akis nuk First Nation LAND CODE*

Transcription

1 LAND CODE* *Proviso: If adopted at community referendum this Land Code will transfer legal authority over akis nuk reserve lands to akis nuknik. This Land Code replaces 34 sections of the Indian Act 1/3 of the entire act with made in akis nuk land laws. This Land Code has been reviewed in its entirety by the 10 akis nuknik-strong Land Code Development Committee at approximately 30 meetings between March, 2015 and June, LAND CODE

2 DECLARATION 4 PREAMBLE 5 PART 1: PRELIMINARY MATTERS TITLE INTERPRETATION AUTHORITY TO GOVERN PURPOSE DESCRIPTION OF AFN LANDS 12 PART 2: LAND ADMINISTRATION EXERCISE OF DUTIES RESPONSIBILITIES OF COUNCIL NATURAL RESOURCES MANAGER NATURAL RESOURCES DEPARTMENT LANDS MANAGEMENT BOARD 15 PART 3: AFN LEGISLATION LAW-MAKING POWERS SPOUSAL PROPERTY LAW LAW-MAKING PROCEDURE PUBLICATION OF LAWS COMMENCEMENT AND AMENDMENT OF LAWS 20 PART 4: MEMBER INPUT AND APPROVALS RIGHTS OF ELECTORS INFORMING MEMBERS APPROVAL AT MEETING OF MEMBERS PROCEDURES FOR A MEETING OF MEMBERS RATIFICATION VOTES 23 PART 5: INTERESTS AND LICENCES IN LAND LIMITS ON INTERESTS AND LICENCES EXISTING INTERESTS AND LICENCES NEW INTERESTS AND LICENCES CERTIFICATES OF POSSESSION TRANSFER AND ASSIGNMENT OF INTERESTS AND LICENCES LIMITS ON MORTGAGES AND SEIZURES SURVEYS REGISTRATION OF INTERESTS AND LICENCES AFN LAND REGISTRY TRANSFERS ON DEATH 30 2

3 31.0 RESIDENCY AND ACCESS RIGHTS 30 PART 6: EXPROPRIATION AND PROTECTION OF LAND EXPROPRIATION VOLUNTARY LAND EXCHANGES AND PROTECTIONS NATURAL RESOURCES SACRED SITES HERITAGE SITES 35 PART 7: ACCOUNTABILITY FINANCIAL ACCOUNTABILITY CONFLICTS OF INTEREST 35 PART 8: DISPUTE RESOLUTION APPLICATION OF THIS PART INFORMAL RESOLUTION OF DISPUTES MEDIATION ARBITRATION COSTS 37 PART 9: OTHER MATTERS PUBLIC NOTICE LIABILITY OFFENCES COMMENCEMENT AMENDMENTS TO THIS LAND CODE 39 3

4 DECLARATION The people of the, known collectively as akis nuknik in Ktunaxa, the language of the, have lived in our traditional territory since time immemorial, living by aknumuƒti i. This Land Code is meant to reflect and to and remain true to aknumuƒti i and through this Land Code the declares its sovereignty and jurisdiction over its lands and resources. This Land Code does not, in any form, abrogate or derogate any right or title of the and its people. This Land Code is to enhance and protect any and all Aboriginal and treaty rights of all akis nuknik past, present, and future. Nothing in this Land Code is intended to abrogate any financial entitlement, payment, or benefit due to the akis nuknik. The Columbia lake Indian Reserve Number 3 is only a small part of the Ktunaxa Traditional Territory, which has never been ceded. The Ktunaxa are the original inhabitants of the Columbia Valley and the entire Kootenay region. The traditional territory of the Ktunaxa goes beyond the Kootenay region of southeast British Columbia into parts of Alberta, and the American States of Montana, Washington and Idaho. Mission Statement: Through sound, responsible leadership, we will promote the well-being and economic self-reliance of our people by encouraging and fostering education and sustainable employment. Ktunaxa Nation Mission Statement: Strong, healthy citizens and communities, speaking our languages and celebrating who we are and our history in our ancestral homelands, working together, managing our lands and resources, within a self-sufficient, selfgoverning Nation. 4

5 PREAMBLE Whereas the has a profound relationship with the land and has maintained this relationship continuously since time immemorial living under aknumuƒti i, Whereas the has entered the Framework Agreement on First Nation Land Management; And whereas the from now on, and forever forward, shall manage its lands and resources, rather than having its lands and resources managed for them under the Indian Act. Now therefore, this Land Code is hereby enacted as the fundamental land law of the. 5

6 PART 1: PRELIMINARY MATTERS 1.0 Title 1.1 The title of this enactment is the Land Code. 2.0 Interpretation 2.1 The following definitions apply in this Land Code: Act means the First Nations Land Management Act, S.C. 1999, c. 24; AFN means, as named in the Act; AFN Lands means any portion of a reserve of AFN that is subject to this Land Code in accordance with section 5.1, and includes those rights and resources listed at section 2.3; AFN Law Registry means the register, kept at the main administration office and maintained by the SAO, which contains a copy of all Laws, by-laws, Resolutions and other enactments of AFN, including all Laws, by-laws, Resolutions and enactments of AFN that have been repealed, replaced, amended, or are no longer in force; aknumuƒti i means Ktunaxa natural law, the guiding principle for this Land Code; akis nuknik means the people of AFN; arbitrator means an individual who (a) is a practicing member in good standing of the British Columbia Arbitration and Mediation Institute, or similar professional organization, or (b) has been designated as an acceptable arbitrator in accordance with section 44.1 of the Framework Agreement; Canada means Her Majesty the Queen in Right of Canada; Certificate of Possession means a written instrument (a) issued to a Member in accordance with section 20 of the Indian Act prior to the coming into force of this Land Code, or (b) issued to a Member in accordance with article 24.0 of this Land Code, 6

