Anishnaabe Government Agreement-In-Principle United Anishnaabeg Councils

4.0 First Nation

4.0.1 The authority of a First Nation rests with e-dbendaagzijig.

4.0.2 Each First Nation shall have gchi-naaknigewin.

4.0.3 E-dbendaagzijig may determine the powers and duties of their government in gchi-naaknigewin.

4.0.4 The First Nation shall exercise its governing authority through its council and congress which shall be selected in accordance with gchi-naaknigewin.

4.0.5 The council shall exercise executive powers, and the congress shall exercise legislative powers. The council shall exercise legislative powers until the congress is established.

4.0.6 Gchi-naaknigewin shall provide for, in addition to other specific provisions that may be found in the final Agreement:

1. the limits on the exercise of the powers and duties of the council and congress
2. the establishment, eligibility and method of selection of the council and congress
3. the procedure for amending gchi-naaknigewin;
4. the procedure for making and publishing laws, and providing access to those laws to any person;
5. public decision making
6. the system of reporting to e-dbendaagzijig, through which the council shall be financially accountable to them on a basis comparable to standards generally accepted for governments in Canada;
7. the criteria for the determination of e-dbendaagzijig;
8. the limits on the exercise of the powers and duties of the council and congress;
9. the establishment, eligibility and method of selection of the council and congress;
10. the procedure for amending gchi-naaknigewin;
11. the procedure for making and publishing laws, and providing access to those laws to any person;
12. public decision making
13. the system of reporting to e-dbendaagzijig, through which the council shall be financially accountable to them on a basis comparable to standards generally accepted for governments in Canada;
14. a mechanism for reviewing decisions on the determination of e-dbendaagzijig;
15. the rules and procedures required for the delegation of law-making authority to;
    1. the United Anishnaabeg Councils; and,
    2. any other entity that has entered into a self-government arrangement with Canada.
16. rules and procedures required for the delegation of authority other than law-making authorities to an entity responsible to e-dbendaagzijig and established to carry out governmental functions;
17. the eligibility and method of selection of its representative on the grand council;
18. the legal description of the First Nation land;
19. the land code that shall set out the rules, regulations and procedures with respect to the development, conservation, protection, management, use and possession of First Nation land;
20. procedural and administrative matters related to the establishment of dbaaknigewin;
21. rules to address conflict of interest of public officials; and,
22. any other matter of importance.

4.0.7 In relation to the breakdown of a marriage as it affects First Nation land:

1. a First Nation shall establish a community process to develop rules and procedures, applicable on the breakdown of a marriage, to the use, occupancy and possession of First Nation land and the division of interests in that land;
2. for greater certainty, the rules and procedures referred to in clause (a) shall not discriminate on the basis of gender; and,
3. any dispute between Canada and a First Nation in respect of this section shall be subject to Dispute Resolution as set out in the final Agreement.

4.1 United Anishnaabeg Councils

4.1.1 The authority of the United Anishnaabeg Councils rests with e-dbendaagzijig.

4.1.2 The United Anishnaabeg Councils shall have gchi-naaknigewin.

4.1.3 E-dbendaagzijig may determine the powers and duties of the United Anishnaabeg Councils in gchi-naaknigewin.

4.1.4 The United Anishnaabeg Councils shall exercise its authority through the grand council.

4.1.5 The United Anishnaabeg Councils shall exercise only law-making authority or other authority delegated or authorized by a First Nation according to gchi-naaknigewin.

4.1.6 Any authority of the United Anishnaabeg Councils shall be exercised by the grand council as provided in gchi-naaknigewin.

4.1.7 The grand council may appoint an executive as provided in gchi-naaknigewin.

4.1.8 Gchi-naaknigewin shall provide for:

1. the administration, operation and internal management of the United Anishnaabeg Councils;
2. rules to address conflict of interest of public officials;
3. the procedure by which gchi-naaknigewin may be amended;
4. the procedures for making and publishing any laws, and providing access to those laws to any person;
5. the system of reporting, including financial accountability, through which the United Anishnaabeg Councils shall be accountable to First Nation and e-dbendaagzijig on a basis comparable to standards generally accepted for governments in Canada;
6. procedural and administrative matters related to the establishment of the dbaaknigewin; and,
7. any other matter of importance.

