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GITANYOW CHIEFS AND THE B.C. TREATY PROCESS
E-mail: gitanyowchiefs@kermode.net
Contents of Page
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The Gitanyow people's comprehensive claim to approximately 6,500 square miles
of territory in the mid-Nass River watershed in Northwest B.C. was accepted for
negotiation by the provincial and federal governments in 1994 as part of the
British Columbia treaty process.
The Gitanyow are currently in stage IV, the negotiation of an
Agreement-in-Principle (AIP), having completed Stage Two in December 1994 and
initialed their Framework Agreement in May 1995. This document, formally signed
in February 1996, originally anticipated a twenty-four month time-frame to
complete negotiations for an AIP. The time-frame for the signing of an AIP has
since been been extended to September 1999.
Meanwhile, there's been an exchange of correspondence and discussions between
Gitanyow chiefs and the Federal and Provincial governments since the signing of
the Nisga'a AIP related to Gitanyow concerns over its impact on Gitanyow.
All parties are currently attempting mediation to resolve the territorial
overlap issues. Litigation concerning whether or not both levels of government
negotiated in good faith is before the Supreme Court of British Columbia.
The Gitanyow have long disputed the Nisga'a claim to about 84 per cent of
Gitanyow territory and have attempted for the past 30 years to settle the
dispute. Traditional dispute mechanisms have been unsuccessful and proposals to
governments and their agencies for formal remedies in the last 14 years have
produced no results. The signing of the Nisga'a Agreement in Principle in
February 1996 has further frustrated Gitanyow chiefs and house members.
The Nisga'a have based their negotiations on a claim to the entire Nass
watershed between 1968 and the present, but have not presented any credible
evidence to support their claim. Current Nisga'a leaders have chosen to ignore
their own Elders' evidence about their territory earlier this century. Evidence
asserted in the Nisga'a's own Calder case (Supreme Court of Canada - 1973),
suggests the Nisga'a claimed three times the territory they were entitled to,
obtaining land, rights and benefits over aboriginal territory which rightfully
belongs to their neighbors - the Gitanyow, Gitksan and the Tahltan. Not a single
Nisga'a leader early this century disputed the strong evidence of Gitanyow
chiefs.
Many times the Gitanyow and Gitksan have met with the Nisga'a to try to
resolve a constantly expanding claim by the Nisga'a in the Nass watershed.
Finally in 1995, under a joint Gitksan-Nisga'a protocol, the Gitksan presented
the Nisga'a leadership with an exhaustive study of all known evidence bearing on
the overlap issue. The Nisga'a have yet to respond to that study.
The Gitksan and Gitanyow have asked for a mediator to resolve the issue. The
Nisga'a have agreed to mediation but only after initialing their final agreement
in August 1998 and in the face of court action. Mediated talks have been
repeatedly stalled since September 1998 and have been tentative at best when
parties do come to the table.
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There are several areas in which the Nisga'a AIP purports to allow the
Nisga'a to intrude into Gitanyow territory and to interfere with the
unfettered exercise of those rights. A legal review of the Nisga'a
Agreement-in-Principle shows that:
- The parties to the instrument assume Nisga'a authority over resources
within 84 % of Gitanyow territory.
- The parties commit to negotiate a final treaty providing entrenched
treaty rights for the Nisga'a over resources within that portion of
Gitanyow territory, rendering the General Provisions section (s. 14,
Nisga'a AIP) respecting aboriginal rights of other aboriginal nations,
meaningless at best, and sharp dealing at worst.
Among the infringements with respect to which the Gitanyow take exception
are:
- Gitanyow territory, accepted by Canada and British Columbia for the
purposes of negotiations as evidenced by the Gitanyow Framework Agreement,
includes a portion of the territory designated in the Nisga'a AIP as the
proposed Nisga'a Lands (Appendix A to the Nisga'a AIP) and the Wildlife
Management Area (Appendix M to the Nisga'a AIP).
