MOVEMENT TOWARDS A TRADITIONAL OR MUNICIPAL GOVERNMENT?

A PRELIMINARY PLAIN LANGUAGE CRITIQUE OF THE CANADA/KAHNAWAKE RELATIONS ACT By Russell Diabo November 7, 2001

PREFACE: For a number of years I was active as a post-secondary student in the field of Native Studies, both in the U.S. and Canada. I hold a B.A. in Native Studies and have done graduate studies towards an M.A. I also have practical experience, having worked as an Aboriginal Policy Advisor to various First Nation communities and organizations, including the Assembly of First Nations on several occasions. I have taken the liberty of writing this short summary of impacts from the proposed Canada/Kahnawake Relations Act (C/KRA) because I am concerned about the future of Kahnawakero:non. As a non-resident member of the community I believe I can offer a perspective as an outside observer not aligned with any particular faction or group. First of all, I am not personally aware of any population projections, or community and/or regional social/economic studies, if any, the Mohawk Council of Kahnawake (MCK) has done, to determine if the governing model these draft agreements provide for, is economically viable and socially and culturally acceptable to the people. At first glance, it seems to me that the MCK, before asking Kahnawakero:non to support the C/KRA, should have provided the people with some evidence of how this will improve the social and economic conditions of individuals and households in the community. What are the longterm benefits of the C/KRA versus the status quo under the Indian Act? Moreover, not all related documents that are referred to in the draft Umbrella Agreement have been released to the people. (i.e. draft Kahnawake Charter, draft Rules and Procedures for Ratification of Umbrella Agreement, draft Financial Transfer Agreement, draft Own Source Revenue Capacity Agreement) In any case, my summary of impacts is based upon 1.) a working knowledge and review of the current federal policy and legal/constitutional framework; and 2.) a review of the text of the draft agreements the Mohawk Council of Kahnawake has released to the Kahnawakero:non for discussion and presumably ratification. INTRODUCTION: The C/KRA Umbrella Agreement in clause 7 says: Kahnawake . . . affirms that it is engaged in a movement towards a traditional government based on the custom, traditions and traditional laws of the Iroquois Confederacy. However, it is still my belief that the C/KRA if ratified by the people, will not lead to a renewal of a traditional form of government, but will change the pre-1982 legal and constitutional status of Kahnawake into that of a federally created municipality.

Although we have good reason to be sceptical, Canadas adoption of the Constitution Act 1982 on April 17, 1982, is significant for all Aboriginal peoples, including the Mohawks of Kahnawake, because Canadian law now provides some protection for aboriginal and treaty rights. Governments can no longer unilaterally extinguish rights as the courts have said governments had the right to do, before April 17, 1982. Unfortunately, the courts have also said that aboriginal and treaty rights are not absolute and that they can be justifiably infringed (restricted) for a valid legislative objective, such as conservation for example. The courts have established legal tests for proving rights, including a justification framework for governments to prove they meaningfully consulted Aboriginal peoples before passing a law or regulation impacting on (limiting or restricting) Aboriginal and treaty rights. However, proving an aboriginal or treaty right in court can be expensive and has its risks as weve seen in the Mitchell case. Be that as it may, all Aboriginal peoples, including the Mohawks of Kahnawake should proceed with caution when negotiating aboriginal or treaty rights with the federal and/or provincial governments, because these non -Aboriginal governments are out to limit aboriginal and treaty rights as much as possible, and get out of their on-going constitutional responsibilities and obligations, including outstanding liabilities for past infringements of aboriginal and treaty rights. For your information, according to Canadas law, the Crowns fiduciary responsibilities and obligations to the Indian nations and tribes began when the Royal Proclamation of 1763 provided that Indians couldnt sell their lands to anyone but the Crown, and then it had to be with Indian consent at a public meeting held for that purpose. This principle was used in the historic treaty period and has survived in the surrender provisions of the Indian Act, as well as, ratification votes required by the federal government as proof of Indian consent. The Crown was supposed to look after and protect the Indians interests in their lands. We know of course this didnt happen, and the compensation likely owed by the Crown for their failure to protect the title, rights and interests of the Mohawks of Kahnawake are in todays terms astronomical. You should also be aware that there are many post -1982 examples of sharp dealing by non Aboriginal governments to get what they want from Aboriginal peoples, which is 1.) a legal release from their historic fiduciary role and 2.) a reduction of funding levels/allocation via ons going federal transfer payments to Indian Bands for programs, services and maintenance of reserve infrastructure (buildings, roads, bridges, etc.).