4.2 General

4.2.1 The final Agreement shall clarify the structure of government of the First Nation.

5.0. Exercise Of Law-Making Authority

5.0.1 The exercise of law-making authority by the First Nation shall be in accordance with gchi-naaknigewin and the final Agreement.

5.0.2 Under this Part, the First Nation laws may:

1. provide for the creation of offences and for the imposition of penalties, including fines, restitution and imprisonment for the violation of First Nation laws, within the monetary and temporal limits set forth for summary conviction offences in the Criminal Code of Canada; and,
2. provide for the use of alternative sentencing and diversion, including community service orders, for the violation of First Nation laws.

5.0.3 The First Nation may make laws or do such other things as may be necessarily incidental to the exercise of their law-making authority or to enable the First Nation to carry out their responsibilities pursuant to the final Agreement.

5.0.4 The First Nation may delegate the authority to make laws to:

1. the United Anishnaabeg Councils; and,
2. any other entity that has entered into a self-government arrangement with Canada.

5.1 Selection Of Public Officials

5.1.1 The First Nation may make laws with respect to the selection of public officials.

5.1.2 Public officials selected by e-dbendaagzijig shall have immunity from:

1. personal liability for actions of the First Nation and United Anishnaabeg Councils governments; and,
2. personal liability for actions carried out in the course of their duties, absent dishonesty, gross negligence, or malicious or wilful misconduct.

5.1.3 In the event of a conflict between First Nation laws made pursuant to section 5.1 and federal laws, First Nation laws shall prevail to the extent of the conflict.

5.2 E-Dbendaagzijig

5.2.1 The First Nation may make laws with respect to e-dbendaagzijig.

5.2.2 E-dbendaagzijig shall be named on the First Nation list and such list shall include:

1. a person whose name is 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 the final Agreement; and,
2. a person who is entitled to have his or her name appear on a band list noted in clause 5.2.2(a).

5.2.3 For greater certainty, a First Nation law with respect to e-dbendaagzijig may not deprive any person, who had the right to have his or her name entered on a Band List maintained in accordance with the Indian Act prior to the coming into force of the final Agreement and the First Nation laws, of the right to have his or her name so entered by reason only of a situation that existed or an action taken before the law came into force.

5.2.4 The Canadian Citizenship and Immigration Acts and any other federal legislation containing provisions dealing with citizenship and immigration shall continue to apply on First Nation land and in the event of conflict with First Nation laws, shall prevail.

5.2.5 Subject to clause 5.2.4, in the event of a conflict between First Nation laws made pursuant to section 5.2 and federal laws, First Nation laws shall prevail to the extent of the conflict.

5.3 E-Naadziyang And Anishnaabemwin

5.3.1 The First Nation may make laws with respect to e-naadziyang and anishnaabemwin on First Nation land.

5.3.2 Services provided by a federal institution, as defined in the Official Languages Act, shall be provided in accordance with that Act.

5.3.3 For greater certainty, the Official Languages Act does not apply to any First Nation, council, congress, grand council or other body established to perform a governmental function in relation to a First Nation or other group of aboriginal people.

5.3.4 Subject to 5.3.2, in the event of a conflict between First Nation laws made pursuant to section 5.3 and federal laws, First Nation laws shall prevail to the extent of the conflict.

5.4 Education

5.4.1 The First Nation may make laws with respect to primary and secondary education on First Nation land for e-dbendaagzijig.

5.4.2 The First Nation education system shall be designed to permit transfers between education systems without academic penalty to the same extent as transfers are effected between other education jurisdictions in Canada.

5.4.3 In the event of a conflict between First Nation laws made pursuant to section 5.4 and federal laws, First Nation laws shall prevail to the extent of the conflict.

5.5 Land

5.5.1 Law-Making Authority

5.5.1.1 The First Nation may make laws with respect to the development, conservation, protection, management, use, possession, and disposition of First Nation land.

5.5.2 Rights, Powers, Privileges and Authority

5.5.2.1 Subject to the provisions of the final Agreement, the First Nation has:

1. all the rights, powers and privileges of an owner in relation to First Nation land; and,
2. the authority to grant interests and licences in relation to First Nation land, and to manage its natural resources.

5.5.3 Assets

5.5.3.1 Fixed assets of Canada on First Nation land shall be transferred to the First Nation subject to the provisions of the final Agreement and the Implementation Agreement.