7 which grants to a Member exclusive use and possession of a parcel of AFN Lands; child means (a) a biological child, (b) an adopted child, whether by law or by Ktunaxa custom, (c) a stepchild, (d) a foster child, and (e) a child over whom an individual has guardianship; community land means any AFN Lands in which all Members have a common interest and which is not subject to a Certificate of Possession; community purpose means a purpose which is intended to provide a facility, benefit or support for Members, and may include public works, utility or transportation corridors, or similar purposes; Council means the Chief and Council of AFN, elected in accordance with the Custom Election Regulations; easement means a written instrument in which one parcel of AFN lands is granted certain non-exclusive rights over an adjacent parcel of AFN lands for a specified purpose; elector means, for the purpose of voting in respect of land matters in accordance with this Land Code, a Member who is eligible to vote in accordance with the akis nuk First Nation Custom Election Regulations; expropriation means a taking of an Interest or licence, or all Interests and licences, in portions of AFN Lands without the consent of the owner, for a community purpose, through a process established by Law; FNLR means the register established by the First Nations Land Registry Regulations, SOR/ ; 7

8 Framework Agreement means the Framework Agreement on First Nation Land Management entered into between Canada and the Chiefs of 14 First Nations on February 12, 1996; heritage site means a site on AFN Lands that is of historical importance to AFN and the Members; Indian Act means the Indian Act, R.S.C. 1985, c. I-5; Individual Agreement means the Individual Transfer Agreement entered into between AFN and Canada in accordance with clause 6.1 of the Framework Agreement and subsection 6(3) of the Act; Interest means a right to occupy or use AFN Lands, including a Certificate of Possession, lease, mortgage, easement, right of way, and sublease, but does not include a licence; Ktunaxa means the Indigenous people that have occupied the lands adjacent to the Kootenay and Columbia Rivers and the Arrow Lakes of British Columbia, Canada for more than 10,000 years; Land Code means this Land Code; Land Management Board means the board established by the Council in accordance with section 10.1; Law means a law enacted under this Land Code but does not include a Resolution; lease means a written instrument granting a person an exclusive right of use and possession to a parcel of AFN Lands, upon agreed conditions, for a specified period of time, and includes a sublease; licence means a written instrument granting a person a non-exclusive right to use a parcel of AFN Lands, upon agreed conditions, for a specified purpose and includes a permit; majority means fifty percent, plus one; mediator means an individual who (a) is a practicing member in good standing with the British Columbia International Commercial Arbitration Centre, or similar professional organization, or 8

9 (b) has been designated as an acceptable mediator in accordance with section 44.1 of the Framework Agreement; Meeting of Members means a meeting held in accordance with articles18.0 and 19.0, to which the Members are invited; Member means an individual whose name appears or is entitled to appear on the AFN membership list; mortgage means a written instrument that grants a charge on an Interest in favour of another as security for a debt; natural resources means any minerals, oil, gas, substances, groundwater, water, vegetation or animals found on or in AFN Lands which, when removed, have economic or other value; Natural Resources Department means the administrative department established to assist in the management and administration of AFN Lands in accordance with this Land Code; Natural Resources Manager means the individual responsible for the day-to-day administration of the Natural Resources Department, pursuant to article 8.0; Notice of Default means notice in writing of default in the terms of a charge or mortgage of a lease, which is given by a chargee or mortgagee in accordance with article 26.0; permit means a written instrument granting a person a non-exclusive right to use a parcel of AFN Lands for a specified purpose; person means a partnership, syndicate, association, corporation, society, and includes their personal or other legal representatives; ratification vote means a vote of electors held in accordance with article 20.0; Resolution means a written Band Council Resolution adopted by the Council at a duly convened meeting; right of way means a written instrument that grants, to the holder of an undertaking, a non-exclusive right to use a parcel of AFN Lands for a purpose necessary for the operation and maintenance of the right of way holder s undertaking; 9

10 sacred site means a site on AFN Lands that is of cultural, archaeological, anthropological or spiritual importance to AFN and the Members; SAO means senior administrative officer, who is the person responsible for leading the planning, organization, implementation and evaluation of the overall management of all the day-to-day operations of AFN; spouse means an individual who is married to another individual, whether by a traditional, religious, or civil ceremony, and includes a spouse by common-law marriage; verifier means an individual appointed by AFN to monitor and verify the process of AFN opting in to the Act, in accordance with section 8.1 of the Framework Agreement; and written instrument means a written document, in the form approved by the Natural Resources Manager, which purports to create, grant, assign or transfer an Interest or licence or affect AFN Lands. 2.2 This Land Code shall be interpreted in a fair, large and liberal manner. 2.3 In accordance with aknumuƒti i, a reference to land in this Land Code is, unless the context otherwise requires, a reference to AFN Lands and includes all rights and resources in and of AFN Lands, including: (a) the water; (b) beds underlying water; (c) riparian rights, including to land acquired through accretion; (d) minerals and subsurface resources; (e) all renewable and non-renewable natural resources belonging to that land, to the extent that these are under the jurisdiction of AFN or Canada; and (f) all the Interests and licences granted to AFN by Canada listed in the Individual Agreement. 2.4 In this Land Code, (a) the use of the word shall denotes an obligation that, unless this Land Code provides to the contrary, shall be carried out as soon as practicable after this Land Code comes into effect or the event that gives rise to the obligation; 10

