Understanding the Treaty
The Nisga'a Treaty is a negotiated agreement between the Nisga'a Nation, the Government of British Columbia (B.C.) and the Government of Canada. It came into effect on May 11, 2000.
The Nisga'a Treaty is the first modern-day treaty in B.C. and is the fourteenth modern treaty in Canada to be negotiated since 1976.
For a comprehensive summary of the Nisga'a Final Agreement itself, go to the link Understanding the Nisga'a Treaty, September 28, 1998 or the attachment below.
How it all Started
The Nisga'a quest for a treaty began over 100 years ago, with the formation of our first Land Committee in 1890. However, from 1927 to 1951, the Nisga'a could not pursue our goal for a treaty because Canadian laws made it illegal for Indians to raise money to advance land claims. After these laws were repealed in 1951 the Nisga'a Land Committee re-established itself as the Nisga'a Tribal Council in 1955.
In the late 1960's, the Nisga’a Tribal Council began a legal action in the B.C. Supreme Court. However, it was not until 1973 that the Supreme Court of Canada rendered a decision which prompted the creation of Canada's land claims negotiation policy. The federal government began treaty negotiations with the Nisga'a in 1976 and the B.C. government joined the two parties at the table in 1990.
The Nisga'a Treaty provides for an open, democratic and accountable Nisga'a Government. It includes representation for all Nisga'a through the Nisga'a Lisims Government, four Village Governments, and three Urban Locals, which provide a voice for Nisga'a citizens who live outside the Nass Valley.
Nisga'a Government operates within the Constitution of Canada and the Canadian Charter of Rights and Freedoms.
The Nisga'a Treaty establishes decision-making authority for Nisga'a Government within a model that the Nisga'a have been accustomed to and have accepted for many years. The Nisga'a Government model is designed as a practical and workable arrangement that provides the Nisga'a Nation with a significant measure of self-government that is consistent with the overall public interest and within Canada's constitutional framework.
The Nisga'a Lisims Government may make laws in many areas and has principal authority over some, including administration of government, management of the Nisga'a Nation's lands and assets, Nisga'a citizenship, language and culture. However, the treaty also includes limitations on Nisga'a Government authority. For example, Nisga'a Government cannot make laws about Nisga'a citizenship that deal with immigration or Canadian citizenship.
All Nisga'a laws operate alongside federal and provincial laws, similar to other jurisdictions in Canada where Canadians are subject to federal, provincial and municipal laws simultaneously. The Treaty includes important rules, which set out what will happen to address any conflicts or inconsistencies between laws.
In addition, many Nisga'a Government authorities are subject to federal or provincial standards, where a "meet or beat" approach is taken. This approach is taken in a number of areas, including education, child and family services, adoption, and forestry. Child welfare is a good example of how this works. Nisga'a laws have priority if they meet or exceed provincial standards for child protection — but federal and provincial laws requiring the reporting of children in care continue to apply. The provincial government can continue to act as needed to protect a child at risk within the agreement between the Nisga'a and B.C.
Nisga'a Government may also make laws in areas where some local authority is appropriate, such as environmental protection, health and social services, and traffic and transportation. However, in these areas, federal or provincial laws prevail.
Did you know?
1. Subject to age, all Nisga'a citizens may run for office and vote in Nisga'a elections;
2. Nisga'a elections must be held every five years;
3. Nisga'a Conflict of Interest guidelines and financial accountability mechanisms must be comparable to those that apply to other governments in Canada;
4. Protections to ensure standards in services, health and safety have been built into the Treaty; and,
5. Protections for non-Nisga'a residents who live on Nisga'a Lands are set out in the Treaty — this includes rights of consultation, participation and appeal where decisions of the Nisga'a Government directly and significantly affect them.
The Nisga'a Treaty and the Canadian Constitution
The Nisga'a Treaty is consistent with Canada's supreme law, the Constitution Act, 1982.
Beginning in the early 1970s, successive court cases confirmed that Aboriginal rights and title are legal rights and that they existed whether governments recognized them or not. In 1982, the Constitution Act included section 35 — a provision that recognizes and affirms existing Aboriginal and treaty rights. In 1983 an amendment was included to clarify that this includes rights in land claims agreements.
It is important to understand that Aboriginal rights and treaty rights are different. Aboriginal rights are not clearly defined, and must be established through the courts on a case-by-case basis. Treaty rights are negotiated and treaty rights can be exhaustively set out and described in detail.
As a modern treaty, the Nisga'a Treaty sets out and describes in detail the rights of Nisga'a citizens. Any Aboriginal rights of the Nisga'a are modified to become rights set out in the Treaty. In this way, the negotiating parties have agreed to rights—rather than extinguishing them.
Key Features of the Treaty
The Nisga'a Treaty sets out the land and resources that form part of the agreement between Canada, B.C., and the Nisga'a Nation. The Treaty sets out the Nisga'a's right to self-government, and the authority to manage lands and resources. Together, the Treaty and related agreements provide the Nisga'a with:
- $196.1 million dollars (in 1999 dollars);
- 2,019 square kilometers of land;
- an annual allocation of salmon;
- entitlements to harvest other fish;
- allocations of moose and other wildlife species;
- $11.8 million to increase participation in the general commercial fishery;
- a Lisims Fisheries Conservation Trust (to which the Nisga'a Nation has contributed $3 million);
- a water reservation for domestic, agricultural and industrial purposes;
- authority to operate our own government, and the ability to make laws; and,
- funding to deliver health, education, and social services to our citizens and other area residents
Health, education, social services and other services are now provided under a Fiscal Financing Agreement.
It is important to recognize that Nisga'a Government also contributes to the costs of these programs and services, thereby reducing federal and provincial transfers over time. Nisga'a Government and citizens help finance programs and services in two ways:
- through payment of income and sales taxes; and,
- by contributing a share of its revenues.
Discussion & Consultation
The Nisga'a Treaty underwent extensive debate in the B.C. Legislature and in Canada's House of Commons and Senate. The Treaty includes provisions that reflect how governments addressed the concerns of the public and third parties, which were brought to the attention of negotiators. Nearly 500 public information and third-party consultation meetings were conducted during the negotiations.
|Understanding the Nisga'a Treaty 1998.pdf||2.61 MB|