French Naskapi

 

 

A LAYMAN'S VERSION OF THE CREE NATION OF EEYOU ISTCHEE GOVERNANCE AGREEMENT ACT
& THE NASKAPI AND CREE-NASKAPI COMMISSION ACT

 

 
Disclaimer:  This layman's version has been prepared by non-lawyers and is intended to provide a brief unofficial description of what is contained in each Part of the Acts for the purposes of a general understanding of the Acts.  For detailed content, the reader should consult the relevant section of the Act itself.  When needed,  a lawyer should be consulted for a professional opinion on the meaning and application of any section of the Act in specific circumstances.

Note:
The Cree-Naskapi (of Quebec) Act came into force on June 14, 1984.  That Act, with amendments, remained in effect until March 29, 2018 at which time it was replaced in relation to the Crees by the Cree Nation of Eeyou Istchee Governance Agreement Act.  This Act gave the force of law to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada.  The Act also gave the force of law to the Cree Constitution and Cree laws made under the Act and the Cree Constitution.
In relation to Naskapi governance, the Naskapi and Cree-Naskapi Commission Act renamed the Cree-Naskapi (of Quebec) Act to continue the applicability of most of its provisions to the Naskapi. 
In relation to both the Cree and the Naskapi, it continued the Cree-Naskapi Commission with a modified mandate.

Each Part of the Acts is introduced with a brief description of what it is about.  Some individual sections of the Acts are then briefly summarized.  Many more sections speak for themselves and are quoted in full without explanation.  This has been done even where there is  substantial or detailed but largely self-explanatory content which need not be summarized or explained.  In sections of the Acts in which the meaning is self-evident, it has been felt unnecessary to duplicate the content with an explanation.  Where a section simply repeals a section of the previous legislation (the Cree-Naskapi (of Quebec) Act), this has been noted without comment.
A brief background explaining the context of the Acts has been included for readers not already familiar with the recent history of Cree governance.

Background to the New Legislation
The Cree Nation of Eeyou Istchee signed the James Bay and Northern Quebec Agreement (JBNQA) on November 11, 1975.  This agreement, the first modern day treaty between an Indigenous Nation and the Crown, provided for a settlement of issues relating the sharing of the lands of northern Quebec between the Cree and Inuit on the one hand and the Crown (Canada and Quebec) on the other.  The Agreement represented an out-of-court settlement of the outstanding land issues.
The JBNQA, among other things, affirmed various collective and individual rights of the Cree and Inuit, established a land regime for the territory and provided for certain governance jurisdiction and structures.

Section 9.0.1 of the JBNQA provided that:
"Subject to all other provisions of the Agreement, there shall be recommended to Parliament special legislation concerning local government for the James Bay Crees on Category 1A lands allocated to them."

Lengthy and detailed negotiations followed between the Cree and Canada.  These negotiations led to the enactment of the Cree-Naskapi (of Quebec) Act which received Royal Assent on June 14, 1984.  This legislation replaced the Indian Act system of governance insofar as it applied to the Crees. 

The Act was a great improvement over the Indian Act but experience using it, as well as constitutional change, case law and policy developments in the following years made clear the need for a substantial increase in the legislative recognition of the inherent right to self-governance of the Cree Nation of Eeyou Istchee as well as the scope of its jurisdiction and law-making authority.

With these and other considerations in mind, the Cree entered into negotiations with Quebec and then Canada to achieve enforceable arrangements to affirm, implement and protect their governance rights.  The central part of this process was the negotiation by the Crees and Canada of the Agreement on Cree Nation Governance Between the Crees of Eeyou Istchee and the Government of Canada, (the Cree Governance Agreement).  This Agreement was signed by the Grand Chief and the Minister, at a ceremony on Parliament Hill, on July 18, 2017.  

The terms of the Agreement required the federal government to recommend to Parliament legislation which would give full legal effect to the Agreement as well as to the Cree Constitution and Cree laws made in accordance with either. The result was the Cree Nation of Eeyou Istchee Governance Agreement Act which came into force on March 29, 2018. 

 

Provisions of the Cree Nation of Eeyou Istchee Governance Agreement Act

The Act has three purposes.  First, as noted earlier, it approves the and gives the force of law to the Cree Governance Agreement as well as to the Cree Constitution and Cree laws made under either one.  Second, the Act amends and changes the name of the Cree-Naskapi (of Quebec) Act to the Naskapi and Cree-Naskapi Commission Act. It addresses governance of the Naskapi and sets out a modified mandate for the Cree-Naskapi Commission. Third, it makes the application of other Acts consistent.
More specifically the Cree Nation of Eeyou Istchee Governance Agreement Act provides as follows:
Part 1

  1. section 1 says, "This Act may be cited as the Cree Nation of Eeyou Istchee Governance Agreement Act.",
  2. section 2 provides legal definitions for "Agreement", "Cree Constitution", "Cree Nation" or "Cree Nation of Eeyou Istchee", and "Cree Nation Government",
  3. section 3(1) says, "The Agreement [the Cree Nation of Eeyou Istchee Governance Agreement] is approved, given effect and declared valid and has the force of law.",
  4. section 3(2) says, "For greater certainty, the Agreement is binding on, and may be relied on by, the parties and all other persons and bodies.".

Sections 4, 5 and 6 deal with the question of how any conflicts or inconsistencies between the Act and other Agreements or legislation are to be resolved, specifically;

"4 The James Bay and Northern Quebec Agreement prevails over the Agreement to the extent of any inconsistency or conflict between them."


"5 The Agreement prevails over this Act to the extent of any inconsistency or conflict between them."


"6 (1) Subject to subsection (2), this Act prevails over any other federal law to the extent of any inconsistency or conflict between them."

"6 (2) The James Bay and Northern Quebec Native Claims Settlement Act prevails over this Act to the extent of any inconsistency or conflict between them."

The Cree Nation of Eeyou Istchee Governance Agreement Act then addresses the status of the Cree Constitution.

"7 (1) The Cree Constitution is given effect and has the force of law."


"7 (2) For greater certainty, the Cree Constitution is binding on, and may be relied on by, all persons and bodies.  However the Cree Constitution is not binding on Her Majesty in right of Canada or a province."

The Act then addresses the status of Cree law.

"(1) A Cree law made in accordance with the Agreement and the Cree Constitution has the force of law."


"8 (2) For greater certainty, a Cree law is binding on, and may be relied on by, all persons and bodies.  However a Cree law is not binding on Her Majesty in right of Canada or a province."


The effect of sections 7 and 8 then is to give the force of law to the Cree Constitution and to Cree laws made in accordance with it and with the Agreement.  The Cree Constitution and Cree laws are binding on everyone except the governments of Canada and Quebec.

Section 9 then addresses the status of individual Cree First Nations.

  1. Section 9 (1) continues the Cree "bands" listed in the Cree-Naskapi (of Quebec) Act as "Cree First Nations"
  2. Section 9 (2) provides that,  "New Cree First Nations may be constituted in accordance with Chapter 23 of the Agreement."
  3. Section 9 (3)  says that, "A Cree First Nation has, subject to the Agreement, the capacity, rights, powers and privileges of a natural person."

Sections 10, 11 and 12 address the application of certain other federal laws.

" 10 The Statutory Instruments Act does not apply to Cree laws or resolutions of Cree First Nations or of the Cree Nation Government made under the Agreement."


Section 11 provides that the Indian Act does not apply except for defining which Cree beneficiaries are "Indians".

"11 Except for the purpose of determining which of the Cree beneficiaries are Indians within the meaning of the Indian Act, the Indian Act does not apply to Cree First Nations, nor does it apply on or in respect of Category 1A land."


Section 12 (1) provides that, federal laws dealing with corporations do not normally apply to Cree First Nations.  It says,
"12 (1) The Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, the Canada Business Corporations Act, the Canada Not-for-profit Corporations Act, and any other Acts of Parliament specifically applicable to corporations do not apply to Cree First Nations.

Section 12 (2) provides a method by which the Cree Nation Government may arrange for one of the Acts listed in section 12 (1) or any part of such Act to apply to a Cree First Nation.  It reads as follows,

12 (2)  "However, the Governor in Council may, by order, at the request of the Cree Nation Government, provide that an Act of Parliament referred to in subsection (1) or any provision of that Act applies to any Cree First Nation."

Sections 13 provides that the tax exemptions and property seizure exemptions previously contained in the Cree-Naskapi (of Quebec) Act are to continue to apply. 

Section 14 (1),  Provides that the term "Indian" has the same meaning as in the Cree-Naskapi (of Quebec) Act.

Section 14 (2), This subsection continues the definition of "personal property" as it was used in the Cree-Naskapi (of Quebec) Act.  Such property is deemed to be on Category 1A land.

Section 15 (1), provides that the interests of an Indian or of a Cree First Nation in Category 1A land and the personal property of an Indian or of a Cree First Nation is,  subject to relevant Cree First Nation or Cree Nation Government laws, exempt from taxation.

Section 15 (2) (a) provides a similar exemption from tax in respect to ownership, occupation, possession or use of such property, and subsection (b) provides the same exemption from succession duty, inheritance tax and estate duty.

Section 16, says that in sections 17 to 20 "Indian" has the same meaning as in the Indian Act.

Section 17, provides that movable and immovable property on Category 1A land is not subject to seizure, attachment etc. in favour of anyone except a Cree beneficiary, a Cree First Nation or the Cree Nation Government.  The same exemption applies to the rights and interests of a Cree First Nation in its Category 1A lands.  The rights and interests of anyone other than a Cree beneficiary or Cree First Nation in Category 1A  lands as well as in movable property are exempt unless the Cree First Nation has authorized that person to pledge that right or interest or movable property.

Section 18 provides a legal definition of "movable property".

Section 19, explains what movable property is deemed to be the property of a Cree First Nation.

Section 20, explains how a Cree beneficiary or an Indian residing on Category 1A land, or a Cree First Nation may, subject to certain conditions, waive their exemption(s) under section 17.

Section 21, provides that the courts must take judicial notice of the Cree Nation Governance Agreement, and that the Agreement must be published by the Queen's Printer and that a copy of that published version is evidence of the Agreement and its contents.

Section 22 requires that judicial notice must be taken of any Cree law and that a copy of the law authorized by the Cree First Nation or the Cree Nation Government is evidence of that law and its contents.

Section 23 provides that  whenever a Cree law is being questioned in court or in an administrative proceeding, the  issue may not be decided until the Cree First Nation or the Cree Nation Government as the case may be, has been served notice.  The section also provides that the Cree government concerned must be informed of the details of the matter and has a right to offer its conclusions which must be ruled upon by the court or tribunal.  Only the Cree government concerned can waive its procedural rights in these circumstances.

Section 24 provides for the rights for an Inuk observer at meetings of the Council of the Cree Nation of Chisasibi.  The section also allows the Governor in Council to make regulations concerning the selection, term of office and tenure of the Inuk observer.

Section 25 empowers the Governor in Council to make regulations for the purpose of carrying out any of the provisions of the Cree Governance Agreement.

 

Provisions of the Naskapi and Cree-Naskapi Commission Act

Part 2 of the Cree Nation of Eeyou Istchee Governance Agreement Act in effect repeals the Cree-Naskapi (of Quebec) Act and replaces it with the Naskapi and Cree-Naskapi Commission Act

Whereas Part 1 of the Cree-Naskapi (of Quebec) Act had dealt with Cree and Naskapi local government, the new Act deals only  with Naskapi local government and with Category 1A-N lands.  Part XII (i.e. sections 157 to 172) deals with the modified mandate of the Cree-Naskapi Commission.

The Preamble to the former Act is replaced by a new preamble which drops references to the Crees and relates to the  Naskapi only.

Section 1 establishes the short title of the Act i.e. the Naskapi and Cree-Naskapi Commission Act.

Section 2 provides legal definitions for various terms used in the Act.

Sections 3 and 4 deal with inconsistencies between the Act and other federal or provincial laws.   In cases where a provision of a federal or provincial law conflicts with a provision of this Act, this Act prevails to the extent of the conflict.  The only exception is the James Bay and Northern Quebec Native Claims Settlement Act, which takes precedence over this Act.

"3 (1) Subject to subsection (2), where there is any inconsistency or conflict between the provisions of this Act and any other Act of Parliament, this Act shall prevail to the extent of the inconsistency or conflict."

"3 (2) Where there is any inconsistency or conflict between the provisions of this Act and the James Bay and Northern Quebec Agreement, the James Bay and Northern Quebec Agreement shall prevail to the extent of the inconsistency or conflict."
 

"4  Provincial laws of general application do not apply to the extent that they are inconsistent or in conflict with this Act or a regulation or by-law made thereunder or to the extent that they make provision for a matter that is provided for by this Act."


Section 5 deals with the application of the Indian Act.  It provides that the Indian Act does not apply to the Naskapi Band or to Category IA-N  or to the Naskapi beneficiaries except to determine who is an Indian.

"5 Except for the purpose of determining which of the Naskapi beneficiaries are Indians within the meaning of the Indian Act, the Indian Act does not apply to the band, nor does it apply on or in respect of Category 1A-N land."


Section 6  provides that by-laws made under the Act apply to the band's Category IA-N lands as well as to Category III lands within the Category IA-N lands which were ceded prior to January 31, 1978.

Section 7 empowers the band to require the holding of licences or permits as well as for issuing them and charging a fee.

Section 8 says that a band by-law may prohibit an activity.

Section 9 provides that the Statutory Instruments Act does not apply to band by-laws and resolutions.

Section 10 authorizes the Governor in Council to make regulations under the Act.

"10 The Governor in Council may make regulations

(a) prescribing anything that by this Act is to be prescribed; and  (b) generally for carrying out the purposes and provisions of this Act."

Section 11 allows the Governor in Council to make regulations to make provincial law applicable to the leasing by or acquisition of other real property interests by non-Naskapi beneficiaries for periods of more than 5 years.

Sections 12 and 13 simply repeal sections of the Cree-Naskapi Act.

Section 14 continues the legal status of the Naskapi Band as the corporation which it had been in the Cree-Naskapi (of Quebec) Act.  The official name is the Naskapi Nation of Kawawachikamach in English, Nation naskapie de Kawawachikamach in French and Naskapi Eeyouch Kawawachikamach in Naskapi.

Section 15 repeals a section in the former Act.

Section 16 provides for changing the name of the band.  It says:

"16 (1) The band may, by by-law approved by the electors of the band at a special band meeting or referendum at which at least 5% of the electors voted on the matter, change its English, French or Naskapi name, but no such by-law is valid unless approved by the Governor in Council."


"16 (2) A by-law made under subsection (1) and approved by the Governor in Council takes effect on the date of its publication in the Canada Gazette or on such later date as is specified in the by-law."


Sections 17, 18 and 19 of the former Act are not applicable as they deal with  Cree matters.

Section 20 provides for band membership.  It says that:

"20 The members of the band are the Naskapi beneficiaries.


20, (1) A person who, immediately before the coming into force of this Part, was a member of the Indian Act Naskapis of Schefferville band but was not a Naskapi beneficiary  

(a) shall be deemed to be a member of the band for the purposes of paragraph 21 (f), section 45, subsection 55(1), paragraphs 90 (2) (a) and (b) and subsections 94 (3) and (4)
and 103 (1);


(b) shall, if 18 years of age or over and not under curatorship under the laws of the Province, be deemed to be an elector of the band for the purposes of section 63, subparagraph
66 (1) (a) (i) and sections 68 and 75 but is not eligible to be elected chief of the band; and


(c) shall, if 18 years of age or over and not under curatorship under the laws of the Province, be deemed to be an elector of the band for the purposes of section 81, except where the matter submitted to a vote is a matter referred to in Part VI, VII, VIII or IX."