11 (b) unless it is otherwise clear from the context, the use of the word including means including, but not limited to, and the use of the word includes means includes, but is not limited to ; (c) headings and subheadings are for convenience only and do not form a part of this Land Code and in no way define, limit, alter or enlarge the scope or meaning of any provision of this Land Code; (d) a reference to an enactment includes every amendment to it, every regulation made under it and any statute enacted in substitution for it or in replacement of it; and (e) unless it is otherwise clear from the context, the use of the singular includes the plural, and the use of the plural includes the singular. 2.5 This Land Code shall be interpreted in accordance with aknumuƒti i, and the language, culture, traditions and customs of AFN, unless otherwise provided. 2.6 If there is an inconsistency or conflict between this Land Code and any other AFN enactment, this Land Code shall prevail to the extent of the inconsistency or conflict. 2.7 If there is an inconsistency or conflict between this Land Code and the Framework Agreement, the Framework Agreement shall prevail to the extent of the inconsistency or conflict. 2.8 The following cease to apply to AFN, Members, and AFN Lands: (a) sections 18-20, 22-28, 30-5, 37-41, 49, 50(4), 53-60, 66, 69, 71 and 93 of the Indian Act; (b) any regulations made under section 57 of the Indian Act; and (c) to the extent of any inconsistency or conflict with the Framework Agreement, this Land Code, or any Laws, and regulations made under sections 42 and 73 of the Indian Act. 2.9 This Land Code does not abrogate or derogate from any Aboriginal, treaty or other right or freedom that pertains now or in the future to the AFN or its Members. 11

12 2.10 Nothing in this Land Code is intended to abrogate any financial entitlement, payment, or benefit due to the akis nuknik This Land Code is not intended to affect the eligibility of AFN or any Member to receive services or participate in such programs available to the public or to Indigenous persons as may be established from time to time to the extent that AFN has not assumed responsibility for such services or programs This Land Code does not abrogate the fiduciary relationship between Canada and AFN and its Members. 3.0 Authority to Govern 3.1 By enacting this Land Code, AFN is reaffirming its special responsibility to care for and respect the land, which, through aknumuƒti i, has been the obligation of Members and their ancestors since time immemorial. 3.2 The authority of AFN to govern its lands and resources flows from its Aboriginal title and its inherent right of self-government. 3.3 For any purpose related to AFN Lands, AFN shall have legal capacity to acquire and hold property, to borrow, to contract, to expend and invest money, to be a party to legal proceedings, to exercise its powers and to perform its duties. 4.0 Purpose 4.1 The purpose of this Land Code to set out the principles, rules, and administrative structures that apply to AFN Lands and by which AFN shall exercise its authority over AFN Lands, in accordance with aknumuƒti i. 5.0 Description of AFN Lands 5.1 The AFN Lands that are subject to this Land Code are the lands as described in the Individual Agreement and any lands added in compliance with this Land Code, including: (a) Columbia Lake Indian Reserve Number 3; and (b) any other reserve lands set aside for the exclusive use and benefit of AFN, unless otherwise provided by Law. 5.2 The following lands may be made subject to this Land Code after the applicable condition is met: 12

13 (a) any land owned jointly by AFN and another First Nation, once the First Nations involved agree upon a joint management scheme for those lands; and (b) any land or Interest acquired by AFN after this Land Code takes effect whether by land claim, purchase or other process once an environmental audit declares it free of any environmental hazard and safe for community use, and provided that the lands are set aside as a reserve. 5.3 If the relevant conditions described in section 5.2 are met, the Council shall inform the Members, in accordance with section 17.1, of any proposed inclusion of lands prior to the Council making a Law or Resolution declaring the lands to be subject to this Land Code. 5.4 For greater certainty, sections 5.2 and 5.3 do not apply to land acquired by land exchange, which is governed by the process set out at article Exercise of Duties PART 2: LAND ADMINISTRATION 6.1 Any power, authority, or discretion exercised by the Council, the Natural Resources Manager, the Natural Resources Department, the Lands Management Board, other individuals, or bodies established under a Law, or authorized under this Land Code, shall be exercised on behalf of, and for the benefit and protection of, AFN and the Members, present and future, and shall consider and be in keeping with the principles of aknumuƒti i. 7.0 Responsibilities of Council 7.1 With the best interests of AFN and its Members as their focus, and in keeping with the principles of aknumuƒti i, the Council is responsible for all matters relating to the management and administration of AFN Lands, whether or not this responsibility has been shared, assigned, or delegated to an individual or body by or under this Land Code. 7.2 Notwithstanding section 7.1, and subject to the Act, the Framework Agreement and this Land Code, the Council may assign or delegate to the Natural Resources Manager, the Natural Resources Department, or a body established by or under this Land Code, any of its functions under this Land Code except: (a) the negotiation of amendments to the Individual Agreement; 13