- The Fishery component of the Nisga'a AIP includes 84 % of Gitanyow
territory. It proposes to establish a management regime that consists only
of the department of Fisheries and the Nisga'a tribal Council; ignoring
the rights of other Aboriginal nations on the Nass Watershed. It includes
an allocation of fish without any consultation with Gitanyow.
- The Nisga'a AIP interferes more specifically with the rights of the
Gitanyow in at least the following ways:
- The provision for "Core Lands" includes one of the prime,
historic Gitanyow fisheries on the south shore of the Nass River.
- The provision for "Fee Simple" includes five areas within
Gitanyow territory.
- The proposed Wildlife Management Area purports to allow the Nisga'a
to take:
- 80% of the first 50 moose
- 32% of the next 50 moose and 56% of all remaining moose
- similar provisions are allowed for other species
- the boundaries of this Wildlife Management area may be amended
at any time by agreement of B.C. and the Nisga'a, there is no
allowance for the Gitanyow to participate in boundary adjustment.
- over 84% of Gitanyow territory is covered by the Wildlife
Management Area.
The effect of these provisions is to give the Nisga'a priority in
hunting in Gitanyow lands and to force the Gitanyow to seek Nisga'a
approval to hunt in their own territory.
- similar interference applies with respect to the water provisions
which assumes ultimate control over vast water resources within
Gitanyow territory.
- allows the Nisga'a to rename principle geographic locations on
Gitanyow territory.
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The Gitanyow requested that the governments of Canada and B.C. remedy the
appearance of support for the Nisga'a incursion into Gitanyow territory by:
- providing written assurances that it was not their intention in
signing the Nisga'a AIP to interfere with Gitanyow aboriginal rights or
the unfettered exercise of those rights.
- accelerating Gitanyow negotiations so they may be at an equivalent
stage of negotiations as the Nisga'a and thus avoid further difficulty
as the Nisga'a negotiate towards a treaty in respect of their territory.
- providing adequate resources so as to ensure effective negotiations.
For their part, the Gitanyow undertook to maintain their efforts to
resolve the dispute by:
- continuing to approach the Nisga'a with proposals for a construction
process.
- continuing to seek assistance from the B.C.T.C. to appoint a diplomat
to mediate the dispute (Glen Sigurdson - appointed mediator September
1998).
- assisting in the development of a regional approach to fisheries,
wildlife and water with all aboriginal groups having rights on the Nass
watershed.
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The Gitanyow have been successful in:
- obtaining written assurances from Canada and the Province recognizing
Gitanyow aboriginal rights in Gitanyow territory and assuring Gitanyow
that the exercise of their rights would remain unfettered. They further
agree not to implement any Interim protection Measures which would
exacerbate the situation.
- getting agreement from both governments to expedite Gitanyow AIP
negotiations in accordance with the proposed 12 month time frame. The
Stage IV 12 Month Work Plan was approved by the 3 parties at the April
26, 1996, main Table meeting.
- convincing the BCTC to amend the Gitanyow 96/97 Cash Flow so as to
allow a sustained effort until at least September 1996.
- tabling proposals for the General Provisions Sub-agreement and the
Governance Sub-agreement of a Gitanyow AIP.
- signing an Interim Measures Agreement on Fish ( must continue to
negotiate for adequate resourcing).
- organized and facilitated a regional meeting of aboriginal nations who
hold aboriginal rights and title in the Nass watershed and will provide follow-up
for this process.
The Gitanyow have been unsuccessful in:
- obtaining adequate resourcing to effectively implement the 12 month Work plan.
- persuading both governments to provide Gitanyow the necessary
resources required as a result of being forced to defend and protect,
through accelerated and intensive effort, Gitanyow peoples and
territories from encroachment by the Nisga'a AIP to which B.C. and
Canada are parties.
- obtaining BCTC support for the accelerated process by providing the necessary
resources to the Gitanyow; the Treaty Commissioner has stated that the
Commission will consider a one time grant if a resolution of support
came from the First Nations Summit. The resulting resolution fell
somewhat short of what the BCTC required.
