diabo's ckra preliminary analysis nov 01

7/30/2019 Diabo's CKRA Preliminary Analysis Nov 01

1/32

MOVEMENT TOWARDS A TRADITIONAL OR

MUNICIPAL GOVERNMENT?

APRELIMINARY

PLAIN LANGUAGE CRITIQUEOF THE

CANADA/KAHNAWAKE RELATIONS ACT

By

Russell DiaboNovember 7, 2001


2/32

2

2

PREFACE:

For a number of years I was active as a post-secondary student in the field of Native Studies,both in the U.S. and Canada. I hold a B.A. in Native Studies and have done graduate studiestowards an M.A. I also have practical experience, having worked as an Aboriginal PolicyAdvisor to various First Nation communities and organizations, including the Assembly of FirstNations on several occasions.

I have taken the liberty of writing this short summary of impacts from the proposedCanada/Kahnawake Relations Act (C/KRA) because I am concerned about the future ofKahnawakero:non. As a non-resident member of the community I believe I can offer aperspective as an outside observer not aligned with any particular faction or group.

First of all, I am not personally aware of any population projections, or community and/orregional social/economic studies, if any, the Mohawk Council of Kahnawake (MCK) has done,to determine if the governing model these draft agreements provide for, is economically viableand socially and culturally acceptable to the people.

At first glance, it seems to me that the MCK, before asking Kahnawakero:non to support theC/KRA, should have provided the people with some evidence of how this will improve the socialand economic conditions of individuals and households in the community. What are the long-term benefits of the C/KRA versus the status quo under the Indian Act?

Moreover, not all related documents that are referred to in the draft Umbrella Agreement have

been released to the people. (i.e. draft Kahnawake Charter, draft Rules and Procedures forRatification of Umbrella Agreement, draft Financial Transfer Agreement, draft Own SourceRevenue Capacity Agreement)

In any case, my summary of impacts is based upon 1.) a working knowledge and review of the

current federal policy and legal/constitutional framework; and 2.) a review of the text of the draftagreements the Mohawk Council of Kahnawake has released to the Kahnawakero:non fordiscussion and presumably ratification.

INTRODUCTION:

The C/KRA Umbrella Agreement in clause 7 says:

Kahnawake . . . affirms that it is engaged in a movement towards a traditionalgovernment based on the custom, traditions and traditional laws of the Iroquois

Confederacy.

However, it is still my belief that the C/KRA if ratified by the people, will not lead to a renewalof a traditional form of government, but will change the pre-1982 legal and constitutional statusof Kahnawake into that of a federally created municipality.


3/32

3

3

Although we have good reason to be sceptical, Canadas adoption of the Constitution Act 1982on April 17, 1982, is significant for all Aboriginal peoples, including the Mohawks of

Kahnawake, because Canadian law now provides some protection for aboriginal and treatyrights. Governments can no longer unilaterally extinguish rights as the courts have saidgovernments had the right to do, before April 17, 1982.

Unfortunately, the courts have also said that aboriginal and treaty rights are not absolute and that

they can be justifiably infringed (restricted) for a valid legislative objective, such asconservation for example.

The courts have established legal tests for proving rights, including a justification frameworkfor governments to prove they meaningfully consulted Aboriginal peoples before passing a law

or regulation impacting on (limiting or restricting) Aboriginal and treaty rights.

However, proving an aboriginal or treaty right in court can be expensive and has its risks asweve seen in the Mitchell case.

Be that as it may, all Aboriginal peoples, including the Mohawks of Kahnawake should proceedwith caution when negotiating aboriginal or treaty rights with the federal and/or provincialgovernments, because these non-Aboriginal governments are out to limit aboriginal and treatyrights as much as possible, and get out of their on-going constitutional responsibilities andobligations, including outstanding liabilities for past infringements of aboriginal and treatyrights.

For your information, according to Canadas law, the Crowns fiduciary responsibilities andobligations to the Indian nations and tribes began when the Royal Proclamation of 1763provided that Indians couldnt sell their lands to anyone but the Crown, and then it had to bewith Indian consent at a public meeting held for that purpose. This principle was used in thehistoric treaty period and has survived in the surrender provisions of the Indian Act, as well as,ratification votes required by the federal government as proof of Indian consent.

The Crown was supposed to look after and protect the Indians interests in their lands. We knowof course this didnt happen, and the compensation likely owed by the Crown for their failure toprotect the title, rights and interests of the Mohawks of Kahnawake are in todays termsastronomical.

You should also be aware that there are many post -1982 examples of sharp dealing by non-Aboriginal governments to get what they want from Aboriginal peoples, which is 1.) a legalrelease from their historic fiduciary role and 2.) a reduction of funding levels/allocations via on-going federal transfer payments to Indian Bands for programs, services and maintenance of

reserve infrastructure (buildings, roads, bridges, etc.).


4/32

4

4

SUMMARY OF C/KRA IMPACTS:

The C/KRA draft umbrella agreement (and sub-agreements) describe the elements of what thefederal Minister of Indian Affairs will develop into legal text as a draft federal Bill forrecommendation to Parliament to pass as a federal law, replacing the provisions of the Indian Act

with those of the C/KRA. The final text may contain specific legal language not contained in thepresent draft C/KRA Umbrella Agreement.

If the people ratify this proposed agreement, the C/KRA will likely pass without incident,because the federal Liberals have a majority in both the House of Commons and the Senate.

They can push a Bill though in two weeks if they want to, which is how long it took to pass the

pay raise legislation for M.P.s.

