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British Columbia Treaty Process
BC Treaties
1. Historical Perspective
2. Nisga’a Final Agreement
3. Implications of Nisga’a on Resources
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
A Historical Look at Treaties in Canada and BC
1763 Royal Proclamation
Indian rights to land exist unless extinguished by voluntary cession
Followed by governments of Canada, east of Rockies Ignored in BC – denied application to its territory Indians regard it as guarantee of their rights
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1846 Oregon Treaty
Colony of Vancouver Island established Land, settlement controlled by Hudson’s Bay Company
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1850-1854 Douglas Treaties
14 treaties established on Vancouver Island
1851-1864
Douglas appointed as governor of BC
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
Douglas’s Policies
• Reserves
• Pre-emption
• Assimilation
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
Douglas’s Legacy
• Few rights, less land, less protection of Indians in BC
• Indian retention of communal and tribal group identities, sense of injustice
• Aboriginal title not extinguished
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1864-1871Trutch appointed as chief commissioner of lands
Trutch’s policies Explicit denial of Indian title Indian pre-emption abolished Reserve reduction to 10 acres per family maximum
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1871-1877
Canada signed treaties west of Ontario • 160 – 640 acres per family
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1876 Indian Act
Allowed only status Indians to live on reserves Prohibited taxation on reserves Imposed “chief and council” structure Divided province into Indian Agencies and appointed
agents
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1881 Nisga’a Protest in Victoria
1884Potlatches banned
1885
Tsimshian chiefs delegation to Ottawa
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1885 Victoria meeting of North Coast chiefs, Province and Dominion
Government agreed to public enquiry, but Indian demands denied
1886 Commissioners visited North Coast
Indian requests ignored Northwest Coast Agency established
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1898
Extension of Treaty 8 from Alberta into BC approved
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1907
Nisga’a Land Committee created to press for treaties
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1913Nisga’a sent petition to Ottawa, asking that
it be presented to the Privy Council in London
1916Allied Tribes of BC formed and hold protest meetings
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1927 Indian Act amended
Land claims activity outlawed Allied Tribes declared illegal
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1951 Amendment to Indian Act
Potlatch and activity ban removed
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1963 White and Bob case
2 Nanaimo Indians hunted deer on land under Douglas treaty
Treaty recognizes aboriginal rights to hunting
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1969-1973 Nisga’a (Calder) case Court recognizes aboriginal title pre-existed but was
split on whether it continues or whether it was implicitly extinguished
1974 Office of Native Claims established and negotiations
with the Nisga’a are initiated
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1975 Guerin case
Musqueam chief against federal government in golf course deal
Government ordered to pay based on Indian title
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1982
Canadian Constitution Section 35 (1)
Acknowledges and affirms aboriginal and treaty rights, both those that exist and those that may be acquired
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1984 Meares Island case
Blockade by Nuu’chah’nulth Indians to protest logging on their traditional territory
Injunction granted to preserve evidence of historic usage like CMTs
6 more injunctions granted based on this case in BC
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1985-1990 Sparrow case
Constitution 35 (1) applied to recognize aboriginal fishing rights in non-treaty areas
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1990 BC Claims Task Force set up
1991 BC Claims Task Force recommended 6-step treaty negotiation
process
1992
BC Treaty Commission established
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1993 Treaty Negotiation Advisory Committee established Treaty Commission began accepting First Nations into
the Treaty Process
1994 Canada recognized the inherent right to self-
government as an existing aboriginal right
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1996 Nisga’a Tribal Council and federal and provincial
governments signed an Agreement In Principle outside the BC Treaty Process, as a foundation for negotiating BC’s first modern treaty
1997 Delgamuukw decision Aboriginal titles defined
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
1998
Nisga’a approved Final Agreement
1999 BC and Canada ratified Nisga’a Final Agreement Sechelt Agreement in Principle was signed, marking
the beginning of talks to conclude a treaty
1760 1770 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
2000
Nisga’a Treaty became law Nisga’a treaty and enacting legislation constitutionally
validated Self-government deemed as a constitutionally protected
aboriginal right
The Nisga’a Final
Agreement: Summary
Lands
• Nisga’a Lands: 1,992 km2 within lower Nass Valley; 1,930 km2 of Crown Land & 62 km2 of ex-Indian reserves
• Also, Nisga’a fee simple lands outside Nisga’a Lands – both will exist as fee simple
Minerals
• Nisga’a own all subsurface resources on Nisga’a Lands
Commercial Recreation Tenure
• Receive a commercial recreation tenure for guiding which will operate under provincial laws
• Existing guide outfitter tenures on Nisga’a Lands remain under provincial jurisdiction
Protection of Historic Sites/Parks and Ecological
Reserve• Key cultural sites to be
protected under provincial ownership & jurisdiction – features to be renamed with Nisga’a names, including Nisga’a Memorial Lava Bed Park and Gingietl Ecological Reserve
• Creation of 6 ha Bear Glacier Provincial Park
Water• Province retains full
ownership & regulatory authority over water
• Nisga’a allocated 1% of average annual flow from Nass Valley Watershed for domestic, industrial and agricultural purposes
• Have reservation with the possibility of hydro power development