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- Current government policies use the Task Force Report recommendation
in regard to "overlaps" to selectively implement policies that
entrench their denial of aboriginal title and encourage a "first
come, first served" approach to treaty negotiations.
- BCTC policies and procedures, including the policy of "fair and
equitable distribution of funds," that hinder the process. BCTC
will not deviate from their policies even though it can demonstrate that
the inflexibility of their policies have the potential to undermine the
success of the whole process.
- The lack of multi-year funding for groups in Stage IV and beyond.
- The absence of political will to deal with 'overlapping" or
"competing" claims in any meaningful way.
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- Establish a process with INAC Regional Headquarters to commence
discussions on providing immediate financial resources to the aboriginal
nations impacted by the Nisga'a AIP.
- Facilitate the BCTC offer for a one-time allocation for groups
impacted by the Nisga'a AIP and work towards a "Special
Consideration Funding Policy" for groups who face significant
threat to the integrity of their negotiations and are demonstrably
hampered by inequities of resources or other significant factors.
- Establish a Working Group to review all existing "overlap"
policies and procedures, identify all factors that impede the fait
resolution of "overlaps" and make recommendations for a
process that will protect the integrity of individual Treaty
negotiations.
- Establish jointly with the BCTC, a process to facilitate the
development and implementation of policies that provide equilibrium of
opportunity and resources for groups who have "overlapping" or
"competing" claims.
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- INTRODUCTION
On November 16, 1999, the Gitanyow and Gitksan made oral and written
presentations to the House of Commons Standing Committee on Aboriginal
Affairs and Northern Development on Bill C-9 An Act to Give Effect to the
Nisga'a Final Agreement. What follows is an elaboration of specific
proposals for amending Bill C-9 as contained in the Gitanyow written
submission to the Standing Committee.
- NON-DEROGATION PROVISIONS
Bill C-9 should explicitly protect the rights and interests of aboriginal
first nations whose territories are affected by the Nisga'a Final Agreement.
Although the Nisga'a Final Agreement contains non-derogation language, and
that language is given force of law by section 4(1) of the Bill, Parliament
still thought it necessary to specifically refer, for example, to the Final
Agreement being binding on all persons (section 5), repeat the conflict and
inconsistency provisions of paragraphs 52 and 53 of the Nisga'a Final
Agreement (section 6) and to repeat that the Nisga'a Final Agreement is a
treaty and a land claim agreement within the meaning of sections 25 and 35
of the Constitution Act, 1982 already included in paragraph 1 of Chapter 2
of the Agreement (section 3). If Parliament specifically selected these as
reflecting fundamental aspects of the Final Agreement, we submit that the
non-derogation language falls within this category.
Therefore, the Gitanyow and Gitksan proposal is that Bill C-9 explicitly
repeat paragraphs 33, 34 and 35 of the General Provisions of the Nisga'a
Final Agreement. It should be noted that other federal legislation, such as
the Migratory Birds Convention Act, include such non-derogation provisions.
Both Gitanyow and Gitksan stress that section 35 of the Nisga'a Final
Agreement is not a model for all treaties. We are only proposing it here to
address the unique situation that has developed and has impact on our
Nations as a result of the Nisga'a Final Agreement.
Bill C-9 should, therefore, be amended to include the following five
non-derogation clauses:
- Nothing in the Nisga'a Final Agreement affects, recognizes or provides
any rights under section 35 of the Constitution Act, 1982 for any
Aboriginal people other than the Nisga'a Nation.
- For greater certainty, nothing in the Act shall be construed so as to
abrogate or derogate from any existing Aboriginal or treaty rights under
section 35 of the Constitution Act, 1982 of the Aboriginal peoples of
Canada other than the Nisga'a Nation.