5.5.4 Revenues

5.5.4.1 Revenues, royalties, profits and fees in respect of First Nation land shall be managed by the First Nation for the use and benefit of e-dbendaagzijig.

5.5.4.2 The First Nation has the right to receive and use all moneys acquired by or on behalf of the First Nation in accordance with gchi-naaknigewin.

5.5.5 Title to and Protection of First Nation Land

5.5.5.1 Title to First Nation land shall continue to be held by Canada for the use and benefit of the First Nation.

5.5.5.2 First Nation land shall continue to be lands reserved for Indians within the meaning of section 91(24) of the Constitution Act, 1867.

5.5.5.3 First Nation land shall not be sold, but First Nation land may be exchanged or conveyed in accordance with clauses 5.5.6.1 to 5.5.6.9.

5.5.5.4 Existing third-party interests and licences in First Nation land, that is, interests and licences other than those of e-dbendaagzijig, shall, at the time the final Agreement comes into force, continue in force according to their terms and conditions.

5.5.5.5 Despite clause 5.5.5.4 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 laws.

5.5.5.6 When the final Agreement takes effect, no interest or licence in relation to First Nation land may be acquired or granted except in accordance with gchi-naaknigewin or First Nation laws.

5.5.6 Voluntary Exchange of First Nation Land

5.5.6.1 The 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 provide for additional compensation, including land that may not become First Nation land, and may be subject to other terms and conditions.

5.5.6.2. Any exchange of First Nation land shall require approval by e-dbendaagzijig in accordance with the process established in First Nation gchi-naaknigewin.

5.5.6.3. First Nation land shall only be exchanged for land that Canada consents to set apart as First Nation land. In addition, the agreement of Canada shall be required on the technical aspects of the exchange.

5.5.6.4. Where an exchange of First Nation land is approved by a First Nation, the First Nation may execute an authorization and direction to Canada to transfer title to the land.

5.5.6.5. Further to clause 5.5.6.4, 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.

5.5.6.6. 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:

1. look into the procedures used by the First Nation leading to the issuance of the authorization and direction;
2. look into the adequacy of consideration agreed to by the First Nation; or,
3. consider whether it is in the interests of the First Nation to effect the exchange.

5.5.6.7 A copy of the instrument transferring title to First Nation land shall be registered in the First Nation land register.

5.5.6.8 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.

5.5.6.9 Where an exchange of First Nation land is approved by a First Nation in accordance with gchi-naaknigewin, the description of First Nation land in gchi-naaknigewin 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.

5.5.7 Immunity from Seizure

5.5.7.1

1. First Nation land is not subject to seizure under legal process.
2. The real and personal property of e-dbendaagzid or a First Nation situated on First Nation land 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.
3. A person who sells to a First Nation or e-dbendaagzid a chattel 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 notwithstanding that the chattel is situated on First Nation land.

5.5.7.2 A leasehold interest in First Nation land that was designated before the final Agreement is in effect, is subject to charge, pledge, mortgage, attachment, levy, seizure, distress and execution.

5.5.7.3 First Nation gchi-naaknigewin may provide that other leasehold interests in any of the First Nation land are subject to charge, pledge, mortgage, attachment, levy, seizure, distress and execution.

5.5.8 Expropriation by a First Nation

5.5.8.1 Based on the principle of fair compensation, a First Nation may expropriate interests in its First Nation land if deemed by the First Nation as necessary for community works or other First Nation purposes.

5.5.8.2 A First Nation's power of expropriation shall be exercised in accordance with the rules and procedures specified in its gchi-naaknigewin and laws, which shall include a mechanism to resolve disputes over compensation for expropriation.

5.5.8.3 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 after the final Agreement comes into force by Canada in accordance with the final Agreement, is not subject to First Nation expropriation.

5.5.9 Expropriation by Canada

5.5.9.1 It is of fundamental importance to maintain the amount and integrity of First Nation land, and Canada agrees that, as a general principle, First Nation land shall not be expropriated.

5.5.9.2 Notwithstanding clause 5.5.9.1, 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.

5.5.9.3 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.

5.5.9.4 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:

1. consider using means other than expropriation and shall use those other means where reasonably feasible;
2. use non-First Nation land, where such land is reasonably available;
3. make reasonable efforts to acquire the land through agreement with the First Nation, rather than expropriation;
4. expropriate only the smallest interest necessary and for the shortest time required; and,
5. provide the First Nation with information relevant to the expropriation.