In my opinion, the proposed C/KRA, if ratified and adopted into law by Parliament will have thefollowing negative impacts on Kahnawakero:non:

1. Will alter the pre-1982 legal and constitutional status of the Mohawks of Kahnawake, byreplacing one federal law (the Indian Act), which did not have Mohawk consent, withanother federal law with Mohawk consent (the Canada/Intergovernmental RelationsAct). (Clauses 58, 59, 60, 61, 62, 63, 64, 71)

2. Will entrench all of the impacts of the Indian Act on the community, including the MCKas the Mohawk Government of Kahnawake. The MGK will be the dominantgoverning body in the community exercising delegated federal and provincial authorityon-reserve (Mohawk Lands/Territory) over the subject matters listed in clause 9 of theC/KRA Umbrella Agreement. The MGKs administrative bureaucracy will also grow asnew administrative institutions are established, ensuring the MGK will remain as thedominant decision-maker and employer in the community for some time to come.

3. Formally establishes a federal veto over the contents of the Umbrella Agreement. (Clause114)

4. Will formally establish a federal veto over all sub-agreements in subject areas listed inclause 9, (Clause 13) as well as, future amendments to the C/KRA. (Clauses 15,16, 101,102, 103, 114, 115, 118)

5. Will formally give Kahnawakero:non consent to the position that federal laws ofoverriding national importance, (i.e. the proposed Anti-Terrorism Bill) will prevailover Kahnawake laws. (Clause 57)

6. Will formally sever outstanding Aboriginal title/land claims issues/negotiations fromself-determination/self-government matters.


5/32

5

5

7. Will off- load responsibility and liability for management of reserve lands, capital dollarsand revenue dollars from the federal Crown to the MGK administration. The Crown will

no longer be responsible or liable in the event of problems in the management of reservelands and capital/trust monies. (Clauses 36 & 37)

8. Will replace existing federal fiduciary responsibilities and obligations to provideprograms and services to the Mohawks of Kahnawake by legislating a new

relationship, which will only require the federal government to partially contribute toprograms and service delivery. The new relationship means that the MGK will berequired to share the costs of programs and service delivery by generating own source

revenue (i.e. user fees, taxation, etc.). The schedule and terms of cost sharing will be setout in a separate Financial Transfer Agreement (FTA), which will include an Own

Source Revenue Capacity Agreement. (Clauses 71, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94,95, 96, 97, 98, 99, 100)

CONCLUDING COMMENTS:

After the events of 1990 raised the profile of Kahnawake, and expectations of Aboriginal peoplesacross Canada, the federal government worked long and hard through negotiations, to try andbring the Mohawk Council of Kahnawake into line with federal policy goals and objectives, andmy reading of the C/KRA proves to me the federal government has won major concessions intheir negotiations with the Mohawk Council of Kahnawake, or the Grand Chief himself, as thedraft Umbrella Agreement states.

I guess I shouldnt be surprised at the outcome of the negotiations, given that a number of thetechnical advisors to the MCK are former Department of Indian Affairs officials. If this draft ofthe C/KRA reflects their advice, thenI have to say I personally do not have confidence in theirabilities.

If the people of Kahnawake ratify the C/KRA it will be a feather in the federal governments capand will no doubt be promoted by the federal government as a model or precedent for otherBands to follow across the country.

For my part, I have outlined above, my main concerns with the C/KRA. I would say this is not agood agreement in the long-term best interests of the people of Kahnawake and it should berejected.

RECOMMENDATION:

A series of strategy sessions/forums should be held with interested community members

about what practical legal and political options exist for advancing the title, jurisdiction,rights and interests of Kahnawakero:non.

What opportunities/challenges exist, if any, to apply pressure on the federal government toreconsider their negotiation position on recognizing and respecting the aboriginal and

treaty rights of Kahnawakero:non?


6/32

UMBRELLA

January 17, 2001

DRAFT UMBRELLA AGREEMENT

WITH RESPECT TO

CANADA/ KAHNAWAKE INTERGOVERNMENTAL RELATIONS ACT

BETWEEN

The Mohawks of Kahnawake, acting through the Mohawk Government of Kahnawake, as represented

by the Grand Chief of the Mohawks of Kahnawake (hereinafter referred to as "Kahnawake")

AND

Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and

Northern Development (hereinafter referred to as "Canada")

NOTE: This document will form the basis for consultation by each party.


7/32


8/32

DRAFT UMBRELLA AGREEMENT

WITH RESPECT TO

CANADA/KAHNAWAKE INTERGOVERNMENTAL RELATIONS ACT

CONTENT

PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SHORT TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PURPOSES OF THE LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NON DEROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

KAHNAWAKE GOVERNANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUB-AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

KAHNAWAKE PUBLIC REGISTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

INTERIM PROVISIONS WITH RESPECT TOADMINISTRATION OF JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

KAHNAWAKE LANDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

GENERAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

DISPUTE RESOLUTION MECHANISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PROCEDURE FOR REMOVAL OFINDIAN ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

RELATIONSHIP OF LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

TRANSITION PROVISIONS WITH RESPECT TO

THEINDIAN ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

MONEYS HELD FOR THE KAHNAWAKE INDIAN BAND . . . . . . . . . . . . . . . . . . . . . . . 14


9/32

DELEGATION OF POWERS BY KAHNAWAKE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


10/32

GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

FISCAL RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

LEGISLATIVE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CANADA/KAHNAWAKE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

JUDICIAL REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

STATUS OF THIS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

RATIFICATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

AMENDMENT PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

IMPLEMENTATION AND FINANCING AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 21