- If a Superior Court of the Province, the Federal Court of Canada, or
the Supreme Court of Canada finally determines that any Aboriginal
people, other than the Nisga'a Nation, has rights under section 35 of
the Constitution Act, 1982 that are adversely affected by a provision of
the Nisga'a Final Agreement:
- The provision will operate and have effect to the extent that it
does not adversely affect those rights;
- If the provision cannot operate and have effect in a way that it
does not adversely affect those rights, the parties to the Nisga'a
Final Agreement will make best efforts to amend that Agreement to
remedy or replace the provision;
- Notwithstanding paragraph (b), the provision will not operate and
will not have effect to the extent that it does adversely affect
those rights.
- The ratification of the Nisga'a Final Agreement may not be invoked by
Canada as a reason for not entering into a treaty or a land claims
agreement, within the meaning of sections 25 and 35 of the Constitution
Act, 1982 with another Aboriginal people or for not including in such
treaty or land claims agreement matters which would otherwise be
included.
- If Canada or British Columbia enters into a treaty or a land claims
agreement, within the meaning of sections 25 and 35 of the Constitution
Act, 1982, with another Aboriginal people, and that treaty or land
claims agreement adversely affects Nisga'a section 35 rights as set out
in the Nisga'a Final Agreement:
- Canada or British Columbia, or both, as the case may be, will
provide the Nisga'a Nation with additional or replacement rights or
other appropriate remedies;
- At the request of the Nisga'a Nation, the Parties will negotiate
and attempt to reach agreement on the provision of those additional
or replacement rights or other appropriate remedies; and
- If the Parties are unable to reach agreement on the provision of
the additional or replacement rights or other appropriate remedies,
the provision of those additional or replacement rights or remedies
will be determined in accordance with Stage Three of the Dispute
Resolution Chapter of the Nisga'a Final Agreement.
These provisions in the Bill will protect the Gitanyow, Gitksan and other
First Nations from being adversely impacted by the Nisga'a Treaty.
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- SUSPENSION OF COMING INTO FORCE We also propose that section 27 of Bill
C-9 be amended as follows:
-
27(2) An Order of the Governor-in-Council contemplated in subsection
(1) will provide that the coming into force of those Chapters or
paragraphs contained in the Nisga'a Final Agreement identified in the
Order be suspended for such time as the overlap conflicts with the
Gitanyow are resolved or the finalization of a Gitanyow Treaty,
whichever is earlier;
-
27(3) The Order of the Governor-in-Council contemplated in subsection
(1) will also establish a process through which Gitanyow, Nisga'a and
British Columbia may participate with Canada in an effort to resolve the
conflicts between the Gitanyow and Nisga'a arising from the Nisga'a
Final Agreement, which process may include, if the parties agree,
binding arbitration.
With respect to the terms of the Order referred to in that section, the
Nisga'a Final Agreement provisions which should be suspended are those that
concern the fundamental problems with the Nisga'a treaty as it directly
impacts on the Gitanyow. These fundamental problems include the following
impacts on the Gitanyow of granting to the Nisga'a:
- a fishery management regime over the entire Nass Watershed, which
encompasses 84% of the Gitanyow Territory, with no provision for
consultation with the Gitanyow or any other aboriginal first nation with
aboriginal fishing rights in the Nass and no guaranteed protection of
their rights;
- complete governance rights over "Nisga'a Lands", which
overlap on the Gitanyow Territory and includes the most productive,
prime Gitanyow fishing sites on the Nass River, with no protection of
Gitanyow rights;
- fee simple allotments of five areas in the Gitanyow Territory which
are important sites for economic development, and include prime back
country recreation areas for tourism (these areas are Meziadin Lake,
Meziadin Junction, "Grizzly" Lake, Jade Lake and Kinskuch Lake
in the Gitanyow Territory);
- priority in hunting in a wildlife management area covering 80% of the
Gitanyow Territory; and
- renaming of principle geographic locations within Gitanyow Territory,
which in both Nisga'a and Gitanyow cultures amounts to an affirmation of
ownership.