5.5.9.5 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 steps taken in satisfaction of clauses 5.5.9.2 to 5.5.9.4.

5.5.9.6 Where a First Nation objects to a proposed expropriation then it may refer the issue for a neutral evaluation under Dispute Resolution of the final Agreement within 60 days of receiving a copy of the report referred to in clause 5.5.9.5.

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

1. the end of the 60 day period referred to in clause 5.5.9.6; and,
2. the day the opinion or recommendation of an independent third party is released, where the First Nation referred the proposed expropriation to a neutral evaluator under clause 5.5.9.6.

5.5.10 Compensation by Canada

1. the market value of the land or interest that is acquired;
2. the replacement value of any improvement to the land that is acquired;
3. the damages attributable to the disturbance;
4. 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;
5. damages for any reduction in the value of a remaining interest; and,
6. damages for any adverse effect on any cultural or other special value of the land.

5.5.11 Status of Expropriated First Nation Land

5.5.12 Reversion or Return of Interest in First Nation Land

5.5.13 Application of the Federal Expropriation Act

5.5.14 Liability

5.5.15 First Nation Land Register

5.5.16 Laws

5.6 Natural Resources

5.6.1 The First Nation may make laws with respect to natural resources, both renewable and non-renewable, and respecting the preservation, protection, use, management, development and control of those natural resources, to the extent that these resources are under the jurisdiction of Canada and are part of First Nation land.

5.6.2 Without limiting the generality of clause 5.6.1, a First Nation may exercise its authority in relation to the following kinds of activities relating to natural resources, to the extent that these resources are under the jurisdiction of Canada and are part of First Nation land, including:

1. the development of an inventory and natural resource use plan, with provisions for harvesting rights and responsibilities;
2. the disposition of rights and interests in natural resources;
3. subject to clause 5.6.5, the preservation harvesting renewal and management of wildlife, including game, birds, fur bearing animals and their natural habitat;
4. the preservation, harvesting and management of forest resources; and,
5. the management, exploration, exploitation, development and disposition of the surface and sub-surface resources.

5.6.3 Nothing in the final 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.

5.6.4 Federal legislation enacting international agreements including the Migratory Birds Convention Act, federal legislation over prospecting for uranium mining, refining and handling; and, federal legislation relating to endangered species or setting out obligations with respect to the collection of statistics and reporting of natural resources in Canada shall prevail in the event of conflict with First Nation laws to the extent of the conflict.

5.6.5 Subject to clauses 5.5.16.1 and 5.6.4, in the event of a conflict between First Nation laws made pursuant to section 5.6 and federal laws, First Nation laws prevail to the extent of the conflict.

5.7 Environmental Assessment

5.7.1 The First Nation may make laws with respect to environmental assessment on First Nation land.

5.7.2 The First Nation environmental assessment process shall provide that all projects subject to an environmental assessment as determined under the laws made in accordance with clause 5.7.1, cannot be authorized until an environmental assessment is conducted and the proper authorization is obtained by the proponent.

5.7.3 Any laws made in accordance with clause 5.7.1 establishing an environmental assessment process shall maintain or exceed the requirements of the Canadian Environmental Assessment Act.

5.7.4 First Nation laws 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.

5.7.5 The First Nation environmental assessment process shall be structured to promote the implementation of the proponent pays principle, which establishes 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.

5.7.6 For greater certainty, the First Nation environmental assessment process shall provide:

a)  that the following factors are taken into consideration in the environmental assessment process:

1. 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;
2. the significance of the environmental effects;
3. comments received from the public in accordance with laws made in accordance with clause 5.7.1;
4. measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and,
5. 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.

b)  an opportunity for public participation and public access to the environmental assessment information;

c)  an opportunity for a full public review where a project is likely to have significant adverse environmental effects; and,

d) 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.

5.7.7 The First Nation shall enact laws in accordance with clause 5.7.1 within 90 days, or such further time as the parties may agree to, after the First Nation exercises law-making authority with respect to First Nation land.

5.7.8 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 per project, resulting in increased certainty, accountability and predictability in environmental assessment.

