the council continued by subsection 8(1) under the name hiwus Ɂiy te hihewhiwus and referred to in Part II of the constitution of the shíshálh Nation as amended by Order in Council P.C. 2019-1225 of August 17, 2019; (conseil) District means the shíshálh Nation Government District referred to in section 17; (district) District Council means the shíshálh Nation Government District Council established by subsection 19(1); (conseil de district) former Act means this Act as it read immediately before the coming into force of section 8 of An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other Acts; (loi antérieure) Indigenous peoples of Canada has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982; (peuples autochtones du Canada) Minister means the Minister of Crown-Indigenous Relations; (ministre) Sechelt Indian Band means the Band established by subsection 5(1) of the former Act; (bande indienne sechelte) Sechelt lands[Repealed, 2022, c. 9, s. 12] shíshálh lands means lands transferred to the Sechelt Indian Band on October 9, 1986 under section 23 of the former Act, or lands described in declarations referred to in section 25.1; (terres shishalhes) shíshálh law means a law made by the Council under section 14 or 28. (loi shishalhe) shíshálh Nation means the Nation referred to in section 5; (Nation shishalhe) Lands ceasing to be shíshálh lands Any shíshálh lands to which the title is sold or otherwise transferred cease to be shíshálh lands. Rights of Indigenous peoples This Act shall be construed as upholding the Aboriginal rights of the shíshálh Nation and the rights of any other Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them. Rights of shíshálh Nation For greater certainty, nothing in this Act shall be construed as limiting or restricting the position of the shíshálh Nation or any other person with respect to any Aboriginal rights, including the inherent right of self-government and the Aboriginal title, of the Nation that are recognized and affirmed by section 35 of the Constitution Act, 1982, or the Nation’s identity as an Indigenous people of Canada; or restricting the Nation from participating in any process that may be established to implement the inherent right of self-government, including on a regional or national basis. Purposes The purposes of this Act are to support the exercise of aspects of the shíshálh Nation’s inherent right of self-government; support the Nation in its control over and administration of the resources and services available to its members; and contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples as it relates to the self-government of the Nation. Continuation The Sechelt Indian Band, established under subsection 5(1) of the former Act, is continued under the name “shíshálh Nation” and, for greater certainty, the rights, titles, interests, assets, obligations and liabilities of the Sechelt Indian Band, including those of its council, are those of the Nation; and the members of the Sechelt Indian Band are the members of the Nation. Capacity of Nation The shíshálh Nation is a legal entity and has, subject to this Act, the capacity, rights, powers and privileges of a natural person and, without restricting the generality of the foregoing, may enter into contracts or agreements; acquire and hold property or any right or interest in it, and sell or otherwise dispose of that property, right or interest; expend or invest moneys; borrow money; sue or be sued; and do such other things as are conducive to the exercise of its rights, powers and privileges. Nation subject to its constitution The powers and duties of the shíshálh Nation shall be carried out in accordance with its constitution. Governing body The Sechelt Indian Band Council, referred to in section 8 of the former Act, is continued as the council and governing body of the shíshálh Nation under the name hiwus Ɂiy te hihewhiwus. Election of members The members of the council continued under subsection (1) shall be elected in accordance with the constitution of the Nation. Nation to act through Council The shíshálh Nation shall act through the Council in exercising its powers and carrying out its duties and functions. Elements of constitution The constitution of the shíshálh Nation shall be in writing and shall establish the composition of the Council, the term of office and tenure of its members and procedures relating to the election of Council members; establish the procedures or processes to be followed by the Council in exercising the Nation’s powers and carrying out its duties; provide for a system of financial accountability of the Council to the members of the Nation, including audit arrangements and the publication of financial reports; provide for appeals in relation to decisions of the Council and administrative bodies created to assist in the administration of the affairs of the Nation; provide for conflict of interest rules; include a membership code for the Nation; establish rules and procedures relating to the holding of referenda referred to in section 12 or paragraph 21(2)(b) or provided for in the constitution; establish rules and procedures to be followed in respect of the disposition of rights or interests in shíshálh lands; set out specific legislative powers of the Council selected from among the general classes of matters set out in section 14; establish rules and procedures for the making and amending of shíshálh laws; and provide for any other matters relating to the exercise of powers and carrying out of duties and functions of the Nation under this Act, including matters related to the government of the Nation or its members, or the management