SUMMARY OF C/KRA IMPACTS: The C/KRA draft umbrella agreement (and sub-agreements) describe the elements of what the federal Minister of Indian Affairs will develop into legal text as a draft federal Bill for recommendation to Parliament to pass as a federal law, replacing the provisions of the Indian Act with those of the C/KRA. The final text may contain specific legal language not contained in the present draft C/KRA Umbrella Agreement. If the people ratify this proposed agreement, the C/KRA will likely pass without incident, because the federal Liberals have a majority in both the House of Commons and the Senate. They can push a Bill though in two weeks if they want to, which is how long it took to pass the pay raise legislation for M.P.s. In my opinion, the proposed C/KRA, if ratified and adopted into law by Parliament will have the following negative impacts on Kahnawakero:non: 1. Will alter the pre-1982 legal and constitutional status of the Mohawks of Kahnawake, by replacing one federal law (the Indian Act), which did not have Mohawk consent, with another federal law with Mohawk consent (the Canada/Intergovernmental Relations Act). (Clauses 58, 59, 60, 61, 62, 63, 64, 71) 2. Will entrench all of the impacts of the Indian Act on the community, including the MCK as the Mohawk Government of Kahnawake. The MGK will be the dominant governing body in the community exercising delegated federal and provincial authority on-reserve (Mohawk Lands/Territory) over the subject matters listed in clause 9 of the C/KRA Umbrella Agreement. The MGKs administrative bureaucracy will also grow as new administrative institutions are established, ensuring the MGK will remain as the dominant decision-maker and employer in the community for some time to come. 3. Formally establishes a federal veto over the contents of the Umbrella Agreement. (Clause 114) 4. Will formally establish a federal veto over all sub -agreements in subject areas listed in clause 9, (Clause 13) as well as, future amendments to the C/KRA. (Clauses 15,16, 101, 102, 103, 114, 115, 118) 5. Will formally give Kahnawakero:non consent to the position that federal laws of overriding national importance, (i.e. the proposed Anti-Terrorism Bill) will prevail over Kahnawake laws. (Clause 57) 6. Will formally sever outstanding Aboriginal title/land claims issues/negotiations from self-determination/self- government matters.

7. Will off- load responsibility and liability for management of reserve lands, capital dollars and revenue dollars from the federal Crown to the MGK administration. The Crown will no longer be responsible or liable in the event of problems in the management of reserve lands and capital/trust monies. (Clauses 36 & 37) 8. Will replace existing federal fiduciary responsibilities and obligations to provide programs and services to the Mohawks of Kahnawake by legislating a new relationship, which will only require the federal government to partially contribute to programs and service delivery. The new relationship means that the MGK will be required to share the costs of programs and service delivery by generating own source revenue (i.e. user fees, taxation, etc.). The schedule and terms of cost sharing will be set out in a separate Financial Transfer Agreement (FTA), which will include an Own Source Revenue Capacity Agreement. (Clauses 71, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100) CONCLUDING COMMENTS: After the events of 1990 raised the profile of Kahnawake, and expectations of Aboriginal peoples across Canada, the federal government worked long and hard through negotiations, to try and bring the Mohawk Council of Kahnawake into line with federal policy goals and objectives, and my reading of the C/KRA proves to me the federal government has won major concessions in their negotiations with the Mohawk Council of Kahnawake, or the Grand Chief himself, as the draft Umbrella Agreement states. I guess I shouldnt be surprised at the outcome of the negotiations, given that a number of the technical advisors to the MCK are former Department of Indian Affairs officials. If this draft of the C/KRA reflects their advice, then I have to say I personally do not have confidence in their abilities. If the people of Kahnawake ratify the C/KRA it will be a feather in the federal governments cap and will no doubt be promoted by the federal government as a model or precedent for other Bands to follow across the country. For my part, I have outlined above, my main concerns with the C/KRA. I would say this is not a good agreement in the long-term best interests of the people of Kahnawake and it should be rejected. RECOMMENDATION: A series of strategy sessions/forums should be held with interested community members about what practical legal and political options exist for advancing the title, jurisdiction, rights and interests of Kahnawakero:non. What opportunities/challenges exist, if any, to apply pressure on the federal government to reconsider their negotiation position on recognizing and respecting the aboriginal and treaty rights of Kahnawakero:non?

UMBRELLA January 17, 2001

DRAFT UMBRELLA AGREEMENT WITH RESPECT TO CANADA/ KAHNAWAKE INTERGOVERNMENTAL RELATIONS ACT

BETWEEN

The Mohawks of Kahnawake, acting through the Mohawk Government of Kahnawake, as represented by the Grand Chief of the Mohawks of Kahnawake (hereinafter referred to as "Kahnawake")

AND

Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (hereinafter referred to as "Canada")

NOTE:

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

DRAFT UMBRELLA AGREEMENT WITH RESPECT TO CANADA/KAHNAWAKE INTERGOVERNMENTAL RELATIONS ACT CONTENT

PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SHORT TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PURPOSES OF THE LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 NON DEROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 KAHNAWAKE GOVERNANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SUB-AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 KAHNAWAKE PUBLIC REGISTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 INTERIM PROVISIONS WITH RESPECT TO ADMINISTRATION OF JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 KAHNAWAKE LANDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 GENERAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 DISPUTE RESOLUTION MECHANISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PROCEDURE FOR REMOVAL OF INDIAN ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 RELATIONSHIP OF LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 TRANSITION PROVISIONS WITH RESPECT TO THE INDIAN ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 MONEYS HELD FOR THE KAHNAWAKE INDIAN BAND . . . . . . . . . . . . . . . . . . . . . . . 14

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

GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 FISCAL RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 LEGISLATIVE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CANADA/KAHNAWAKE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 JUDICIAL REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 STATUS OF THIS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 RATIFICATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 AMENDMENT PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 IMPLEMENTATION AND FINANCING AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 21

