Australian Indigenous Law Reporter
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In March 1996, an Agreement in Principle was signed by representatives of the 6,000 member Nisga'a tribe and the governments of Canada and British Columbia. The agreement goes beyond simply settling a land claim. It will establish a new relationship between the Nisga'a people and the larger Canadian society. Nearly 2,000 square kilometres of land will be confirmed as Nisga'a land, something less than 10 percent of the 24,000 square kilometre traditional Nisga'a territory in the Nass River valley of north-western British Columbia. A self-government system will be established, including a Nisga'a court. Compensation in the amount of $190 million will be paid over a period of years. The agreement is to be given legal force as a treaty, which will bring its provisions under the protection of s. 35 of the Constitution Act 1982, which recognises and affirms treaty rights. Federal jurisdiction over 'Indians and lands reserved for the Indians' will cease to apply to the Nisga'a. The Indian Act will cease to apply to Nisga'a or Nisga'a lands. Parallel to, but outside the treaty, will be allocations of commercial fishing rights to the Nisga'a by the federal government.
There are vocal critics of the Nisga'a agreement, including members of the provincial Reform and Liberal parties, some other political commentators and a grouping within the commercial fishing industry.[2] The general business reaction has been supportive, hoping that the settlement of land claims in British Columbia will bring investment certainty. Additional negotiations are necessary to work out a final text. The remaining steps are not risk-free, given continuing controversies over elements of the agreement in principle and an imminent provincial election.
After confederation in 1867, the government of Canada signed treaties with Indian tribes in most of western Canada, following the provisions of the Royal Proclamation of 1763 and the precedent established in pre-confederation treaties in southern Ontario. But, with minor exceptions, treaties were not signed west of the continental divide. From the beginnings of European settlement in the latter half of the 19th century, Indians in British Columbia have pressed Aboriginal title claims in a remarkably enduring campaign for the recognition of rights. The federal government drafted questions for reference to the courts early in the century, but backed off, agreeing with the province to complete a reserve system and ignore Aboriginal title claims. A Special Joint Committee of the Senate and House of Commons held hearings on the land claim in 1927. The claims were rejected and a provision added to the Indian Act barring the collection of money to advance claims, a remarkable prohibition that only ended in 1951.[3]
From 1969 to 1973 the Calder case was in the courts, a claim to continuing Nisga'a ownership of their traditional lands. [4] The split decision of the Supreme Court of Canada in 1973 is credited with shifting federal policies on land claims, though other factors were clearly involved as well. From 1973 the federal government has officially sought a negotiated settlement of land claims in British Columbia. The provincial government refused to negotiate, then joined the Nisga'a negotiations, then withdrew. While polls showed public support for a settlement of land claims in British Columbia, the provincial government believed the support would drop off when an actual transfer of resources to tribes was to occur. The province shifted position again in 1990, in the face of judicial support for land claims and a growing realisation that court cases and Indian blockades were having a serious impact on investment in the province.
The federal and provincial governments, along with the First Nations Summit, established a joint task force which reported in 1991, recommending a structured process for negotiations, to be facilitated by a treaty commission. In September 1992, Prime Minister Mulroney, Premier Harcourt and leaders of the First Nations Summit met at the Longhouse on Squamish lands in North Vancouver, to sign the agreement establishing the treaty commission process. The Nisga'a negotiations, already underway, continued outside the new framework. A majority of Indian bands in British Columbia have now voluntarily accepted the treaty commission process, though no treaties or settlements have yet resulted.
In spite of periodic predictions that an agreement was imminent, the Nisga'a negotiations went on and on. News stories early in 1996 indicated three remaining problems: 1 the Nisga'a opposed any wording 'extinguishing' Nisga'a Aboriginal title and rights, language that Canada had insisted upon in previous agreements, such as those in Yukon. 2 British Columbia sought an end to Nisga'a tax exemptions. 3 British Columbia opposed a constitutionally entrenched Nisga'a fishing quota. Those issues are addressed in the agreement in principle, though final language on many points is subject to further negotiations. A final agreement may be a couple of years away.
A new membership roll will be prepared by the Nisga'a to determine eligibility. The criteria will reflect traditional Nisga'a kinship practices, which are matrilineal. At present there are about 6,000 Nisga'a. About 2,400 live in the Nass valley. Only about 260 non-Nisga'a live in the settlement area.