of shíshálh lands, to the extent that the Nation is of the opinion that such matters should be reflected in the constitution. Membership code Any membership code established in the constitution of the shíshálh Nation shall respect rights to membership in the Indian Act Sechelt band acquired under the Indian Act immediately prior to the coming into force of the first membership code established after the coming into force of the former Act. [Repealed, 2022, c. 9, s. 20] Amendment to constitution The Council may declare an amendment to the constitution of the shíshálh Nation to be in force if the amendment has been approved in a referendum held in accordance with the constitution. Publication of amendments The Council shall, as soon as practicable after making a declaration under section 12, make any amendment to the constitution publicly accessible on the shíshálh Nation’s website; in the First Nations Gazette; or in any other manner that the Council considers equivalent and that allows the public to readily access the amendment. Legislative powers The Council has, to the extent that it is authorized by the constitution of the shíshálh Nation to do so, the power to make laws in relation to matters coming within any of the following classes of matters: access to and residence on shíshálh lands; zoning and land use planning in respect of shíshálh lands; the creation and regulation of rights or interests in shíshálh lands; the expropriation by the Nation, for community purposes, of rights or interests in shíshálh lands; the use, construction, maintenance, repair and demolition of buildings and structures on shíshálh lands; the taxation, for local purposes, of rights or interests in shíshálh lands, and of occupants and tenants of shíshálh lands in respect of their rights or interests in those lands, including assessment, collection and enforcement procedures, as well as appeals relating to such matters; the administration and management of property belonging to the Nation; the education of members of the Nation on shíshálh lands; social and welfare services with respect to members of the Nation; child and family services with respect to the Nation’s families and children, including the custody, placement and care of the Nation’s children; health services on shíshálh lands; the preservation and management of natural resources on shíshálh lands; the preservation, protection and management of fur-bearing animals, fish and game on shíshálh lands; public order and safety on shíshálh lands; the construction, maintenance and management of roads and the regulation of traffic on shíshálh lands; the operation of businesses, professions and trades on shíshálh lands; the prohibition of the sale, barter, supply, manufacture or possession of intoxicants on shíshálh lands and any exceptions to a prohibition of possession; subject to subsection (2), the imposition on summary conviction of fines or imprisonment for the contravention of any shíshálh laws; the devolution, by testate or intestate succession, of real property of members of the Nation on shíshálh lands and personal property of members of the Nation ordinarily resident on shíshálh lands; financial administration of the Nation; the conduct of the Nation’s elections and referenda; the creation of administrative bodies and agencies to assist in the administration of the affairs of the Nation; and matters related to the good government of the Nation, its members or shíshálh lands. Clarification For greater certainty, neither paragraph (1)(h.1) nor the making of any law under that paragraph prevents the shíshálh Nation from making any laws in relation to child and family services referred to in An Act respecting First Nations, Inuit and Métis children, youth and families. Limit on fine, penalty or imprisonment A law made in respect of the class of matters set out in paragraph (1)(p) may specify a maximum fine or a maximum term of imprisonment or both, but the maximum fine may not exceed two thousand dollars and the maximum term of imprisonment may not exceed six months. Laws of British Columbia For greater certainty, the Council has the power to adopt any laws of British Columbia as its own law if it is authorized by the constitution to make laws in relation to the subject-matter of those laws. Law may require licence or permit A law made by the Council may require the holding of a licence or permit and may provide for the issuance thereof and fees therefor. Publication of shíshálh laws The Council shall, as soon as practicable after a shíshálh law, or any amendment to it, is made, make that law or amendment publicly accessible in any other manner that the Council considers equivalent and that allows the public to readily access the laws and any amendment to them. Legislative powers granted by British Columbia The Council may exercise any legislative power granted to it by or pursuant to an Act of the legislature of British Columbia. Constitution prevails In the event of an inconsistency between the provisions of a shíshálh law and the provisions of the constitution of the shíshálh Nation, the provisions of the constitution prevail to the extent of the inconsistency. Non-application of Statutory Instruments Act The Statutory Instruments Act does not apply to a shíshálh law. The Sechelt Indian Government District, recognized and deemed to have been established under section 17 of the former Act, is continued under the name “shíshálh Nation Government District” and its jurisdiction — resulting from any transfer under subsections 21(1) and (2) — may be exercised over shíshálh lands, subject to subsections 21(3) to (5). Capacity of