14 (b) expropriation of any AFN Lands; (c) the establishment of a Lands Management Board; (d) the enactment of Laws; and (e) the approval of budgets and financial statements of the Natural Resources Department. 8.0 Natural Resources Manager 8.1 The SAO shall appoint an individual as Natural Resources Manager of AFN, and may set the terms and conditions of that appointment 8.2 Reporting to the SAO, the Natural Resources Manager is responsible for the dayto-day operations of the Natural Resources Department, including the following duties: (a) managing and administering AFN Lands in accordance with this Land Code and with the Laws; (b) supervising and directing the employees of the Natural Resources Department; (c) preparing and presenting regular reports to the Council on matters respecting AFN Lands and natural resources; (d) approving all forms of written instruments developed or adapted for use by the Natural Resources Department; (e) making recommendations to the Council and to the Lands Management Board on the development of Laws and policies in relation to AFN Lands; (f) determining the fees, if any, for services provided by the Natural Resources Department; (g) assisting in the exchange of information between Members and Council regarding AFN Lands matters; and (h) carrying out any duty or responsibility delegated to the Natural Resources Manager in accordance with section

15 8.3 With the consent of the SAO, the Natural Resources Manager may assign their duties or functions to any officer, employee, committee, contractor or agent of AFN, but any such assignment does not relieve the Natural Resources Manager of the responsibility to ensure that these duties or functions are carried out properly. 9.0 Natural Resources Department 9.1 The purpose of the Natural Resources Department is to carry out all duties and responsibilities assigned or delegated to it in accordance with this Land Code or by Law. 9.2 Under the direction of the Natural Resources Manager the duties and responsibilities of the Natural Resources Department shall include: (a) administering AFN Lands in accordance with this Land Code and Laws; (b) preparing forms or written instruments for use in creating, granting, transferring or assigning Interests and licences, where deemed necessary and advisable by the Natural Resources Manager; (c) preparing forms or written instruments for use in registering documents that affect or purport to affect AFN Lands, where deemed necessary and advisable by the Natural Resources Manager; (d) maintaining and protecting records in relation to AFN Lands; (e) carrying out any duties or responsibilities delegated to the Natural Resources Department in accordance with sections 7.2 and 8.3; and (f) carrying out such additional duties as are requested by the Natural Resources Manager and are consistent with the Laws and this Land Code Lands Management Board 10.1 The Council shall, by Law or Resolution, establish a Lands Management Board, as an advisory body to the Council and the Natural Resources Department A Law or Resolution that establishes a Lands Management Board shall include provisions that set out: (a) the composition of the Lands Management Board, including quorum; 15

16 (b) eligibility criteria and process for selecting members of the Lands Management Board; (c) the term of office for members of the Lands Management Board; (d) the process for selecting a chairperson; (e) the duties of the chairperson; and (f) the role of the Lands Management Board Law-Making Powers PART 3: AFN LEGISLATION 11.1 The Council may, in accordance with this Land Code, make Laws respecting: (a) the conservation, protection, management, planning, use, possession, and development of AFN Lands; (b) Interests and licences, and rights in and in relation to AFN Lands; (c) any matter necessary to give effect to this Land Code; and (d) any matter necessary or ancillary to a Law respecting AFN Lands For greater certainty, and without limiting the generality of section 11.1, the Council may make Laws on matters including but not limited to: (a) regulation, control and prohibition of zoning, land use, subdivision control and land development; (b) rules, procedures and rights respecting the expropriation of Interests and licences; (c) creation, acquisition, regulation, granting and prohibition of Interests and licences; (d) environmental assessment and protection; (e) spousal property; 16

17 (f) provision of services for the resolution, outside the courts, of disputes in relation to AFN Lands; (g) regulation, control, authorization, and prohibition of residency, access, and occupation of AFN Lands; (h) regulation of construction standards for buildings, structures, and facilities on AFN Lands; (i) fees, stumpage, or royalties to be paid to AFN for the removal or extraction of natural resources from AFN Lands; (j) fees to be paid to AFN for permit or licence applications or for administrative processes; (k) regulation of surveys on AFN Lands; (l) setting aside and regulation of parks, parklands, and recreational lands; (m) setting aside and regulation of heritage sites and sacred sites; (n) creation of management and administrative bodies or agencies; (o) removal and punishment of persons trespassing upon AFN Lands or frequenting AFN Lands for prohibited purposes; (p) regulation of public and private nuisance; (q) regulation of sanitary conditions and the provision of sanitary services; (r) construction, maintenance, and management of roads, water courses, storm drains, bridges, fences, ditches, and other local and public works; (s) regulation of traffic and transportation; (t) hunting, fishing, management and protection of fish, wildlife and their habitat within AFN Lands; (u) the use and storage of fireworks, firearms, weapons and hazardous materials or substances; and (v) any matter as deemed necessary by the Council in the best interests of the AFN and its Members. 17