11/32

- 2 -

PREAMBLE

WHEREAS Kahnawake and Canada signed an Agreement on anAgenda and Process for the

Negotiation of a New Relationship between the Mohawks of Kahnawake and Canada onDecember 13, 1991, which has been extended;

AND WHEREAS that Agreement contemplated the negotiation of transitional agreements and a final

comprehensive agreement;

AND WHEREAS the parties have now agreed to negotiate an Umbrella Agreement and

sub-agreements on jurisdictions to be exercised by Kahnawake;

AND WHEREAS the parties affirm that this Agreement provides for a new relationship which reflects

the principles of mutual respect between governments, co-existence, peace and friendship, andKahnawake affirms that these principles are in keeping with the Two Row Wampum doctrine;

AND WHEREAS the parties recognize the role of the Mohawk Government of Kahnawake in the

preservation and promotion of Mohawk identity, culture and way of life;

AND WHEREAS the parties also recognize the Kanienkehaka of Kahnawake as having a special

relationship to the land;

AND WHEREAS this Agreement and the sub-agreements are a means by which the parties will strive

to promote, in cooperation with one another, the economic advancement of Kahnawake;

AND WHEREAS the Courts have held that the Crown has a unique, historic, fiduciary relationship

with Aboriginal peoples in Canada;

AND WHEREAS the Courts have also held that the honour of the Crown is at stake in its dealings

with Aboriginal peoples;

AND WHEREAS Canada recognizes that the inherent right of self-government is an existing aboriginal

right within the meaning of section 35 of the Constitution Act, 1982.

NOW THEREFORETHE PARTIES agree that:

1. The Umbrella Agreement will form the basis for the Legislation to be recommended by

Canada to the Parliament of Canada.


12/32

- 3 -

SHORT TITLE

2. Canada will recommend that the short title of the Legislation be the Canada/Kahnawake

Intergovernmental Relations Act (CKIRA).

DEFINITIONS

3. In this Agreement and any sub-agreement concluded under clauses 9 or 15, unless otherwise

specified in that sub-agreement,

authority means any power other than the power to enact laws;

Canada means Her Majesty the Queen in Right of Canada;

conflict means an actual conflict in operation, or operational incompatibility between two laws, such

that compliance with one law would necessarily result in a breach of the other;

DIAND means the Department of Indian Affairs and Northern Development;

federal laws that pursue an objective of overriding national importance mean federal laws in relation

to the preservation of peace, order and good government in Canada, as well as other federal laws of

like importance;

interest,with respect to Kahnawake Territory, means a legal interest, right or estate of any nature in

or to that Territory, including a lease, easement, right of way, licence or permit but does not include title

to, or an unperfected interest in, that Territory;

jurisdiction means the power to enact laws and includes authority;

Kahnawake or the Mohawks of Kahnawake means, after the coming into force of the Legislation, the

collectivity of the Mohawks of Kahnawake described in clause 58;

Kahnawake Charter means the codification of principles and rules of governance applicable to the

Mohawk Government of Kahnawake based on the custom and traditions of the Mohawks of

Kahnawake;


13/32

- 4 -

Kahnawake Mohawk Custom Code on Membership means the codification of custom and traditions

with respect to membership;

Kahnawake Lands or Territory means:

(a) lands which were, immediately prior to the coming into force of the Legislation, known

as Reserve No. 14 and shown on the map attached as Appendix A to this Agreement;

(b) lands known as Doncaster Reserve No. 17, which lands were set aside for Kahnawake

and Kanesatake, and shown on the map attached as Appendix B to this Agreement;

(c) lands which may be added to lands identified in (a) or (b) before or after the coming

into force of the Legislation, through the resolution of land grievances or as the result ofany other means, and which both parties agree are lands within the meaning of

subsection 91(24) of the Constitution Act, 1867; and

(d) lands previously taken for a public work or other public purpose which are no longer

used for the public work or other public purpose and which are returned to

Kahnawake as lands within the meaning of subsection 91(24) of the Constitution Act,

1867;

Legislation means the legislation that will be enacted to implement the Umbrella Agreement;

member means a member as defined in the Kahnawake Mohawk Custom Code on Membership;

Mohawk Government of Kahnawake means the government of Kahnawake and includes the

Mohawk Council of Kahnawake and any future form of government of Kahnawake;

public official means any person appointed or otherwise designated by Kahnawake to discharge a

public duty;

sub-agreement means an agreement with respect to a specific subject matter pursuant to clauses 9 or

15;

Draft Umbrella Agreement means this Agreement;

Umbrella Agreement means the agreement to be concluded between Kahnawake and Canada

substantially in the form of this Agreement.


14/32

- 5 -

PURPOSES OF THE LEGISLATION

4. The purposes of the Legislation are:

(a) to establish a new relationship between Kahnawake and Canada whereby Kahnawake

exercises jurisdiction on subject matters as agreed to by the parties and, where the

matter is dealt with in theIndian Act, the corresponding provisions of thatActare

removed; and

(b) to establish a mechanism and a process by which sub-agreements will be given effect.

NON-DEROGATION

5. Nothing in this Agreement will be construed so as to abrogate or derogate from the application of

section 35 of the Constitution Act,1982 to any existing aboriginal or treaty rights of the

Mohawks of Kahnawake.