-2PREAMBLE WHEREAS Kahnawake and Canada signed an Agreement on an Agenda and Process for the Negotiation of a New Relationship between the Mohawks of Kahnawake and Canada on December 13, 1991, which has been extended; AND WHEREAS that Agreement contemplated the negotiation of transitional agreements and a final comprehensive agreement; AND WHEREAS the parties have now agreed to negotiate an Umbrella Agreement and sub-agreements on jurisdictions to be exercised by Kahnawake; AND WHEREAS the parties affirm that this Agreement provides for a new relationship which reflects the principles of mutual respect between governments, co-existence, peace and friendship, and Kahnawake affirms that these principles are in keeping with the Two Row Wampum doctrine; AND WHEREAS the parties recognize the role of the Mohawk Government of Kahnawake in the preservation and promotion of Mohawk identity, culture and way of life; AND WHEREAS the parties also recognize the Kanienkehaka of Kahnawake as having a special relationship to the land; AND WHEREAS this Agreement and the sub-agreements are a means by which the parties will strive to promote, in cooperation with one another, the economic advancement of Kahnawake; AND WHEREAS the Courts have held that the Crown has a unique, historic, fiduciary relationship with Aboriginal peoples in Canada; AND WHEREAS the Courts have also held that the honour of the Crown is at stake in its dealings with Aboriginal peoples; AND WHEREAS Canada recognizes that the inherent right of self-government is an existing aboriginal right within the meaning of section 35 of the Constitution Act, 1982.

NOW THEREFORE THE PARTIES agree that: 1. The Umbrella Agreement will form the basis for the Legislation to be recommended by Canada to the Parliament of Canada.

-3SHORT TITLE 2. Canada will recommend that the short title of the Legislation be the Canada/Kahnawake Intergovernmental Relations Act (CKIRA).

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

authority means any power other than the power to enact laws; Canada means Her Majesty the Queen in Right of Canada; conflict means an actual conflict in operation, or operational incompatibility between two laws, such that compliance with one law would necessarily result in a breach of the other; DIAND means the Department of Indian Affairs and Northern Development; federal laws that pursue an objective of overriding national importance mean federal laws in relation to the preservation of peace, order and good government in Canada, as well as other federal laws of like importance; interest, with respect to Kahnawake Territory, means a legal interest, right or estate of any nature in or to that Territory, including a lease, easement, right of way, licence or permit but does not include title to, or an unperfected interest in, that Territory; jurisdiction means the power to enact laws and includes authority; Kahnawake or the Mohawks of Kahnawake means, after the coming into force of the Legislation, the collectivity of the Mohawks of Kahnawake described in clause 58; Kahnawake Charter means the codification of principles and rules of governance applicable to the Mohawk Government of Kahnawake based on the custom and traditions of the Mohawks of Kahnawake;

-4-

Kahnawake Mohawk Custom Code on Membership means the codification of custom and traditions with respect to membership; Kahnawake Lands or Territory means: (a) lands which were, immediately prior to the coming into force of the Legislation, known as Reserve No. 14 and shown on the map attached as Appendix A to this Agreement; lands known as Doncaster Reserve No. 17, which lands were set aside for Kahnawake and Kanesatake, and shown on the map attached as Appendix B to this Agreement; lands which may be added to lands identified in (a) or (b) before or after the coming into force of the Legislation, through the resolution of land grievances or as the result of any other means, and which both parties agree are lands within the meaning of subsection 91(24) of the Constitution Act, 1867; and lands previously taken for a public work or other public purpose which are no longer used for the public work or other public purpose and which are returned to Kahnawake as lands within the meaning of subsection 91(24) of the Constitution Act, 1867;

(b)

(c)

(d)

Legislation means the legislation that will be enacted to implement the Umbrella Agreement; member means a member as defined in the Kahnawake Mohawk Custom Code on Membership; Mohawk Government of Kahnawake means the government of Kahnawake and includes the Mohawk Council of Kahnawake and any future form of government of Kahnawake; public official means any person appointed or otherwise designated by Kahnawake to discharge a public duty; sub-agreement means an agreement with respect to a specific subject matter pursuant to clauses 9 or 15; Draft Umbrella Agreement means this Agreement; Umbrella Agreement means the agreement to be concluded between Kahnawake and Canada substantially in the form of this Agreement.

-5PURPOSES OF THE LEGISLATION 4. The purposes of the Legislation are: (a) to establish a new relationship between Kahnawake and Canada whereby Kahnawake exercises jurisdiction on subject matters as agreed to by the parties and, where the matter is dealt with in the Indian Act, the corresponding provisions of that Act are removed; and to establish a mechanism and a process by which sub-agreements will be given effect.

(b)

NON-DEROGATION 5. Nothing in this Agreement will be construed so as to abrogate or derogate from the application of section 35 of the Constitution Act, 1982 to any existing aboriginal or treaty rights of the Mohawks of Kahnawake.

KAHNAWAKE GOVERNANCE 6. Kahnawake affirms that the Kahnawake Charter as developed by Kahnawake, includes or will include, among other matters: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) provisions for a democratic form of governance; provisions for a law-making process; provisions for leadership selection; provisions for accountability of the Mohawk Government of Kahnawake to its members; conflict of interest rules; provisions for rights of appeal and redress; the principles of Mohawk Government in Kahnawake based on custom, traditions and traditional laws of the Iroquois Confederacy; principles reflecting the special relationship between the Mohawks of Kahnawake and the land; a Code of Rights and Responsibilities of the Mohawks of Kahnawake; the Kahnawake Mohawk Custom Code on Membership; general principles regarding delegation of authority; and a procedure to make amendments which are consistent with the foregoing principles.

