Treaty Implementation and Various Outcomes: A Treaty under

Treaty Implementation and Various Outcomes: A Treaty under the BCTC Process

Tina L. Dion, Director, Legal Services

The 2011 National Aboriginal Law Conference: Perspectives and Treaties Between Aboriginal Peoples

and the Crown, April 28-29, 2011, Winnipeg, MB

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Tsawwassen Community

Located on the Lower Mainland of BC, near U.S. Border, Ferry and Port;

Indian Act applied for 133 years from 1876 to 2009;

Currently just over 400 Members (500 Non-Member residents);

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TFN Final Agreement: Milestones1993: Entered the BCTC Process;

Sept. 2004: AIP signed by TFN;

Dec. 2006: Final Agreement initialed;

July 2007: TFN ratified Final Agreement;

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TFN Final Agreement: Milestones

2007: BC enacts Final Agreement Act;

2008: Canada enacts Final Agreement Act;

April 3, 2009: Effective Date of FA.

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New Governance modelNew governance institutions is a “new culture of governance”;

Ushered in a fundamental change in the way TFN Members and Government react to the Final Agreement;

Establishment of the TFN Legislature is the most substantive change.

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Tsawwassen First Nation Final Agreement

Broad law making powers – similar to municipalities and to federal and provincial powers and jurisdiction;

23 laws, including a Constitution, enacted on the Effective Date, 2 more since;

Over 60 regulations enacted;

Many Tsawwassen Laws provide for administrative law processes.

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Tsawwassen First Nation Final Agreement

Ch. 16 (Gov.), s. 13: Appeal and Review of Administrative decisions:

TFN will establish procedures for appeal or review of administrative decisions made by TFN or a Public Institution; if right of appeal is provided to a court for a decision made under Tsawwassen Law, the Supreme Court of British Columbia has jurisdiction to hear those appeals.

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Tsawwassen First Nation Final Agreement

Ch. 16 (Gov.), s. 14: Appeal and Review of Administrative decisions:

An application may be brought to BCSC for judicial review of an administrative decision and the BCSC has jurisdiction to hear any application but no application may be brought until all procedures for appeal or review provided by TFN have been exhausted.

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Tsawwassen First Nation Final Agreement

Ch. 16 (Gov.), s. 15: Appeal and Review of Administrative decisions:

The Judicial Review Procedure Act applies to an application for judicial review of a TFN decision and Provincial Settlement Legislation will provide that the JRPA is amended to include Tsawwassen Law in the definition of enactment.

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TFN Final Agreement: Participation of Non-Members

(ch. 16, cl. 18): Non-Members may participate in decision-making processes of a TFN Public Institution if its’ activities directly and significantly affect them;

(ch. 16, cl. 22): TFN will provide Non-Members with access to appeal and review procedures in respect of activities that directly or significantly affect them.

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Tsawwassen First NationTsawwassen Constitution - developed over a two year

period based on best practices:

Provides for a variety of matters, inter alia: Wide range of rights and freedoms for Members;Tsawwassen Government structures, including Judicial and Advisory Councils;Elections;Membership;Tsawwassen Laws; and Land.

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Tsawwassen Judicial CouncilConcept of Judicial Council found in TFN Constitution;

Established by the Administrative Review and Judicial Proceedings Act (“ARJPA”);

Main function is to convene hearings with respect to a variety of matters set out under Tsawwassen Law.

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Judicial Council: What is it?It is an administrative tribunal;

Made up of 5 members, appointed by the Executive Council Order;

Appointments are staggered for continuity;

No appointee sits for more than 9 years;

Appropriation of funds from annual TFN budget for operations.

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TFN Judicial CouncilEmphasis on legal appointees:

Former BCCA Justice – Chair, 50 plus year call

One legal member – vice chair, 40 plus years call;

One other legal member, 12 year call;

One accountant; and

One community member

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Duties of the Chaira. oversee Judicial Council process;

b. ensure proper application of the rules;

c. assign duties to members, including determining the composition of a panel to convene a hearing;

d. prepare an annual report; and

e. take any other administrative steps necessary for proper functioning.

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Responsibilities of Judicial CouncilARJPA, s. 8:

a. determining the validity of TFN Laws;

b. resolving disputes between TFN Members and elected officials;

c. making recommendations to courts on the sentencing of TFN Members;

d. investigating any financial irregularities;

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Responsibilities of Judicial Council…e. hearing appeals of administrative decisions;

f. resolving disputes between TFN Members;

g. resolving disputes between government bodies;

h. other duties that Executive Council may assign from time to time.

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Rules of ProcedureObjective: is to secure the just, speedy and inexpensive determination of every proceeding on its merits. Form to commence proceedings depend on nature of matterClerk is TFN Member, trained by a Provincial Court Clerk;Filing fee - $100, but does not apply to:

Tsawwassen Government;person who obtains an order they are unable to pay; and to a proceeding where the amount at stake is less than $1000

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Rules of ProcedureSingle member may hear an application of question of procedure or the rules and make Orders or give Directions on it;Any application may be heard by a single member may be heard by a Panel;3 or 5 members constitute a Panel;Chair may designate a proceeding for final determination on agreed point of law or statement of facts, or by affidavit alone.

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Other Items of Notemust encourage the use of consensual alternative dispute resolution methods to resolve disputes;

members are prohibited from holding any other office, or collecting fees or salary other than JC remuneration;

hearings are public unless otherwise specified, decisions are public.

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Other ProcessesTFN Prosecutor prosecutes offences of TFN laws in BC Provincial Court;

Akin to Federal or Provincial Crown Counsel

BC Courts collect fines and remits to TFN as is done between Federal and Provincial governments;

TFN works with local municipal Police Force to enforce TFN laws.

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ConclusionModern Treaties provides avenue for a First Nation to take itself in new direction;

Governance systems built on specific First Nations desires and determination;

Administrative Law processes impact Provincial Court systems;

Other impacts on Provincial Court systems.

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