Section 21 provides for the objects of the band, that is what the band council is empowered to do.  These are basically its governance powers. The section  reads as follows:

"21 The objects of the band are

(a) to act as the local government authority on its Category IA-N land;

(b) to use, manage, administer and regulate its Category IA-N land and the natural resources thereof;


(c) to control the disposition of rights and interests in its Category IA-N land and in the natural resources thereof;


(d) to regulate the use of buildings on its Category IA-N land;


(e) to use, manage and administer its moneys and other assets;


(f) to promote the general welfare of the members of the band;


(g) to promote and carry out community development and charitable works in the community;


(h) to establish and administer services, programs and projects for members of the band and other residents of Category IA-N land and residents of Category III land referred to in paragraph 6 (b);

(i) to promote and preserve the culture, values and traditions of the Naskapi; and

(j) to exercise the powers and carry out the duties conferred or imposed on the band or its predecessor Indian Act band by any Act of Parliament or regulations made thereunder, and by the Northeastern Quebec Agreement
."

Section 22 deals with the 'legal capacity' of the band including some limitations on the scope of that capacity.  The section says:

"22 (1)  The band has, subject to this Act and the regulations, the capacity, rights, powers and privileges of a natural person."


"22 (2)  The band shall not engage, directly or indirectly, in any commercial activity, except insofar as it is related to

(a) the management or administration of (i) its Category IA-N land or the natural resources thereof, or (ii) its buildings or other immovable assets on its Category IA-N land; or

(b) the provision of public services to or in respect of its Category IA-N land or residents thereof."

"22 (3) Notwithstanding subsection (2), the band may own shares in corporations that carry on commercial activities."

Section 23 explains how other Acts dealing with corporations do not apply to the band.  Included are the following:

"23 (1) Section 268 of the Canada Business Corporations Act does not apply to the band.


"23 (2) The Canada Not-for-Profit Corporations Act does not apply to the band."


"23 (3)  Where provisions of an Act of Parliament specifically applicable to corporations, other than the Acts mentioned in subsections (1) and (2), would apply to the band, the Governor in Council may by order declare that such Act or any provision thereof does not apply to the band.


Section 24 provides that the head office of the band is wherever the band decides on its Category IA-N land.

Section 25 provides that the band council is a continuing body i.e. that it is considered to exist continuously.

Section 26 provides that the band shall exercise its powers and carry out its duties under the Act acting through its council.

Section 27 provides that the band shall act by means of a resolution or, where required, by a by-law. 

Sections 28 and 29  concern the roles of the chief and deputy chief and read as follows:

"28 The chief of the band is the band's principal representative and chief executive officer and shall perform any duties assigned to him or her by the regulations and the by-laws of the band."


"29 (1)  One councillor shall hold office as deputy chief in accordance with an election by-law made under section 64 or in accordance with regulations made under paragraph 67 (1) (a)."


"29 (2)  The deputy chief shall perform the duties assigned to him or her by the regulations and the by-laws of the band, and, in the event that the chief is absent or incapicated or if the office of chief is vacant, has and may exercise all the powers and duties of the chief."


Sections 30 to 40 provide for rules and procedures on how the band council shall conduct its business.

Section 30 provides that by-laws and resolutions can only be passed at a band council meeting.

Section 31 provides that the band council may conduct it meetings in Naskapi.

Section 32 (1) requires that by-laws and resolutions must be in English or French and may also be in Naskapi.

Section 32 (2) provides that where a resolution or by-law is passed in more than one language, all versions are equally valid.

Section 33 deals with a quorum of council under various circumstances as well as with the filling of vacancies and related matters. Because of the detail involved, section 33 is quoted in full as follows;

"33 (1)  Except as provided in subsection (2), a quorum of the council consists of a majority of the number of positions of council member, subject to subsection 38 (5)."


"33 (2)  Where, at any time, vacancies on the council result in there being in office fewer council members than constitute a quorum under subsection (1), the council members remaining in office constitute a quorum, subject to subsection 38 (5), for the limited purpose of enabling the council to act in a care-taker capacity until such time as enough vacancies on the council have been filled
pursuant to Part II to restore the quorum referred to in subsection (1)."

"33 (3) Nothing in this section shall be construed to relieve the band of tis obligation to call elections as required by subsections 76 (1) and (2)."


"33 (4)  Notwithstanding the length of the term of office of council members fixed pursuant to section 64 or 65 and notwithstanding the band's obligation under subsection 76 (1), where a general election of the band is called, the council of the band in office immediately before the calling of that general election continues in office until the date fixed for that general election."


Section 34 (1) provides that in the absence of the chief, the deputy chief will chair council meetings.

Section 34 (2)  provides that in the absence of both the chief and the deputy chief, the council will choose another councillor to act as chair.

Section 35 deals with votes in council meetings and reads as follows:

"35 (1)  The approval of any matter by council requires the affirmative votes of the majority of the council members present when the vote is taken, subject to subsection (2) and subsection 38 5."


"35 (2)  For the purposes of subsection (1), in any vote, where a council member present does not indicate either an affirmative vote or a negative vote or an abstention, he shall be deemed to have voted in the affirmative."


"35 (3)  In the event of a tied vote, the chairman may, except where disqualified from voting under section 38, cast a second vote to determine the question."

Section 36 repeals a section of the previous Act which dealt with a Cree matter.

Section 37 requires that the band council must meet at least every three months; that meetings must be open to the public and that anyone acting improperly can be excluded from the meeting by the chairman.

"37 (1) The council shall meet at least once in every calendar quarter."


"37 (2)  Subject to subsection (3), council meetings shall be open to the public."


"37 (3)  The chairman of a council meeting may cause to be expelled and excluded from that meeting any person whom he considers guilty of improper conduct at the meeting."


Section 38 deals with conflict of interest in which a council member has a financial interest in a matter before the council.

"38 (1)  A council member shall disclose to the council any pecuniary interest in a matter before the council and shall not take part in deliberations of the council on that matter or vote on that matter."


"38 (2)  Where a disagreement arises as to whether a council member has a pecuniary interest in a matter before the council, the council shall decide by vote whether the council member has such an interest, and the council member in question may not take part in that vote."


"38 (3)  Where the council decides pursuant to subsection (2) that a council member has a pecuniary interest in a matter before the council, the council member in question shall not take part in deliberations of the council on that matter or vote on that matter."


"38 (4)  Where, pursuant to this section, the chairman is prohibited from taking part in deliberations and from voting, he may nevertheless continue to act as chairman."


"38 (5)  A council member who, pursuant to this section, is disqualified from taking part in deliberations and from voting shall be considered not to be present for the purposes of

(a)  determining a quorum under subsection 33 (1) or (2); and

(b) determining a majority under subsection 35 (1).

"38 (6)  A council member who contravenes subsection (1) or (2) is guilty of an offence."
Section 39 empowers a band to make by-laws concerning the procedure of council meetings.  It says:

"The band may make by-laws respecting procedures relating to council meetings, including, without limiting the generality of the foregoing, by-laws respecting notices of meetings, agenda, procedure at meetings and voting."


Section 40 concerns council committees, their establishment, membership and powers.  It says;

"40 (1) The band may make by-laws

(a) establishing such committees as the band considers necessary to assist in the administration of the affairs of the band, and

(b) setting out the composition and functions of such committees.

"40 (2) By-laws made under subsection (1) may provide for the membership  on committees of persons who not council members."

"40 (3) Committees may exercise only advisory or administrative functions and are responsible to the council for the performance of their functions."


Section 41 (1) provides for the appointment of the band secretary, band treasurer, and other employees, agents and bodies.  It also enables the band to fix remuneration and prescribe the duties of those appointed.

Section 41 (2) permits a person to hold more than one of the offices mentioned at the same time.

Section 41 (3) allows the band to have employment agreements with its officers and employees.

Section 42 outlines the duties and powers of the band secretary.  It reads as follows:

"42 (1) the band secretary is responsible for

(a)  the safekeeping of all the books, records and documents of the band, and

(b)  the preparation of the minutes of all council meetings and band meetings.

"42 (2)  The band secretary has the power to issue certified copies of any by-law or resolution of the band, and of minutes of council meetings, special band meetings and ordinary band meetings of the band."

"42 (3)  The powers referred to in subsection (2) may also be exercised by the chief and by any other person designated by by-law of the band."


Section 43 prescribes the duties of the band treasurer.  It says:

"43  The band treasurer is the chief financial officer of the band, and is responsible for the receipt and deposit of band monies and for all aspects of the financial administration of the band."


Section 44 requires the return of band property by former band councillors and employees.  It says:

"44 (1)  Where a person who is a council member, officer or employee of the band ceases for any reason, to hold such office as such, he shall forthwith return to the band any money, keys, books, documents, records or other property of the band that is in his possession by virtue of that office."


"44 (2)  Any person who fails to comply with subsection (1) is guilty of an offence."


Section 45 deals with the by-law-making powers of the band.  The subsections are specific, detailed and extensive.  They are reproduced in full below.

"45 (1) Subject to this section, the band may make by-laws of a local nature for the good government of its Category IA-N land and of the inhabitants of such land, and for the general welfare of the members of the band, and, without limiting the generality of the foregoing, may make by-laws respecting

(a) the administration of band affairs and the internal management of the band,

(b)  the regulation of buildings for the protection of public health and safety, including the construction, maintenance, repair and demolition of buildings


(c) health and hygiene including

(i)  the prevention of overcrowding of residences,

(ii)  the sanitary condition of public and private property,


(iii) the control or prohibition of activities or undertakings that constitute a danger to public health,


(iv)  the construction, operation and regulation of waste disposal systems and the collection, removal and disposal of waste generally, and


(v)  subject to the laws of the province, the establishment, maintenance and operation of cemeteries;

(d)  public order and safety, including

(i) the establishment, maintenance and operation of fire departments,

(ii)  the discharge of firearms or of arms discharged by compressed air or any other means,


(iii)  the keeping of animals,


(iv)  curfews,


(v)  the prohibition of the sale or exchange of alcoholic beverages,


(vi)  the possession or consumption of alcoholic beverages in public places, and


(vii)  the control of public games, sports, races, athletic contests and other amusements;

(e)  the protection of the environment, including natural resources;

(f)  the prevention of pollution;


(g)  the definition of nuisances and the control and prohibition of nuisances;


(h)  the taxation for local purposes, otherwise than by means of an income tax,

 

(i)  of interests in its Category IA-N land, except those of Canada and Quebec, and

(ii)  of occupants and tenants of its Category IA-N land, except Canada and Quebec,

subject to subsections (2) and (3) and subject to and in accordance with regulations made under subsection (4);

(i) subject to subsection (5), the establishment, maintenance and operation of local services, including services relating to water, sewers, fire protection, recreation, cultural activities, roads, garbage removal and disposal, lighting, heating, power, transportation, communication or snow removal, and respecting user charges for any such service;



(j)  roads, traffic and transportation, including


(i)  the operation and speed of vehicles,


(ii)  the maintenance, construction and operation of roads,


(iii)  the regulation of traffic of all kinds,


(iv)  the transportation of dangerous substances, and


(v)  the establishment, maintenance and operation of wharves, harbours, drydock and other landing places;


(k)  the operation of businesses and the carrying on of trades, and


(l)  parks and recreation."

"45 (2)  The band

(a) may not make taxation by-laws other than those described in paragraph (1) (h); and

(b)  may not make by-laws under paragraph (1) (h) until there are in force regulations made under subsection (4)."

"45 (3)  A by-law made under paragraph (1) (h) must be approved by the electors at a special band meeting or referendum at which at least ten per cent of the electors voted on the matter."

"45 (4)  The Governor in Council may make regulations respecting the exercise, pursuant to paragraph (1) (h), of the band's power of taxation, including, without restricting the generality of the foregoing, regulations respecting

(a) assessments and the determination of tax rates;

(b) contestations of assessments;


(c) collection of taxes;


(d) contestation of taxation; and


(e) enforcement procedures."

"45 (5) A by-law described in paragraph (1) (i) respecting a user charge for a service may differentiate on an equitable basis between different categories of users and different categories of land that benefit from the service, but

(a)  may not delegate to anyone the power to prescribe user charges or user charge rates but must itself prescribe the user charges or the user charge rates; and

(b) may not prescribe user charges or user charge rates that exceed the total actual or anticipated cost of providing the service."

"45 (6)  The band may accept payment of a tax referred to in paragraph (1) (h) in a form other than money."

Section 46 defines the by-law making authority of the band in relation to land and resource use and planning.

"46 (1)  The band may make by-laws respecting land and resource use and planning, including, without limiting the generality of the foregoing, by-laws respecting

(a)  the inventory, use and management of its Category IA-N land and the natural resources thereof;

(b) the adoption of land use plans and resource use plans in relation to its IA-N land; and


(c)  use permits relating to its Category IA-N land and buildings located thereon, and the conditions relating to the issuance, suspension or revocation of such permits.

"46 (2)  Where a land use plan or resource use plan  adopted pursuant to subsection (1) has been approved by the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter, any by-law or resolution of the band, whether made or adopted previously or subsequently, that is inconsistent with such land use plan or resource use plan is inoperative to the extent of the inconsistency."

Section 47 outlines the band's powers in relation to zoning and land use by-laws, as well as the requirement for the approval of the band electors of such by-laws. The section reads as follows:

"47 (1)  The band may make by-laws respecting zoning, including, without limiting the generality of the foregoing, by-laws respecting

(a)  the division of all or part of its Category IA-N land into zones for the purpose of regulating the use of land, natural resources thereof, and buildings; and

(b)  the implementation of a land use plan or resource plan referred to in subsection 46 (1) that was approved by the electors of the band under subsection 46 (2).

(2)  A zoning by-law other than one described in paragraph (1) (b) is subject to the approval of the electors of the band at a special band meeting or referendum at which at least fifteen per cent of the electors voted on the matter."

Section 48 deals with the authority of the band to make by-laws to regulate hunting, fishing, trapping and wildlife protection.  This authority flows ultimately from section 15 of the Northeastern Quebec Agreement and from the subsequent Quebec legislation.  The section also spells out procedures involved in enacting any such by-law, the role of the Coordinating Committee, the band electors and the Minister, and related matters.

"48 (1)  Subject to this section, the band may make by-laws respecting hunting, fishing and trapping and the protection of wildlife, including, without limiting the generality of the foregoing, by-laws respecting

(a)  the exercise of the right to harvest referred to in section 15 of the Northeastern Quebec Agreement and in An Act Respecting Hunting and Fishing Rights in the James Bay and New Quebec Territories (Quebec);

(b)  matters described in sections 85 and 86 of that Act;


(c)  residence requirements relating to sport hunting and sport fishing by persons other than Naskapi beneficiaries, as contemplated by section 37 of that Act; and


(d)  the right of persons of Naskapi ancestry to harvest for personal use, as contemplated by section 38.1 of that Act."

"48 (2)  Subject to subsection (3), a copy of each by-law described in subsection (1) that a band proposes to make shall, a reasonable period of time before its enactment, be submitted by the band to the Coordinating Committee referred to in section 15 of the Northeastern Quebec Agreement and in An Act Respecting Hunting and Fishing Rights in the James Bay and New Quebec Territories (Quebec), in order to enable that Committee to make representations to the band with respect thereto, but the band is not bound by any such representations.