18 11.3 A Law may, in relation to this Land Code (a) establish offences that are punishable on summary conviction; (b) provide for fines, tickets, imprisonment, restitution, community service, and alternate means for achieving compliance; and (c) establish enforcement procedures consistent with federal law, such as the power to inspect, search and seize, and to order compulsory sampling, testing and the production of information The Council may enact Laws to create ticketing processes or similar enforcement mechanisms or to incorporate such processes or enforcement mechanisms from provincial or local government sources All Laws shall be: (a) made in accordance with article 13.0; (b) posted in accordance with paragraphs 14.1(a) and (b); and (c) included in the AFN Law Registry in accordance with paragraph 14.1(c) Spousal Property Law 12.1 Within 12 months from the date this Land Code takes effect, the Council shall enact a spousal property Law providing rules and procedures applicable on the breakdown of a marriage, to (a) the use, occupancy and possession of AFN Lands; and (b) the division of Interests and licences The rules and procedures contained in the spousal property Law shall be developed in consultation with the Members For greater certainty, the rules and procedures developed in accordance with this article shall respect the following general principles: (a) each spouse should have an equal right to possession of their matrimonial home; 18

19 (b) each spouse should be entitled to an undivided half-interest in their matrimonial home, as a tenant-in-common; (c) the rules and procedures shall not discriminate on the basis of sex; and (d) only Members are entitled to hold a Certificate of Possession in AFN Lands or a mortgage against a Certificate of Possession in AFN Lands The Council may enact an interim spousal property Law in accordance with section Law-Making Procedure 13.1 The development, amendment or repeal of a Law may be proposed, at a Council meeting, by any of the following people: (a) a member of Council; (b) the Natural Resources Manager; or (c) the chair of the Lands Management Board A Member who wishes to propose the development, amendment or repeal of a Law shall submit a written request to the Council or to the Natural Resources Manager, and the Council shall consider the request as soon as practicable, at a Council meeting Before the Council enacts a Law, (a) the proposed Law shall be tabled at a Council meeting at least 30 days before the Law is to be enacted; (b) the Council may, at its discretion, consult with the Lands Management Board regarding the proposed Law; (c) notice of enactment of the proposed Law shall be given in accordance with section 44.1; and (d) the requirements at sections 17.1, 18.1 and 20.1 shall be met, if applicable If Council is of the opinion that a Law is required urgently to protect AFN, AFN Lands, or the Members, the Council may enact the Law without following the 19

20 steps at section 13.3, but such a Law shall expire 120 days after its enactment, unless re-enacted in accordance with section A Law is enacted if it is approved by a majority of the Council at a duly convened meeting of the Council, subject to section The original copy of any Law shall be signed by a quorum of the Council Publication of Laws 14.1 The Council shall ensure that, within 10 days after a Law has been enacted or amended: (a) a copy of the Law is posted at the administration office; (b) a copy of the Law is posted on AFN s website; and (c) a copy of each Law is included in the AFN Law Registry The Council shall ensure that, within 10 days after a Law has been repealed, a notice of the repeal is (a) posted in the administration office; (b) posted on AFN s website; and (c) included in the AFN Law Registry Any person may review the AFN Law Registry during normal office hours, upon request Commencement, Amendment and Repeal of Laws 15.1 A Law takes effect on the day after its enactment or such later date as specified by the Law A Law may be repealed or amended by following the procedure set out at section 13.3, subject to section If a Law was enacted by the Members pursuant to section 18.1, then any amendments to, or repeals of, that Law require the approval of the Members, except for those amendments described in section

21 15.4 The Council may, in its discretion, make minor, non-substantive amendments to Laws, including (a) correcting typographical errors; (b) increasing fees by no more than 10%; and (c) reflecting changes of names or titles, without following the procedures set out at sections 15.2 and Rights of Electors 16.1 Each elector is eligible to vote PART 4: MEMBER INPUT AND APPROVALS (a) at a Meeting of Members; and (b) at a ratification vote Informing Members 17.1 The Council shall notify the Members, in accordance with section 44.1, prior to the introduction of: (a) a Law on spousal property; (b) any land use plan; (c) a Law respecting a community plan or subdivision plan; (d) a Law or Resolution declaring land or an Interest referred to in section 5.2 to be subject to this Land Code; (e) a Law affecting a heritage site, a sacred site, or an environmentally sensitive property; (f) a Law or process respecting environmental assessment; and (g) any other Law or class of Law that the Council, by Resolution, declares to be subject to this section. 21

22 18.0 Approval at Meeting of Members 18.1 The Council shall convene a Meeting of Members for consideration and voting on the following matters: (a) an expropriation Law, in accordance with section 32.2; (b) any Law or class of Law that the Council, by Resolution, declares to be subject to this section; and (c) any other matter that the Council, by Resolution, declares to be subject to this section Procedures for a Meeting of Members 19.1 The Council shall give public notice of a Meeting of Members, in accordance with section All Members have the right to attend and participate in the vote at a Meeting of Members, but other persons may attend only with the permission of the Council The quorum for a Meeting of Members is (a) 10% of electors; or (b) such other amount as set by Resolution The Council shall, by Resolution, prescribe the method of voting at a Meeting of Members which may include one or more of the following: (a) show of hands; (b) secret ballot; (c) mail-in ballot; (d) online voting; and (e) telephone voting A matter or Law presented by the Council for approval at a Meeting of Members is approved if a quorum of Members participates in the Meeting of Members and 22