-6-

7.

Kahnawake further affirms that it is engaged in a movement towards a traditional government based on the custom, traditions and traditional laws of the Iroquois Confederacy. The Mohawk Government of Kahnawake and the institutions it creates are governed by the Kahnawake Charter.

8.

JURISDICTION 9. Kahnawake has jurisdiction or authority or both with respect to the following subject matters as set out in sub-agreements corresponding to each subject or subjects: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) (v) (w) (x) (y) (z) (z-1) Policing Aspects of Administration of Justice; Administration of Justice excluding Policing; Kahnawake Lands including the Succession of Real Property; Waters; Fisheries and Wildlife; Environment; Natural Resources; Agriculture; Economic Development; Taxation; Membership; Social Services; Health; Marriage; Adoption, Child Welfare and Guardianship of the Person; Property Rights; Divorce; Education, Mohawk Language and Culture; Public Works and Infrastructure; Housing; Traffic and Transportation; Labour and Training; Gaming; Emergency Preparedness; Administration of the Estates of Deceased, Minor and Mentally Incompetent; Successions excluding Succession of Real Property; and Sports and Recreation.

-7-

10.

The parties recognize that certain subject matters in clause 9 may affect areas of provincial jurisdiction. With respect to these subject matters: (a) (b) Kahnawake will negotiate tripartite agreements with Canada and Quebec, or bilateral agreements with both Canada and Quebec; and the parties will make best efforts to ensure that any bilateral agreements between Kahnawake and Quebec, and between Kahnawake and Canada, are not inconsistent with one another.

SUB-AGREEMENTS 11. A sub-agreement will include: (a) a description of the jurisdiction or authority to be exercised by Kahnawake with respect to a specific subject matter; (b) specific rules for resolving conflicts between laws; (c) where appropriate, an identification of those Indian Act provisions with respect to a subject matter that will no longer apply; (d) ratification procedures; and (e) any other matters agreed to by the parties. 12. A sub-agreement may combine in any manner, any subject or subject matters listed in clause 9 or any subjects or subject matters which may be agreed upon pursuant to clause 15. 13. Subsequent to the coming into force of the Legislation, a sub-agreement may be brought into effect by Order of the Governor in Council and by resolution of the Mohawk Government of Kahnawake. 14. The Umbrella Agreement will address the form and content of the Order-in-Council referred to in clause 13. 15. The parties may agree to negotiate sub-agreements with respect to a subject matter other than those listed in clause 9. 16. In the event of an agreement pursuant to clause 15, Canada will recommend to Parliament any consequential amendments to clause 9 and the Legislation. 17. The Minister will publish in the Canada Gazette and the Mohawk Government of Kahnawake will publish in the official publication of the Mohawk Government of

-8Kahnawake, notice of the day on which a sub-agreement is brought into effect.

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KAHNAWAKE PUBLIC REGISTER 18. The Mohawk Government of Kahnawake will make provision for public notification of Kahnawake laws. 19. Kahnawake will maintain a public register, containing the Kahnawake Charter and all Kahnawake laws and public records.

INTERIM PROVISIONS WITH RESPECT TO ADMINISTRATION OF JUSTICE 20. Until a sub-agreement under clause 9(b) with respect to the administration of justice is in effect, the following transitional provisions will apply to the interpretation and enforcement of Kahnawake laws on Kahnawake Territory: (a) Kahnawake may appoint persons to act as justices of the peace; (b) sub-agreements may provide that a person appointed as a justice of the peace under clause 20 (a) may try offences established pursuant to Kahnawake laws as specified in the sub-agreement; (c) a justice of the peace will have all the powers necessary for the performance of his or her duties and functions; (d) Kahnawake will ensure the independence and impartiality of the justices of the peace appointed under this part by providing for their security of tenure, financial security and administrative independence. Kahnawake will ensure that, once appointed, justices of the peace may only be removed for misconduct or inability to perform duties after review by an impartial body; and (e) decisions made by a justice of the peace appointed under this part may be appealed to the court of competent jurisdiction that ordinarily hears appeals on summary conviction matters. KAHNAWAKE LANDS 21. Nothing in this Agreement or any sub-agreement is intended to affect the title to Kahnawake Territory. 22. For greater certainty, Kahnawake Territory is intended to remain lands within the meaning of