"48 (3)  Subsection (2) does not apply in respect of a proposed by-law that

(a) has been previously submitted to the Coordinating Committee pursuant to that subsection, whether or not it has been changed as a result of representations made pursuant to that subsection; or

(b)  makes no substantive change to an existing by-law."

"48 (4)  A by-law described in subsection (1) is subject to the approval of the electors of the band at a special band meeting or referendum at which at least ten per cent of the electors voted on the matter."

"48 (5)  A by-law described in paragraph (1) (b) shall come into force on the day on which a copy thereof, certified by the band secretary, is received by the Minister, but the Minister may disallow the by-law at any time within ninety days after receiving it."


"48 (1) (1)  The band may make by-laws respecting the establishment of a ticketing scheme governing proceedings, commenced by means of a ticket, in respect of the contravention of any by-law of the band indicated in those by-laws."


"48 (1) (2)  By-laws may be made under subsection (1) only if an agreement is entered into between the band and the Government of Quebec."


Sections 49 to 54 outline the procedures for making by-laws and resolutions including; provisions as to when approval by the electors may or must obtained, certification and copies of by-laws, minutes of council meetings, dates for coming into force, posting of by-laws and related matters.

"49  Where a by-law or resolution is not required by this Act to be approved by the electors of the band, the by-law or resolution may nevertheless provide that it does not come into force unless it is approved by the electors of the band at a special band meeting or referendum at which the minimum percentage of electors specified in the by-law or resolution vote on the matter."


"50 (1) the original copy of any by-law of the band must be signed by the band secretary or such other person as is designated by by-law."


"50 (2) The minutes of a meeting of the band council are not valid unless adopted by the council by resolution and signed by

(a) the chairman of the meeting at which they were adopted; and

(b) the band secretary or such other person as is designated by by-law."

"50 (3)  where a by-law or resolution is required to be approved by the electors of the band at a special band meeting or referendum, the band secretary

(a) in the case of a by-law, shall attach to the original copy of the by-law a statement signed by him indicating the date when such approval was given; or

(b) in the case of a resolution, shall cause a statement signed by him indicating the date when such approval was given to be recorded in the minutes of the first council meeting following such approval."


"50 (4)  non-compliance with this section does not invalidate a by-law or resolution."


"51 (1)  Subject to subsection (2), a resolution comes into force on the day on which it is adopted by the band or on such later day as is specified in the resolution."


"51 (2)  Where a resolution is required to be approved by the electors at a special band meeting or referendum, that resolution comes into force on the day on which such approval is given or on such later day as is specified in the resolution."


"52 (1)  Within one week after a by-law has been enacted by the band, or has been enacted by the band and approved by the electors of the band at a special band meeting or referendum (where such approval is required), the band secretary shall post a copy of the by-law on the band's Category IA-N land at a public place designated by the band."


"52 (2)  A by-law enacted by the band shall come into force on the day on which it is posted, whether or not it is posted within the time set out in subsection (1), or on such day subsequent to the day on which it is posted, as may be specified in the by-law."


"53 (1) The band secretary shall maintain a register of by-laws in which shall be kept the original copy of all by-laws of the band, including by-laws that have been repealed or are no longer in force."


"53 (2)  the band secretary shall record the full text of every resolution adopted by the band in the minutes of the council meeting at which the resolution was adopted."


"53 (3)  Within thirty days after the coming into force of a by-law, the band shall forward a copy thereof to the Minister."


"53 (4)  Non-compliance with this section does not affect the validity of a by-law or resolution."


"54  Any person is entitled to obtain a copy of a by-law or resolution of the band on payment of such reasonable fee as is fixed by the band."


Sections 55 to 57 outline the procedures by which a band member or other interested person may apply to have a by-law or resolution quashed by a court.

"55 (1)  Subject to section 56, a member of the band or any other interested person may make application to the Provincial Court or Superior Court of Quebec to have a by-law or resolution of the band quashed, in whole or in part, for illegality or for irregularity in the manner or form of its enactment or adoption.'


"55 (2)  Notwithstanding the Federal Courts Act, the Federal Court does not have the jurisdiction to hear applications described in subsection (1)."

Section 56 explains the time limits for challenging a by-law or resolution in the courts.

"56 (1)  An application made under section 55 based on irregularity in the manner or form of the enactment of a by-law or the adoption of a resolution may not be brought after ninety days after the coming into force of the by-law or resolution."


"56 (2)  An application made under section 55 based on the illegality of the by-law or resolution may not be brought after six months after the coming into force of the by-law or resolution."


Section 57 provides that anyone suing or bringing an action for anything done under a quashed by-law can only bring such an action against the band itself.

"57  Where a by-law or resolution is quashed, any action for anything done under that by-law or resolution lies only against the band and not against any other person."


Sections 58 to 60 are transitional and simply repeal sections of the Cree-Naskapi (of Quebec) Act which are no longer relevant.

Section 61 and 62 provide for the continuity of the Naskapi band council during the transition from the Cree-Naskapi (of Quebec) Act.  The sections  say:

"61  Subject to section 62, the council of the Indian Act Naskapis de Schefferville band that is in office pursuant to the Indian Act immediately before the coming into force of this Part becomes the council of the band on the coming into force of this Part, and continues in office as such until the expiration of its term of office under the Indian Act  or until a day two years after the coming into force of this Part, whichever occurs first."


"62  For the transitional period described in section 61, the council has the powers and duties of a band council elected under this Act, and the provisions of this act and the regulations apply, with such modifications as the circumstances require, to the council as if it had been elected under this Act."


Section 62 subsections 62.01 to 62.09 and section 62.1, 62.2 and 62.3 of the former Act are repealed.

 

Part II

Part II deals with band elections and related matters.

Section 63 establishes who is eligible to vote.  It reads as follows:

"63 (1)  Subject to subsection (2), each elector of the band is entitled to vote in any election of council members held by the band, whether the election is conducted pursuant to an election by-law made under section 64 or pursuant to regulations made under paragraph 67 (1) (a)."


"63 (2)  An elector who is appointed a Returning Officer or a Deputy or Assistant Returning Officer under section 71 in respect of an election is not entitled to vote in that election."


Sections 64 and 65 deal with band council election by-laws and what matters they must include.

"64  Subject to section 65 and subsection 66 (1), the band may make by-laws respecting the election and term of office of its council members..'


"65 A by-law made under section 64 shall include provision for

(a)  the calling of elections and notices of elections;

(b)  the number of positions of council member;


(c) the length of the term of office of council members;


(d)  the method of electing council members;


(e)  the basis on which one of the council members shall hold the office of chief;


(f)  the basis on which one of the council members shall hold the office of deputy chief;


(g)  nomination procedures;


(h)  election method and procedures;


(i)  the recording and certification of election results."

Section 66 (1) provides that election by-laws come into force only after the approval of the electors and the Minister and apply only to elections held after that.

"66 (1)  A by-law made under section 64, or any amendment thereto or repeal thereof,

(a)  does not come into force until it has been approved by

(i)  the electors of the band at a special band meeting or referendum at which at least twenty per cent of the electors voted on the matter, and

(ii)  the Minister; and

(b)  applies only in respect of elections called after its coming into force."

Section 66 (2) requires that the Minister shall approve an election by-law if it is within the band's power and includes the matters listed in section 65.

"66 (2)  The minister shall approve a by-law made under section 64 if it

(a) is within the power of the band under section 64; and

(b)  includes provision for the matters listed in section 65.'

Section 66 (3) requires the Minister to give reasons in writing where he disallows a by-law.

"66 (3) Where the Minister disallows an election by-law, he shall forthwith inform the band in writing of the reasons why, in his opinion, the by-law does not meet the requirements mentioned in paragraphs (2) (a) and (b)."


"66 (4)  The Minister shall be deemed to have approved an election by-law if he does not, within thirty days of receiving a copy thereof, either approve or disallow it."


Section 67 permits the Governor in Council to make regulations concerning council elections in cases where the band does not have an election by-law in force. In all cases a regulation may be made to prevent "...acts that are detrimental to the conduct of free and fair elections".

"67 (1)  The Governor in Council may make regulations

(a) respecting the election of council members and their term of office, including the matters referred to in section 65; and

(b) prohibiting acts that are detrimental to the conduct of free and fair elections."

"67 (2)  The regulations made under paragraph (1) (b) apply to all elections,  but those made under paragraph (1) (a) apply only where, at the time of the calling of the election, there was not in force an election by-law made under section 64."

Sections 68, 69 and 70 deal with eligibility to be elected to and to continue to sit on council as well as vacancies, removal from office and absences from meetings.

"68  Any elector is eligible to be nominated and elected to the office of council member of the band unless he or she

(a) Has been convicted of contravening a regulation made under paragraph 67 (1) (b) within the two year period preceding the date fixed for the holding of the election for that office or, where the most recent election for that office took place before that two year period, in respect of the most recent election for that office;

(b) has been appointed as a returning Officer or as a Deputy or Assistant Returning Officer in respect of the election for that office;


(c) is the band secretary or band treasurer referred to in section 41;


(d) is a judge to which the Judges Act applies or is a Crown prosecutor;


(e) is, on the day fixed for the holding of the election for that office, undergoing a term of imprisonment as a result of having been convicted of an indictable offence; or


(f) resides on the Matimekosh Reserve."

Section 69 provides for various circumstances in which the position of Council member becomes vacant.

"69 Apart from the general elections referred to in section 74, an office of council member becomes vacant immediately on the occurrence of one of the following events, and only the following events:

(a) the election of the office-holder to that office is declared invalid pursuant to subsection 78 (7);

(b) the office-holder

(i) dies or submits his resignation in writing to the council,

(ii) is convicted of contravening a regulation made under paragraph 67 (1) (b),


(iii) is appointed band secretary or band treasurer pursuant to section 41,


(iv) is appointed a judge to which the Judges Act applies or a Crown prosecutor,


(v) commences a term of imprisonment as a result of having been convicted of an indictable offence, or


(vi) Is under curatorship under the laws of the Province;

(c) the office-holder's term of office expires, whether pursuant to this Act, a by-law made under section 64 or regulations made under paragraph 67 (1) (a);

(d) the office-holder resides on the Matimekosh Reserve; or


(e) the office is declared vacant pursuant to section 70."

Section 70 provides for a Council member to lose his position for absences under certain circumstances.

"70 (1) Where a council member has, without permission from the council, been absent from three or more consecutive council meetings otherwise than by reason of illness or incapacity, any fifteen electors of the band may file a petition with the band secretary requesting that a special band meeting be held as soon as possible, for the purpose of deciding whether the office of the council member in question should be declared vacant, and if, with at least twenty per cent of the electors of the band voting on the question, the special band meeting decides that that office should be declared vacant, that office thereupon becomes vacant."


Sections 71, 72 and 73 provide for the appointment of Returning Officers as well as Deputy and Assistant Returning Officers.

"71 (1) The band shall appoint a person who is not a council member as Returning Officer, and shall fix his or her tenure and term of office."


"71 (2) the Returning Officer shall appoint a Deputy Returning Officer and may appoint any Assistant Returning Officers who are necessary to assist him or her in the performance of his or her duties."


"71 (3) Where the Returning Officer is absent or incapacitated or the office of Returning Officer is vacant, the Deputy Returning Officer has and may exercise all the powers and duties of the Returning Officer."


'71 (4) In the event of the absence or incapacity of both the Returning Officer and the Deputy Returning Officer or if both offices are vacant, the band secretary has and may exercise all the powers and duties of the Returning Officer."


"72 A person is not eligible to be appointed a Returning Officer or a Deputy or Assistant Returning Officer if he

(a) is not of the age of majority under the laws of the Province;

(b) is undergoing a term of imprisonment as a result of having been convicted of an indictable offence; or


(c) has, at any time been convicted of contravening a regulation made under paragraph 67 (1) (b)."

"73  A Returning Officer or Deputy or Assistant Returning Officer ceases to hold office forthwith if he

(a) is convicted of contravening a regulation made under paragraph 67 (1) (b);

(b) commences a term of imprisonment as a result of having been convicted of an indictable offence; or


(c) is under curatorship under the laws of the Province."

Section 74 concerns general elections of the band.

"74 (1) Where a general election of the band is held, the term of office of every council member expires on the day of that general election."


"74 (2) The band may hold a general election at any time."


Section 75 provides a procedure by which electors can force a general election to be held.

"75 (1) Any ten electors of the band may, subject to subsection (2), file a petition with the band secretary requesting that a special band meeting be convened for the purpose of deciding whether a general election of the band should be held."


"75 (2) A petition may not be filed under subsection (1) within one year after the previous general election or within one year after the filing of the most recent valid petition under that subsection."


"75 (3) Within ten days after the filing of a valid petition under this section, the band shall call a special band meeting, to be held as soon as possible, for the purpose of deciding whether a general election of the band shall be held, and if, at that special band meeting,

(a) at least fifty per cent of the electors of the band vote on that question,

(b) the majority of those voting vote in favour of holding a general election, and


(c) the majority referred to in paragraph (b) consists of at least one third of the total number of electors of the band,

the band shall forthwith hold a general election."

Section 76 provides for the filling of vacancies on the council.

"76 (1) The band shall hold an election for a position of council member forthwith after the expiration of the term of office of that council member.


"76 (2) Where a position of council member becomes vacant more than six months before the expiration of the term of office of that council member, the band shall forthwith hold an election for that position."


"76 (3) Where a position of council member becomes vacant less than six months before the expiration of the term of office of that council member, the band may hold an election for that position."


"76 (4) Where a position of council member becomes vacant less than six months before the expiration of the term of office of that council member, and that vacancy results in there being in office less than the number of council members required to constitute a quorum under subsection 33 (1), the band shall, unless it holds an election for that position or a general election, hold an ordinary band meeting within ten days for the purpose of appointing a sufficient number of council members to restore the quorum."


"76 (5) The appointment of council members referred to in subsection (4) shall be made by a vote of the electors of the band."


"76 (6) Section 68 applies, with such modifications as the circumstances require, to appointments pursuant to subsection (5)."


"76 (7) A council member appointed pursuant to subsection (5) remains in office for the balance of the term in respect of which the vacancy occurred."


Section 77 deals with what action shall be taken if the band fails to act either at the direction of a special band meeting held under section 75, or to fill a vacancy as required under section 76.

"77 (1) Where the band fails to hold an election pursuant to subsection 75 (3) or subsection 76 (1) or (2) within ten days after its obligation to do so has arisen, the Returning Officer of the band shall hold the election in question."


"77 (2) Where the band fails to hold an election or a special band meeting pursuant to subsection 76 (4) within ten days after its obligation to do so has arisen, the Returning Officer of the band shall hold the election or special band meeting."


Section 78 provides a process for the contestation of election results including: grounds for contestation, the duties of the Returning Officer, the role of the courts and the time limits involved.

"78 (1) Any candidate for election as council member or any 15 electors of the band may, within five days of any election held by the band, contest the election of any council member or council members elected thereat by submitting to the Returning Officer a written notice to that effect."


"78 (2) The election of a council member may be contested on the grounds that

(a) a regulation made under paragraph 67 (1) (b) was contravened in respect of the election of that council member, whether or not anyone has been prosecuted or convicted for such contravention;

(b) there was non-compliance with this Act, a by-law made under section 64 or a regulation made under paragraph 67 (1) (a) in respect of the election of that council member; or


(c) the person elected council member was ineligible to be elected to that office."