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Therefore, the following sections of the Nisga'a Final Agreement should
be suspended as specified under section 27(2) and 27(3):
Chapter 1 - Definitions
- "Nass Area" shall apply to that portion of the Nass
Watershed downstream of the watershed of the Kinskuch River
- "Nass Wildlife Area" shall mean that area of the Nass
Watershed downstream of the watershed of the Kinskuch River.
Chapter 3 - Lands
- Section 1: "Nisga'a Lands"
This section shall be suspended to the extent that it purports to apply
to those lands upstream of the watershed of the Kinskuch River on the
Nass Watershed.
- Section 18: Nisga'a Private Lands
This section shall not apply to those portions of Nisga'a Lands in
Appendix "A" which are upstream of the watershed of the
Kinskuch River.
- Section 62 shall be suspended to the extent that it applies to:
- Meziadin Lake;
- Meziadin Junction;
- Grizzly Lake;
- Jade Lake;
- Kinskuch Lake.
- Section 64 shall be suspended to the extent that it applies to the
above mentioned pieces of land. These areas may well form part of the
Gitanyow Territory which is negotiated under the Gitanyow
Agreement-In-Principle. To transfer them to the Nisga'a Nation under the
Nisga'a Treaty at this time precludes the ability of Canada and British
Columbia to allow these areas to be utilized by Gitanyow and to form
part of a settlement with the Gitanyow.
- Section 90 shall be suspended to the extent that it purports to extend
to areas around Jade Lake and Kinskuch Lake.
- Section 93(b) shall be suspended to the extent that it purports to
apply to the areas around Kinskuch Lake and Jade Lake.
- Section 96 shall be suspended with respect to the following place
names:
- Kinskuch River;
- Kinskuch Lake; iii) Kiteen River;
- Kinskuch Lake;
- Meziadin Lake;
- Cranberry River.
Chapter 6 -Access
- Section 2 shall not apply to those portions of the Nisga'a Lands which
include the watershed of the Kinskuch River.
- Section 3 shall be suspended as it purports to apply to the Kinskuch
Watershed.
Chapter 8 - Fisheries
- Section 95 shall not be applicable to that portion of the Nass
Watershed including the Kinskuch Watershed and upstream of the Kinskuch
Watershed.
Chapter 9 - Wildlife and Migratory Birds
- Section 1 shall only be applicable to that portion of the Nass
Wildlife area downstream of the Kinskuch Watershed.
- Section 38 shall be suspended to the extent that it purports to apply
to any area upstream of the Kinskuch Watershed including the Kinskuch
Watershed and upstream of the Kinskuch Watershed on the Nass Watershed.
- Section 83 shall be suspended to the extent that it purports to cover
angling guide licenses for the following:
- Bell-Irving River;
- Cranberry River;
- Kinskuch River;
- Kiteen River
- Kwinageese River
- Meziadin River
- Nass River upstream of the Watershed of the Kinskuch River,
including that Watershed.
Chapter 10 - Environmental Assessment and Protection
- Section 3 shall be suspended to the extent that it purports to apply
to the area within the Watershed of the Kinskuch River.
Chapter 11 - Nisga'a Government
- Section 44 shall be suspended to the extent that it encompasses
Gitanyow land and fishing sites in the vicinity of the mouth of the
Kinskuch River and the Watershed of the Kinskuch River.
- Section 59 shall be suspended to the extent that it purports to
encompass Gitanyow fishing sites and the Watershed of the Kinskuch
River.
Chapter 16 - Taxation
- Section 3 shall be suspended to the extent that it purports to apply
to the Kinskuch Watershed.
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- Feb 18/92
Gitanyow meets with B.C. Min. Of Aboriginal Affairs, Andrew Petter informing
him of the overlap of Nisga'a claim onto 84% of Gitanyow Territory.
