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