KAHNAWAKE GOVERNANCE

6. Kahnawake affirms that the Kahnawake Charter as developed by Kahnawake, includes or

will include, among other matters:

(a) provisions for a democratic form of governance;

(b) provisions for a law-making process;

(c) provisions for leadership selection;

(d) provisions for accountability of the Mohawk Government of Kahnawake to its

members;

(e) conflict of interest rules;

(f) provisions for rights of appeal and redress;

(g) the principles of Mohawk Government in Kahnawake based on custom, traditions and

traditional laws of the Iroquois Confederacy;

(h) principles reflecting the special relationship between the Mohawks of Kahnawake and

the land;

(i) a Code of Rights and Responsibilities of the Mohawks of Kahnawake;

(j) the Kahnawake Mohawk Custom Code on Membership;

(k) general principles regarding delegation of authority; and

(l) a procedure to make amendments which are consistent with the foregoing principles.


15/32

- 6 -

7. Kahnawake further affirms that it is engaged in a movement towards a traditional government

based on the custom, traditions and traditional laws of the Iroquois Confederacy.

8. The Mohawk Government of Kahnawake and the institutions it creates are governed by the

Kahnawake Charter.

JURISDICTION

9. Kahnawake has jurisdiction or authority or both with respect to the following subject

matters as set out in sub-agreements corresponding to each subject or subjects:

(a) Policing Aspects of Administration of Justice;(b) Administration of Justice excluding Policing;

(c) Kahnawake Lands including the Succession of Real Property;

(d) Waters;

(e) Fisheries and Wildlife;

(f) Environment;

(g) Natural Resources;

(h) Agriculture;

(i) Economic Development;

(j) Taxation;

(k) Membership;(l) Social Services;

(m) Health;

(n) Marriage;

(o) Adoption, Child Welfare and Guardianship of the Person;

(p) Property Rights;

(q) Divorce;

(r) Education, Mohawk Language and Culture;

(s) Public Works and Infrastructure;

(t) Housing;

(u) Traffic and Transportation;

(v) Labour and Training;

(w) Gaming;

(x) Emergency Preparedness;

(y) Administration of the Estates of Deceased, Minor and Mentally Incompetent;

(z) Successions excluding Succession of Real Property; and

(z-1) Sports and Recreation.


16/32

- 7 -

10. The parties recognize that certain subject matters in clause 9 may affect areas of provincial

jurisdiction. With respect to these subject matters:

(a) Kahnawake will negotiate tripartite agreements with Canada and Quebec, or bilateral

agreements with both Canada and Quebec; and

(b) the parties will make best efforts to ensure that any bilateral agreements between

Kahnawake and Quebec, and between Kahnawake and Canada, are not inconsistent

with one another.

SUB-AGREEMENTS

11. A sub-agreement will include:

(a) a description of the jurisdiction or authority to be exercised by Kahnawake with

respect to a specific subject matter;

(b) specific rules for resolving conflicts between laws;

(c) where appropriate, an identification of thoseIndian Actprovisionswith respect to a

subject matter that will no longer apply;

(d) ratification procedures; and

(e) any other matters agreed to by the parties.

12. A sub-agreement may combine in any manner, any subject or subject matters listed in clause 9 orany subjects or subject matters which may be agreed upon pursuant to clause 15.

13. Subsequent to the coming into force of the Legislation, a sub-agreement may be brought into

effect by Order of the Governor in Council and by resolution of the Mohawk Government of

Kahnawake.

14. The Umbrella Agreement will address the form and content of the Order-in-Council referred to in

clause 13.

15. The parties may agree to negotiate sub-agreements with respect to a subject matter other than

those listed in clause 9.

16. In the event of an agreement pursuant to clause 15, Canada will recommend to Parliament any

consequential amendments to clause 9 and the Legislation.

17. The Minister will publish in the CanadaGazette and the Mohawk Government of

Kahnawake will publish in the official publication of the Mohawk Government of


17/32

- 8 -

Kahnawake, notice of the day on which a sub-agreement is brought into effect.


18/32

- 9 -

KAHNAWAKE PUBLIC REGISTER

18. The Mohawk Government of Kahnawake will make provision for public notification of

Kahnawake laws.

19. Kahnawake will maintain a public register, containing the Kahnawake Charter and all Kahnawake

laws and public records.

INTERIM PROVISIONS WITH RESPECT TO ADMINISTRATION OF JUSTICE

20. Until a sub-agreement under clause 9(b) with respect to the administration of justice is in effect, thefollowing transitional provisions will apply to the interpretation and enforcement of Kahnawake

laws on Kahnawake Territory:

(a) Kahnawake may appoint persons to act as justices of the peace;

(b) sub-agreements may provide that a person appointed as a justice of the peace under clause

20 (a) may try offences established pursuant to Kahnawake laws as specified in the

sub-agreement;

(c) a justice of the peace will have all the powers necessary for the performance of his or herduties and functions;

(d) Kahnawake will ensure the independence and impartiality of the justices of the peace

appointed under this part by providing for their security of tenure, financial security and

administrative independence. Kahnawake will ensure that, once appointed, justices of the

peace may only be removed for misconduct or inability to perform duties after review by an

impartial body; and

(e) decisions made by a justice of the peace appointed under this part may be appealed to the

court of competent jurisdiction that ordinarily hears appeals on summary conviction matters.

KAHNAWAKE LANDS

21. Nothing in this Agreement or any sub-agreement is intended to affect the title to Kahnawake

Territory.

22. For greater certainty, Kahnawake Territory is intended to remain lands within the meaning of


19/32

- 10 -

subsection 91(24) of the Constitution Act, 1867.

23. For greater certainty, the geographical definition of Reserve No. 14 as shown on Appendix A iswithout prejudice to any Kahnawake land claims or boundary disputes.

24. The integrity of Kahnawake Territory is of fundamental importance to the Mohawks of

Kahnawake, and Canada agrees that the size of that Territory will not be diminished.