- Dec. 15/92
Gitanyow Statement of Intent filed with the British Columbia Treaty
Commission (BCTC) pursuant to the commission's process, giving formal notice
of Gitanyow claim to the Gitanyow Territory.
- Dec. 16/93
Gitanyow claim is accepted for negotiation by Canada and B.C.
- Feb 1/94
Gitanyow, Canada and BC formally commit to negotiate a treaty as outlined in
Gitanyow Territory statement of intent.
- Feb 6/96
Gitanyow Framework Agreement signed and parties begin formal negotiations
recognizing Gitanyow assertion of rights to Gitanyow Territory
- Feb 15/96
Nisga'a AIP is signed by Canada, BC and the Nisga'a Tribal Council.
- Mar/Apr/96
In various correspondence, from Canada, assurances were given that the
Nisga'a treaty will not interfere with Gitanyow rights or the government's
ability to conclude a treaty with the Gitanyow.
- Dec/ 95
Gitanyow provide detailed evidence to Canada, B.C. and the Nisga'a Tribal
Council on the historical use and occupation of Gitanyow territory
documented in the publication "Tribal Boundaries in the Nass
Watershed." The Crown and the NTC have not responded to that exhaustive
study.
- Mar6/98
Litigation begins to resolve Nisga'a /Gitanyow overlap, LuuxHon v. The Queen
is launched in BC Supreme Court (BCSC).
- Apr 13/98
Supported by Canada, B.C. applies to strike out Gitanyow's LuuxHon action on
the basis of Rule 19(24) - that there is no reasonable claim from the
Gitanyow, that the Crown is bound by good faith in negotiating treaties with
First Nations.
- Jun 17/98
BCSC rules that there is a reasonable claim being sought by Gitanyow.
- Aug 4/98
Nisga'a Final Agreement signed by Canada, BC and Nisga'a Tribal Council.
- Aug 10/98
Canada and BC file their statements of defense in LuuxHon vs the Queen.
- Nov 6-7/98
Nisga'a vote and ratify Nisga'a Final Agreement.
- Nov 19/98
BC supported by Canada, applies to strike Gitanyow application to proceed
with Supreme Court hearing of the LuuxHon action by Summary Trial (Rule
18A).
- Nov 24/98
BCSC orders that the first declaration in LuuxHon et al. be heard by Summary
Trial, the second declaration, by full trial.
- Jan 18-22/99
Hearing of Summary Trial on first declaration.
- Mar 23/99
BCSC grants Gitanyow the first declaration with costs and declares that
Canada and BC having entered negotiations with the Gitanyow; they and their
representatives are under a legal duty to negotiate in good faith. The duty,
in general terms includes the absence of any appearance of "sharp
dealing," "disclosure of relevant factors" and negotiation
"without oblique motive".
- Apr 22/99
BC passes legislation ratifying Nisga'a Final Agreement.
- May 25/99
Canada and BC apply for leave to appeal.
- June 1/99
BC Court of Appeal grants leave.
- Jun 3,/99
Gitanyow, Canada and BC agree to accelerated treaty negotiation, to table a
joint Canada/BC offer for an AIP by October 19, 1999. The parties agree to
that no appeal will be set hear before February 1, 2000.
- Sept 17-8/99
Gitanyow Main table meeting. Gitanyow offer for an AIP to Canada and BC to
be discussed.
- Nov 16/99
Gitanyow Chiefs appeal to House of Commons Standing Committee on Aboriginal
Peoples in Smithers, B.C., asking the committee to right a continuing wrong
and to make amendments to Bill C-9 - the act to give effect to the Nisga'a
Final Agreement (N.F.A.).
- Mar 22/00
Gitanyow to appear before the Senate Standing Committee on Aboriginal
Peoples looking into Bill C-9 in Ottawa.
- May 29 -31/00
LuuxHon vs. the Queen, B.C. Court of Appeals hearing on declaration 1.
- Jun 12/2000
Hearing of Gitanyow second declaration scheduled.
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modified May 7th, 2002