The Nisga'a will communally own the surface and subsurface rights to 1,930 square kilometres of land and lands presently within 56 Indian reserves. These lands will form a single block, and are designated as 'Nisga'a lands'. The Nisga'a lands do not include any third party rights (fee-simple rights, rights of way, leases licences, permits). Negotiators have repeatedly said that third party rights would not be affected in treaty negotiations. Nisga'a lands also do not include the beds of lakes or rivers (in line with general patterns in British Columbia). Nisga'a lands will not be 'Indian reserves' and will not come under the jurisdiction of the federal Indian Act.
The Nisga'a government will be able to create or transfer interests in Nisga'a lands without the consent of Canada or British Columbia. The Nisga'a will be able to register any interests in Nisga'a lands in the provincial land registry system.
There are certain rules for Nisga'a management of Nisga'a lands. Timber extraction and forest management must meet or exceed provincial standards. Environmental protection standards must meet or exceed federal or provincial standards. The public must be allowed access to Nisga'a lands for hunting, fishing and recreation. The federal and provincial governments will be able to expropriate Nisga'a lands for public purposes, subject to fair compensation.
The Nisga'a will also hold regular private ownership of additional lands, which will be classified as 'Nisga'a Fee Simple Lands.' This land, which will include 18 Indian reserves, is 'subject to all federal and provincial laws of general application', confirming a regime of normal private ownership, without any special federal or Nisga'a jurisdiction over the land. There is provision for a Nisga'a purchase of a forestry licence, again outside the category of Nisga'a lands, a licence that would come under the provincial Forest Act.
The final agreement is to provide 'certainty' with respect to Nisga'a rights and obligations. This language is used to avoid requiring the Nisga'a to explicitly extinguish Aboriginal title and rights, while at the same time reassuring the province (as owner of public lands) and private owners that their rights can no longer be challenged.
The three provincial political parties, New Democratic, Liberal and Reform, opposed constitutional protection for a 'commercial fishing entitlement based on race...[5] This concern reflects a few years of controversy over Aboriginal fishing rights and general problems in the industry, including unexpectedly low fish runs. There are two fisheries components to the agreement, only one of which will form part of the treaty.
Under the treaty, the Nisga'a will be entitled to approximately 18 percent of the harvest of fish entering the Nass River system for domestic and commercial use. Outside the treaty the Nisga'a will receive an allocation of sockeye and pink salmon, the prime species, for commercial purposes, and other allocations of steelhead, halibut, ollichan and shellfish for domestic purposes. Altogether, if runs are adequate, the Nisga'a can expect to harvest around 26 percent of the total allowable catch on the Nass River.[6] $11.5 million will be available for the purchase of vessels and licences to strengthen Nisga'a participation in the fishery (following earlier patterns of such special funding).
The fishing component of the agreement remains the single most controversial issue. A lawsuit launched on April 10, 1996 opposes any special Aboriginal fishery, apparently arguing an obligation on Canada to respect the traditional 'common property' idea of the offshore fishery. The suit probably has no chance of success, and follows an earlier case which failed in its challenge to the Nisga'a negotiations.
In contrast, hunting is not of major economic significance. Modest provisions allow for non-exclusive, non-prioritised Nisga'a hunting rights for domestic purposes. These hunting provisions extend through the whole traditional Nisga'a area, not simply to the new category of Nisga'a lands.
There will be four village governments, coming under a Nisga'a Central Government. The Central Government will be composed of (a) three individuals elected at large, (b) the Chief Councillors and other councillors of the four Nisga'a village governments, and (c) one representative from each of the three Nisga'a Urban Locals, located in Vancouver, Terrace and Prince Rupert/Port Edward. Under these provisions, the Central Government will be dominated by the councillors of the village governments. This ensures a focus on individuals living in the homeland area, but not as exclusively as in previous settlements.
The Nisga'a will be responsible for social services, health services and child welfare programs. They will gain jurisdiction over the following matters on Nisga'a lands. Unless otherwise noted, Nisga'a law will prevail over federal and provincial laws on these subjects.
Culture and education:
Land use and local business:
Family law matters:
Law and order
Nisga'a agree to consult non-native residents about decisions that affect them. Non-natives will also have the right to vote and run for positions on 'subordinate elected bodies' such as the school and health boards. Non-natives have also been guaranteed full-voting seats on these boards.
