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GITANYOW CHIEFS AND THE B.C. TREATY PROCESS

E-mail: gitanyowchiefs@kermode.net

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INTRODUCTION

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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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IMPACTS OF NISGA'A AIP ON GITANYOW TREATY NEGOTIATIONS

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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:

    1. The parties to the instrument assume Nisga'a authority over resources within 84 % of Gitanyow territory.
    2. 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:

    1. 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).
    2. 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.
    3. The Nisga'a AIP interferes more specifically with the rights of the Gitanyow in at least the following ways:
      1. The provision for "Core Lands" includes one of the prime, historic Gitanyow fisheries on the south shore of the Nass River.
      2. The provision for "Fee Simple" includes five areas within Gitanyow territory.
      3. 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.
      4. similar interference applies with respect to the water provisions which assumes ultimate control over vast water resources within Gitanyow territory.
      5. allows the Nisga'a to rename principle geographic locations on Gitanyow territory.
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  1. DEALING WITH THE IMPACTS

    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:

    1. 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.
    2. 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.
    3. providing adequate resources so as to ensure effective negotiations.

     

    For their part, the Gitanyow undertook to maintain their efforts to resolve the dispute by:

    1. continuing to approach the Nisga'a with proposals for a construction process.
    2. continuing to seek assistance from the B.C.T.C. to appoint a diplomat to mediate the dispute (Glen Sigurdson - appointed mediator September 1998).
    3. 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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  2. CURRENT SITUATION

    The Gitanyow have been successful in:

    1. 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.
    2. 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.
    3. convincing the BCTC to amend the Gitanyow 96/97 Cash Flow so as to allow a sustained effort until at least September 1996.
    4. tabling proposals for the General Provisions Sub-agreement and the Governance Sub-agreement of a Gitanyow AIP.
    5. signing an Interim Measures Agreement on Fish ( must continue to negotiate for adequate resourcing).
    6. 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:

    1. obtaining adequate resourcing to effectively implement the 12 month Work plan.
    2. 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.
    3. 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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  3. OBSTACLES

    1. 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.
    2. 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.
    3. The lack of multi-year funding for groups in Stage IV and beyond.
    4. The absence of political will to deal with 'overlapping" or "competing" claims in any meaningful way.
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  4.  

    ACTION REQUIRED

    1. 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.
    2. 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.
    3. 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.
    4. 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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cartoon about nisga'a treaty

JOINT RECOMMENDATIONS OF GITKSAN AND GITANYOW FOR AMENDMENTS TO BILL C-9 TO PROTECT GITANYOW AND GITKSAN ABORIGINAL RIGHTS AND RIGHTS IN TREATY NEGOTIATIONS WITH THE CROWN

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  1. 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.

     

  2. 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:

    1. 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.
    2. 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.
    3. 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:
      1. The provision will operate and have effect to the extent that it does not adversely affect those rights;
      2. 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;
      3. Notwithstanding paragraph (b), the provision will not operate and will not have effect to the extent that it does adversely affect those rights.
    4. 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.
    5. 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:
      1. 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;
      2. 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
      3. 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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  3. SUSPENSION OF COMING INTO FORCE We also propose that section 27 of Bill C-9 be amended as follows:
    1. 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;

    2. 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:

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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
    1. "Nass Area" shall apply to that portion of the Nass Watershed downstream of the watershed of the Kinskuch River
    2. "Nass Wildlife Area" shall mean that area of the Nass Watershed downstream of the watershed of the Kinskuch River.
      Chapter 3 - Lands
    3. 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.
    4. 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.
    5. Section 62 shall be suspended to the extent that it applies to:
      1. Meziadin Lake;
      2. Meziadin Junction;
      3. Grizzly Lake;
      4. Jade Lake;
      5. Kinskuch Lake.
    6. 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.
    7. Section 90 shall be suspended to the extent that it purports to extend to areas around Jade Lake and Kinskuch Lake.
    8. Section 93(b) shall be suspended to the extent that it purports to apply to the areas around Kinskuch Lake and Jade Lake.
    9. Section 96 shall be suspended with respect to the following place names:
      1. Kinskuch River;
      2. Kinskuch Lake; iii) Kiteen River;
      3. Kinskuch Lake;
      4. Meziadin Lake;
      5. Cranberry River.
      Chapter 6 -Access
    10. Section 2 shall not apply to those portions of the Nisga'a Lands which include the watershed of the Kinskuch River.
    11. Section 3 shall be suspended as it purports to apply to the Kinskuch Watershed.
      Chapter 8 - Fisheries
    12. 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
    13. Section 1 shall only be applicable to that portion of the Nass Wildlife area downstream of the Kinskuch Watershed.
    14. 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.
    15. Section 83 shall be suspended to the extent that it purports to cover angling guide licenses for the following:
      1. Bell-Irving River;
      2. Cranberry River;
      3. Kinskuch River;
      4. Kiteen River
      5. Kwinageese River
      6. Meziadin River
      7. Nass River upstream of the Watershed of the Kinskuch River, including that Watershed.
      Chapter 10 - Environmental Assessment and Protection
    16. 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
    17. 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.
    18. 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
    19. Section 3 shall be suspended to the extent that it purports to apply to the Kinskuch Watershed.

     

 


CHRONOLOGY OF GITANYOW TREATY NEGOTIATIONS AND LITIGATION IN LUUXHON V. THE QUEEN

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modified May 7th, 2002