"78 (3) On receipt of a notice under subsection (1), the Returning Officer shall, within two weeks, prepare and submit to a judge of the Provincial Court or Superior Court of Quebec (hereinafter in this section referred to as "the judge") a petition in prescribed form setting out the name of the person or persons whose election is being contested, the name of the person or persons contesting the election and the grounds on which the election is being contested.'

"78 (4) A petition described in subsection (3) must be accompanied by a deposit of two hundred dollars, which, except as provided in subsection (5),  shall be refunded to the person or persons contesting the election forthwith after the judge has made a decision on the petition, whether or not the judge declares the election invalid."


"78 (5) Where the judge is of the opinion that the petition was not made in good faith, he may order the deposit forfeited and, where he so orders, the monies forfeited shall be applied toward the cost of the court proceedings."


"78 (6) The judge shall inquire into the correctness of the allegations contained in the petition, and for such purposes may exercise all the powers of a commissioner under Part I of the Inquiries Act."


"78 (7) Where, after hearing the petition, the judge is satisfied, in respect of the election of one or more council members whose election has been contested, that a ground for contestation contained in the petition has been established and that, in the case of the grounds described in paragraph (2) (a) or (b), the offence of non-compliance materially affected the result of the election, he shall declare invalid the election of the council member or council members of whose election he is so satisfied."


"78 (8)  The election of any particular council member cannot be contested a second time on the same ground in respect of the same election."


"78 (9)  A council member whose election is contested under this section is entitled to remain in office until such time as the judge has declared his election invalid under subsection (7)."


PART III

MEETINGS AND REFERENDA OF THE BAND

Part III deals with ordinary and special band meetings as well as referenda. The powers of the council to make by-laws respecting band meetings and referenda are also provided for. The various sections are straightforward and require no further explanation

"79 Only electors of the band have a right to attend ordinary band meetings and special band meetings, but other persons may attend with the permission of the band."


"80 In addition to any other rights relating to the use of the Naskapi language, the band may conduct ordinary band meetings, special band meetings and referenda in the Naskapi language."


"81 Each elector of the band is entitled to vote in respect of any matter submitted to a vote at an ordinary band meeting, special band meeting or referendum."


"82 (1) The band shall hold at least one ordinary band meeting each calendar year."


"82 (2) The band may make by-laws respecting ordinary band meetings, including, without limiting the generality of the foregoing, by-laws respecting the calling of meetings, the conduct of meetings, quorums, voting, and the preparation and keeping of records of votes taken."


83 (1) Except as provided in subsections 75 (3) and 144 (1), a matter shall be deemed to have been approved by the electors of the band at a special band meeting or referendum if

(a) the required minimum percentage of electors voted on the matter, and

(b) the majority of those voting voted in favour of the matter."

"83 (2) In any vote at a special band meeting or referendum, an elector who does not cast an affirmative vote or a negative vote or who spoils his ballot shall be deemed not to have voted."

"84 Where the band wishes to hold a special band meeting or a referendum, it shall cause to be posted in a public place in the community, at least ten days prior to the date fixed for such meeting or referendum, a notice specifying the date, time and place of the special meeting or referendum and containing a brief description of the matters to be decided at that special band meeting or referendum."


"85 (1) A presiding officer shall be appointed by the band for any special band meeting or referendum."


"85 (2) A presiding officer appointed pursuant to subsection (1) is responsible for the fair and orderly conduct of the special band meeting or referendum, and for the preparation of a statement, attested by at least two witnesses, certifying the results of this special band meeting or referendum."


"85 (3) The presiding officer may take such measures as are necessary to ensure the fair and orderly conduct of  a special band meeting or referendum, and may cause any person engaging in disorderly conduct to be ejected from a special band meeting."


"85 (4) The presiding officer may engage such other persons as are necessary to assist him in carrying out his duties under subsections (2) and (3)."


Section 86 empowers the band to make by-laws concerning special band meetings and referenda.

"86 (1) The band may make by-laws respecting special band meetings and referenda, including, without limiting the generality of the foregoing, by-laws respecting the calling of meetings and referenda, the conduct of meetings and referenda, voting at meetings and in referenda, and the preparation and keeping of records of votes taken.""


"86 (2) Where a provision of this Act, other than subsection (3), stipulates that a matter requires the approval of the electors of the band at a special band meeting or referendum at which a specified minimum percentage of the electors must vote on the matter, the band may make by-laws, subject to subsection (3), fixing a different minimum percentage, not lower than that specified in the relevant provision of this Act."


"86 (3) A by-law made under subsection (2) requires the approval of the electors of the band at a special band meeting or referendum at which the same minimum percentage of electors voted on the matter as the minimum specified in the relevant provision of this Act referred to in that subsection."


"86 (4) The band shall forward to the Minister a copy of any by-law made under this section, within thirty days after its enactment."


Section 87 permits the Governor in Council to make regulations for special band meetings and referenda in cases where the band does not have a by-law in force to deal with the matter.

"87 (1) The Governor in Council may make regulations respecting special band meetings and referenda, including, without limiting the generality of the foregoing, regulations respecting any of the specific matters referred to in subsection 86 (1)."


"87 (2) The regulations made under subsection (1) apply in respect of a special band meeting or referendum only if, at the time of the calling of that special band meeting or referendum, there is not in force any applicable by-law made under subsection 86 (1)."


"88 Non-compliance with a by-law made under section 86 or a regulation made under section 87 does not affect the validity of the result of a vote unless such non-compliance materially affected the result."

 

Part IV
FINANCIAL ADMINISTRATION

Part IV provides for the financial administration of the band including; establishing the fiscal year, the adoption of a budget, the expenditure of money, the keeping of financial records, the preparation of an annual financial statement, the appointment of auditors and their duties, the process of long and short term borrowing and the awarding of contracts.  Part IV also provides for the Minister's power to appoint an administrator if he thinks that the band's financial affairs are in serious disorder.

Section 89 establishes the fiscal year of the band including the power of the band to change it.

"89 (1) The fiscal year of the band begins on April 1 of each year and ends on March 31 of the following year, unless otherwise provided by by-law made pursuant to subsection (2)."


"89 (2) The band may, by by-law,

(a) adopt a fiscal year different from that provided for in subsection (1); or

(b) where the band has adopted a different fiscal year pursuant to paragraph (a), revert to the fiscal year provided for in subsection (1)."

"89 (3) Where a by-law is made under subsection (2), the fiscal year provided for in the by-law cannot commence until after the end of the fiscal year in which the by-law came into force."

"89 (4) Where a by-law is made under subsection (2), the period between the end of the fiscal year in which the by-law came into force and the commencement of the fiscal year provided for in the by-law shall be deemed to be a separate fiscal year for the purposes of this Part."

Section 90 provides for the band's powers and duties in relation to the budget.  It also sets out the procedure for making expenditures.

"90 (1) The band shall, by resolution, prior to the beginning of each fiscal year, adopt a budget for that fiscal year, and may, if it deems necessary in the course of the fiscal year, adopt supplementary budgets for that fiscal year."


"90 (2) Forthwith after adopting a budget or supplementary budget, the band shall

(a) explain the budget or supplementary budget to the members of the band at an ordinary band meeting;

(b) make a copy thereof available at the head office of the band, for inspection by members of the band at reasonable hours; and


(c) send a copy to the Minister."

"90 (3) Where the band fails to adopt a budget for a fiscal year prior to the beginning of that fiscal year, the budget and any supplementary budgets of the previous fiscal year apply until a new budget is adopted."

"90 (4) The band may make by-laws respecting the preparation and implementation of budgets."


"90 (5) The band may not expend monies or commit itself, by contract or otherwise, to expend monies, unless

(a) such expenditure is authorized by or under a by-law or resolution; and

(b) a certificate is issued by the band treasurer stating that monies are available for such expenditure."

"90 (6) Non-compliance by the band with subsection (5) does not affect the validity or enforceability, with respect to the other party, of the band's commitment to expend monies, if the other party took reasonable steps to satisfy itself that the band had complied with subsection (5)."

"90 (7) Where a by-law or resolution referred to in subsection (5) is inconsistent with the band's budget or supplementary budget, the by-law or resolution shall so state, but a non-compliance with this subsection does not affect the validity of the by-law or resolution.

Section 91 outlines the requirements for the keeping of financial records and statements.  It also makes provision for who may inspect the financial records.

"91 (1) The band shall keep books of account and financial records that

(a) contain, as a minimum

(i) an account of all monies received and disbursed,

(ii) an account of revenues and expenditures,


(iii) a record of accounts payable and receivable.


(iv) an account of assets and liabilities, and


(v) an account of all other transactions that may affect the financial position of the band;

(b) conform with generally accepted accounting principles, and

(c) permit a comparison between

(i) revenues and expenditures as shown in the books of account and financial records, and

(ii) the projected revenues and expenditures as shown in the budget and any supplementary budget."

"91 (2) The Minister or a council member or elector of the band, or any person authorized in writing by the Minister or by a council member or elector, may, at any reasonable time, inspect the books of account and financial records of the band, and a person is guilty of an offence who

(a) obstructs that person; or

(b) having control or possession of those books or records, fails to give all reasonable assistance to that person."

Section 92 outlines the duty of the band to prepare an annual financial statement as well as what information that  statement must contain.

"92 Within two months after the end of each fiscal year, the band shall prepare a financial statement in comparative form, containing, as a minimum,

(a) a balance sheet;

(b) a statement of revenues and expenditures and a comparison of these with the amounts stated in the band's budget and any supplementary budget; and


(c) any other information necessary for a fair presentation of the financial position of the band."

Sections 93, 94 and 95 outline the requirements for the appointment and duties of an auditor and related matters.

"93 (1) For each fiscal year, the electors of the band shall, at a special band meeting or referendum at which at least five per cent of the electors voted on the matter,

(a) appoint a duly accredited auditor and fix or provide for his remuneration; or

(b) authorize the council to appoint a duly accredited auditor and fix or provide for his remuneration."

"93 (2) Where no auditor has been appointed under subsection (1) within three months after the beginning of a fiscal year, the Minister may appoint an auditor for that fiscal year and fix his remuneration."

"93 (3) the auditor appointed pursuant to subsection (1) or (2) holds office until he is re-appointed, or a new auditor is appointed, under subsection (1) or (2)."


"93 (4) Where a vacancy occurs during the term of the auditor, the band shall forthwith appoint a new auditor for the remainder of the term of the former auditor and shall fix  the new auditor's remuneration."


"93 (5) Where the band fails to act under subsection (4), the Minister may appoint a new auditor and fix that auditor's remuneration.


(1) the Minister shall inform the band in writing of the appointment."


"93 (6) In all cases the auditor's remuneration shall be paid by the band."


"94 (1) The auditor shall, within four months after the end of the band's fiscal year, prepare and submit to the band (with a copy to the Minister) a report on the band's financial statement, stating whether, in the opinion of the auditor, the financial statement presents fairly the financial position of the band in accordance with generally accepted accounting principles applied on a basis consistent with that applied in the previous fiscal year.'


"94 (2) If the auditor has not been able to prepare the report within the period mentioned in subsection (1), the auditor shall notify the Minister of the reasons for the delay."


"94 (3) The band shall present and explain the auditor's report to the members of the band at an ordinary band meeting."


"94 (4) the band shall make a copy of the auditor's report available at the head office of the band, for inspection by members of the band at reasonable hours."


"95 For the purpose of preparing his report under subsection 94 (1), the auditor may at all reasonable times inspect the financial records, accounts, books, minutes, vouchers and receipts of the band, its subsidiaries and any person or body who administers money on behalf of the band (in so far as the records or other documents relate to the money being administers on behalf of the band), and any person who

(a) obstructs the auditor in the performance of his duties, or

(b) having control; or possession of such documents, fails to give the auditor all reasonable assistance in the performance of his duties

is guilty of an offence."

Sections 96, 97 and 98 outline the powers and duties of the band in relation to short-term and long-term  borrowing.  It also requires the approval of the electors of the band for long-term borrowing other than for housing.  The Governor in Council is empowered to make regulations for long-term borrowing.

"96 (1) The band may not borrow money on either a short-term or long-term basis otherwise than in accordance with section 97 and the regulations made under section 98."


"96 (2) For the purposes of this section and sections 97 and 98,

(a) money shall be deemed to be borrowed on a short-term basis only if

(i) it is not borrowed for the purpose of meeting the normal operating expenditures of the band,

(ii) it is to be repaid within one year from the day on which it is borrowed, and


(iii) the band has, prior to borrowing the money, identified the source of revenue from which the money is to be repaid; and

(b) all borrowing that is not on a short-term basis shall be deemed to be on a long-term basis."

"97 (1) Each borrowing by the band, whether on a short-term basis or on a long-term basis, must be authorized by a by-law of the band, which by-law must specify

(a) the amount to be borrowed and the purpose of borrowing; and

(b) the manner and terms of repayment and the repayment date or dates."

"97 (2) A by-law made under subsection (1) authorizing long-term borrowing, other than for housing purposes, must be approved by the electors of the band at a special band meeting or referendum at which at least 20% of the electors voted on the matter."

"97 (3) The band may not borrow on a long-term basis until regulations made under section 98 are in force."


"98 The Governor in Council may make regulations respecting long-term borrowing by the band."


Section 99 provides for the awarding of contracts, and allows for preferential arrangements for Naskapi beneficiaries.

"99 The band may make by-laws respecting procedures for the awarding of contracts and the calling of tenders in relation thereto, and such by-laws may take into account the preferential contract and employment benefits for Naskapi beneficiaries contained in the Northeastern Quebec Agreement or established pursuant to that agreement."

Section 100 provides for the Minister's power to appoint an administrator when he thinks that the band's financial affairs are in serious disorder.  The powers of the administrator are specified.

"100 (1) If, as a result of an inspection by the Minister or a person authorized by the Minister under subsection 91 (2), the auditor's report under subsection 94 (1), or any non-compliance with the provisions of this Part, the Minister is of the opinion that the financial affairs of the band are in serious disorder, the Minister may give written notice to the band, of his or her intention to appoint an administrator to administer the financial affairs of the band, setting out his or her reasons for so doing.'


"100 (2) Where the band receives a notice under subsection (1), it shall forthwith take corrective measures to remedy the situation referred to in the notice."


"100 (3) At any time between 60 days and one year after giving notice to the band under subsection (1), the Minister may, if the Minister is of the opinion that the situation referred to in the notice has not been adequately remedied, appoint, by order, an administrator to administer the financial affairs of the band, and the order shall set out the duties of the administrator.  The Minister shall send a copy of the order without delay to the band."


"100 (4) Where an administrator has been appointed pursuant to subsection (3), no person shall expend monies of the band without the consent of the administrator, and any person who violates this subsection is guilty of an offence.'


"100 (5) The administrator appointed pursuant to subsection (3) holds office for a term of four months from the date of his appointment.'


"100 (6) At the expiration of the administrator's term of appointment referred to in subsection (5), the Minister may, if he is of the opinion that the financial affairs of the band continue to be in serious disorder, reappoint the administrator, or appoint a new administrator, for a further period not exceeding four months."


"100 (7) The Minister's power under subsection (6) applies also at the expiration of the term of appointment of an administrator appointed or re-appointed under that subsection."

 

PART V
RIGHTS OF RESIDENCE ON AND ACCESS TO
 CATEGORY 1A-N LAND

Part V provides for rights of residency on and access to Category 1A-N land.  It also outlines the band's by-law making powers on matters of residency and access as well as what persons have residency and/or access rights.

