Australian Indigenous Law Reporter
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On 4 August 1998, representatives of the Federal Government of Canada, the Provincial Government of British Columbia (BC) and the Nisga'a First Nation initialled the Nisga'a Final Agreement which, once ratified, will establish a new relationship between the parties. The agreement transfers ownership of Nisga'a traditional lands to the Nisga'a and affirms their right to self-government. The initialling of this agreement is being hailed as the beginning of a new era of treaty making in BC.
The agreement affirms the Nisga'a right to self-government, and establishes a central government and four "village" governments. The relationship between the governments will be guided by an as yet undrafted constitution. Each government is a separate legal entity and has the power to enter into contracts, borrow money, and be sued. The governments may make laws governing culture, language, public works, traffic and transport, land use, and may establish a Nisga'a police force and court system.
The Nisga'a continue to be an aboriginal people under the Constitution Act 1982.
Nisga'a continue to be entitled to the rights and benefits of other Canadian citizens.
Lands owned by the Nisga'a are held in fee simple; none of the lands are reserve lands under the Indian Act or lands reserved for Indians under the Constitution.
The Canadian Charter of Rights and Freedoms applies to Nisga'a Government and its Institutions.
The Criminal Code of Canada applies. Federal and provincial laws of general application continue to apply to the Nisga'a and Nisga'a Lands unless varied by the terms of the Final Agreement.
Nisga'a Government jurisdiction over Nisga'a citizens on Nisga'a Lands will be phased in over time.
The Indian Act will no longer apply to the Nisga'a except for determining who is a Status Indian as defined in the Act and transition provisions dealing with such things as outstanding wills and arrangements for people unable to look after their own affairs.
The Nisga'a aboriginal rights under s. 35 of the Canadian constitution are modified into treaty rights. These rights are exhaustively defined in the treaty. It constitutes the full and final settlement of those aboriginal rights, including aboriginal title. Any other aboriginal rights that are determined to have existed, or may exist in the future, are released by the Nisga'a.
The Final Agreement is not intended to affect or recognize rights of other aboriginal people. If this occurs, the relevant provision will be inoperative, and the Parties will attempt to replace the provision.
The Nisga'a own two types of land in fee simple: Nisga'a Lands; and Nisga'a Fee Simple Lands outside Nisga'a Land:
The second type of land holdings are Nisga'a Fee Simple Lands outside Nisga'a Lands. These lands are divided into two categories:
The Nisga'a have the ability to bring some or all of their land into the provincial land title system. The Land Title Act will apply to any Nisga'a Lands brought into the system.
The Nisga'a receive a commercial recreation tenure which operates under provincial laws.
Key cultural sites are designated provincial heritage sites under provincial legislation. Key geographic features are renamed with Nisga'a names in accordance with provincial policy.
The Nisga'a Memorial Lava Bed Park and Gingietl Creek Ecological Reserve continue under provincial ownership and jurisdiction.
Bear Glacier is established as a "Class A" provincial park.
The Province retains full ownership and regulatory authority over water.
Existing water licences remain in place.
The Nisga'a have a water allocation equal to one per cent of the annual average flow from the Nass Valley watershed for their domestic, industrial and agricultural needs.
The Nisga'a also have a reservation for the purpose of conducting studies to determine the suitability of streams for hydro power purposes. Any hydro development will be subject to provincial approval and regulation.
Forest Resources on Nisga'a Lands
The Nisga'a own all forest resources on Nisga'a Lands. Existing licensees will continue to harvest timber on Nisga'a Lands for a five year transition period.
The Nisga'a may establish rules and standards which meet or exceed provincial standards to govern forest practices on Nisga'a Lands following the transition period, or for Nisga'a harvesting operations during the transition period.
In recognition of provincial licensees continuing to harvest timber on Nisga'a Lands during the transition period, the Province will put the Nisga'a in the same economic position as if there were no transition.
Existing forest licence holders must meet their silviculture obligations.
Forest Resources Outside Nisga'a Lands
The Province supports in principle Nisga'a purchase of an existing timber forest licence to a maximum of 150,000 cubic metres. Any such acquisition would be subject to approval and regulation under the Forest Act.
The public have access to Nisga'a public lands for hunting, fishing and recreation.
Nisga'a Government can regulate access for public safety and protection of environmental, cultural or historic features.
Fee simple property owners and third party tenure holders have guaranteed access to their interests.
The Nisga'a Highway through Nisga'a Lands remains a provincial highway. Other key roads which provide access for the public, residents and commercial activities are held by the Province as perpetual and exclusive rights of way.
The federal and provincial governments can acquire interests in Nisga'a Lands (eg rights of way) for public or industrial purposes, subject to fair compensation.
The Nisga'a have an annual allocation of salmon which will, on average, comprise approximately 17 per cent of the Canadian Nass River total allowable catch. In addition, the Nisga'a have an allocation of sockeye and pink salmon for domestic and commercial purposes under a harvest agreement outside the treaty.
The Nisga'a can sell their salmon only if there are directed harvests in commercial or recreational fisheries. All sales are subject to laws of general application.
Canada and British Columbia retain responsibility for conservation and management of fisheries and fish habitat, according to their jurisdictions. The Nisga'a can regulate their harvest subject to annual fishing plans approved by the federal and provincial Ministers.
A joint management committee with representatives of the Nisga'a, British Columbia and Canada will make recommendations to the responsible federal or provincial Minister on Nisga'a fisheries, fisheries management and enhancement activities.