District The District is a legal entity and has the capacity, rights, powers and privileges of a natural person and, without restricting the generality of the foregoing, may The Sechelt Indian Government District Council, established under subsection 19(1) of the former Act, is continued as the governing body of the District under the name “shíshálh Nation Government District Council.” Composition of District Council The District Council shall consist of the members of the Council. District to act through District Council The District shall act through the District Council in exercising its powers and carrying out its duties and functions. Transfer to District The Governor in Council may, on the advice of the Minister, by order, transfer any of the powers, duties or functions of the shíshálh Nation or the Council under this Act or the constitution of the Nation to the District, except those relating to membership in the Nation and the disposition of rights or interests in shíshálh lands. Conditions for order The Governor in Council shall not make an order under subsection (1) unless he or she is satisfied that the legislature of British Columbia has passed legislation respecting the District and that legislation is in force; and the transfer of the powers, duties and functions specified in the order has been approved in a referendum held in accordance with the constitution of the Nation. Transfer — legislation amended The Governor in Council may, on the advice of the Minister, by order, transfer to the Nation or the Council, as the case may be, any of the powers, duties and functions that were transferred to the District under subsection (1) or under subsection 21(2) of the former Act, if the legislation referred to in paragraph (2)(a) is amended. Condition for order The Governor in Council shall not make an order under subsection (3) unless he or she is satisfied that the transfer of powers, duties and functions specified in the order has been approved in a referendum held in accordance with the constitution of the Nation. Transfer — legislation repealed The Governor in Council may, on the advice of the Minister, by order, declare that sections 17 to 20 are no longer in force and transfer, to the Nation or the Council, as the case may be, the powers, duties and functions that were transferred to the District under subsection (1) or under subsection 21(2) of the former Act, if the legislation referred to in paragraph (2)(a) is no longer in force. Additional powers of District The District may exercise any legislative power granted to it by or pursuant to an Act of the legislature of British Columbia. [Repealed, 2022, c. 9, s. 27] Limitations The fee simple title of the shíshálh Nation in the lands transferred to it under section 23 of the former Act is subject to any rights or interests recognized or established by the agreement entered into between Canada and British Columbia on January 26, 1943, relating to the ownership and exploitation of minerals, the British Columbia Indian Reserves Mineral Resources Act, chapter 19 of the Statutes of Canada, 1943-44 and the Indian Reserve Mineral Resource Act of British Columbia, R.S.B.C. 1979, c. 192; the conditions of conveyance set out in British Columbia Order in Council No. 1036 of July 29, 1938, as amended by British Columbia Order in Council No. 1555 of May 13, 1969, in respect of the lands conveyed to Her Majesty in right of Canada by that Order in Council; and any rights or interests under a mortgage, lease, occupation permit, certificate of possession or other grant or authorization in respect of the lands that exist on the coming into force of this section. Lands for use and benefit of Nation The shíshálh Nation holds shíshálh lands for the use and benefit of the Nation and its members. Federal and provincial declarations Lands in British Columbia are shíshálh lands if they are declared to be shíshálh lands for the purposes of this Act by both the Governor in Council, by order; and the Lieutenant Governor in Council of British Columbia. Power of the Nation The shíshálh Nation has full power to dispose of any shíshálh lands and any rights or interests in those lands but shall not do so except in accordance with the procedure established in its constitution. Reserve Land Register Subject to subsection (2), particulars relating to all transactions respecting shíshálh lands shall be entered in the Reserve Land Register kept under section 21 of the Indian Act. Exception This section does not apply with respect to any shíshálh lands that are registered pursuant to section 28; or the rights or interests in shíshálh lands referred to in sections 30.1 to 30.4. Laws on registration The Council may make laws authorizing the registration, in accordance with the laws of British Columbia, of estates or interests in any shíshálh lands specified in the laws of the Council, and for that purpose may make laws making any laws of British Columbia applicable to those shíshálh lands. Notice Where a law is made under section 28, the Council shall forthwith cause to be published in a local newspaper of general circulation notice of the law with a legal description of the lands to which it relates; and give notice thereof to the Minister, or a person designated by the Minister for that purpose, and provide the Minister or that person with a copy of the law and a survey plan and legal description of the lands to which it relates. Minister to provide particulars to Council The Minister shall without delay, and in any event not later than 30 days after receipt of notice of a law under subsection (1) in respect of any shíshálh lands, cause to be provided