Transcript Treaties - University of British Columbia

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
1760 1770
1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
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
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
1864-1871
Trutch 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
1876




1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
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
1884
Potlatches 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
1913
Nisga’a sent petition to Ottawa, asking that
it be presented to the Privy Council in
London
1916
Allied Tribes of BC
formed and hold protest meetings
1760 1770
1840 1850 1860 1870 1880 1890 1900 1910
1927
1920 1930 1940 1950 1960 1970 1980 1990 2000
Indian Act amended
 Land claims activity outlawed
 Allied Tribes declared illegal
1760 1770
1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940
1951
1950 1960 1970 1980 1990 2000
Amendment to Indian Act
 Potlatch and activity ban removed
1760 1770
1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950
1963
1960 1970 1980 1990 2000
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
1969-1973
1970 1980 1990 2000
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
1975
1970 1980 1990 2000
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
1984
1980 1990 2000
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
1985-1990
case
Sparrow
 Constitution 35 (1) applied to
recognize aboriginal fishing rights
in non-treaty areas
1980 1990 2000
1760 1770
1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980
1990
BC Claims Task Force set up
1991
 BC Claims Task Force recommended 6-step treaty negotiation
process
1992
BC Treaty Commission established
1990 2000
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 selfgovernment 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
 Nisga’a Treaty became law
 Nisga’a treaty and enacting legislation constitutionally
validated
 Self-government deemed as a constitutionally protected
aboriginal right
2000
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