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

23. For greater certainty, the geographical definition of Reserve No. 14 as shown on Appendix A is without prejudice to any Kahnawake land claims or boundary disputes. 24. The integrity of Kahnawake Territory is of fundamental importance to the Mohawks of Kahnawake, and Canada agrees that the size of that Territory will not be diminished. 25. Subject to clauses 26 and 31, on the coming into force of Kahnawake laws with respect to the granting and the regulating of interests in land, rights of lawful possession, which rights are held under the Indian Act, or pursuant to the custom of the Mohawks of Kahnawake, will continue. Other interests in Kahnawake Territory will continue in accordance with their terms and conditions, unless Kahnawake and the holder of the interest agree, in writing, to modify such terms and conditions. 26. Subject to clause 29, interests in Kahnawake Territory referred to in clause 25 may be subject to the taking of lands by Kahnawake for its collective or public purposes. 27. On the coming into force of Kahnawake laws with respect to the granting and the regulating of interests in land, all rights and obligations of Her Majesty as grantor with respect to interests granted under the Indian Act are transferred to Kahnawake, except those rights or obligations that may be excluded under the sub-agreement with respect to Kahnawake Lands. 28. For greater certainty, any transfer of interests in Kahnawake Territory under clause 27 will include the transfer of all covenants including those covenants which do not touch or concern the land. 29. Interests that exist in Kahnawake Territory when the Legislation comes into force, which interests continue to be used for the public work or other public purpose for which they were originally obtained, are not subject to the taking of land by Kahnawake for its collective or public purposes. 30. Clause 29 does not preclude the return to Kahnawake of lands previously taken for a public work or other public purpose, in the event such lands are no longer used for the public work or other public purpose for which they were originally taken. 31. For greater certainty, all interests in Kahnawake Territory will be subject to Kahnawake laws with respect to Kahnawake Lands. 32. Notwithstanding clause 31, interests in Kahnawake Territory held by Canada will be immune from

- 11 the application of Kahnawake laws with respect to Kahnawake Lands to the extent recognized by the Crown law of Canada. Canada will nevertheless comply with Kahnawake laws with respect to Kahnawake Lands whenever possible.

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33. This Agreement and any sub-agreement are not intended to modify any mandates attributed by law to governments and their agencies, in relation to accessing any lands within Canada. These governments and agencies, together with the Mohawk Government of Kahnawake, will take appropriate steps to ensure mutual assistance and cooperation in the exercise of their respective mandates.

GENERAL LIABILITY 34. Kahnawake is not liable in respect of anything done or omitted to be done by Her Majesty in Right of Canada or any person or body authorized by Her Majesty: (a) before the coming into force of the Kahnawake laws with respect to the granting and the regulating of interests in land, with respect to capital or revenue moneys; or (b) before the enactment of Kahnawake laws in respect of a subject matter under clause 9 and any to be negotiated under clause 15, with respect to that subject matter. 35. Her Majesty in Right of Canada will indemnify Kahnawake for any loss suffered by Kahnawake as a result of an act or omission described in clause 34. 36. Her Majesty in Right of Canada is not liable in respect of anything done or omitted to be done by Kahnawake or any person or body authorized by Kahnawake: (a) after the coming into force of the Kahnawake laws with respect to the granting and the regulating of interests in land, with respect to capital or revenue moneys; or (b) after the enactment of Kahnawake laws in respect of any subject matter under clause 9 and any to be negotiated under clause 15, with respect to that subject matter. 37. Kahnawake will indemnify Her Majesty in Right of Canada for any loss suffered by Her Majesty as a result of an act or omission described in clause 36.

DISPUTE RESOLUTION MECHANISM 38. Subject to the provision of any sub-agreement, the following dispute resolution mechanism applies to disputes between the parties regarding the interpretation, application and implementation of the Legislation and the sub-agreements and the Order-in-Council for each sub-agreement. Negotiations

- 13 39. The parties will first attempt to resolve the dispute by negotiation. 40. In the event that the parties do not settle the dispute, the parties may: (a) by agreement, refer the dispute to mediation or arbitration; or (b) institute proceedings in a court of competent jurisdiction. Mediation 41. When the parties have agreed to refer the dispute to mediation, the following rules will apply: (a) the parties will jointly appoint a mediator to the dispute; or (b) the parties will jointly appoint a panel of experts with equal representation from both parties. 42. Within a period of time to be determined, with the parties, in advance of the mediation, the mediator or the panel of experts will provide each party to the dispute with a written report. 43. Each party will bear equally the cost of the mediator. 44. Each party to the dispute will bear the costs associated with its representatives on the panel. 45. If the parties are unable to resolve the dispute by mediation, the parties may: (a) by agreement, refer the dispute to arbitration; or (b) institute proceedings in a court of competent jurisdiction. Arbitration 46. When the parties have agreed to refer a dispute to arbitration, the rules set out in clauses 47, 48 and 49 will apply. 47. Prior to the commencing of arbitration, the parties will determine whether the decision of the arbitrator will be binding or non-binding. 48. The parties will jointly appoint the arbitrator. 49. The arbitrator will reach a written decision within thirty (30) days of completion of the arbitration hearing, unless otherwise agreed.

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50. Unless otherwise assigned by the arbitrator, each party will bear equally the cost of the arbitration. Judicial review 51. The decision of the arbitrator is not subject to appeal or judicial review in any court of competent jurisdiction, except on the ground that the arbitrator failed to observe the principles of natural justice or otherwise acted beyond or refused to exercise his or her jurisdiction. 52. The parties will address the following issues in the Umbrella Agreement: a) b) c) d) notice requirements; time limits and procedures for selecting mediators or panel members; procedures for appointment of arbitrators and for the arbitration process; and next steps in case of disagreement as to whether a decision of the arbitrator is binding or not.