25. Subject to clauses 26 and 31, on the coming into force of Kahnawake laws with respect to

the granting and the regulating of interests in land, rights of lawful possession, which rights are

held under theIndian Act, or pursuant to the custom of the Mohawks of Kahnawake, will

continue. Other interests in Kahnawake Territory will continue in accordance with their terms

and conditions, unless Kahnawake and the holder of the interest agree, in writing, to modifysuch terms and conditions.

26. Subject to clause 29, interests in Kahnawake Territory referred to in clause 25 may be subject to

the taking of lands by Kahnawake for its collective or public purposes.

27. On the coming into force of Kahnawake laws with respect to the granting and the regulating

of interests in land, all rights and obligations of Her Majesty as grantor with respect to

interests granted under theIndian Actare transferred to Kahnawake, except those rights or

obligations that may be excluded under the sub-agreement with respect to Kahnawake

Lands.

28. For greater certainty, any transfer of interests in Kahnawake Territory under clause 27 will

include the transfer of all covenants including those covenants which do not touch or concern

the land.

29. Interests that exist in Kahnawake Territory when the Legislation comes into force, which interests

continue to be used for the public work or other public purpose for which they were originally

obtained, are not subject to the taking of land by Kahnawake for its collective or public purposes.

30. Clause 29 does not preclude the return to Kahnawake of lands previously taken for a public work

or other public purpose, in the event such lands are no longer used for the public work or other

public purpose for which they were originally taken.

31. For greater certainty, all interests in Kahnawake Territory will be subject to Kahnawake laws with

respect to Kahnawake Lands.

32. Notwithstanding clause 31, interests in Kahnawake Territory held by Canada will be immune from


20/32

- 11 -

the application of Kahnawake laws with respect to Kahnawake Lands to the extent recognized by

the Crown law of Canada. Canada will nevertheless comply with Kahnawake laws with respect

to Kahnawake Lands whenever possible.


21/32

- 12 -

33. This Agreement and any sub-agreement are not intended to modify any mandates attributed by

law to governments and their agencies, in relation to accessing any lands within Canada. These

governments and agencies, together with the Mohawk Government of Kahnawake, will takeappropriate steps to ensure mutual assistance and cooperation in the exercise of their respective

mandates.

GENERAL LIABILITY

34. Kahnawake is not liable in respect of anything done or omitted to be done by Her Majesty in

Right of Canada or any person or body authorized by Her Majesty:

(a) before the coming into force of the Kahnawake laws with respect to the granting and theregulating of interests in land, with respect to capital or revenue moneys; or

(b) before the enactment of Kahnawake laws in respect of a subject matter under clause 9 and

any to be negotiated under clause 15, with respect to that subject matter.

35. Her Majesty in Right of Canada will indemnify Kahnawake for any loss suffered by Kahnawake

as a result of an act or omission described in clause 34.

36. Her Majesty in Right of Canada is not liable in respect of anything done or omitted to be done by

Kahnawake or any person or body authorized by Kahnawake:

(a) after the coming into force of the Kahnawake laws with respect to the granting and the

regulating of interests in land, with respect to capital or revenue moneys; or

(b) after the enactment of Kahnawake laws in respect of any subject matter under clause 9 and

any to be negotiated under clause 15, with respect to that subject matter.

37. Kahnawake will indemnify Her Majesty in Right of Canada for any loss suffered by Her

Majesty as a result of an act or omission described in clause 36.

DISPUTE RESOLUTION MECHANISM

38. Subject to the provision of any sub-agreement, the following dispute resolution mechanism applies

to disputes between the parties regarding the interpretation, application and implementation of the

Legislation and the sub-agreements and the Order-in-Council for each sub-agreement.

Negotiations


22/32

- 13 -

39. The parties will first attempt to resolve the dispute by negotiation.

40. In the event that the parties do not settle the dispute, the parties may:

(a) by agreement, refer the dispute to mediation or arbitration; or

(b) institute proceedings in a court of competent jurisdiction.

Mediation

41. When the parties have agreed to refer the dispute to mediation, the following rules will apply:

(a) the parties will jointly appoint a mediator to the dispute; or

(b) the parties will jointly appoint a panel of experts with equal representation from both parties.

42. Within a period of time to be determined, with the parties, in advance of the mediation, the

mediator or the panel of experts will provide each party to the dispute with a written report.

43. Each party will bear equally the cost of the mediator.

44. Each party to the dispute will bear the costs associated with its representatives on the panel.

45. If the parties are unable to resolve the dispute by mediation, the parties may:

(a) by agreement, refer the dispute to arbitration; or(b) institute proceedings in a court of competent jurisdiction.

Arbitration

46. When the parties have agreed to refer a dispute to arbitration, the rules set out in clauses 47, 48

and 49 will apply.

47. Prior to the commencing of arbitration, the parties will determine whether the decision of the

arbitrator will be binding or non-binding.

48. The parties will jointly appoint the arbitrator.

49. The arbitrator will reach a written decision within thirty (30) days of completion of the arbitration

hearing, unless otherwise agreed.


23/32

- 14 -

50. Unless otherwise assigned by the arbitrator, each party will bear equally the cost of the arbitration.

Judicial review

51. The decision of the arbitrator is not subject to appeal or judicial review in any court of competent

jurisdiction, except on the ground that the arbitrator failed to observe the principles of natural

justice or otherwise acted beyond or refused to exercise his or her jurisdiction.

52. The parties will address the following issues in the Umbrella Agreement:

a) notice requirements;

b) time limits and procedures for selecting mediators or panel members;

c) procedures for appointment of arbitrators and for the arbitration process; andd) next steps in case of disagreement as to whether a decision of the arbitrator is binding or not.