to the Council a list of all particulars entered on the Reserve Land Register kept under section 21 of the Indian Act in respect of those lands; and cause to be sent to any person who appears from the Reserve Land Register to have any right or interest in those lands, at the person’s latest known address, a notice indicating that a law has been made under subsection (1) in respect of those lands, and that person may not request any modification of the Register unless he does so within the time period referred to in subsection (3). List to be posted The Council shall, immediately on receipt of the list referred to in paragraph (2)(a), cause the list or a copy of it to be posted in a conspicuous place on both the lands to which it relates and at another location on shíshálh lands, and shall indicate on the list that a person can request a modification of the Reserve Land Register only if they do so within 30 days after a date indicated on the list, which date is the date on which the list was provided to the Council. Request for modification Any person may, within the time period referred to in subsection (3), make a request to the Minister for a modification of the Reserve Land Register. Consideration of request The Minister, or a person designated by the Minister for that purpose, shall consider a request under subsection (4) forthwith on receipt, and a decision of the Minister or the designated person on the matter shall be final. Final list of rights or interests The Minister shall cause to be prepared, within 10 days after the end of the period referred to in subsection 29(3), a final list of all rights or interests in shíshálh lands in respect of which a shíshálh law is made under section 28. Copies to be provided The Minister shall cause a copy of every final list prepared under subsection (1) to be provided forthwith to the Council and to an official designated for that purpose by the government of British Columbia. Final list determinative A final list prepared under subsection (1) is for all purposes determinative of all rights and interests in the lands to which it relates as of the time the list is prepared. Agreement — shíshálh Lands Register The Minister may enter into an agreement with the shíshálh Nation respecting the establishment of a register, to be known as the shíshálh Lands Register, for the registration of the legal descriptions of shíshálh lands and of rights or interests in those lands. Establishment of Register The Minister shall establish the shíshálh Lands Register in accordance with any agreement entered into under section 30.1. Regulation-making powers The Governor in Council may, on the recommendation of the Minister, make regulations respecting the shíshálh Lands Register, including regulations respecting the administration of the Register; the registration of legal descriptions of shíshálh lands; the registration of rights or interests in shíshálh lands and the effects of their registration, including priorities; the recording of any other matter; and the transfer of the administration of the Register to any person or body. Adaptation of sections 28 to 30 The Governor in Council may, on the recommendation of the Minister, make regulations respecting the manner in which sections 28 to 30 apply in the case of the establishment of the shíshálh Lands Register under section 30.2, and adapting those sections for the purposes of that application. Collaboration with Nation The Minister shall ensure that the shíshálh Nation is afforded a meaningful opportunity to collaborate in policy development leading to the making of regulations under subsection (1) or (2). Rights or interests continued On the day on which the shíshálh Lands Register is established, rights or interests in shíshálh lands that are registered in the register referred to in section 27 continue in accordance with their terms. Recording of continued rights or interests The shíshálh Nation shall, as soon as practicable after the shíshálh Lands Register is established, record the rights or interests in shíshálh lands continued under subsection (1) in that register. Recording of new rights or interests From the day on which the shíshálh Lands Register is established, any registration of new rights or interests in shíshálh lands shall be recorded in that register and not in the register referred to in section 27. This section does not apply with respect to any shíshálh lands that are registered pursuant to section 28. Class 24 of section 91 For greater certainty, shíshálh lands are lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867. For greater certainty, lands that cease to be shíshálh lands under subsection 2(2) are not lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867. Administration of transferred moneys Moneys transferred under subsection 32(1) of the former Act shall be administered in accordance with the constitution of the shíshálh Nation and shíshálh laws. Agreements between Minister and Nation The Minister may enter into an agreement with the shíshálh Nation under which funding would be provided by the Government of Canada to the Nation in the form of grants over such period of time, and subject to such terms as are specified in the agreement. Appropriations Any amounts required for the purposes of section 33 shall be paid out of such moneys as may be appropriated by Parliament for those purposes. Application of Indian Act Subject to section 36, the Indian Act applies, with any necessary modifications, in respect of the shíshálh Nation, its members, the Council and shíshálh lands except to the extent that the Indian Act is inconsistent with this Act, the constitution