23 the majority of the Members participating in the Meeting of Members votes in favour of the matter or Law For clarity, a matter or Law approved at a Meeting of Members in accordance with section 19.5 does not require Council approval The Council may schedule more than one Meeting of Members for consideration and voting on a matter or Law that requires a Meeting of Members Ratification Votes 20.1 The following matters shall be approved by a ratification vote: (a) a land exchange; (b) a lease with a term exceeding 99 years; and (c) any other matter that the Council, by Resolution, declares to be subject to this article Any ratification vote required under this Land Code shall be conducted in accordance with a ratification Law enacted in accordance with this Land Code. PART 5: INTERESTS AND LICENCES IN LAND 21.0 Limits on Interests and Licences 21.1 An Interest or licence may only be created, granted, disposed of, assigned or transferred by a written instrument, in accordance with this Land Code The Natural Resources Manager or the Council may establish mandatory standards, criteria and forms for Interests and licences Any written deed, lease, contract, instrument, document or agreement of any kind, by which AFN, a Member or any other person purports to grant, dispose of, transfer or assign an Interest or licence after the date this Land Code takes effect is not recognized under this Land Code if it is not in accordance with this Land Code. 23

24 22.0 Existing Interests and Licences 22.1 Any Interest or licence that existed when this Land Code takes effect shall, subject to this Land Code, continue in force in accordance with its terms and conditions For greater certainty, AFN is not liable for any decrease in value or use of an Interest or licence arising in relation to a Law, land use plan or regulation duly passed under this Land Code New Interests and Licences 23.1 The Council, the Natural Resources Manager or the Lands Management Board may establish rules and procedures for the granting of Interests and licences Rules and procedures under section 23.1 may include (a) provisions respecting the approval of the granting of Interests and licences by i. the Council, ii. the Natural Resources Manager, and iii. the Lands Management Board; (b) provisions requiring the Natural Resources Manager or Lands Management Board to make recommendations to the Council regarding the granting of Interests and licences; and (c) dispute resolution mechanisms The grant of an Interest or licence in community land may be made subject to the satisfaction of written conditions Certificates of Possession 24.1 Subject to this Land Code and Laws, a Certificate of Possession is an interest in AFN Lands that entitles the Member holding it to: (a) permanent possession of a specified parcel of AFN Lands; (b) benefit from the resources arising from the parcel of AFN Lands; 24

25 (c) grant subsidiary Interests and licences in the parcel of AFN Lands, including leases, permits, easements and rights of way; (d) transfer, devise or otherwise dispose of the parcel of AFN Lands to another Member; (e) grant licences to take resources from the parcel of AFN Lands, including cutting timber or removing minerals, stone, sand, gravel, clay, soil or other substances; and (f) any other rights, consistent with this Land Code, that are attached to certificates of possession under the Indian Act For greater certainty, a Certificate of Possession shall not be granted to or held by a person who is not a Member In the event that an individual who holds a Certificate of Possession ceases to be a Member, the individual shall, within one year of ceasing to be a Member, transfer any Certificate of Possession to another Member or to AFN If a former Member fails to transfer their Certificate of Possession in accordance with section 24.4, the Natural Resources Manager shall cancel their Certificate of Possession and their Certificate of Possession shall be deemed to be transferred to AFN and shall become community lands Where a Certificate of Possession reverts to AFN in accordance with section 24.5, AFN shall pay reasonable compensation for improvements to the individual ceasing to be a Member provided that: (a) the individual ceasing to be a Member shall remain liable to AFN for any obligations or monies owing to AFN in relation to the Certificate of Possession in question, or services or loans provided in relation to such lands, and any such monies may be deducted from monies paid to them as reasonable compensation for improvements; and (b) the individual ceasing to be a Member shall remain liable for any obligations or monies owing under a mortgage and, unless the mortgage is discharged by the individual ceasing to be a Member prior to the lands becoming community lands, AFN shall pay the amount outstanding on the mortgage and deduct this amount, together with its reasonable costs to obtain the discharge of the mortgage, from monies paid as reasonable compensation for improvements. 25

26 24.7 Any dispute with respect to the amount of compensation paid in accordance with section 24.6 shall be determined in accordance with Part If an Interest or licence is cancelled, forfeited or transferred in accordance with section 24.4 or 24.5, the necessary documentation to effect the change shall be registered in (a) the FNLR; and (b) the AFN land registry, if one is established in accordance with article Transfer and Assignment of Interests and Licences 25.1 All transfers and assignments of Interests and licences shall (a) comply with this Land Code, and with all Laws and policies under this Land Code; and (b) be registered in the FNLR, in accordance with article A Member holding an Interest or licence may transfer that Interest or licence to another Member or to AFN without the consent of Council or the approval of Members Limits on Mortgages and Seizures 26.1 Subject to this Land Code, sections 29 and 87 and subsections 89(1), (1.1) and (2) of the Indian Act continue to apply to AFN Lands, whether or not the AFN Lands were designated before this Land Code came into effect For greater certainty, unless AFN is a party to a lease, AFN is not responsible or liable for ensuring that a lease of AFN Lands permits the leasehold interest to be mortgaged or charged, that the lease is in good standing, or that the leaseholder is in compliance with the terms of the lease A Certificate of Possession may be subject to a mortgage or charge only to AFN or to a Member For greater certainty, a Member holding an Interest or license may grant that Interest or licence to himself or herself in the same manner as to another Member The term of any charge or mortgage of a lease shall not exceed the term of the lease. 26

