Certainty

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Contents Certainty	Overview “Certainty” in the Treaty means nothing more than the assurance to the Parties that they can rely on the Treaty as setting out all of the rights of the Nisga’a Nation that are recognized and affirmed by section 35 of the Constitution Act, 1982, and the limitations to those rights, to which the Parties have agreed. It is important to remember that certainty is provided by all of the provisions of the Treaty, not just by the paragraphs in the General Provisions chapter. Certainty is provided with respect to a matter by the specific provisions in the other chapters that deal with that matter. However, it is necessary for the General Provisions chapter to set out the Parties’ agreement concerning the nature of the Treaty transaction. What is extinguishment? Historically the British Crown, and later the Canadian government, approached treaty making on the basis that aboriginal title and aboriginal rights must be “extinguished” by way of a “surrender”. In most treaties in Canada, including most modern land claim agreements, there has been a surrender of aboriginal title and aboriginal rights, and the granting back by the Crown of new treaty rights to the First Nation. All of the aboriginal rights and title are extinguished, and replaced by new rights created by the Treaty. Many First Nations, including the Nisga’a Nation, have rejected this approach because it is seen as severing the ancestral ties upon which First Nations’ rights are based. Furthermore, “surrender” carries with it the idea of subjugation, defeat or conquest. The challenge has been to agree on an approach to certainty that does not involve extinguishment or surrender, but that still gives the Parties the necessary confidence that the Agreement can be relied upon. In the same way that the federal and provincial governments do not wish there to be additional aboriginal rights asserted by the Nisga’a Nation, the Nisga’a Nation does not wish there to be additional limitations to our rights imposed by the federal and provincial governments. What approach to certainty was agreed to in the Agreement in Principle? In the Agreement in Principle, the Parties agreed to achieve certainty through a method other than extinguishment and surrender. The Agreement in Principle provided that the Final Agreement will exhaustively set out the rights of the Nisga’a Nation. It also provided that prior to the Final Agreement, the Parties would negotiate the “precise legal technique” required to achieve certainty. The additional provisions in the Final Agreement constitute this “precise legal technique”. Why does the Treaty modify aboriginal rights and title? If the Nisga’a aboriginal title continued in its unmodified form in the Treaty, there would be little certainty for either the Nisga’a Nation or the other Parties about the enforceability or effectiveness of many of the other provisions of the Agreement. This uncertainty results from the lack of a clear definition of aboriginal title by Canadian courts. The problem was compounded by many of the rulings made by the Supreme Court of Canada concerning aboriginal title in the Delgamuukw decision. What are the basic features of aboriginal title? Some of the important features of aboriginal title, according to the Supreme Court of Canada, include: > Aboriginal title is a sui generis (unique) interest that cannot be completely explained by reference to common law rules of real property or to the rules of property found in aboriginal legal systems. > Aboriginal title has various “dimensions”: a. It is inalienable, that is, it cannot be transferred, sold or surrendered to anyone other than the Crown; b. Its source arises not from the Royal Proclamation of 1763, or by grant from the Crown. Rather it arises from the prior occupation of Canada by aboriginal peoples, and from the relationship between common law and pre-existing systems of aboriginal law; c. Aboriginal title is held communally. In a statement that sounds very much like the Nisga’a common bowl philosophy, the Court says: > “Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community.” > The content of aboriginal title can be summarized by two propositions: a. Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of aboriginal rights; and b. Those protected uses must not be irreconcilable with the nature of the group's attachment to that land. Aboriginal title is more than a “bundle” of aboriginal rights, or practices, cultures and traditions that are “integral to the group's distinctive culture.” Rather, aboriginal title is a right to the land itself. Subject to the limits described below, the land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under section 35(1). There is an “inherent limit” on the uses to which the land can be put. Lands subject to aboriginal title cannot be put to such uses as may be “irreconcilable” with the nature of the occupation of that land and the relationship that the particular group had with the land, which together have given rise to aboriginal title in the first place. After pointing out that aboriginal title arises from occupation, which is determined by reference to the activities and uses to which the group has put the land, the Chief Justice concluded that there exists a “special bond” between the aboriginal group and the land. This, he continued, creates an inherent limitation on the uses to which the land can be put. By way of example, he continued, if title is established on the basis that the land was used as a hunting ground, it could not be strip mined; if a group claims land because of its “ceremonial or cultural significance”, it may not use the land in such a way as to destroy that relationship by, for example, turning it into a parking lot. The principle seems to be that the uses to which a group puts aboriginal title land are unlimited, except to the extent that the use would prevent the special relationship from continuing into the future. The limitation would seem to depend on the nature of past use, and the compatibility of present or proposed uses with that use in the future. However, the Chief Justice continued: “ ...what I have just said regarding the importance of the continuity of the relationship between an aboriginal community and its land, and the non-economic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideration. On the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited in the way I have described. If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so.” An infringement of aboriginal title is valid only if it is intended to address a legislative objective that is “compelling and substantial” and if it is consistent with