PROCEDURE FOR REMOVAL OFINDIAN ACT

53. Unless otherwise provided in a sub-agreement, the Mohawk Government of Kahnawake will

notify Canada, in writing, of the date upon which any law passed pursuant to a sub-agreement

under clause 9 or any subject to be negotiated under clause 15 are scheduled to take effect.

54. Canada will acknowledge to the Mohawk Government of Kahnawake receipt of thenotification under clause 53 and thoseIndian Actprovisions identified in the relevant sub-

agreement in respect of the subjects or issues dealt with in the law will no longer apply to

Kahnawake as of the date upon which:

(a) the law is scheduled to take effect, or

(b) the relevant sub-agreement is given effect by Order-in-Council, or

(c) the date Canada acknowledges the receipt,

whichever is the latest.


24/32

- 15 -

RELATIONSHIP OF LAWS

55. Kahnawake laws enacted pursuant to sub-agreements will apply to their fullest extent in

Kahnawake Territory.

56. Where agreed by the parties, sub-agreements may provide that, in the event of a conflict between

the provisions of a Kahnawake law and the provisions of a federal law, the provisions of the

Kahnawake law will prevail.

57. Notwithstanding clause 56, the parties acknowledge that Canada has enacted, and will continue to

enact, laws that pursue an objective of overriding national importance. In the event of a conflict

between the provisions of a Kahnawake law and the provisions of a federal law that pursues an

objective of overriding national importance, the provisions of the federal law will prevail.

TRANSITION PROVISIONS WITH RESPECT TO THE INDIAN ACT

58. Kahnawake is the collectivity of the Mohawks of Kahnawake known, prior to the coming

into force of the Legislation, as the Kahnawake Band.

59. Kahnawake will succeed to the collectivity known as the Kahnawake Band in all its rights,

titles, interests, assets, obligations and liabilities including those of its Band Council.

60. Provisions of theIndian Actthat have not been replaced by Kahnawake laws in accordancewith the Umbrella Agreement and the Legislation will apply, with such modifications as

required, to the Mohawk Government of Kahnawake, Kahnawake members and

Kahnawake Territory.

61. For greater certainty, all persons who may be residing on Kahnawake Territory, from time to time,

will be subject to Kahnawake laws. Nevertheless, no person will lose his or her residency status

solely because of his or her membership in the previous Kahnawake Band.

62. The parties are further committed to ensuring an effective and efficient transition from the

application of theIndian Actprovisions on membership to the application of Kahnawake Law

with respect to Membership.

63. The Umbrella Agreement will identify theIndian Actprovisions that will cease to apply when the

CKIRA comes into force or at some future point in time, and will provide that section 35 of the

Indian Actceases to apply, subject to consultation with the Government of Quebec.


25/32

- 16 -

MONEYS HELD FOR THE KAHNAWAKE INDIAN BAND

64. All capital and revenue moneys collected, received or held by Canada pursuant to the Indian

Actfor the use and benefit of Kahnawake will be transferred to Kahnawake as soon aspossible after the enactment of the Kahnawake laws with respect to the granting and the

regulating of interests in land.

DELEGATION OF POWERS BY KAHNAWAKE

65. In accordance with the Kahnawake Charter, Kahnawake may delegate any of its non-

legislative powers under this Agreement to any Kahnawake institutions or to any other legal

entity in Canada.

66. For greater certainty, Kahnawake, whether acting on its own, through the Mohawk

Government of Kahnawake or through any body it designates in accordance with the

Kahnawake Charter, is a legal entity with the rights, powers, privileges and capacity to:

(a) enter into contracts and agreements;

(b) acquire, hold and dispose of real or personal property, or any interest therein;

(c) raise, borrow, lend, invest or otherwise expend moneys, or provide guarantees in

respect of the repayment of any moneys;

(d) act as the settlor or trustee of any trust;

(e) sue and be sued; and(f) be appointed and to act as a guardian.

67. Nothing in this Agreement will be interpreted to mean that Kahnawake whether acting on its own,

through the Mohawk Government of Kahnawake or through anybody it designates, is a

corporation.

GENERAL PROVISIONS

68. The parties acknowledge that all persons, including the Mohawks of Kahnawake, may avail

themselves of the rights and freedoms that are guaranteed by the Canadian Charter of Rights

and Freedoms, and that this Agreement and the sub-agreements are not intended to diminish

those protections for any persons who are subject to the laws of Kahnawake. In that spirit, the

parties agree that the laws and executive actions of the Mohawk Government of Kahnawake will

respect the rights and freedoms guaranteed by the Charter.

69. Clause 68 is without prejudice to Kahnawakes ability to advance its view, in any forum, that its


26/32

- 17 -

distinctive philosophies, traditions and cultural practices should be taken into account in

interpreting section 25 of the Charter, which provides that the guarantee in the Charterof 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.

70. Notwithstanding this Agreement and any sub-agreement, the fiduciary relationship between the

parties will continue.

71. As Kahnawake exercises jurisdiction or authority in accordance with a sub-agreement, the

fiduciary obligations of the Crown in Right of Canada will evolve accordingly.

72. For greater certainty, and subject to clause 73, federal laws will continue to apply in co-existence

with any Kahnawake laws.

73. The Umbrella Agreement or a sub-agreement may stipulate that provisions of certain federal laws

cease to apply to Kahnawake, the Mohawk Government of Kahnawake, Kahnawake Lands, or

members and other individuals subject to Kahnawake laws in accordance with this Agreement.

74. For greater certainty, Kahnawakes jurisdiction as set out in sub-agreements does not relate to

those matters within Canadas jurisdiction under s. 91(27) of the Constitution Act, 1867.