27 26.6 A lease of AFN Lands is subject to charge, pledge, mortgage, attachment, levy, seizure, distress, and execution without the consent of Council or the approval of Members provided that, in the event of a default on a charge or mortgage: (a) a Notice of Default shall be provided to the Council, and to the lessor where the lessor is the Certificate of Possession holder; (b) where the lessor is the Certificate of Possession holder, the lessor, or, pursuant to section 26. 7, the spouse or child of the lessor, shall have the right of first refusal; and (c) subject to prior redemption by the lessor or the lessor s spouse or child pursuant to paragraph (b), AFN shall have the right of first refusal Where the lessor is the Certificate of Possession holder, the lessor may transfer their first right of refusal under paragraph 26.6(b) to their spouse or child, by (a) (b) (c) providing [their spouse or child] with a copy of the Notice of Default; consenting in writing to the transfer of the right of refusal; and providing AFN and [the spouse or child] with a copy of the consent at paragraph (b) A Notice of Default shall allow for the following redemption periods: (a) (b) where the lessor is not the Certificate of Possession holder, the Council shall be given at least 60 days from the date of the Notice of Default to redeem the charge or mortgage on behalf of AFN; and where the lessor is the Certificate of Possession holder, i. the Certificate of Possession holder shall be given at least 60 days from the date of the Notice of Default to redeem the charge or mortgage, and ii. the Council shall be given at least 120 days from the date of the Notice of Default to redeem the charge or mortgage on behalf of AFN In the event of a default in the terms of a charge or mortgage of a lease, the lease shall not be subject to possession by the chargee or mortgagee, by way or foreclosure, power of sale or any other form of execution or seizure, unless 27

28 (a) the charge or mortgage is registered in the FNLR; and (b) the exemption periods set out in Notice of Default have expired and the applicable parties have not exercised their powers of redemption If the Council exercises its power of redemption with respect to a lease, AFN becomes the lessee of the land and takes the position of the chargor or mortgagor for all purposes after the date of the redemption Surveys 27.1 The Natural Resources Department may cause surveys to be made of AFN Lands in accordance with the Canada Lands Surveys Act, R.S.C. 1985, c. L-6 and the Canada Lands Surveyors Act, S.C. 1998, c A survey respecting AFN Lands shall only become effective upon being registered in the FNLR Notwithstanding sections 27.1 and 27.2, surveys determining boundaries of AFN Lands shall not abrogate or derogate from AFN s Aboriginal rights and title or treaty rights Registration of Interests and Licences 28.1 An Interest or licence created or granted after this Land Code takes effect is void and not enforceable unless it is registered or recorded in the FNLR Every person who receives an Interest or licence shall (a) submit the written instrument creating, transferring or assigning the Interest or licence for registration or recording in the FNLR; or (b) submit the written instrument to the Natural Resources Department, together with: i. a written request to register or record the written instrument in the FNLR, ii. iii. a filing fee if applicable, and a signed waiver of liability. 28

29 28.3 Every person who submits an Interest or licence for registration in accordance with paragraph 28.2(b) is responsible for ensuring that the document is valid and accurate, and, for clarity, AFN shall not be responsible for (a) ensuring that the document is validly made; (b) determining whether the document is in compliance with the Land Code or Laws; or (c) ensuring that the document is eligible for registration Upon receiving the items in accordance with paragraph 28.2(b), the Natural Resources Manager shall submit the written instrument and supporting documentation for registration or recording in the FNLR A written instrument granting an Interest or licence that requires the consent of the Council shall include a certificate issued by the Natural Resources Manager indicating that the applicable consent or approval has been obtained A written instrument registered in the FNLR which does not include the certificate required in accordance with section 28.5 is void Upon receipt, the Natural Resources Manager shall ensure that an original copy of each of the following documents respecting AFN Lands is deposited in the FNLR (a) any grant of an Interest or licence; (b) any transfer or assignment of an Interest or licence; (c) every land use plan, survey plan, subdivision plan or resource use plan; and (d) this Land Code and any amendment to this Land Code AFN Land Registry 29.1 The Council may make Laws to establish and maintain an AFN land registry In the event of a conflict between the FNLR and the AFN land registry, the FNLR shall take precedence, to the extent of the conflict. 29

30 30.0 Transfers on Death 30.1 A Member who claims to be entitled to a Certificate of Possession by testamentary disposition or succession pursuant to the Indian Act is not entitled to such Certificate of Possession until: (a) the Member has filed with the Natural Resources Department, a written instrument in a form and with supporting documentation as prescribed by the Natural Resources Manager, duly executed by the personal representative of the estate of the deceased Member, transferring such Certificate of Possession to the Member; and (b) the written instrument referred to in paragraph(a) is registered in the FNLR A purchaser of a Certificate of Possession pursuant to subsection 50(2) of the Indian Act is not entitled to such Certificate of Possession until (a) the purchaser has filed with the Natural Resources Department, a written instrument in a form prescribed by the Natural Resources Manager, duly executed by the person authorized under the Indian Act to execute a transfer of a Certificate of Possession acquired pursuant to subsection 50(2) of the Indian Act; and (b) the written instrument referred to in paragraph (a) is registered in the FNLR Residency and Access Rights 31.1 Any person who resides on, enters, or remains on AFN Lands other than in accordance with a residence or access right under this Land Code or under a Law is guilty of an offence The following persons have a right to reside on AFN Lands: (a) Members and their spouses, children and invitees; and (b) lessees under a valid lease, in accordance with the provisions of the instrument granting the lease The following persons have a right of access to AFN Lands: (a) Members and their spouses, children, and invitees; (b) lessees and mortgagees, and their invitees; 30