PROCEDURE FOR REMOVAL OF INDIAN ACT 53. Unless otherwise provided in a sub-agreement, the Mohawk Government of Kahnawake will notify Canada, in writing, of the date upon which any law passed pursuant to a sub-agreement under clause 9 or any subject to be negotiated under clause 15 are scheduled to take effect. 54. Canada will acknowledge to the Mohawk Government of Kahnawake receipt of the notification under clause 53 and those Indian Act provisions identified in the relevant subagreement in respect of the subjects or issues dealt with in the law will no longer apply to Kahnawake as of the date upon which: (a) the law is scheduled to take effect, or (b) the relevant sub-agreement is given effect by Order-in-Council, or (c) the date Canada acknowledges the receipt, whichever is the latest.

- 15 RELATIONSHIP OF LAWS 55. Kahnawake laws enacted pursuant to sub-agreements will apply to their fullest extent in Kahnawake Territory. 56. Where agreed by the parties, sub-agreements may provide that, in the event of a conflict between the provisions of a Kahnawake law and the provisions of a federal law, the provisions of the Kahnawake law will prevail. 57. Notwithstanding clause 56, the parties acknowledge that Canada has enacted, and will continue to enact, laws that pursue an objective of overriding national importance. In the event of a conflict between the provisions of a Kahnawake law and the provisions of a federal law that pursues an objective of overriding national importance, the provisions of the federal law will prevail.

TRANSITION PROVISIONS WITH RESPECT TO THE INDIAN ACT 58. Kahnawake is the collectivity of the Mohawks of Kahnawake known, prior to the coming into force of the Legislation, as the Kahnawake Band. 59. Kahnawake will succeed to the collectivity known as the Kahnawake Band in all its rights, titles, interests, assets, obligations and liabilities including those of its Band Council. 60. Provisions of the Indian Act that have not been replaced by Kahnawake laws in accordance with the Umbrella Agreement and the Legislation will apply, with such modifications as required, to the Mohawk Government of Kahnawake, Kahnawake members and Kahnawake Territory. 61. For greater certainty, all persons who may be residing on Kahnawake Territory, from time to time, will be subject to Kahnawake laws. Nevertheless, no person will lose his or her residency status solely because of his or her membership in the previous Kahnawake Band. 62. The parties are further committed to ensuring an effective and efficient transition from the application of the Indian Act provisions on membership to the application of Kahnawake Law with respect to Membership. 63. The Umbrella Agreement will identify the Indian Act provisions that will cease to apply when the CKIRA comes into force or at some future point in time, and will provide that section 35 of the Indian Act ceases to apply, subject to consultation with the Government of Quebec.

- 16 MONEYS HELD FOR THE KAHNAWAKE INDIAN BAND 64. All capital and revenue moneys collected, received or held by Canada pursuant to the Indian Act for the use and benefit of Kahnawake will be transferred to Kahnawake as soon as possible after the enactment of the Kahnawake laws with respect to the granting and the regulating of interests in land.

DELEGATION OF POWERS BY KAHNAWAKE 65. In accordance with the Kahnawake Charter, Kahnawake may delegate any of its nonlegislative powers under this Agreement to any Kahnawake institutions or to any other legal entity in Canada. 66. For greater certainty, Kahnawake, whether acting on its own, through the Mohawk Government of Kahnawake or through any body it designates in accordance with the Kahnawake Charter, is a legal entity with the rights, powers, privileges and capacity to: (a) enter into contracts and agreements; (b) acquire, hold and dispose of real or personal property, or any interest therein; (c) raise, borrow, lend, invest or otherwise expend moneys, or provide guarantees in respect of the repayment of any moneys; (d) act as the settlor or trustee of any trust; (e) sue and be sued; and (f) be appointed and to act as a guardian. 67. Nothing in this Agreement will be interpreted to mean that Kahnawake whether acting on its own, through the Mohawk Government of Kahnawake or through anybody it designates, is a corporation.

GENERAL PROVISIONS 68. The parties acknowledge that all persons, including the Mohawks of Kahnawake, may avail themselves of the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms, and that this Agreement and the sub-agreements are not intended to diminish those protections for any persons who are subject to the laws of Kahnawake. In that spirit, the parties agree that the laws and executive actions of the Mohawk Government of Kahnawake will respect the rights and freedoms guaranteed by the Charter. 69. Clause 68 is without prejudice to Kahnawakes ability to advance its view, in any forum, that its

- 17 distinctive philosophies, traditions and cultural practices should be taken into account in interpreting section 25 of the Charter, which provides that the guarantee in the Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. 70. Notwithstanding this Agreement and any sub-agreement, the fiduciary relationship between the parties will continue. 71. As Kahnawake exercises jurisdiction or authority in accordance with a sub-agreement, the fiduciary obligations of the Crown in Right of Canada will evolve accordingly. 72. For greater certainty, and subject to clause 73, federal laws will continue to apply in co-existence with any Kahnawake laws. 73. The Umbrella Agreement or a sub-agreement may stipulate that provisions of certain federal laws cease to apply to Kahnawake, the Mohawk Government of Kahnawake, Kahnawake Lands, or members and other individuals subject to Kahnawake laws in accordance with this Agreement. 74. For greater certainty, Kahnawakes jurisdiction as set out in sub-agreements does not relate to those matters within Canadas jurisdiction under s. 91(27) of the Constitution Act, 1867. 75. Notwithstanding clause 74, Kahnawake laws enacted pursuant to sub-agreements may provide for the imposition of penalties for the violation of those laws. Such penalties, which may include fines, restitution and imprisonment, will be within the limits set out for summary conviction offences in the Criminal Code of Canada, or the Code de procdure pnale du Qubec, whichever are greater. Sub-agreements may provide for specific exceptions to these penalty limits and may provide for other types of sanctions that are in keeping with the traditions of the Mohawks of Kahnawake. 76. Clause 75 does not preclude the negotiation, in an administration of justice sub-agreement, of procedures for the adjudication of Kahnawake laws. 77. Kahnawake laws enacted pursuant to a sub-agreement may provide for the administrative review of decisions made by public officials with respect to the application or interpretation of those Kahnawake laws. 78. Any exercise of jurisdiction by Kahnawake in Doncaster Reserve No 17 will be in accordance with an agreement between the parties for whom those lands were set aside. 79. For greater certainty, Kahnawake laws enacted pursuant to the sub-agreement with respect to Education, Mohawk Language and Culture will not prohibit Canada from providing any programs and services in Kahnawake Territory in both English and French.