"101 No person may reside on, enter or remain on Category 1A-N land otherwise than in accordance with a residence or access right under this part."


Section 102 outlines the by-law making powers of the band in relation to residency and access rights on category IA-N land.

"102 (1) The exercise of residence or access rights conferred by sections 103 to 106 is subject to any by-law made under subsection (2)."


"102 (2) The band may make by-laws for the purpose of regulating, on its Category 1A-N land, the exercise of residence or access rights conferred by sections 103 to 106, but, except in the case of an authorization to reside under paragraph 103 (2) or an authorization of access under paragraph 105(5) (e), such a by-law may not, notwithstanding section 8, unreasonably restrict or, except as provided by subsection 103 (3), effectively deny any such residence or access right."


Section 103 explains who has a right of residence as well as the band council's power to regulate the residence of non-Naskapi persons.

"103 (1) The following persons have the right to reside on Category 1A-N land of the band:

(a) a member of the band;

(b) the member's consort, within the meaning of section 174; and

(c) the family to the first degree of a person described in paragraph (a) or (b)."

"103 (2) In addition to persons described in subsection (1), the following persons may reside on Category 1A-N land of the band:

(a) a person so authorized in writing by the band or by a by-law of the band;

(b) a person so authorized by virtue of a grant from the band under Part VIII;

(c) an administrator holding office pursuant to section 100; and

(d) subject to subsection (3), a person engaged in administrative or public duties approved by the band or scientific studies approved by the band."

"103 (3) the band may prohibit a person described in paragraph (2) (d) from residing on its Category 1A-N land where the number of such persons would be such as to significantly alter the demographic composition of the community."

Section 104 provides for the pre-existing residency and occupancy rights of non-Naskapis.

"104 A person who is not a Naskapi beneficiary and was, immediately before January 31, 1978, residing on or occupying, by virtue of a right of residence or occupancy, land that became Category 1A-N land by virtue of the Northeastern Quebec Agreement, and continues to reside on or occupy that land by virtue of that right at the coming into force of this Part, but may continue to reside on or occupy that land in accordance with that right until the expiry of that right."

Section 105, subsections (1) to (3) of the previous legislation are repealed.  The remaining subsections of section 105 deal with access rights.

"105 (4) The following persons have a right of access to any Category 1A-N land:

(a) any Naskapi beneficiary;

(b) that beneficiary's consort, within the meaning of section 174;

(c) the family to the first degree of a person described in paragraph (a0 or (b);

(d) a person deemed by paragraph 20.1 (a) to be a member of the band."

"105 (5) In addition to persons described in subsection (4), the following persons are permitted access to Category 1A-N land of the band to the extent required in order to exercise their rights or functions referred to below, subject to the terms and conditions of the right or function in question:

(a) a person who is authorized by a government body or any other public body, established by or under an Act of Parliament, an Act of the legislature of Quebec or a by-law of the band to perform a public function, establish, operate or administer a public service, construct or operate a public installation or conduct a technical survey thereon;

(b) a holder of a right or interest granted under Part VIII in Category 1A-N land or in a building situated thereon;

(c) a person who has an authorization for commercial exploitation of forest resources referred to in subsection 111 (2);

(d) a holder of a mining right or other subsurface right referred to in section 115 or a person exercising a right under subsection 113 (3); and

(e) a person authorized in writing by the band or by a by-law of the band."

Section 106 provides for limited public access to certain facilities.

"106 Any member of the public is permitted access to the public facilities mentioned in section 191.45 of an Act Respecting the Land Regime in the James Bay and New  Quebec Territories (Quebec), where all or any part of such a facility or installation is located on Category IA-N land."

Section 107 deals with the residency and access rights of Naskapi living on the Matimekosh reserve.

"107 Despite the Indian Act, a Naskapi beneficiary who, immediately before the coming into force of this section, resided on the Matimekosh Reserve has the right to continue to reside on, and enjoy access to and movement about, that reserve, subject to subsection 20.25A of the Northeastern Quebec Agreement."

Section 108 concerns interference with Naskapi residency and access rights as well as access or residency by those without such rights.

"108 (1)  Every person who

(a) unlawfully interferes with a person's residence or access right under this part, or

(b) resides on, enters or remains on Category IA-N land otherwise than in accordance with a residence or access right under this Part
is guilty of an offence."

"108 (2) Subsection (1) does not affect any right or remedy that, but for that subsection, would be available in respect of a contravention of section 101."

 

PART VI
RIGHTS OF BAND, QUEBEC AND OTHERS
IN RELATION TO CATEGORY IA-N LAND

Part VI outlines the rights of the Naskapi band, the Province of Quebec and others in relation to Category IA-N land and the resources  of that land.  The band's rights to "administer, manage, control, use and enjoy" its lands and resources is provided for in detail.

"109 (1)  Quebec retains the bare ownership of Category  IA-N land."


"109 (2) Subject to this Act, the band has the exclusive use and benefit of its Category IA-N land and the natural resources thereof, and may administer, manage, control, use and enjoy that land and the natural resources thereof for community, commercial, industrial, residential or other purposes, as if it were the owner thereof."


Section 110 specifically deals with the band's ownership of soapstone and similar material.

"110 All deposits of soapstone, and any other similar material used for traditional arts and crafts of the Naskapi on Category IA-N land of the band are the property of the band."


Section 111 deals specifically with rights of the band to forest resources on its Category IA-N land.  It also provides for the role of the provincial Minister as well as for the electors of the band in relation to commercial exploitation of the forest resources of the band.

"111 (1) The band has the exclusive right to the commercial exploitation of forest resources on its Category IA-N land without the payment of stumpage dues, but it may not exercise the right conferred on it by this subsection, either directly or through persons authorized by the band, unless it obtains cutting rights or a licence to cut timber from the provincial Minister responsible therefor, as required by section 191.40 of An Act Respecting the Land Regime in the James Bay and New Quebec Territories (Quebec)."


"111 (2) An authorization from the band to a person for commercial exploitation of forest resources on the band's Category IA-N land requires the approval of the electors of the band at a special band meeting or referendum at which at least 25% of the electors voted on the matter."


"111 (3) Subject to any by-law of the band made under section 45 restricting or prohibiting the use of forest resources, a member of the band may use forest resources on Category IA-N land for personal or community purposes."


Sections 112 outlines how gravel resources may be exploited, along with the powers of the band and of Quebec in this area.

'112 Where it has obtained a permit pursuant to section 191.38 of an Act Respecting the Land Regime in the James Bay and New Quebec Territories (Quebec), the band may use, in accordance with that permit, gravel and other similar material generally used for personal or community earthworks."


Section 113 provides for the ownership, control and exploitation of mineral resources on Category IA-N land as well as for the role of the band and of the electors in granting mineral rights.

"113 (1) Subject to this Act, Quebec retains the ownership of all mineral rights and subsurface rights on Category IA-N land."


"113 (2) Subject to subsection (3), after January 31, 1978, no mineral right or subsurface right on Category IA-N land of the band may be granted or exercised and no mineral or other subsurface material or substance may be mined or extracted from such land without the consent of the band and payment to the band of compensation agreed to by the band."


"113 (3) A holder of a right or title described in section 115 may, without the consent and payment referred to in subsection (2) but subject to subsections 116 (1) and (3) and the payment of compensation as set out in subsection 116 (4), explore for and exploit minerals on adjacent Category IA-N land if those minerals extend continuously from the minerals that are the object of the permit, right or title."


"113 (4) The following require the approval of the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter

(a) the giving by the band of the consent referred to in subsection (2);

(b) a grant by the band of a right or interest in its Category IA-N land in connection with the giving of the consent referred to in subsection (2); and


(c) the band's agreement as to the type and amount of the compensation referred to in subsection (2)."

Section 114 repeals a section of the previous legislation.

Section 115 deals with pre-existing (before January 31,1978) mining rights.

"115 A holder of a right or title (including a mining claim, development licence, exploration permit, mining concession and mining lease) to minerals ("minerals" as defined in the Mining Act (Quebec) as it read on January 31, 1978) granted before January 31, 1978 on land surrounded by or adjacent to land that subsequently became Category IA-N land pursuant to the Northeastern Quebec Agreement may, subject to subsections 116 (3) and (4), use Category IA-N land to the extent necessary for the exercise of his or her right or title."


"116 (1)  The rights conferred by subsection 113 (3) may not be exercised otherwise than in accordance with Division XXII of the Mining Act (Quebec) as it read on January 31, 1978, except that the expropriation of servitudes provided for by that Division shall be restricted to temporary servitudes."


Subsections (1.1) and (2) of the previous legislation are repealed.

"116 (3) The right conferred by section 115 may not be exercised otherwise than in accordance with Division XXII of the Mining Act (Quebec) as it read on January 31, 1978, except that the expropriation of servitudes provided for by that Division shall be restricted to temporary servitudes."


"116 (4) Where Category IA-N land is used pursuant to subsection 113 (3) or section 115, compensation shall be paid to the band

(a) in the form of an equal area of land, where the Category IA-N land is used for a purpose other than exploration; or

(b) where the Category IA-N land is used for the purpose of exploration, in an amount equivalent to that paid to Quebec for the use of its land in similar cases."

"116 (5) Where compensation is payable under paragraph (4) (a), sections 125 and 126 apply, with such modifications as the circumstances require

Section 117 (1) and (1.1) of the previous legislation are repealed.

Section 117 confirms the rights of holders of leases, occupation permits etc. where these rights were established prior to January 31, 1978

"117 (2) A holder of any lease, occupation permit or other grant or authorization the term of which lease, permit, grant or authorization had not expired at the coming into force of this Part, granted in writing by Quebec before January 31, 1978 on land that subsequently became Category IA-N land pursuant to the Northeastern Quebec Agreement, may continue to exercise his rights under the lease, permit, grant or authorization, as if the land were Category III land, until the end of the renewal period."


Section 117 (3) and (3.1) of the previous legislation are repealed.

"117 (4) Where, immediately before the coming into force of this Part, a person held a right or interest, lawfully granted by the Minister or by the Indian Act Naskapis de Schefferville band,

(a) in category IA-N land,

(b) in land that became Category IA-N land by virtue of the Northeastern Quebec Agreement, or


(c) in a building situated on land described in paragraph (a) or (b),

the band shall, if that person so  requests within two years after the coming into force of part VIII, forthwith grant to that person under that Part a right or interest that is equivalent to the person's former right or interest, whereupon the person's former right or interest expires; and where the person does not make the request within two years after the coming into force of Part VIII, that person's former right or interest expires at the end of that period."

Subsections (5) and (5.1) of the previous legislation  are repealed.

"117 (6) Where, immediately before the coming into force of this Part, a person was in possession of, or occupied, with the explicit consent of the Indian Act Naskapis de Schefferville band,

(a) Category IA-N land,

(b) land that became Category IA-N land by virtue of the Northeastern Quebec Agreement, or


(c) a building owned by that band and situated on land described in paragraph (a) or (b),

but that person was not a holder of a right or interest in that land or building referred to in subsection (2) or (4), the band shall, if that person so requests within two years after the coming into force of Part VIII, forthwith grant to that person under that Part a right or interest in such land or building that is equitable in the circumstances, taking into account that possession or occupation and all other relevant factors."

"117 (7) Subsections 132 (2) and (4) and section 137 apply, with any modifications that the circumstances require, in respect of a grant by the band of a right or interest in land pursuant to subsection (4) or (6)."

 

PART VII
EXPROPRIATION OF CATEGORY IA-N LAND BY QUEBEC

Part VII outlines the procedure by which Quebec and other public bodies with the power to expropriate may or may not  exercise that power in relation to Category IA-N land. Part VII, among other things, also requires that expropriation can be used only when alternatives are not available.  Requirements for compensation, in land and/or money, to the band are also outlined along with procedures to be followed when the parties fail to reach agreement on compensation.

"118 In this Part, 'expropriating authority' means

(a) Quebec; or

(b) any public body having the power of expropriation under the laws of the Province and specifically authorized by Quebec to carry out the expropriation in  question."

"119 (1) An expropriating authority may not expropriate any Category IA-N land or any interest therein except as provided by this Part."

"119 (2) the Expropriation Act (Quebec) applies to expropriations under this Part, except to the extent that it is inconsistent with or in conflict with this Act, in which case this Act prevails to the extent of the inconsistency or conflict."

"120 (1) Subject to this Part, an expropriating authority may expropriate in full ownership any Category IA-N land or any building thereon, or may expropriate a servitude over any Category IA-N land, but only for the purpose of, and to the extent necessary for, the establishment of the following public services or structures:

(a) infrastructures, such as regional roads and arteries, bridges, airports, maritime structures and protection and irrigation facilities;

(b) services normally provided by local or municipal governments, including water systems, sewers, purification plants, treatment plants and fire protection services.


(c) public utilities, including electricity, gas and oil, and telephone and other types of telecommunications;


(d) gas or oil pipelines, and energy transmission lines, subject to subsection (2); and


(e) any other service or structure similar to those mentioned in paragraphs (a) to (d) established pursuant to the laws of the Province."

"120 (2) An expropriating authority may expropriate for a purpose mentioned in paragraph (1) (d) only if

(a) the expropriating authority has previously made all reasonable efforts to locate the pipeline or transmission line on

(i) Category III land, or

Paragraph (ii) of the previous legislation is repealed.

(iii) Category II-N land, in the case of an expropriation of Category IA-N land or a servitude over Category IA-N land and has been unable to do so at a cost substantially equivalent to or lower than the cost of locating the pipeline or transmission line on Category IA-N land; and

(b) the pipeline or transmission line is to be located as far as possible from the centre of any residential area located on Category IA-N land."

"121 (1) Except as provided in subsection (2) and (3), an expropriating authority may expropriate only servitudes."

"121 (2) Where a service or structure mentioned in subsection 129 (1) cannot be established without a taking of the full use and enjoyment of the Category IA-N land, the expropriating authority may expropriate the land in full  ownership."


"121 (3) Where the expropriation of a servitude for the establishment of a service or structure mentioned in subsection 120 (1) would effectively prevent the use or enjoyment by the band or its members of the land on which the service or structure is to be established, the expropriating authority may not expropriate the servitude in question but may only expropriate the land in full ownership."


"122 (1) Subject to section 123, the band is entitled to compensation from the expropriating authority in accordance with this section."


"122 (2) The band is entitled to be compensated with an equal area of land where the expropriation is for a purpose mentioned in paragraph 120 (1) (d)."


"122 (3) The band is entitled to be compensated in money in respect of an expropriation of a servitude for a purpose mentioned in paragraph 120 (1) (b), (c) or (e) and the amount of compensation must be approved by the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter."


"122 (4) The band is entitled to be compensated with an equal area of land or in money, or partly with land and partly in money, at the band's option, in respect of land expropriated in full ownership for a purpose mentioned in paragraph 120 (a), (b), (c) or (e), and the type and amount of compensation must be approved by the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter."


"122 (5) Notwithstanding subsections (2) and (4), the expropriating authority may compensate the band exclusively in money in the circumstances described in the third paragraph of section 191.22 of an Act Respecting the Land Regime in the James Bay and New Quebec Territories (Quebec)."


"123 The band is not entitled to any compensation where the expropriation is for a purpose mentioned in paragraph 120 (1) (a), (b), (c) or (e) and the service or structure in question is of direct benefit to the members of the band as a community or to a significant portion of the band's Category IA-N land."