Forestry
Forest Resources on Nisga’a Lands:
• Own all forest resources; existing licensees will continue to harvest timber for a five-year transition period
• Rules established by the Nisga’a must meet or exceed provincial standards for forest practitioners
Forestry
Forest Resources outside Nisga’a Lands:
• Province supports Nisga’a in purchase of an existing forest timber license to a max. of 150,000 m3, subject to the Forest Act
Access/Roads and Rights of Way
• General public have access to Nisga’a public lands for hunting, fishing and recreation
• Nisga’a Highway remains a provincial highway
• Federal and provincial governments can acquire interests in Nisga’a Lands (e.g. rights of way) for public and industrial purposes, subject to fair compensation
Fisheries• Annual salmon allocation ~ 17% of Nass TAC• Also pink and sockeye salmon allocation for domestic
and commercial purposes under the Harvest Agreement (outside the treaty)
• Call sell salmon if directed from commercial or recreation fisheries – sales subject to laws of general application
• Canada & BC responsible for conservation and management of fisheries and fish habitat
Fisheries
• Entitlement to steelhead and non-salmon species (e.g. oolichan) harvest for domestic purposes
• $11.5 million to enhance participation in commercial fishing (e.g. purchase of licenses and vessels)
• Joint management committee and fisheries trust to affirm stewardship role for the resource
Wildlife
• Specific allocations for moose, mountain goat and grizzlies
• Hunting is subject to conservation, public health and public safety; not to interfere with other uses of Crown land
• Annual management plan to be approved by the Minister
•Cannot sell wildlife to general public, just trade/barter amongst Aboriginals
•Wildlife committee makes recommendations to harvesting and wildlife management in area
Environmental Assessment and Protection
• Nisga’a have concurrent authority with Canada and British Columbia for assessment and protection on Nisga’a Lands; federal and provincial laws prevail if conflict occurs
Nisga’a Government• “Central” government –
Nisga’a Lisims Government (open, democratic, accountable)
• Law making powers concurrent with Canada and British Columbia – no exclusive powers
• Can make laws governing culture, public works, land use, marriages; continue to provide health, child welfare and education under existing arrangements
Administration of Justice• With provincial approval,
Nisga’a can: provide full policing services Establish court with
jurisdiction on Nisga’a Lands Must meet provincial standards
in both categories• Nisga’a and regional district
may enter into agreements to coordinate activities in common areas of responsibility
Fiscal Financing Agreements
• Receive funding to support governmental services comparable to those available in Northwest region of BC, taking into account the Nisga’a’s ability to fundraising
• Negotiated every 5 years
Capital Transfers
• $190 million from Canada and BC over 15 years + $10 for a fisheries trust from Canada
• $10.4 million for implementation activities• ~$16.1 million for fiscal support (over 5 years)• $30 million for infrastructure, training and
development
*Canada to provide majority of funding*
Taxation• Indian tax exemption will
be eliminated after transitional period of 8 years for transaction (e.g. sales) tax and 12 years for other (e.g. income) taxes
• Nisga’a Government, Canada and BC to negotiate coordination of tax systems
• Nisga’a Government can levy direct taxes to citizens on Nisga’a Lands
Cultural Artifacts and Heritage Protection
• Royal British Columbian Museum and Canadian Museum of Civilization to return significant portion of Nisga’a artifacts
Dispute Resolution
• In the event of disputes on application, interpretation or implementation, negotiation and mediated meetings will occur; if efforts fail, move to arbitration or BC Supreme Court
IMPLICATIONS OF THE NISGA’A TREATY ON RESOURCE
MANAGEMENT
Forestry Impacts
• The Nisga’a Nation owns all forest resources on Nisga’a Lands.
• Nisga’a Lisims Government has the exclusive authority to determine, collect, and administer any fees, rents, royalties, or other charges in respect to:– All timber and non-timber resources on Nisga’a Lands.
• 5 year transition period
– Forestry practices under the BC Forest Practices Act.
– existing licence holders are required to use Nisga'a contractors to harvest 50% of the cut in the first year, and 70% in each of the following years.
• After 5 years – All harvesting will be controlled by the Nisga’a.
– Nisga’a will create their own Forest Practices Code.
• No more intrusive to the environment than the B.C. code.
• The timber harvesting rates have been set for the next 9 years at:
– Year 1 – 165, 000 m3– Year 2 – 165, 000 m3– Year 3 – 165, 000 m3– Year 4 – 165, 000 m3– Year 5 – 165, 000 m3– Year 6 – 135, 000 m3– Year 7– 135, 000 m3– Year 8– 135, 000 m3– Year 9 – 130, 000 m3
• Non-Timber Forest Products:
– Nisga’a Lisims Government may make laws in respect of non-timber forest resources, including:
• Mushrooms
• Berries
• Salal
• Nisga'a will be no different than any other owner of private forested land in the province.
– Public no longer have control over land.
– The Nisga’a determine how much timber is harvested, by what method, and by whom.
• If other similar treaties are signed in BC.
– Ownership of the majority of BC’s forest land, will change from public to private ownership.
– The people of BC, will no longer have control over one of our most valuable natural resources.
Fisheries Impacts
• Nisga’a get 26% of the total allowable catch on the Nass river.
– Their yearly allocation of Salmon is:
- 44,588 sockeye salmon
- 11,797 coho salmon
- 6,330 chum salmon
- 6,524 chinook salmon
- 4,430 pink salmon
– The Nisga’a also receive:
• a commercial yearly allocation averaging 28, 913 sockeye and 88,526 pink salmon under an agreement which is not part of the Treaty;
• $11.8 million to increase participation in the general commercial fishery;
• $10.3 million in Canada's contribution to the Lisims Fisheries Conservation Trust (to which the Nisga'a provide $3.1 million);
• Impacts on Non-Nisga’a Fishers
- Loss of fishable waters for sport fishing
- Loss of commercial fishery in area
Impacts on Wildlife
• 10,000 square kilometer Nisga'a wildlife management area was created.
– Provides good habitat for wildlife– Allows for Nisga’a to harvest moose, deer, elk,
bear, and mountain goat.
– Less hunting area for Non-Nisga’a– Impact on other resources in area.
Conclusions