- 18 80. The Umbrella Agreement or a sub-agreement, as the case may be, will prevail over the Legislation or the relevant Order-in-Council, as the case may be, to the extent of any conflict. 81. The Legislation or the relevant Order-in-Council giving effect to a sub-agreement, as the case may be, will prevail over any other federal laws to the extent of any conflict. 82. For greater certainty, all individuals who are subject to the laws or decisions of Kahnawake will, in accordance with Kahnawakes traditions, be afforded the opportunity to express their views on those laws and decisions. 83. All individuals subject to Kahnawake laws or decisions may avail themselves of any appeal or redress process or mechanisms established by Kahnawake pursuant to its Charter or its laws.

FISCAL RELATIONS General Principles 84. The fiscal relationship between Canada and Kahnawake will be on a government-to-government basis. 85. In general, financing of agreed-upon public services, programs and the Mohawk Government of Kahnawake is a shared responsibility between Canada and Kahnawake. Nevertheless, other financing arrangements may be made from time to time with the Government of Quebec. 86. Funding will be provided to Kahnawake in order to enable the provision of agreed-upon public services and programs at levels reasonably comparable to those generally prevailing in communities of similar economic circumstances in southern Quebec, while taking into consideration Kahnawakes contribution to the funding of agreed-upon public services and programs. 87. The level of funding required to fulfill commitments made under clause 86 will be negotiated and set out in a Financial Transfer Agreement. Funding of Kahnawakes Government and Institutions 88. When negotiating a Financial Transfer Agreement, the parties will take into consideration, among other matters: (a) costs necessary to cover one-time implementation requirements as a result of the Umbrella Agreement and any sub-agreement that is given effect at the time of the Legislation;

- 19 (b) costs to operate the Mohawk Government of Kahnawake and its institutions; (c) levels of support provided by other governments to Kahnawake; (d) the jurisdiction or authority expected to be exercised by Kahnawake during the duration of the Financial Transfer Agreement, acknowledging that the exercise, in itself, of Kahnawakes jurisdiction or authority does not necessarily create or imply any financial obligation for either party, (e) efficiency and cost-effectiveness of the administration of governance and delivery of related services; (f) the desirability of stable, predictable and flexible funding arrangements; (g) training requirements as agreed upon in the implementation plan for the Umbrella Agreement and the sub-agreements; and (h) provisions to adjust the schedules of the Financial Transfer Agreement. Financial Transfer Agreement 89. Prior to the ratification of the Umbrella Agreement, and thereafter at five year intervals or at such other intervals as the parties may agree, the parties will negotiate a Financial Transfer Agreement. 90. Financial transfer payments made pursuant to a Financial Transfer Agreement will be provided on the basis of block transfer payments. In specific cases, the provision of funds may be subject to criteria or conditions. 91. Accountability to members is the responsibility of the Mohawk Government of Kahnawake and will be consistent with standards generally accepted in Canada for governments. 92. Kahnawake will adopt measures to ensure that funds appropriated by Parliament have contributed to the objectives for which they were voted. 93. The Financial Transfer Agreement will include provisions which enable the appropriate federal Ministers to fulfill their accountability requirements to Parliament of Canada. 94. The parties will address the following, among other matters, in the Financial Transfer Agreement: (a) procedures for negotiating the next Financial Transfer Agreement; (b) procedures for assuming the responsibility for the provision of agreed-upon programs and services; (c) procedures for funding and assuming responsibility for the provision of additional programs and services during the term of the Financial Transfer Agreement; (d) procedures for covering the costs resulting from emergencies and disastrous events; (e) payment procedures; (f) information exchange; and

- 20 (g) implementation of an Own Source Revenue Capacity Agreement, pursuant to clause 96. Future Programs 95. Persons residing in Kahnawake will be eligible to receive public services from Canada and to participate in programs established by Canada in accordance with conditions in effect from time to time, to the extent that Kahnawake is not providing such services or programs under a Financial Transfer Agreement. Kahnawakes Financial Self-Reliance 96. The parties will conclude an agreement specifying how and to what extent Kahnawakes own source revenue capacity will be taken into consideration in Financial Transfer Agreements at the time of the second Financial Transfer Agreement or no later than 7 years after the signature of the first Financial Transfer Agreement. 97. The parties acknowledge that Kahnawakes ability to become financially self-reliant will increase as sub-agreements are given effect and Kahnawake exercises jurisdiction thereto. To that extent, the negotiations of the agreement referred to in clause 96 will take into consideration: (a) (b) (c) (d) that Kahnawakes access to own source revenue capacity will be incremental; that the calculation of own source revenue will be phased-in; that reasonable incentives for revenue generation are necessary; and any arrangements on own source revenue capacity that Quebec and Kahnawake may negotiate.