5.7.9 Until the First Nation makes laws pursuant to clause 5.7.1, the First Nation shall ensure that:

1. projects on First Nation land that would otherwise be subject to an environmental assessment under the Canadian Environmental Assessment Act are assessed before they are authorized by the First Nation;
2. the environmental assessment reflects those elements contained in paragraphs 5.7.6 (a), (b), (c) and (d);
3. proposed projects that are likely to have significant adverse effects are not authorized before they are subject to public review; and,
4. where a project is subject to public review, the factors outlined in paragraph 5.7.6 (a) are taken into consideration and the public shall be given full opportunity to participate in the review.

5.7.10 The Canadian Environmental Assessment Act shall continue to apply on First Nation land subject to any agreement that may be reached pursuant to clause 5.7.8.

5.7.11 In the event of a conflict between First Nation laws made pursuant to section 5.7 and federal laws, federal laws shall prevail to the extent of the conflict.

5.8 Public Works And Infrastructure

5.8.1 Subject to clause 5.8.4, the First Nation may make laws with respect to public works and community infrastructure on First Nation land.

5.8.2 Law-making authority shall extend over the design, construction, renovation, acquisition, operation and maintenance of facilities, networks or structures related to, among other things:

1. water and sanitation systems;
2. waste disposal;
3. energy supply and distribution;
4. fire protection;
5. transportation infrastructure; and,
6. community services.

5.8.3 The First Nation may enter into agreements with any other government, public agency, or private corporation for the planning and/or delivery or any other aspect of public works and infrastructure.

5.8.4 First Nation codes, regulations, standards and policies in respect of public works and infrastructure on First Nation land shall meet or exceed federal or provincial standards.

5.8.5 In the event of a conflict between First Nation laws made pursuant to section 5.8 and federal laws, First Nation laws shall prevail to the extent of the conflict.

5.9 Traffic And Transportation

5.9.1 The First Nation may make laws with respect to traffic and transportation on First Nation land.

5.9.2 First Nation laws which provide for health and safety standards and technical codes regarding traffic or transportation shall have at least equivalent effect to those health and safety standards and technical codes generally prevailing in Ontario.

5.9.3 In the event of a conflict between First Nation laws made pursuant to section 5.9 and federal laws, federal laws shall prevail in relation to transportation, and First Nation laws shall prevail in relation to control or prohibition, and operation and use of vehicles on First Nation land.

5.10 Economic Development And Operation Of Business

5.10.1 The First Nation may make laws with respect to First Nation economic development and business on First Nation land, to the extent of the law-making authorities set out in the final Agreement, including:

1. institutions to increase opportunity for economic development on First Nation land and to enhance the growth of earned income and employment opportunities on First Nation land;
2. regulation, licensing and prohibition of the operation of business; and,
3. establishment and operation of affirmative action initiatives.

5.10.2 If there is a conflict between the provisions of federal laws with respect to economic development and the provision of laws pursuant to law-making authorities set out in the final Agreement, the parties shall attempt to resolve the conflict in the prescribed manner as set out in the relevant part of the final Agreement.

5.11 Administration Of Justice

5.11.1 General

5.11.2 Appeals of Decisions of Dbaaknigewin

5.11.3 First Nations Policing Agreements

5.11.4 Enforcement

5.11.4.1 The First Nation may make laws with respect to the appointment of persons, who are not police officers, to enforce First Nation laws. A First Nation law may authorize persons who are First Nations police officers to enforce First Nation laws under the agreements or arrangements cited in clause 5.11.3.1.

5.11.5 Appointment of E-dbaaknigejig

5.12 Taxation

5.12.1 Law-Making Authority

5.13 Public Order, Peace And Safety

5.13.1 The 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.

5.13.2 In the event of a conflict between First Nation laws made pursuant to section 5.13 and federal laws, federal laws shall prevail to the extent of the conflict.

5.14 Future Discussions

5.14.1 Canada shall participate in discussions with the First Nation and Ontario, with respect to the following subject areas to the extent that these subject areas are not provided for in any other provision of the final Agreement:

1. administration of justice;
2. agriculture;
3. communications;
4. education;
5. emergency preparedness and emergency response;
6. environmental protection;
7. fish and fish habitat;
8. gaming;
9. health;
10. labour relations;
11. social services;
12. training; and,
13. wills and estates.

5.14.2 Discussions shall be conducted in accordance with an agreed upon process between Canada, First Nations and Ontario.

5.14.3 Indian status shall be considered at a future date in a context of change of Canada policy or legislation.