The application to Indian governments of the Charter of Rights and Freedoms has been a contentious issue, in large part because of the long disputes over sexual discrimination in the determination of membership under the Indian Act. The federal government's policy statement on self-government of August 1995, stated that the Charter would have to apply to Aboriginal governments. The statement acknowledged that the Charter itself would have a qualified application because of s. 25, which provides, in part:
The guarantee in this 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...
The federal statement describes s. 25 as directing that the Charter must be interpreted 'in a manner that respects Aboriginal and treaty rights', including the right of self-government.
The Charter is thus designed to ensure a sensitive balance between individual rights and freedoms, and the unique values and traditions of Aboriginal peoples in Canada.
This leaves the exact impact of the Charter on Aboriginal self-government unclear. The Nisga'a agreement states that the Charter will apply to Nisga'a government, without any elaboration on the impact it is expected to have.
The Nisga'a will be able to establish a court to administer Nisga'a laws, subject to the approval of the arrangements by the province. The judges of the court will be appointed by the Nisga'a government and may, in addition, be appointed by the province as regular provincial court judges. If Nisga'a law provides a penalty of imprisonment an accused person may elect to be tried in a non-Nisga'a court. The jurisdiction of the court will not exactly parallel existing provincial courts, for Nisga'a laws will not cover some matters handled by the regular provincial courts and will cover some matters outside provincial court jurisdiction. Some jurisdiction over non-Nisga'a will occur. Appeals go in a normal fashion to the Supreme Court of British Columbia, as do appeals from Provincial Courts.
It is envisaged that the Nisga'a court will reflect aspects of Nisga'a culture. The Agreement in Principle says that the court may
apply traditional Nisga'a' methods and values, such as the use of elders in adjudication and sentencing, and emphasis on restitution...[7]
The Nisga'a will receive $190 million, paid over a period of years as a capital transfer.
Outside the treaty, five year financing agreements will be negotiated to provide funding to the Nisga'a government in order to enable the government to provide public services 'at levels reasonably comparable to those generally prevailing in northwest British Columbia.'[8] This language reflects the well-established national equalisation program, designed to support provincial governments in poorer areas of the country. The wording suggests that financing could come from both the provincial and federal governments.
The three provincial political parties opposed the continuation of Indian tax exemptions in any settlement, and were supported in this by the Minister of Indian Affairs. The politicians identified taxation as an issue on which there was clear public concern.[9]
The present tax exemption provision is found in the Indian Act. Section 87 exempts from taxation the real and personal property of an Indian when it is located on an Indian Reserve. This exempts Indians from income taxation when the income is linked to the reserve. The limitations on the exemption meant that it had little relevance in the isolated Nisga'a area, where income would come from off-reserve logging, fishing or employment. In general, only the Indian employees of on-reserve operations, such as band governments, band-run programs and schools, would enjoy the exemption. For Indians living in more populated areas the exemption is much more important. In many parts of the province Indians can set up businesses and do most of their shopping on reserve lands.
Under the agreement, Nisga'a will be fully liable for sales taxes in eight
years and for income taxes
in 12 years.[10]
The Nisga'a government will gain jurisdiction over the direct taxation of Nisga'a citizens on Nisga'a lands. This will not affect the taxing powers of the provincial and national governments. Nisga'a interests in Nisga'a lands will be exempt from provincial taxation, as they now are, though details have to be worked out. Existing provincial powers to tax non-Indian interests in Indian land would continue, subject to any additional agreement. The rules in the Income Tax Act on municipal corporations are slightly narrowed.[11]
The Royal British Columbia Museum and the Canadian Museum of Civilisation will return a significant portion of their collections of Nisga'a artefacts to the Nisga'a. Appended to the agreement are itemised lists of the holdings of the two museums. These listings give the basis for determining what items will be returned to Nisga'a ownership and which items will be retained by the Museum, subject to loan arrangements.
The agreement envisages Nisga'a and provincial agreement on the protection of archaeological and other heritage sites. The Nisga'a will own artefacts found on Nisga'a lands or Nisga'a fee simple lands. Artefacts found on provincial lands will be subject to provincial jurisdiction.
The ratification of the final agreement will be complete when it has been (a) approved by referendum by the Nisga'a, (b) signed by the federal and provincial governments, and (c) when legislation giving effect to the final agreement has been passed by the federal and provincial legislatures.