75. Notwithstanding clause 74, Kahnawake laws enacted pursuant to sub-agreements may provide for

the imposition of penalties for the violation of those laws. Such penalties, which may include fines,

restitution and imprisonment, will be within the limits set out for summary conviction offences in theCriminal Code of Canada, or the Code de procdure pnale du Qubec, whichever are greater.

Sub-agreements may provide for specific exceptions to these penalty limits and may provide for

other types of sanctions that are in keeping with the traditions of the Mohawks of Kahnawake.

76. Clause 75 does not preclude the negotiation, in an administration of justice sub-agreement, of

procedures for the adjudication of Kahnawake laws.

77. Kahnawake laws enacted pursuant to a sub-agreement may provide for the administrative review

of decisions made by public officials with respect to the application or interpretation of those

Kahnawake laws.

78. Any exercise of jurisdiction by Kahnawake in Doncaster Reserve No 17 will be in accordance

with an agreement between the parties for whom those lands were set aside.

79. For greater certainty, Kahnawake laws enacted pursuant to the sub-agreement with respect to

Education, Mohawk Language and Culture will not prohibit Canada from providing any programs

and services in Kahnawake Territory in both English and French.


27/32

- 18 -

80. The Umbrella Agreement or a sub-agreement, as the case may be, will prevail over the Legislation

or the relevant Order-in-Council, as the case may be, to the extent of any conflict.

81. The Legislation or the relevant Order-in-Council giving effect to a sub-agreement, as the case maybe, will prevail over any other federal laws to the extent of any conflict.

82. For greater certainty, all individuals who are subject to the laws or decisions of Kahnawake will, in

accordance with Kahnawakes traditions, be afforded the opportunity to express their views on

those laws and decisions.

83. All individuals subject to Kahnawake laws or decisions may avail themselves of any appeal or

redress process or mechanisms established by Kahnawake pursuant to its Charter or its laws.

FISCAL RELATIONS

General Principles

84. The fiscal relationship between Canada and Kahnawake will be on a government-to-government

basis.

85. In general, financing of agreed-upon public services, programs and the Mohawk Government of

Kahnawake is a shared responsibility between Canada and Kahnawake. Nevertheless, other

financing arrangements may be made from time to time with the Government of Quebec.

86. Funding will be provided to Kahnawake in order to enable the provision of agreed-upon public

services and programs at levels reasonably comparable to those generally prevailing in

communities of similar economic circumstances in southern Quebec, while taking into

consideration Kahnawakes contribution to the funding of agreed-upon public services and

programs.

87. The level of funding required to fulfill commitments made under clause 86 will be negotiated and

set out in a Financial Transfer Agreement.

Funding of Kahnawakes Government and Institutions

88. When negotiating a Financial Transfer Agreement, the parties will take into consideration, among

other matters:

(a) costs necessary to cover one-time implementation requirements as a result of the Umbrella

Agreement and any sub-agreement that is given effect at the time of the Legislation;


28/32

- 19 -

(b) costs to operate the Mohawk Government of Kahnawake and its institutions;

(c) levels of support provided by other governments to Kahnawake;

(d) the jurisdiction or authority expected to be exercised by Kahnawake during the duration of

the Financial Transfer Agreement, acknowledging that the exercise, in itself, of Kahnawakesjurisdiction or authority does not necessarily create or imply any financial obligation for either

party,

(e) efficiency and cost-effectiveness of the administration of governance and delivery of related

services;

(f) the desirability of stable, predictable and flexible funding arrangements;

(g) training requirements as agreed upon in the implementation plan for the Umbrella Agreement

and the sub-agreements; and

(h) provisions to adjust the schedules of the Financial Transfer Agreement.

Financial Transfer Agreement

89. Prior to the ratification of the Umbrella Agreement, and thereafter at five year intervals or at such

other intervals as the parties may agree, the parties will negotiate a Financial Transfer Agreement.

90. Financial transfer payments made pursuant to a Financial Transfer Agreement will be provided on

the basis of block transfer payments. In specific cases, the provision of funds may be subject to

criteria or conditions.

91. Accountability to members is the responsibility of the Mohawk Government of Kahnawake and

will be consistent with standards generally accepted in Canada for governments.

92. Kahnawake will adopt measures to ensure that funds appropriated by Parliament have

contributed to the objectives for which they were voted.

93. The Financial Transfer Agreement will include provisions which enable the appropriate federal

Ministers to fulfill their accountability requirements to Parliament of Canada.

94. The parties will address the following, among other matters, in the Financial Transfer Agreement:

(a) procedures for negotiating the next Financial Transfer Agreement;

(b) procedures for assuming the responsibility for the provision of agreed-upon programs and

services;

(c) procedures for funding and assuming responsibility for the provision of additional programs

and services during the term of the Financial Transfer Agreement;

(d) procedures for covering the costs resulting from emergencies and disastrous events;

(e) payment procedures;

(f) information exchange; and


29/32

- 20 -

(g) implementation of an Own Source Revenue Capacity Agreement, pursuant to clause 96.

Future Programs

95. Persons residing in Kahnawake will be eligible to receive public services from Canada and to

participate in programs established by Canada in accordance with conditions in effect from

time to time, to the extent that Kahnawake is not providing such services or programs under a

Financial Transfer Agreement.

Kahnawakes Financial Self-Reliance

96. The parties will conclude an agreement specifying how and to what extent Kahnawakes own

source revenue capacity will be taken into consideration in Financial Transfer Agreements at the

time of the second Financial Transfer Agreement or no later than 7 years after the signature of thefirst Financial Transfer Agreement.