The Nisga'a have an entitlement to harvest steelhead for domestic purposes. They will have a specific allocation for summer-run steelhead when the stocks can support such a harvest.
The Nisga'a have an entitlement to harvest non-salmon species for domestic purposes, as well as allocations for oolichan and bivalve shellfish and future allocations for species such as halibut, crab and herring. Non-salmon entitlements may not be sold.
The Nisga'a receive $11.5 million for participation in the commercial fishing industry through the purchase of vessels and licences, and other fisheries initiatives.
A fisheries trust affirms a Nisga'a stewardship role for Nass River fisheries.
The Nisga'a cannot establish large fish processing facilities for eight years following the effective date of the Final Agreement.
The Nisga'a have a treaty entitlement to harvest different wildlife species and inland fish for domestic purposes in the Nass Wildlife Area, an area comprising the Nisga'a Lands and some surrounding Crown land. They have specific allocations for moose, mountain goat and grizzly bear.
The Nisga'a can harvest migratory birds according to an international convention and applicable laws of general application.
Nisga'a hunting will be subject to conservation, public health and public safety requirements, and will not interfere with other authorized uses of Crown land or the ability of the Crown to dispose of Crown land.
The Nisga'a are required to prepare an annual management plan for their harvest which must be approved by the Minister.
A wildlife committee, with representatives of the Nisga'a, British Columbia and Canada, will make recommendations respecting the Nisga'a harvest and wildlife management in the Nass Wildlife Area.
The Nisga'a cannot sell wildlife, but can continue to trade and barter among themselves or with other aboriginal people.
Nisga'a citizens who hunt wildlife outside the Nass Wildlife Area will be subject to provincial laws.
The Nisga'a have concurrent authority with Canada and BC for environmental assessment and protection on Nisga'a Lands, but federal and provincial laws prevail if a conflict occurs.
BC and Canada may respond to natural disasters and environmental emergencies on Nisga'a Lands.
The Nisga'a have a "central" government (Nisga'a Lisims Government) and four village governments, similar to local government structures.
The Nisga'a have a constitution that spells out the structure, duties and functions of their government and ensures it is open, democratic and accountable to the Nisga'a people.
The Nisga'a can make laws governing such things as culture and language, public works, regulation of traffic and transportation, land use and solemnization of marriages. The Nisga'a continue to provide health, child welfare and education services under existing arrangements, but may also choose to make laws in these areas.
All Nisga'a law making powers are concurrent with those of Canada and British Columbia. The Nisga'a have no exclusive powers. Most Nisga'a law making is limited to Nisga'a Lands and Nisga'a people. Powers related to solemnization of marriages, social services and adoption apply to Nisga'a people throughout the Province with their consent.
People residing on Nisga'a Lands who are not Nisga'a citizens:
With the approval of the provincial Cabinet:
Nisga'a Lands will continue to be part of Electoral Area "A" of the Kitimat-Stikine Regional District.
Nisga'a and the Regional District may enter into service agreements or otherwise coordinate their activities with respect to common areas of responsibility.
Nisga'a Government continue to receive fiscal transfers from Canada and BC to enable them to provide government services at levels reasonably comparable to those available in the Northwest region of BC.
Nisga'a Government's ability to raise revenue is taken into consideration when fiscal transfers are calculated.
Fiscal financing agreements are negotiated every five years.
The Nisga'a receive $190 million from Canada and BC, which will be paid over a period of 15 years. Canada also contributes $10 million to a fisheries trust.
In addition, the Nisga'a receive $10.4 million for implementation activities, approximately $16.1 million over five years for new fiscal support and $30 million for infrastructure and training development. Canada is responsible for the large majority of this funding.
Nisga'a Government has authority to levy direct taxes on Nisga'a citizens on Nisga'a Lands.
Nisga'a Government and BC may negotiate a tax delegation agreement to permit Nisga'a Government to impose property taxes on non-Nisga'a occupiers of Nisga'a Lands, once Nisga'a Government imposes these taxes on its own citizens.
Nisga'a Government generally is tax-exempt in respect to its government activities, similar to other local governments in Canada.
The Indian Act tax exemption for Nisga'a citizens will be eliminated after a transitional period of eight years for transaction (eg sales) taxes and 12 years for other taxes (eg income).
Nisga'a Government, Canada and BC will negotiate the coordination of their respective tax systems on Nisga'a Lands.
The Royal BC Museum and the Canadian Museum of Civilization will return a significant portion of their collections of Nisga'a artifacts to the Nisga'a. The museums retain collections of Nisga'a artifacts for the public.
If disputes arise on the application, implementation or interpretation of the Final Agreement, the Parties will try to resolve them through co-operative negotiations and a variety of mediation options. If these efforts fail, they will have recourse to arbitration or the BC Supreme Court.
Criteria for Nisga'a enrolment reflect the matrilineal system and the Ayuukhl (Nisga'a traditional law). An enrolment committee comprising eight Nisga'a persons (two from each of the four tribes) is responsible for establishing a register of names. A three-member appeal board will consider appeals from the enrolment committee's decisions.
The Nisga'a will submit the Final Agreement to a special assembly of the Nisga'a Nation which will authorize a referendum. The Nisga'a will have ratified the Final Agreement if 50 per cent plus one of those persons eligible to vote in the referendum vote to approve.
BC and Canada will ratify the Final Agreement by signature of the responsible provincial and federal Ministers and enactment of provincial and federal settlement legislation. See also Sanders D, "The Nisga's Agreement" (1996) 1(3) AILR 466.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/37.html