"124 (1) For purposes of section 123, the following services or structures shall be deemed to be of direct benefit under that section:

(a) services expressly requested by the band from the expropriating authority;

(b) essential services for the use of members of the band as a community;


(c) local services normally provided by a municipal or local government, including local roads, bridges, airports and other similar services; and


(d) local services normally provided by a public utility."

"124 (2) An expropriating authority shall indicate on an expropriation notice whether or not the service or structure to be established on the land being expropriated is, in the opinion of the expropriating authority, of direct benefit to the members of the band as a community or to a significant portion of the band's Category IA-N land."

"124 (3) Where the expropriating authority referred to in subsection (2) fails to indicate its opinion in accordance with that subsection or indicates that, in its opinion, the service or structure referred to in subsection (2) is not of direct benefit to the members of the band as a community or to a significant portion of the band's Category IA-N land, the service or structure shall be deemed, for the purposes of this Part, not to be of direct benefit to the members of the band as a community or to a significant portion of the band's Category IA-N land."


"124 (4) Where the band and an expropriating authority disagree as to whether a service or structure is of direct benefit to the members of the band as a community or to a significant portion of the band's Category IA-N land, or disagree as to whether a service or structure is one described in paragraphs (1) (a) to (d), the issue shall be determined by the Administrative Tribunal of Quebec, unless the parties have agreed to submit the matter to final and binding arbitration."


"124 (5) In any disagreement referred to in subsection (4), the burden of proof lies on the expropriating authority."


"124 (6) In determining whether a service or structure is one described in paragraph (1) (b), (c) or (d) or whether a service or structure not described in subsection (1) is of direct benefit to the members of the band as a community or to a significant portion of the band's Category IA-N land, regard shall be had to the potential use by the members of the band as a community of the service or structure, the advantages of the service or structure to the members of the band as a community, and the anticipated benefit of the service or structure to the Category IA-N land of the band."


"125 (1) Where the band is entitled to be compensated with land under paragraph 116 (4) (a) or subsection 122 (2) or elects to be compensated wholly or partly with land under subsection 122 (4), the following rules apply:

(a) as soon as possible after the service of the expropriation notice (where the band has not contested the right to expropriate) or after the final judgement on the right to expropriate (where the band has contested that right), the band shall indicate to the expropriating authority its preference as to the selection of replacement land, which preference must have been agreed to by the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter;"

(b) if the selection of replacement land proposed by the band under paragraph (a) is not acceptable to Quebec, Quebec shall, taking into account the preference of the band as expressed under that paragraph, propose to the band alternative replacement land that

(i) is Category III land,

(ii) is adjacent to Category IA-N land of the band, and


(iii) is double the area of, and has characteristics reasonable similar to those of the expropriated land;

(c) the band may select from the alternative replacement land proposed by Quebec under paragraph (b) an area of land equal to the area of the expropriated land, and such selection must be approved by the electors of the band at a special band meeting or referendum at which at least twenty-five percent of the electors voted on the matter."

(d) once replacement land has been accepted by the band, the necessary measures shall forthwith be taken by Quebec and Canada to set aside that replacement land as Category IA-N land of the band, unless other arrangements are agreed to between Quebec and the band and approved at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter; and


(e) where no agreement is reached between Quebec and the band as to the selection of replacement land within one hundred and twenty days after service of the expropriation  notice (where the band has not contested the right to expropriate) or after the final judgement on the right to expropriate (where the band has contested that right), the compensation to the band shall be in the form of money instead of replacement land, and where the parties cannot agree on the amount of money, which amount must be approved by the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter, section  127 applies.

Section 125 (2) of the former Act is repealed.

"126 Where

(a) the band has been compensated with replacement land pursuant to paragraph 116 (4) (a) or subsection 122 (2) or (4), or

(b) no compensation was paid to the band pursuant to section 123,
and subsequently the expropriated land is no longer required by the expropriating authority for the purposes for which it was expropriated, Canada and Quebec shall forthwith, if requested by the band by resolution approved by the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter, take the necessary measures to reclassify the expropriated land as Category IA-N land, and, the situation described in paragraph (a), shall take the necessary measures to return the replacement land to its former classification."

"127  Where compensation is payable wholly or partly in money pursuant to subsection 122 (3) or (4) or 125 (1) (e), and the parties cannot agree on the amount of such compensation, the amount shall be determined by  the Administrative Tribunal of Quebec in accordance with the Expropriation Act (Quebec), unless the parties submit the matter to final and binding arbitration."

"128 In any expropriation under this Part, the  establishment of the service or structure or the commencement of construction related thereto may proceed after sixty days from the service of the expropriation notice (where the band has not contested the right to expropriate) or from the final judgement on the right to  expropriate (where the band has contested that right), even if negotiations concerning compensation have not been concluded."


"129  Where Category IA-N land has been expropriated in full ownership under this Part, the expropriated land ceases to be Category IA-N land

(a) in the case where the band is not entitled to any compensation, as of the later of the two following dates:

(i) the date of the final judgement on the contestation of the right to expropriate or, where there is no such contestation, as of the day following the last day on which a motion of contestation may be presented, and

(ii) where the band claims a right to compensation, the date of the final judgement declaring that the band is not entitled to any compensation;

(b) in the case where the band is entitled to compensation in money, or elects pursuant to subsection 122 (4) to be compensated in money, the day on which an agreement respecting compensation is concluded or, where there is no agreement as to compensation, as of the date of the final judgement on the amount of compensation pursuant to section 127;

(c) in the case where the band is entitled to compensation in the form of land, or where the band elects pursuant to subsection 122 (4) to be compensated entirely in land, the latest of the following days:

(i) the day on which Canada sets aside the replacement land as Category IA-N land of the band,

(ii) the day on which an agreement on money compensation pursuant to paragraph 125 (1) (e) is concluded, and


(iii) the day of the final judgement on the amount of money compensation, where there has been no agreement on money compensation under paragraph 125 (1) (e); or

(d) in the case where the band elects, pursuant to subsection 122 (4), to take compensation partly in the form of land and partly in money, the latest of the following days;

(i) the day on which Canada sets aside land as Category IA-N land of the band,

(ii) the day on which an agreement on money compensation is concluded, 


(iii) the day on which, failing an agreement as to replacement land, an agreement on money compensation pursuant to paragraph 125 (1) (e) is concluded, and


(iv) the day of the final judgement on the amount of money compensation where the amount of money compensation is not agreed on."

 

PART VIII
RIGHTS AND INTERESTS IN CATEGORY IA-N LAND AND BUILDINGS

Part VIII outlines how the rights and interests of the holders of various leases, grants etc. on Category IA-N land are to be managed. The powers of the band in relation to grants of rights and interests are defined. The role of the electors in approvals of certain types of use and occupancy arrangements is spelled out.  Quorums of electors for different types of approval are listed as is the role of outside governments.  Numerous and complex legal terms are used and in this area, legal advice is needed for anything more than a general understanding of the legislation.

"130 (1)  In this part
lease does not include an emphyteutic lease, (bail)
transfer means a transfer made directly or indirectly, but does not include a transfer by testamentary or intestate succession.  (transfer)"

"130 (2) For the purposes of this Part, where a corporation holds a right or interest in Category IA-N land and subsequently there is a change in the effective voting control of that corporation (otherwise  than by a testamentary or intestate succession), a transfer of that right or interest shall be deemed to have occurred."


"130 (3) In construing the nature and extent of the rights and interests listed in subsection 132 (1), reference shall be had to the Civil Code of Quebec and the Civil Code of Lower Canada to the extent that they are not inconsistent with this Act or with the provisions of the grant of that right or interest."


"131 Unless otherwise provided in the lease, provincial laws relating to the rights and obligations of lessors and lessees do not apply to a lease for residential purposes of a building situated on Category IA-N land."


"132 (1) The band may, subject to this Part, grant

(a) with respect to its Category IA-N land, a lease, emphyteutic lease or usufruct, servitude, superficie or other right of use or occupation; and

(b) with respect to its buildings on its Category IA-N land, a lease, emphyteutic lease or usufruct, or a right of ownership, co-ownership, use or habitation, or other right of use or occupation or, subject to the approval of the electors of the band described in subsection 193 (3), a hypothec or other charge."


"132 (2) The term of a grant made under paragraph (1) (a) may not exceed seventy-five years."


"132 (3) A grant of ten years or more made under paragraph 1 (a) for non-residential purposes has no effect unless approved by the electors of the band at a special band meeting or referendum at which

(a) at least ten per cent of the electors of the band voted on the matter, in the case of a grant for a term of less than twenty-five years; or

(b) at least twenty-five per cent of the electors of the band voted on the matter. in the case of a grant for a term of twenty-five years or more."

"132 (4) For the purposes of subsections (2) and (3), any period in respect of which a grantee has a right of renewal shall be deemed to be included in the original term of the grant."

"133 A grant made or an authorization given under this Part has no effect unless it is made in writing by the band and accepted in writing by the person to whom it is given."


"134 (1) A grant made or an authorization given under this Part may contain any terms and conditions not inconsistent with this Act."


"134 (2) Unless otherwise provided in writing a grant under this Part,

(a) the term of a grant for non-residential purposes shall be deemed to be one year, except in the case of a grant of ownership or co-ownership of a building;

(b) the term of a grant for residential purposes made to an individual shall be deemed to be fifty years, except in the case of a grant of ownership or co-ownership of a building;


(c) the band may terminate the right or interest granted after non-use by the grantee of the right or interest for a continuous period of five years;


(d) the right or interest granted includes such ancillary rights as are necessary for the reasonable exercise of the right or interest granted; and


(e) the right or interest granted does not include

(i) the right of accession,

(ii) the right to renew the term of the grant,


(iii) the right to reside,


(iv) in the case of a right or interest in land,

(A) the right to subsequently transfer the right or interest or any part thereof to another person, and

(B) the right to construct or own a building on the land or otherwise have a building on the land, except in the case of a grant of superficie, and

(v) in the case of a right or interest in a building originally granted by the band  for non-residential purposes, the right to subsequently transfer that right or interest to another person.

"135 (1) A grant by the band relating to its Category IA-N land does not permit the grantee to use the land for

(a) a commercial fishery, or

(b) an outfitting operation within the meaning of an Act Respecting Hunting and Fishing Rights in the James Bay and New Quebec Territories (Quebec)
unless explicit permission for such use is included in the terms of the grant or is subsequently given by the band."

"135 (2) Permission to use Category IA-N land for a purpose mentioned in paragraph (1) (a) or (b), whether included in the terms of the grant or subsequently given by the band, requires the approval of the electors of the band at a special band meeting or referendum at which

(a) at least ten per cent of the electors of the band voted on the matter, in the case of permission for a period of less than twenty-five years; or

(b) at least twenty-five per cent of the electors of the band voted on the matter, in the case of permission for a period of twenty-five years or more."

"136 (1) For the purposes of this Part, a right of superficie is a right in land that entitles the holder of the right (referred to in this section as the 'superficiary') to construct and own buildings on the land."

"136 (2) In addition to terminating through the operation of paragraphs 134 (2) (a) and (b), a superficie granted under section 132 shall be deemed to expire if the band becomes the superficiary, or if there is a total loss of the land subject to the superficie.'


"136 (3) unless otherwise agreed to in writing by the band and the superficiary prior to the expiration of a superficie the superficiary shall, at his own expense and prior to the expiration of the term of the superficie,

(a) remove or demolish any building owned by him on the land; and

(b) restore the land as near as possible to the state that it was in at the commencement of the term of the superficie."

"136 (4) At least ninety days before demolishing a building pursuant to paragraph 93) (a), the superficiary shall give notice to the band of his intention to demolish the building.'

"136 (5) The band shall, within forty-five days of receiving a notice referred to in subsection (4), give notice to the superficiary as to whether the band elects or does not elect to purchase the building, and, where the band fails to give such notice within that period, it shall be deemed to have elected not to purchase the building."


"136 (6) Where the band elects under subsection (5) to purchase the building, the building becomes the property of the band at the time when the band gives notice to the superficiary of its election to purchase the building, and the band shall forthwith compensate the former superficiary in an amount to be agreed on between the band and the superficiary or, where no agreement can be reached, at fair market value."


"136 (7) Where, pursuant to subsection (5), the band gives notice to the superficiary that it elects to purchase the building, the band shall cause a copy of that notice to be registered in the land registry system established by Part X, but non-compliance with this subsection does not affect the validity of the notice."


"136 (8) Where the band does not elect to purchase the building pursuant to subsection (5) and the superficiary fails to comply with subsection (3), then the building becomes the property of the band on the expiration of the term of the superficie, with no compensation payable to the superficiary."


"136 (9) Where the band removes or demolishes a building within one year after becoming the owner thereof pursuant to subsection (8), the former superficiary is liable for reasonable costs incurred by the band in so removing or demolishing the building and in restoring the land, within that one year period, as near as possible to the state that it was in at the commencement of the term of the superficie."


"137 (1) Where a right or interest in land was originally granted by the band for residential purposes under paragraph 132 (1) (a), a subsequent transfer of that right or any interest on any part thereof is of no effect unless authorized by the band, either in the original grant or subsequently."


"137 (2) Where a right or interest in land was originally granted by the band for non-residential purposes under paragraph 132 (1) (a), a subsequent transfer of that right or interest or any part thereof is of no effect unless authorized by the band, either in the original grant or subsequently, with the approval of the electors of the band at a special band meeting or referendum at which the same percentage of electors voted on the matter as would be required if the right or interest being transferred were being granted by the band under paragraph 132 (1) (a)."


"137 (3) Where a transfer of a right or interest of a corporation in Category IA-N land of the band is deemed to have occurred by virtue of subsection 130 (2) as a result of a change in the effective voting control of the corporation and that change in the effective voting control had not been previously authorized by the band pursuant to subsection (1) or (2), as the case may be, that right or interest of the corporation reverts to the band as of the date of the change in effective voting control of the corporation."


"138 The band shall consult with the department or agency of the Government of Quebec or other person designated by Quebec and the Minister before permitting a person other than a Naskapi beneficiary, a body composed of a majority of Naskapi beneficiaries, or a party to the Northeastern Quebec Agreement to develop a project of a regional or provincial nature on the band's Category IA-N land."


"139 (1) The band shall allocate land necessary for community services provided by Quebec, its agents or mandataries, such as roads, schools, hospitals, police stations and other similar services."


"139 (2) The allocation of land by the band pursuant to subsection (1) shall be effected by way of servitude, lease or similar contract, and for a fee not exceeding one dollar."


"140 No right or interest in Category IA-N land may be acquired by prescription."

 

PART IX
CESSIONS BY BAND

Part IX describes the process through which the band cedes any part of its Category IA-N land.  The role of the electors of the band, including the high quorum required (50%); the roles the federal and Quebec Ministers, and others are spelled out.  Compensation of affected rights holders is also provided for, along with the process for resolving disputes about that compensation.

"141 (1) In this Part,

cession means the ceding of the whole of the rights and interests of the band in or on any of its Category IA-N land;  (abandon)
registered means registered in the land registry system referred to in Part X."

"141 (2) For greater certainty, the granting of rights or interests by the band in its Category IA-N land pursuant to any other Part of this Act does not constitute a cession within the meaning of this Part."


"142 (1) The band may make a cession, but only to Quebec and only in accordance with this Part."


"142 (2) A cession may either be unconditional or may be subject to such terms and conditions as are contained in the Instrument of Cession."