98. Any additional principles by which Kahnawakes own source revenue capacity will be taken into account will be set out in the Umbrella Agreement. 99. The Implementation Plan for a sub-agreement will address any matters related to the implementation of the own source revenue capacity agreement. 100. In accordance with provisions contained therein, Financial Transfer Agreements may be adjusted to address changes resulting directly from the conclusion of new sub-agreements. Any such changes to a Financial Transfer Agreement will not diminish the level of services provided pursuant thereto.

LEGISLATIVE PROCESS

- 21 101. Canada will consult Kahnawake during the drafting of the Legislation and any Order-in-Council giving effect to a sub-agreement by: (a) providing copies of legislative proposals to Kahnawake; (b) providing full opportunity and ensuring that Kahnawake has a reasonable period of time to present its views and comments on the drafts of such Legislation or Orders-in-Council at meetings with Canada. 102. Canada will consider any comments made by Kahnawake on the content of such draft Legislation or any draft Order-in-Council as to whether they accurately reflect either the Umbrella Agreement or a sub-agreement, whichever the case may be. 103. Canada will include in the Legislation a process to provide Parliament with an opportunity to review a sub-agreement and the accompanying Order-in-Council and will provide to Kahnawake a description of the review process to be included in the Legislation.

CANADA/KAHNAWAKE COMMISSION 104. The parties will establish a Canada/Kahnawake Commission (the Commission), that will be the forum for liaison between them based on a government to government relationship and for review of the implementation of the Umbrella Agreement and sub-agreements. 105. The responsibilities of the Commission will include, among other matters: (a) maintaining on-going liaison activities to make recommendations: i) for the resolution of any issues regarding the interpretation, application and implementation of the Umbrella Agreement, the Legislation, the sub-agreements and corresponding Orders-in-Council; and on possible harmonization measures and potential conflicts between Kahnawake and federal laws;

ii)

(b) unless otherwise agreed between the parties, conducting a review, within five years of the enactment of the Legislation, to consider the following: i) whether the Umbrella Agreement, the Legislation, the sub-agreements and corresponding Orders-in-Council in effect at that date have been implemented in accordance with their implementation plans;

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ii)

iii)

whether any other matters are affecting the implementation of the Umbrella Agreement, the Legislation, the sub-agreements and corresponding Orders-in-Council in effect to date; whether any amendments to the Legislation and the Order-in-Council should be considered;

and making recommendations to address issues arising from the review. 106. The Commission will consist of, but not be restricted to, four members, two named by Kahnawake and two named by Canada. 107. Any tripartite or bilateral agreements negotiated by Kahnawake with Canada and Quebec, within the meaning of clause 10, may provide for modification to the composition and the mandate of the Commission. 108. Each party will bear the costs associated with its representatives on the Commission.

JUDICIAL REVIEW 109. In the event that any provision in this Agreement or a sub-agreement is deemed void or invalid by a court of competent jurisdiction, the remaining provisions will remain in full force and effect.

STATUS OF THIS AGREEMENT 110. The parties agree to use this Agreement as the basis for negotiating an Umbrella Agreement. 111. This Agreement does not create legal obligations binding on the parties.

RATIFICATION PROCEDURES 112. Rules and procedures for ratifying the Umbrella Agreement, the sub-agreements with respect to Education, Mohawk Language and Culture, Kahnawake Lands, Membership and Policing will be developed prior to the beginning of the ratification process. 113. For greater certainty, Kahnawake will adopt the Kahnawake Charter prior to or at the same time as the Umbrella Agreement and the sub-agreements referred to in clause 112.

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114. Canada will have ratified the Umbrella Agreement and the sub-agreements on Education, Mohawk Language and Culture, Kahnawake Lands, Policing and Membership, when: (a) the Umbrella Agreement and sub-agreements are signed by a Minister of the Crown authorized by the federal Cabinet; and (b) Legislation giving effect to the Umbrella Agreement is passed by Parliament and comes into effect; and (c) a sub-agreement is brought into effect by Order-in-Council approved by the Governor in Council.

AMENDMENT PROVISIONS Amendments to the Umbrella Agreement 115. The parties may agree to amend the Umbrella Agreement. 116. Kahnawake will ratify the amendments to the Umbrella Agreement based on the principles of the Kahnawake Charter. 117. Canada will recommend to Parliament any consequential amendments to the Legislation. Amendment to Orders-in-Council 118. The parties may agree to amend any sub-agreements. 119. Kahnawake will ratify the amendments in accordance with the Kahnawake Charter. 120. Canada will recommend to the Governor in Council any consequential amendments to the Orderin-Council giving effect to the amended sub-agreement.

IMPLEMENTATION AND FINANCING AGREEMENTS 121. An Implementation Plan will accompany, but not form part of a sub-agreement or the Umbrella Agreement.