The Agreement recognises that the ‘inherent right of self-government is an existing aboriginal right under section 35 of the Constitution Act, 1982.’ It is not intended to be a definitive expression of any legal view as to how an inherent right to self-government may be ultimately defined at law however. The Agreement is without prejudice to treaty negotiations presently taking place in British Columbia and would be superseded by a treaty. Nothing in the Agreement detracts from aboriginal rights or interests under section 35 of the Constitution nor from rights as Canadian citizens. The Agreement does not affect the existence of a fiduciary relationship between the parties.
Part IV deals with Powers of Government of the Westbank Nation. These include the power to govern itself in accordance with the Agreement as well as powers to ‘make laws or do such other things as may be necessarily incidental to the jurisdictions set out in [the] Agreement.’ The Agreement recognises that the jurisdictions set out in the Agreement are not definitive of the inherent right of self-governance. The areas over which the Westbank Nation has the jurisdiction to pass laws pursuant to the Agreement include land and resource management, environment, aboriginal culture and language, education, health services and so on. Federal law continues to apply concurrently with Westbank Laws. Part V determines the priority of laws in the event of conflict. The Government of the Westbank First Nation and its institutions are bound by the Canadian Charter of Rights and Freedoms and the Government must take necessary steps to ensure that its laws comply with Canada’s international legal obligations. Part VI of the Agreement requires that the Westbank First Nation establish a Constitution providing for the structures and procedures of government which is to come into force on the effective date of the Agreement. Westbank First Nation has jurisdiction for determining membership of Westbank First Nation. The Agreement makes provision however for non-members living on Westbank Lands to have input with regard to proposed amendments to Westbank Law which may affect them. Canadian citizenship and Indian status remain the responsibility of Canada. Westbank First Nation has jurisdiction regarding the internal financial management of Westbank First Nation as detailed in Part IX of the Agreement. The Agreement sets out procedures for dispute resolution between the parties and identifies ratification requirements. It requires review within five years of ratification or as otherwise agreed by the parties. Amendment to the Agreement may only be made with the consent of both parties.
Title to Westbank Lands remains in the name of Her Majesty the Queen in Right of Canada ‘for the use and benefit of the Westbank First Nation.’ Subject to the Agreement, Westbank First Nation has all the rights and responsibilities of ownership including the right to grants interests in land. Westbank First Nation has jurisdiction over ‘the management, administration, government, control, regulation, use and protection of Westbank Lands.’ This includes jurisdiction over foreshores and waterbeds forming part of Westbank lands. The Agreement recognises, as a general principle, that the amount and integrity of Westbank Lands is of fundamental importance and should not be expropriated by the Federal Government. Provision is made for compensation where this does take place.
Part XII of the Agreement provides that Westbank First Nation has jurisdiction with respect to renewable resources situated on, above or under Westbank Land. This includes conservation, management, protection and development of resources. Westbank First Nation also has jurisdiction with respect to non-renewable resources such as oil, gas, clay, sand and so forth, however this does not include minerals.
Part XIV provides for Westbank First Nation jurisdiction over environmental matters including Environmental Protection, Enforcement of Environmental Laws and Environmental Assessment.
Culture and language
Part XV of the Agreement provides for Westbank jurisdiction over the ‘preservation, promotion and development of Okanagan culture and language on Westbank Lands’. This extends to preservation and management of archaeological sites, and sites of spiritual, religious and cultural significance. The Agreement acknowledges the role of Okanagan artefacts in Westbank Nation culture, and Westbank First Nation’s ‘traditional and sacred connection’ with such artefacts irrespective of where they are presently held. The Agreement identifies procedures for negotiation regarding repatriation of Okanagan artefacts. The official language of the Westbank First Nation is identified as Okanagan although Westbank Law and other business of Westbank Nation is to be conducted in English. The Constitution may be, at the discretion of Westbank First Nation, also written in the Okanagan language.
Part XXV of the Agreement requires the negotiation of a financial transfer agreement for the provision of funding to Westbank First Nation for the purposes of public services.
The Agreement is to operate subject to an implementation plan to be established pursuant to Part XXVI of the Agreement. The Implementation Plan takes effect on the effective date of the Agreement and will guide the operation of the Agreement and set out the obligations of the parties. An intergovernmental implementation committee established pursuant to the Agreement will be established consisting of one representative each from Westbank First Nation and Canada. The Committee is to oversee and monitor the implementation of the Agreement and the Implementation Plan.
Parts XXVII and XVIII of the Agreement detail taxation arrangements for Westbank First Nation Government and Members. Westbank Government is to be treated in the same way as local governments as set out in the Income Tax Act. Tax exemptions presently applying under the Indian Act will continue.
The Agreement provides for Westbank First Nation to have jurisdiction on Westbank Lands over Education, Health Services, Law Enforcement, Licensing and Regulation of Businesses, Traffic and Transportation, Public Works and Local Services and Public Order. Part XXIV of the Agreement identifies further matters over which Westbank First Nation seeks future negotiations with Canada with respect to jurisdiction. These include labour relations on Westbank Land, education of members off Westbank lands, minerals, water and the establishment of a Westbank First Nation court.|