"143 (1) A cession is not valid unless

(a) it is approved by the band in accordance with section 144;

(b) an Instrument of Cession is executed by the band in accordance with paragraph 146 (b);


(c) the statement and document referred to in paragraphs 146 (a) and (b) have been submitted to the Minister in accordance with section 146;


(d) the Governor in Council passes an order in council in accordance with section 147 transferring to Quebec the administration, management and control of the land described in the Instrument of Cession; and


(e) Quebec has, within six months of the date of the execution of the instrument of Cession or such longer  period as is specified in the Instrument of Cession,

(i) accepted the cession in accordance with the terms and conditions specified in the Instrument of Cession, and

(ii) accepted the transfer from Canada of the administration, management and control of the land described in the Instrument of Cession."

"143 (2) The effective date of a cession is the date on which Quebec accepts the cession and the transfer of the administration, management and control pursuant to paragraph 1 (e), unless a later date is specified in the Instrument of Cession, in which case the effective date of the cession is that later date."

"144 (1) A cession requires the approval of the electors of the band in a referendum in which more than 50% of the electors of the band vote in favour of the cession."


"144 (2) At least thirty days prior to the day fixed for a referendum in which a proposed cession is to be voted on, a notice described in subsection (3)

(a) must be delivered to all holders of registered rights or interests in or on the land subject to the proposed cession by personal service or by registered mail to the holder's address that is registered in the land registry office; and

(b) must be posted on the band's Category IA-N land at a public place designated by the band."
 "144 (3) The notice referred to in subsection (2) must clearly state that a proposed cession is to be voted on in the referendum, and must clearly set out

(a) the time and place of the referendum;

(b) a reasonably accurate description of the land subject to the proposed cession; and


(c) the principal terms and conditions of the proposed cession."

"145 (1) The existence of rights or interests of persons other than the band in or on Category IA-N land, or in a building located thereon, does not in itself bar a cession of that land."

"145 (2) Except as provided by any agreement to the contrary between the band and Quebec, all rights and interests in or on Category IA-N land subject to a cession and all rights and interests in buildings located thereon, other than rights and interests of Quebec, are extinguished as of the effective date of the cession."


"145 (3) Holders of registered rights or interests in or on Category IA-N land, or in buildings located thereon, whose rights or interests have been extinguished by virtue of subsection (2) are entitled to fair compensation by the band for the value (as of the time of the delivery of the notice pursuant to paragraph 144 (2) (a) of the extinguished right or interest, and the amount of compensation, if not agreed on by the band and the holder of the right or interest, shall be determined in accordance with regulations made under Part XI as if that right or interest had been expropriated by the band."


"146 Where the band has approved a cession pursuant to section 144, it shall cause to be submitted to the Minister, or to such person as is designated by the Minister, within twenty days after the date of the referendum in which the cession was approved or such longer period as may be authorized by the Minister,

(a) a written statement by the officer responsible for the conduct of the referendum certifying the results of the vote taken therein; and

(b) a document specifically designated as an Instrument of Cession, in prescribed form, executed by at least two council members of the band, describing the cession that was approved in the referendum."

"147 Where section 146 has been complied with, the Governor in Council shall, by order, transfer to Quebec the administration, management and control of the land described in the Instrument of Cession subject to any terms or conditions set out in the Instrument of Cession."

"148 As of the effective date of a cession, the land ceded ceases to be Category IA-N land."


"149 The band shall, within sixty days of the date of a cession, deposit the Instrument of Cession in the land registry office referred to in Part X, but non-compliance with this section does not affect the validity or effective date of the cession."

PART X
LAND REGISTRY SYSTEM

Part X provides for the Governor in Council to make regulations for establishing and operating a land registry system for Category IA-N land.  This system is to be under the control of the Minister.  It also provides for the process of registering various rights and interests in Category IA-N land.  Surveys, land planning and other documents are also required to be registered.

150 (1) A right or an interest in Category IA-N land or in a building situated thereon granted after the coming into force of this Part, other than

(a) an authorization from the band referred to in subsection 111 (2),

(b) a right or interest granted by the band referred to in paragraph 113 (4) (b),


(c) a right conferred by section 115, and


(d) a servitude expropriated by an expropriating authority under Part VII,

is not enforceable against a third party unless it is registered in accordance with the regulations made under section 151.

"150 (2) A hypothec granted after the coming into force of this Part on an interest in Category IA-N land or in a building situated thereon is not enforceable against that interest unless it is registered in accordance with the regulations made under section 151."

"151 The Governor in Council may make regulations for establishing and maintaining a land registry system, under the control and supervision of the Minister, for the registration of rights and interests in Category IA-N land and in buildings situated thereon, and, without restricting the generality of the foregoing, may make regulations respecting

(a) the establishment and maintenance of land registry offices and their hours of operation;

(b) the administration of the land registry system, including officers and employees and their powers and duties;


(c) the procedure for registering rights and interests, including forms and fees;


(d) the manner and form in which books and records are to be maintained by the land registry offices;


(e) the effects of registering a right or interest including priorities;


(f) the registering of surveys of Category IA-N land;


(g) the cancellation of instruments registered in the land registry system; and


(h) the keeping by the land registry offices of non-registrable documents for the purpose of facilitating the management or administration of Category IA-N land or of buildings situated thereon."

"152 (1) The band shall deposit in the land registry office a copy of

(a) every grant by the band made pursuant to section 132,

(b) every authorization from the band referred to in subsection 111 (2),


(c) every grant by the band referred to in paragraph 113 (4) (b),


(d) every authorization by the band referred to in section 137,


(e) every land use plan or resource use plan adopted pursuant to subsection 46 (1), and


(f) every zoning by law made under section 47,

together with evidence of the approval of the electors of the band where such is required by this Act."

"152 (2) Failure of the band to comply with subsection (1) does not affect the validity of the grant, authorization, plan or by law in question."

"152 (3) For greater certainty, the deposit of a document under subsection (1) does not constitute registration of that document."

 

PART XI
EXPROPRIATION BY BAND

Part XI outlines the procedures by which, for certain purposes, the band may expropriate rights and interests in land and buildings on its Category IA-N land. Certain exceptions apply for example to the rights or interests of Canada and Quebec.  Provisions are also made for compensation, the contestation of the expropriation and the power of the Governor in Council to make regulations regarding the procedure for expropriation, compensation and the contestation of both expropriation and the amount of compensation offered.

"153 Where regulations made under section 156 are in force, the band may, subject to and in accordance with those regulations, for community purposes or community works, expropriate any right or interest in its Category IA-N land or in any building situated thereon, except for

(a) a right or interest of Canada or Quebec;

(b) a right conferred by section 115; and


(c) a servitude expropriated by an expropriating authority under Part VII."

"154 The right of the band to expropriate pursuant to this Part does not restrict any right that the band has under this Act to acquire, by mutual agreement, rights or interests in land or buildings."

"155 The band shall, subject to and in accordance with regulations made under section 156, pay compensation to holders of rights or interests expropriated pursuant to this Part."


"156 The Governor in Council may make regulations respecting substantive or procedural aspects of expropriations permitted by this Part, including, without limiting the generality of the foregoing, regulations respecting

(a) procedure governing expropriation, including the taking of possession, compulsory taking of possession and transfer of title;

(b) entitlement to compensation, determination of the amount of compensation and the method for payment of compensation; and


(c) contestation of

(i) the right of the band to expropriate,

(ii) the right of the expropriated party to compensation, and


(iii) the amount of compensation."

 

PART XII
CREE-NASKAPI COMMISSION

Part XII replaces Part XII of the former Cree-Naskapi (of Quebec) Act.  It continues the Cree-Naskapi Commission as it existed under that Act except that it eliminates the Commission's former role in reporting to Parliament on implementation of Cree-Naskapi (of Quebec) Act and related matters. 
Insofar as the Naskapi are concerned, the Commission is responsible for investigating representations under the current Act in very much the same way as before.
Insofar as the Crees are concerned, the Commission is responsible for investigating representations arising under the Cree Nation of Eeyou Istchee Governance Agreement as well under  the Cree Constitution.

"157 In this Part,

commission means the Cree-Naskapi Commission established by section 158;
Cree First Nation has the same meaning as in subsection 2 (2) of the Cree Nation of Eeyou Istchee Governance Agreement Act;
member means a member of the Commission;
representation includes a complaint."

"158 (1) There shall be a commission, to be known as the Cree-Naskapi Commission, consisting of a maximum of three individuals appointed by the Governor in Council on the recommendation of the Cree Nation Government and the Naskapi band."


"158 (2) The Governor in Council shall designate one member of the Commission as Chairman."


"159 A council member, officer, employee or agent of a Cree First Nation or the Naskapi band is not eligible to be appointed or to continue to serve as a member of the Commission."


"160 (1) Except as provided by subsection (3), a member shall be appointed for a term of two years."


"160 (2) A member may be removed for cause."


"160 (3) Where a member dies or resigns or is removed for cause, a new member shall be appointed for the duration of the unexpired term of the former member."


"160 (4) A member is eligible for re-appointment on the expiration of his term of office."


"160 (5) Where a member is absent or incapacitated, the Governor in Council may, on the recommendation of the Cree Nation Government and the Naskapi band, appoint a temporary substitute member on such terms as are fixed by the Governor in Council."


"160 (6) Members of the Commission shall be paid such remuneration as is fixed by the Governor in Council."


"161 The head office of the Commission shall be in the city of Val d'Or, Quebec or at such other place as the Governor in Council, on the recommendation of the Cree Nation Government and the Naskapi band, may designate." 


Section 161 provides that the head office will be in Val d'Or. In fact, Ottawa has since been designated as the location of the head office under this section.

"162 (1) The Commission may, with the approval of the Treasury Board, employ or engage such officers,  employees and agents as are necessary for the proper conduct of the work of the Commission."


"162 (2) Persons employed or engaged under subsection (1) shall be paid such remuneration as is fixed by the Commission with the approval of the Treasury Board."


"162 (3) The members of the Commission and persons employed or engaged under subsection (1) are not part of the federal public administration by reason only of such membership, employment or engagement."


"162 (4) The remuneration of the members of the Commission and of persons employed or engaged under subsection (1) shall be paid out of money appropriated by Parliament for that purpose."


"163 (1) A quorum of the Commission consists of all members."


"163 (2) Decisions of the Commission shall be  by majority vote, except as provided in section 164."


"163 (3) The Commission may make rules for the conduct of its business."


"164 The Commission may, by unanimous decision of its members, delegate its powers or duties, except the power referred to in subsection 163 (3) to one or more of its members."


"165 (1) Subject to subsections (2) and (3), the Commission shall

(a) with respect to Naskapi beneficiaries, investigate any representation submitted to it relating to the implementation of this Act, including representations relating to the exercise or non-exercise of a power under this Act and the performance or non-performance of a duty under this Act; and

(b) with respect to Cree beneficiaries, as defined in subsection 2 (2) of the Cree Nation of Eeyou Istchee Governance Agreement Act,investigate any representation submitted to it relating to the implementation of the Agreement, as defined in subsection 2 (1) of that Act and the Cree Constitution, as defined in that subsection, including representations relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under that Agreement or the Cree Constitution."

"165 (2) The Commission shall not investigate or continue to investigate a representation in respect of whose subject matter judicial proceedings have been commenced."

"165 (3) The Commission may refuse to investigate a representation or may discontinue an investigation if it is satisfied

(a) that the representation has not been made in good faith;

(b) that the person making the representation does not have a sufficient personal interest in the subject-matter of the representation;


(c) that, having regard to all the circumstances of the case, an investigation, or the continuation of the investigation, as the case may be, would serve no useful purpose; or


(d) that there exists a suitable alternative means by which the representation may be investigated or otherwise pursued."

"165 (4) Where the Commission refuses to investigate a representation or discontinues an investigation, it  shall forthwith, in writing, so inform the person who made the representation, stating and explaining on which of the grounds set out in subsection (2) or (3) the commission's decision was based."

"166 (1) Where the Commission decides to investigate a representation, it shall forthwith give notice to

(a) the person who made the representation;

(b) the Naskapi band or each Cree First Nation referred to in the representation;


(c) any person whose misconduct is alleged in the representation;


(d) in the case of a representation referred to in paragraph 165 (1) (a), the Minister; and


(e) the Cree Nation Government, if it is referred to in the representation."

"166 (2) An investigation by the Commission under this Part shall be conducted in private unless the Commission is satisfied that the public conduct of the investigation would not be prejudicial to the interests of any person, it which case it may order the investigation to be conducted in whole or in part in public."

"166 (3) Where a person making a representation to the Commission under this Part so requests, the Commission shall not identify that person in any proceeding under this Part or in any report under section 170."


"167 The Commission, where it deems it necessary in the conduct of an investigation under this Part, may request any person to appear before it, give evidence and produce documents and things, but such a person is under no obligation to comply with the request, and the Commission has no power of subpoena."


"168 The Commission shall not make any negative finding against a person unless it has given him reasonable notice of his alleged misconduct which might form the subject of such a finding and has allowed him an opportunity to be heard in person or by counsel."


"169 (1) No action lies against the Commission, any member thereof, or any person holding an office or appointment under the Commission, for anything done or reported or said in the course of the exercise or intended exercise of his official functions, unless it is shown that he acted in bad faith."


"169 (2) In the absence of malice, no action for defamation lies against a person for testimony that he has given under oath before the Commission."


"170 At the conclusion of an investigation under this Part, the Commission shall prepare a report stating its findings, conclusions and recommendations in respect of the matter investigated, and shall forthwith send copies of the report to the persons referred to in subsection 166 (1) and to any person against whom the Commission has made a negative finding."


Section 171 of the previous legislation is repealed.  Section 171 (1) and (2) provide for an inquiry into the powers, duties and operation of the Commission to be conducted in 2023.  The report of the inquiry is to be submitted to the Minister and tabled in Parliament.

"172 (1) Within six months after the fifth anniversary of the coming into force of the Part, the Governor in Council shall appoint a person or persons to inquire into the powers, duties and operation of the Commission."


"172 (2) The person or persons appointed under subsection (1) shall, within six months after being appointed, submit a report to the Minister, containing such recommendations as they consider appropriate, and the Minister shall cause the report to be laid before each House of Parliament on any of the first ten days on which that House is sitting after the day the Minister receives it."

 

PART XIII
SUCCESSIONS

Part XIII deals with the processes to be followed after the death of a Naskapi beneficiary in relation to the disposition of his property.  Included are: the definition of a valid will, procedures to be followed where there is no valid will, the special rules for dealing with "traditional property" and the role of the "family council" in that process as well as the role of applicable provincial laws and related matters.

"173 This Part applies only in respect of the succession of a Naskapi beneficiary who dies after the coming into force of this Part and who, at the time of his or her death, was domiciled on Category IA-N land."


"174 In this Part

child includes an adopted child, where the adoption

(a) was done in accordance with, or is recognized by, the laws of the Province, or

(b) was done in accordance with Naskapi custom;

consort means one of two consorts;
consorts means two persons

(a) who are married and whose marriage was solemnized in accordance with, or is recognized under, the laws of the Province,

(b) who are cohabiting in a conjugal relationship, taking into account Naskapi custom, or


(c) who are cohabiting in a conjugal relationship, having so cohabited for a period of at least one year;

family council means the family council of a deceased Naskapi beneficiary, composed in accordance with section 182;
traditional property means

(a) all movable property, excluding money, normally used in the exercise of the right to harvest referred to in an Act Respecting Hunting and Fishing Rights in the James Bay and New Quebec Territories (Quebec), other than the movable property used in commercial fishing, and includes, without limiting the generality of the foregoing, vehicles, boats, motors, guns, traps and camping equipment, and

(b) animal products or by-products that are the product of the exercise of the right to harvest described in paragraph (a).