31 (c) permittees, licensees, holders of rights of way, and those granted a right of access under such written instruments, where access is granted pursuant to the written instrument; (d) persons authorized by a government body or any other public body, established by or under an enactment of AFN, Canada, or British Columbia to establish, operate or administer a public service, to operate a public institution, or to conduct a technical survey; (e) AFN employees and contractors; (f) persons authorized by an applicable Law; (g) persons authorized in writing by the Council, the SAO, or the Natural Resources Manager; and (h) any person, for a valid social or business purpose, provided that the person does not trespass on AFN Lands, does not interfere with any Interest or licence, complies with all applicable laws and policies, and is not the subject of a Resolution barring the person from AFN Lands No liability is imposed upon AFN, in respect of any person exercising a right of residency or access under this Land Code or under a Law, for injuries or damages suffered on account of the condition or state of AFN Lands Any person, who resides on, enters or remains on AFN Lands, other than in accordance with a residence or access right under this Land Code or in accordance with a Law, is guilty of an offence All civil remedies for trespass are preserved Expropriation PART6: EXPROPRIATION AND PROTECTION OF LAND 32.1 AFN shall first attempt to acquire the Interest or licence to any AFN Land needed for a community purpose by making a good faith effort to acquire, by mutual agreement, the Interest or licence Before proceeding to expropriate any Interest or licence in accordance with this Land Code, the Council shall ensure that a Law is enacted respecting the rights and procedures for expropriations, including provisions respecting: 31

32 (a) taking of possession of the Interest or licence; (b) transfer of the Interest or licence; (c) notice of expropriation; (d) entitlement to compensation; (e) determination of the amount of compensation; (f) circumstances under which the Interest or licence may be returned; (g) dispute resolution; and (h) the method of payment of compensation, and such Law shall be considered for approval at a Meeting of Members, in accordance with section An expropriation Law under section 32.2 shall provide that an Interest or licence, or any building or other structure on AFN Lands, may be expropriated by the Council only: (a) after attempting to acquire the Interest or licence pursuant to section 32.1; (b) for a necessary community purpose, including but not limited to a fire hall, sewage or water treatment facility, community center, public works, roads, schools, daycare facility, hospital, health-care facility, and retirement home, easement, or right of way; (c) in accordance with the Act, the Framework Agreement, and the Law; (d) after providing the Interest- or licence- holder with reasonable notice of the expropriation; (e) after paying fair and reasonable compensation to the holder of the Interest or licence being expropriated; (f) if no other similar and suitable AFN Lands are reasonably available; and 32

33 (g) to the extent necessary, and for the shortest period of time reasonably required, to meet the need for which the Interest or licence, building, or structure is required by AFN Voluntary Land Exchanges and Protections 33.1 AFN may agree with another party to exchange a parcel of AFN Lands for a parcel of land from that other party in accordance with this Land Code, the Act, and the Framework Agreement A land exchange is of no effect unless it receives approval by ratification vote in accordance with article No exchange of AFN Lands may occur unless: (a) the land to be received in the exchange is i. equal to or greater than the area of the AFN Lands to be exchanged, ii. iii. of a value that is at least comparable to the appraised value of the AFN Lands to be exchanged, and eligible to become a reserve, and AFN Lands subject to this Land Code; and (b) AFN receives from Canada a written statement clearly stating that Canada i. consents to set apart as a reserve the land to be received in exchange, as of the date of the land exchange or such later date as the Council may specify by Resolution or as provided by an agreement with Canada, and ii. consents to the manner and form of the exchange as set out in the exchange agreement The Council may, by Resolution, delegate to another person the authority to negotiate a land exchange agreement on behalf of AFN In addition to the land described at section 33.3, AFN may negotiate to receive other compensation, including but not limited to financial compensation or other interests in land. 33

34 33.6 The Council shall, at least 21 days before the Meeting of Members, provide to electors (a) the description of the AFN Lands to be exchanged; (b) the description of the land to be received in the exchange; (c) a description of any other compensation to be exchanged or received; (d) a report of a certified land appraiser setting out that the conditions in paragraph 33.3(a) have been met; (e) a copy or summary of the exchange agreement; and (f) a copy of the consent referred to in paragraph 33.3(b) Any land exchange agreement shall provide that: (a) the other party to the exchange shall transfer to Canada the title to the land which is to be set apart as a reserve; (b) the Council shall pass a Resolution authorizing Canada to transfer title to AFN Lands being exchanged, in accordance with the land exchange agreement; and (c) a copy of the instruments transferring title to the relevant parcels of land shall be registered in the FNLR Natural Resources 34.1 Unless specifically granted by the Council under a permit, licence or other written instrument, (a) all natural resources on community land; and (b) all revenues from natural resources on community land, are the property of AFN Sacred Sites 35.1 The Council shall develop and enact, in accordance with article 13.0, a Law regarding the protection of sacred sites within 24 months of the date this Land Code comes into force. 34