97. The parties acknowledge that Kahnawakes ability to become financially self-reliant will increase

as sub-agreements are given effect and Kahnawake exercises jurisdiction thereto. To that extent,

the negotiations of the agreement referred to in clause 96 will take into consideration:

(a) that Kahnawakes access to own source revenue capacity will be incremental;

(b) that the calculation of own source revenue will be phased-in;

(c) that reasonable incentives for revenue generation are necessary; and

(d) any arrangements on own source revenue capacity that Quebec and Kahnawake maynegotiate.

98. Any additional principles by which Kahnawakes own source revenue capacity will be taken into

account will be set out in the Umbrella Agreement.

99. The Implementation Plan for a sub-agreement will address any matters related to the

implementation of the own source revenue capacity agreement.

100. In accordance with provisions contained therein, Financial Transfer Agreements may be adjusted

to address changes resulting directly from the conclusion of new sub-agreements. Any such

changes to a Financial Transfer Agreement will not diminish the level of services provided pursuant

thereto.

LEGISLATIVE PROCESS


30/32

- 21 -

101. Canada will consult Kahnawake during the drafting of the Legislation and any Order-in-Council

giving effect to a sub-agreement by:

(a) providing copies of legislative proposals to Kahnawake;(b) providing full opportunity and ensuring that Kahnawake has a reasonable period of time to

present its views and comments on the drafts of such Legislation or Orders-in-Council at

meetings with Canada.

102.Canada will consider any comments made by Kahnawake on the content of such draft Legislation

or any draft Order-in-Council as to whether they accurately reflect either the Umbrella Agreement

or a sub-agreement, whichever the case may be.

103. Canada will include in the Legislation a process to provide Parliament with an opportunity to

review a sub-agreement and the accompanying Order-in-Council and will provide to Kahnawakea description of the review process to be included in the Legislation.

CANADA/KAHNAWAKE COMMISSION

104.The parties will establish a Canada/Kahnawake Commission (the Commission), that will be the

forum for liaison between them based on a government to government relationship and for review

of the implementation of the Umbrella Agreement and sub-agreements.

105. The responsibilities of the Commission will include, among other matters:

(a) maintaining on-going liaison activities to make recommendations:

i) for the resolution of any issues regarding the interpretation, application and

implementation of the Umbrella Agreement, the Legislation, the sub-agreements and

corresponding Orders-in-Council; and

ii) on possible harmonization measures and potential conflicts between Kahnawake and

federal laws;

(b) unless otherwise agreed between the parties, conducting a review, within five years of the

enactment of the Legislation, to consider the following:

i) whether the Umbrella Agreement, the Legislation, the sub-agreements and

corresponding Orders-in-Council in effect at that date have been implemented in

accordance with their implementation plans;


31/32

- 22 -

ii) whether any other matters are affecting the implementation of the Umbrella Agreement,

the Legislation, the sub-agreements and corresponding Orders-in-Council in effect to

date;iii) whether any amendments to the Legislation and the Order-in-Council should be

considered;

and making recommendations to address issues arising from the review.

106.The Commission will consist of, but not be restricted to, four members, two named by

Kahnawake and two named by Canada.

107.Any tripartite or bilateral agreements negotiated by Kahnawake with Canada and Quebec, within

the meaning of clause 10, may provide for modification to the composition and the mandate of theCommission.

108.Each party will bear the costs associated with its representatives on the Commission.

JUDICIAL REVIEW

109. In the event that any provision in this Agreement or a sub-agreement is deemed void or invalid by

a court of competent jurisdiction, the remaining provisions will remain in full force and effect.

STATUS OF THIS AGREEMENT

110.The parties agree to use this Agreement as the basis for negotiating an Umbrella Agreement.

111.This Agreement does not create legal obligations binding on the parties.

RATIFICATION PROCEDURES

112.Rules and procedures for ratifying the Umbrella Agreement, the sub-agreements with respect to

Education, Mohawk Language and Culture, Kahnawake Lands, Membership and Policing will be

developed prior to the beginning of the ratification process.

113.For greater certainty, Kahnawake will adopt the Kahnawake Charter prior to or at the same time

as the Umbrella Agreement and the sub-agreements referred to in clause 112.


32/32

- 23 -

114.Canada will have ratified the Umbrella Agreement and the sub-agreements on Education,

Mohawk Language and Culture, Kahnawake Lands, Policing and Membership, when:

(a) the Umbrella Agreement and sub-agreements are signed by a Minister of the Crown

authorized by the federal Cabinet; and

(b) Legislation giving effect to the Umbrella Agreement is passed by Parliament and comes into

effect; and

(c) a sub-agreement is brought into effect by Order-in-Council approved by the Governor in

Council.

AMENDMENT PROVISIONS

Amendments to the Umbrella Agreement

115.The parties may agree to amend the Umbrella Agreement.

116. Kahnawake will ratify the amendments to the Umbrella Agreement based on the principles of the

Kahnawake Charter.

117. Canada will recommend to Parliament any consequential amendments to the Legislation.

Amendment to Orders-in-Council

118.The parties may agree to amend any sub-agreements.

119.Kahnawake will ratify the amendments in accordance with the Kahnawake Charter.

120.Canada will recommend to the Governor in Council any consequential amendments to the Order-

in-Council giving effect to the amended sub-agreement.

IMPLEMENTATION AND FINANCING AGREEMENTS

121.An Implementation Plan will accompany, but not form part of a sub-agreement or the

Umbrella Agreement.

diabo's ckra preliminary analysis nov 01

Documents