"175 For purposes of intestate succession, a surviving consort and a surviving child are included in the class of lawful heirs of a deceased Naskapi beneficiary."

"176 (1) The following constitute valid wills:

(a) an instrument that is valid under the laws of the Province; and

(b) an instrument accepted by the Minister as a will 

"176 (2) The Minister may accept as a will any written document signed by a Naskapi beneficiary, or bearing his or her mark, in which he or she indicates his or her wishes or intention with respect to the disposition of his or her property on his or her death."

"177 Deeds relating to the acceptance, renunciation or settlement of

(a) a succession composed wholly or partly of movable, immovable or traditional property located on Category IA-N land, or

(b) a succession in which persons suffering legal incapacity are interested

are not required to be made in authentic form as required by Article 599a of the Civil Code of Lower Canada, but must be in the form prescribed under this Act."

"178 (1) Where a Naskapi beneficiary who is a minor under the laws of the Province and ordinarily resident on Category IA-N land, inherits movable or immovable property by virtue of a testamentary or an intestate succession, the parents of that beneficiary are the legal guardians of that property."

"178 (2) Legal guardians by virtue of subsection (1) shall act jointly, except where one of them is deceased or under a legal incapacity or fails for any reason to act within a reasonable time, in which case the other may act alone."


"179 Where a Naskapi beneficiary dies leaving no lawful heirs or where all the heirs renounce the succession, the deceased's movable and immovable property become the property of the band, unless the band renounces such succession, in which case it shall be dealt with as a vacant succession."


"180 On an intestacy of a Naskapi beneficiary, a majority of the lawful heirs may appoint the band to administer or provide for the administration of the succession (except as regards traditional property), in which case the band may charge a fee for its services."


Section 182 deals with the special rules to be followed in dealing with traditional property and the role of the family council and in some cases of the band in this area.

"181 (1) Where a Naskapi beneficiary dies intestate leaving traditional property, the family council of the deceased shall meet within one year of his or her death to decide on the disposition of his or her traditional property."


"181 (2) The family council referred to in subsection (1) may dispose of the deceased's traditional property in accordance with its decision, and may appoint a willing individual to administer the deceased's estate accordingly."


"182 (1) The family council of a deceased Naskapi beneficiary shall consist of the following person or persons:

(a) his surviving consort, if any,

(b) any surviving children of the age of majority and the legal representatives of any surviving minor children; and


(c) any surviving parent."

"182 (2) Where a deceased Naskapi beneficiary leaves no survivors described in subsection (1), the family council of  the deceased shall consist of the three closest surviving relatives of the age of majority, as determined in accordance with the law of the Province, who are ordinarily resident in the Territory as defined in section 2 of the James Bay and Northern Quebec Native Claims Settlement Act."

"183 Where the family council is unable to reach a decision on the disposition of any part of the deceased's traditional property, it may request the council of the band to appoint one or more willing persons to act as the deceased's family council in respect of that part of the deceased's traditional property on whose disposition the family council had been unable to reach a decision."


"184 (1) Where the family council has not reached a decision on the disposition of any part of the deceased's traditional property within two years after the deceased's death, the council of the band shall act as the deceased's family council in respect of that part of the deceased's traditional property on whose disposition the family council had not reached a decision."


"184 (2) Where, on the death of a Naskapi beneficiary,

(a) the deceased leaves no surviving relatives,

(b) for any reason a family council cannot be formed, or


(c) the family council has not met within one year after the deceased's death,

the council of the band shall act as the deceased's family council."

"185 A disposition of any traditional property of a deceased Naskapi beneficiary by the deceased's family council pursuant to this Part passes the property in question to the recipient as of the moment when the recipient takes possession of the property, and any debt in respect of that property thenceforth becomes the responsibility of the recipient."

"186 Where any person designated by the family council of a deceased Naskapi beneficiary to receive the deceased's traditional property pursuant to this Part renounces the property in question before taking possession of it, and no other person is designated by the family council within six months of such renunciation, the disposition of that property shall thenceforth be governed by the laws of the province relating to intestate succession."

 

PART XIV
TAX EXEMPTIONS

Part XIV provides for the tax exemptions, on Category IA-N land, for the band itself, for Naskapi beneficiaries and for Indians within the meaning of the Indian Act

"187 (1) In this Part, Indian means

(a) in subsection (2), a Naskapi beneficiary who is an Indian as defined in the Indian Act; and

(b) in section 188, an Indian as defined in the Indian Act."

"187 (2) For the purposes of this Part, personal property

(a) that became the property of the band by virtue of section 15, as it read on July 3, 1984 and had not been purchased by Canada with money appropriated by Parliament,

(b) that is purchased by Canada after the coming into force of this Part with money appropriated by Parliament for the use and benefit of Indians or the band, or


(c) that is given after the coming into force of this Part, to Indians or to the band under a treaty or agreement between the band and Canada

shall be deemed always to be situated on Category IA-N land."

"188 (1) Notwithstanding any other Act of Parliament or of the legislature of any province, but subject to any by-laws of the band made pursuant to paragraph 45 (1) (h), the following property is exempt from taxation:

(a) the interest of an Indian or the band in Category  IA-N land; and

(b) the personal property of an Indian or the band situated on Category IA-N land."

"188 (2) Notwithstanding any other Act of Parliament or of the legislature of any province,

(a) neither an Indian nor the band is subject to taxation in respect of the ownership, occupation, possession or use of any property described in paragraph (1) (a) or (b) or is otherwise subject to taxation in respect of any such property; and

(b) no succession duty, inheritance tax or estate duty is payable on the death of any Indian in respect of any such property or the succession thereto if the property passes to an Indian."

 

PART XV
SEIZURE EXEMPTIONS

Part XV provides for the rights of exemption from seizure of property of Naskapi beneficiaries and Indians, within the meaning of the Indian Act, on Category IA-N land.  It also provides for the limited ability to waive seizure exemption rights as well as the circumstances in which the approval of the electors of the band will be required.  The special situation of persons who are not Naskapi beneficiaries is also addressed.

"189 In this Part, "Indian" means an Indian as defined in the Indian Act."


"190 (1) Subject to this Part, movable and immovable property situated on Category IA-N land and belonging to a Naskapi beneficiary or an Indian ordinarily resident on Category IA-N land, and any right or interest of such a person in category IA-N land, is not subject to privilege, hypothec or any other charge, or to attachment, levy, seizure or execution, in favour of or at the instance of any person other than a Naskapi beneficiary, the band or an Indian ordinarily resident on Category IA-N land."


"190 (2) Subject to this Part, movable and immovable property situated on Category IA-N land and belonging to the band is not subject to privilege, hypothec or any other charge, or to attachment, levy, seizure or execution in favour of or at the instance of any person other than a Naskapi beneficiary, the band or an Indian ordinarily resident on Category IA-N land."


"190 (3) The right or interest of the band in its Category IA-N land is not subject to privilege, hypothec or any other charge, or to attachment, levy, seizure or execution, in favour of or at the instance of any person."


"190 (4) A right or interest in Category IA-N land of a person other than a Naskapi beneficiary or the band, or the immovable property of such person situated on Category IA-N land, is not subject to attachment, levy, seizure or execution in favour of or at the instance of any person other than  Naskapi beneficiary or the band, except where the band has authorized that person to pledge, charge or hypothecate that right or interest or immovable property, in which case creditors may exercise their normal remedies in relation to that pledge, charge or hypothecation."


"190 (5) A person who sells movable property to

(a) a Naskapi beneficiary,

(b) an Indian ordinarily resident on Category IA-N land, or


(c) the band

under an agreement whereby the right of property or possession thereto remains wholly or in part in the seller may exercise his or her rights under that agreement notwithstanding that the movable property is situated on Category IA-N land."

"191 for the purposes of section 190, movable property

(a) that became the property of the band by virtue of section 15, as it read on July 3, 1984, and had been purchased with money appropriated by Parliament,

(b) that is purchased after the coming into force of this Part with money appropriated by Parliament or by the legislature of Quebec for the use and benefit of Indians, Naskapi beneficiaries or the band, or


(c) that is, after the coming into force of this Part, provided to Naskapi beneficiaries or the band under a treaty or agreement between the band and Canada

shall be deemed always to be situated on Category IA-N land."

Section 192 (1) of the previous legislation is repealed.

"192 (2) Where the band has the authority to delegate the power to coordinate and administer a program to the Naskapi Development Corporation and has so delegated, movable property that

(a) is necessary for the coordination or administration of that program,

(b) is owned by the Naskapi Development Corporation, and


(c) was purchased with money appropriated by Parliament or by the legislature of Quebec for the use and benefit of Indians, Naskapi beneficiaries or the band

shall, for the purposes of section 190, be deemed always to be the property of the band.

"193 (1) A Naskapi beneficiary or an Indian ordinarily resident on Category IA-N land may, in writing, waive the exemption conferred by subsection 190 (1) in favour of any person, on such terms and conditions as are agreed to by the parties, but, in the case of a right or interest in Category IA-N land, the consent of the band must be confirmed by the electors of the band at a special band meeting or referendum."

"193 (2) For the purposes of determining the quorum requirement respecting the confirmation of the band's consent referred to in subsection (1), the percentage requirement is the same as if the remaining term of the right or interest in question were being granted by the band under paragraph 132 (1) (a)."


"193 (3) The band may, in writing, waive the exemption conferred by subsection 190 (2) in favour of any person, on such terms and conditions as are agreed to by the parties, subject to the approval of the waiver and the terms and conditions thereof by the electors of the band at a special band meeting or referendum at which at least twenty-five per cent of the electors voted on the matter."

PART XVI
POLICING

Part XVI provides that the jurisdiction of the Naskapi Police covers Category IA-N land.  The police can enforce applicable laws of Canada and Quebec as well as band by-laws.  The band may, with the approval of Quebec, make policing service agreements with Quebec, the Cree Nation Government, the Kativik Regional government or others to provide policing services on its Category IA-N land.
Section 194 of the previous legislation is repealed.

"195 (1) For purposes of the territorial jurisdiction of the Naskapi village under the Police Act (Quebec), the territory of that municipality shall be deemed to include Category IA-N land."


"195 (2) The police force of the Naskapi village municipality referred to in subsection (1) and the members of that force have jurisdiction over Category IA-N land for the purpose of enforcing the applicable laws of Canada and Quebec and the applicable by-laws of the band."


"196 (1) The band may, with the approval of  the Attorney General of Quebec and the provincial Minister responsible for municipal affairs, enter into an agreement with

(a) Quebec,

(b) the Cree Nation Government,


(c) the Kativik Regional Government (within the meaning of an Act Concerning Northern Villages and the Kativik Regional Government (Quebec), or

 Paragraph 196 (1) (d) of the previous legislation is repealed.

(e) any other body empowered to provide policing services

for the provision of policing services on its Category IA-N land."
Paragraph 196 (1.1) of the previous legislation is repealed.

"196 (2) A police force and the members thereof providing policing services pursuant to an agreement made under subsection (1) have jurisdiction over the Category IA-N land of the band for the purposes of enforcing the applicable laws of Canada and Quebec and the applicable by-laws of the band."

 

PART XVII
OFFENCES

Part XVII provides for the handling of offences under various sections of the Act.  It empowers the Governor in Council to make regulations regarding fines and imprisonment for contravention of regulations made under the Act.  It also sets out the limits for punishment of contravention of band by-laws.

"197 Every person who commits an offence under subsection 38 (6), section 44, subsection 91 (2), section 95, subsection 100 (4) or section 108 is liable on summary conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding six months or to both."


"198 (1) Every person who contravenes a regulation made under this Act is guilty of an offence and is liable on summary conviction to the punishment set out in the regulations."


"198 (2) The Governor in Council may make regulations stipulating a maximum fine or a maximum term of imprisonment, or both, for contravention of a regulation, but such maximum fine or maximum term of imprisonment may not exceed two thousand dollars or six months respectively."


"199 (1) Every person who contravenes a by-law made under this Act is guilty of an offence and is liable on summary conviction to the punishment set out in the by-law."


"199 (2) A by-law made under this Act may stipulate a maximum fine or a maximum term of imprisonment, or both, for contravention of the by-law, but the maximum fine or maximum term of imprisonment may not exceed $5,000 or six months, respectively."


"199 (3) a by-law made under paragraph 45 (1) (h) may not impose a term of imprisonment for non-payment of taxes."


"199 (1) In addition to the summary conviction procedures of Part XXVII of the Criminal Code, a proceeding in respect of a contravention indicated in the by-laws made under section 48.1 of this Act may be commenced in accordance with the ticketing scheme established by those by-laws."

 

PART XVIII
 ADMINISTRATION OF JUSTICE

Part XVIII provides for the jurisdiction of justices of the peace appointed pursuant to the Northeastern Quebec Agreement.  Their jurisdiction is for relatively minor summary conviction offences.

"200 (1) In addition to the courts and persons having jurisdiction in respect of the offences listed in paragraphs (a) and (b), justices of the peace appointed pursuant to section 12.4.1 of the Northeastern Quebec Agreement have jurisdiction in respect of

(a) offences under subsection 199 (1); and

(b) offences under the following provisions of the Criminal Code: section 266 (assault), section 445 (injuring or endangering animals) and section 445.1 (cruelty to animals)."

"200 (2) For the purpose of exercising their jurisdiction in respect of offences listed in paragraphs (1) (a) and (b), the justices of the peace referred to in subsection (1) are a summary conviction court within the meaning of Part XXVII of the Criminal Code."

"200 (3) The words in parenthesis in paragraph (1) (b) form no part of that paragraph but shall be deemed to have been inserted for convenience of reference only."

 

PART XIX
GENERAL

Part XIX deals with administrative matters including: signing of documents, commissioners of oaths, the certifying of documents and related issues.

"201 Where, under this Act or any regulation or by-law made thereunder, a document is required to be signed by a person and that person is unable to write, that person's mark shall constitute his signature if

(a) the mark is affixed to the document in the the presence of a witness who is able to write; and

(b) the witness affixes his signature to the document beside the mark of the person for whom he is acting as witness."

"202 (1) In addition to any person authorized to act as a commissioner of oaths under the laws of Canada or of the Province, the chief of the band and the band secretary are ex officio commissioners of oaths for the purposes of this Act and any regulation or by-law made thereunder."

"202 (2) The chief and band secretary shall not charge any fee or other compensation whatsoever for acting as a commissioner of oaths pursuant to subsection (1)."


"203 (1) The band secretary may issue certified copies of any by-law or resolution of the band or of any other document issued under the authority of the band."


"203 (2) The band treasurer may issue certified copies of all or any part of the books of account and financial records of the band."


"203 (3) In every case in which an original document could be received in evidence, a certified copy of that document issued under subsection (1) is receivable in evidence without proof of the signature or the official character of the person or persons appearing to have signed the document."

 

PART XX
CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

 

Part XX amends other Acts to make them consistent with this Act.  It also provides for the date of the coming into force of this Act.  [This in fact happened on March 29, 2018.]

204 to 217 [Amendments to other Acts]


"218 This Act, or any provision thereof, shall come into force on a day or days to be fixed by proclamation."