Most parts of the agreement will become part of a treaty. The treaty will gain
legal force as a result of
s. 35(1) of the Constitution Act, 1982.
The Supreme Court of Canada in the Sparrow decision in 1990 confirmed
that s. 35(1) makes treaty provisions enforceable. The treaty parts of the
agreement, then, do not need
legislative implementation, for earlier treaties
were executive acts, complete upon the signing by federal and Indian
representatives.
Provincial participation is not a requirement for a treaty,
given historical precedents. The decision on provincial participation
and the
decision to have federal and provincial legislation as part of the ratification
process are, then, decisions of the parties,
not constitutional requirements.
The fact that there will be federal and provincial legislation does not mean
that the treaty provisions
can be altered by future legislation. Treaty
provisions will only be able to be altered by the consent of the parties, the
method
by which treaties come into being. The power of Canada to unilaterally
alter treaty rights by legislation ended with the constitutional
amendments of
1982.
The constitutional status of the treaty provisions is the key to understanding
some of the effects of the treaty. The treaty will
provide that s. 91(24) of
the Constitution Act, 1867, which gives the federal government
jurisdiction over 'Indians, and lands reserved for the Indians', will no longer
apply to
Nisga'a or Nisga'a lands. This could be seen simply as a federal
withdrawal from exercising jurisdiction, and be valid on that basis.
But if it
prevents future federal legislation in relation to the Nisga'a it is because
the treaty provision trumps s. 91(24). The
treaty has amended the constitution.
Any questions in relation to the new Nisga'a court and its jurisdiction based
on the judicature
sections of the Constitution Act, 1867, would also be
answered by the treaty provisions creating a constitutional
special case.
The application of the Charter of Rights and Freedoms to Nisga'a
government requires, in effect, an amendment of s. 32(1) of the Constitution
Act, 1982. Again, the treaty is able to make that alteration. The various
provisions on whether self-government powers prevail over federal
or provincial
legislation, or are subordinate to such laws, can only be understood as making
new constitutional rules, tailored to
the special situation of Nisga'a
self-government. Again, the validity of those rules is dependent upon the
treaty trumping established
rules on paramountcy or effectively creating new
ones.
The ending of s. 91(24) for the Nisga'a, and the treaty basis for most of the new arrangements do make the Nisga'a government a constitutionally separate government, separate from the national and provincial governments. It is not useful to call this a 'third order of government', for that phrase has become politically charged. Nisga'a governmental powers are modest. They are more than municipal and less than provincial. An inevitable part of a settlement such as this (and those in Quebec and Yukon) is to develop the rules and patterns for Aboriginal relations with provincial governments. This lessens the predominance of the national government in Nisga'a' lives. This is not a threatening process. Instead it represents the elaboration of inter-governmental relationships that have needed formalisation. Because the end result of the treaty will secure a measure of autonomy for the Nisga'a, the fiduciary obligations of the federal and provincial governments will lessen. The fiduciary obligation was designed to compensate (inadequately) for dependency. The treaty is to lessen dependency.
The text of the Nisga'a agreement makes it seem highly complex and legalistic. But the fundamentals are simple. The Nisga'a have secured a land base in their traditional territories and a modest degree of constitutional autonomy to further their collective control over their own lives. A host of policy and legal developments have been moving us in these directions.
[1] Professor of Law, Faculty of Law, University of British Columbia.
[2] S Bell & J Hunter, 'Nisga's Deal Initialled into History', Vancouver Sun, February 16, 1996, p. 1.
[3] The best source on the history is P. Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989, UBC Press, 1990.
[4] Calder v Attorney General of British Columbia [1973] SCR, 313.
[5] M Crawley & J Beatty, 'Nisga'a Deal Draws Counter-Claim', Vancouver Sun, January 27, 1996, p. 1.
[6] M Hume, 'Angry Fishers Denounce Deal', Vancouver Sun, February 16, 1996, p. B3.
[7] at 88, par 34 (d).
[8] at 94, par 2.
[9] R Howard, 'First B.C.Land-Claim Settlement Within Sight', Globe and Mail, January 20, 1996, p. 1.
[10] This may be reopened if later similar agreements in the same region contain tax exemptions; at 107, par 40.
[11] at 101-102.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1996/62.html