of the Nation or a shíshálh law. Indians For greater certainty, the Indian Act applies for the purpose of determining which members of the Nation are Indians within the meaning of that Act. Taxation provisions For greater certainty, section 87 of the Indian Act applies, with any necessary modifications, in respect of the Nation and its members who are Indians within the meaning of that Act, subject to any shíshálh law in relation to the class of matters set out in paragraph 14(1)(e). Non-application of Indian Act The Governor in Council may, on the advice of the Minister, by order, declare that the Indian Act or any provision of that Act does not apply to the shíshálh Nation, its members or any portion of shíshálh lands; and revoke any such order. Federal laws of general application All federal laws of general application in force in Canada apply in respect of the shíshálh Nation, its members and shíshálh lands except to the extent that those laws are inconsistent with this Act. Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms applies in respect of the Council, the District Council and any administrative bodies and agencies referred to in paragraph 14(1)(t) in respect of matters within their authority under this Act or the constitution of the shíshálh Nation, with due regard for section 25 of the Charter which provides that the guarantee in the Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. Provincial laws of general application Laws of general application of British Columbia apply in respect of the members of the shíshálh Nation except to the extent that those laws are inconsistent with the terms of any treaty, this or any other Act of Parliament, the constitution of the Nation or a shíshálh law. Indian Oil and Gas Act The Indian Oil and Gas Act applies, with any necessary modifications, in respect of the shíshálh Nation, its members, the Council and shíshálh lands. Federal law relating to mineral resources The British Columbia Indian Reserves Mineral Resources Act, chapter 19 of the Statutes of Canada, 1943-44, applies in respect of shíshálh lands. Provincial law relating to mineral resources The Indian Reserve Mineral Resource Act of British Columbia, R.S.B.C. 1979, c. 192, applies in respect of shíshálh lands. Application on shíshálh lands Laws of the Sechelt Indian Band and by-laws of the Indian Act Sechelt band referred to in section 42 of the former Act — as well as laws or by-laws of the Sechelt Indian Government District made following the transfer or granting of legislative powers under section 21 or 22 of the former Act — that applied to Sechelt lands, as defined in section 2 of the former Act, on the day on which section 8 of An Act to give effect to the Anishinabek Nation Governance Agreement, to amend the Sechelt Indian Band Self-Government Act and the Yukon First Nations Self-Government Act and to make related and consequential amendments to other Acts comes into force, remain in force and apply to shíshálh lands and in respect of the members of the shíshálh Nation except to the extent that the laws or by-laws are inconsistent with this Act, the constitution of the Nation or a shíshálh law. Powers, functions and duties in constitution The Governor in Council or any Minister of the Crown may exercise any powers and carry out any functions or duties that the Governor in Council or Minister is authorized under the constitution of the shíshálh Nation to exercise or carry out. References to former Act and terminology Unless the context otherwise requires, in any law of the Sechelt Indian Band and by-law of the Indian Act Sechelt band, referred to in section 42 of the former Act, laws or by-laws of the Sechelt Indian Government District made following the transfer or granting of legislative powers under section 21 or 22 of the former Act, as well as in documents, including licences and other authorizations, contracts and other instruments that were issued, granted, entered into or made in accordance with the former Act, any reference to the Sechelt Indian Band Self-Government Act, or any provision of that Act, is to be read as a reference to this Act or any relevant provision of this Act; any reference to the Sechelt Indian Band is to be read as a reference to the shíshálh Nation; any reference to the Sechelt Indian Band Council is to be read as a reference to the council of the Nation; any reference to the constitution of the Sechelt Indian Band, or any provision of that constitution, is to be read as a reference to the constitution of the Nation or any relevant provision of that constitution; any reference to a law of the Sechelt Indian Band, or any provision of that law, is to be read as a reference to a relevant shíshálh law or any relevant provision of that law; any reference to a law or by-law of the Sechelt Indian Government District, or any provision of that law or by-law, is to be read as a reference to a relevant law or by-law of the shíshálh Nation Government District or any relevant provision of that law or by-law; and any reference to Sechelt lands is to be read as a reference to shíshálh lands. [Repealed, 2022, c. 9, s. 40] [Amendments to other Acts] Coming into force This Act or any provision thereof shall come into force on a day or days to be fixed by proclamation. [Note: Act, except sections 17 to 20, in force October 9, 1986, see SI/86-193; sections 17 to 20 in force, see SI/88-48.] Other references to Minister Unless the context requires otherwise, every reference to the “Minister” is to be read as a reference to the “Minister of Crown-Indigenous Relations” in sections 12 and 13 of the Sechelt Indian Band Self-Government Act.