the special fiduciary relationship between the Crown and aboriginal people. The Chief Justice ruled that objectives such as “the development of agriculture, forestry, mining, and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims” are all sufficiently compelling and substantial to meet the first test for infringement of aboriginal title. The second test is whether an infringement of aboriginal title is consistent with the fiduciary relationship. Three aspects of aboriginal title are relevant to the reconciliation of aboriginal title with the sovereignty of the Crown: a. Aboriginal title encompasses the right to the exclusive use and occupation of land; b. It encompasses the right to choose to what uses land can be put, subject to the limit described above; and c. Lands held pursuant to aboriginal title have an inescapable economic component. The application of these “aspects” is unclear — the right to the exclusive use is said to be a limited priority. Moreover, it may not require priority. Consultation may suffice. Moreover, compensation “is relevant to the question of justification” as well, although the Court did not go so far as to say that compensation is due for all past infringements of aboriginal title, nor did it rule on how the amount of compensation should be determined. How does the Final Agreement deal with these issues? The Final Agreement builds on the basic approach set out in the Agreement in Principle. The Preamble includes the statement: “Whereas the Parties intend their relationship to be based upon a new approach to mutual recognition and sharing, and to achieve this mutual recognition and sharing by agreeing on rights, rather than by the extinguishment of rights.” The key paragraphs of the General Provisions chapter dealing with certainty are as follows: The Final Agreement is binding on the Parties and they can rely upon it. Settlement legislation will provide that the Agreement is binding and it can be relied upon by all other persons. The Nisga’a Nation represents that in respect of the matters dealt with in the Agreement, it has the authority to enter and it does enter into the Agreement on behalf of all persons who have aboriginal rights, including aboriginal title, in Canada based on their identity as Nisga’a. This is why a referendum of the Nisga’a Nation is required — in order to apply to all Nisga’a persons and to ensure that all Nisga’a persons are entitled to the rights and benefits set out in the Treaty. Similarly Canada and British Columbia represent and warrant to the Nisga’a Nation that they have the authority to enter into the Agreement. The Agreement is the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of the Nisga’a Nation. This means that no further settlement in respect of those rights can be sought or achieved. The Agreement exhaustively sets out Nisga’a section 35 rights (those rights that are recognized and affirmed by the Constitution of Canada), the geographic extent of those rights, and the limitations to those rights, to which the Parties have agreed. The Agreement clearly states that the Nisga’a section 35 rights are: a. Aboriginal rights, including aboriginal title, as modified by the Agreement; b. The jurisdictions, authorities and rights of Nisga’a Government; and c. The other Nisga’a section 35 rights, which are not aboriginal in origin, but have been achieved through the Treaty. In order to ensure that the provisions of the Agreement are effective, and can be relied on, the aboriginal rights, including the aboriginal title, of the Nisga’a Nation are modified, and continue as modified, as set out in the Agreement. “Modified” means “changed” or “altered”; it does not mean “surrendered and replaced”. It is necessary to modify the aboriginal title and aboriginal rights to ensure that the Nisga’a Nation has the rights set out in the Treaty, which are in many ways quite different from aboriginal title and aboriginal rights as described by the Supreme Court of Canada. Modification is also necessary to enable the Nisga’a Nation to fulfill its promises of sharing with the other governments, in accordance with the terms of the Agreement. More specifically, aboriginal title is modified into the estates in fee simple described in the Lands Chapter to Nisga’a Lands and Nisga’a Fee Simple Lands. This estate in fee simple is the largest estate known to law and represents the most complete set of rights to land devised by the English-Canadian legal system. It is not subject to the limitations that exist on aboriginal title described above. If, despite the Agreement and the settlement legislation, the Nisga’a Nation continues to have an aboriginal right, including aboriginal title, that is other than, or different in attributes (characteristics) or geographical extent from, the rights set out in the Agreement, that right is “released” to Canada to the extent that the right is other than or different from the rights as set out in the Agreement. This is to make it clear that the Parties are entitled to rely upon the description of the rights set out in the Treaty and that there are no other legal attributes to those rights, or other rights that no one has thought of, that are recognized and affirmed by the Constitution of Canada. Otherwise the Agreement would not be the full and final settlement of the claim. Similarly, the Nisga’a Nation releases Canada and British Columbia and all other persons from claims relating to or arising from violations of aboriginal rights, including aboriginal title, in the past. A “release” is a contemporary legal technique that enables people to reach agreement to settle a dispute, without fear that the dispute will continue despite the negotiated agreement. A release is used in a legal transaction in which the parties reach an agreement about a disputed claim without proceeding to court. For example, a person who is injured in a car accident and receives a cash settlement from the other driver, or his or her insurance company, will sign a release that provides that they have no further right to sue the driver based on that car accident. However, no one could say that the person has “surrendered” to the other driver (or to his or her insurance company). While a release ensures that no further claims can be brought based upon the same subject matter, it does not suggest defeat and oppression. Why does the Treaty not clearly set out the rights of the Simgigat and the Sigidimhaanak under the Ayuuk? The Preamble acknowledges the ongoing importance to the Nisga’a Nation of the Simgigat and Sigidimhaanak continuing to tell their Adaawak relating to their Ango'oskw. However, it does not set out the ongoing rights that these people will have under Nisga’a law. This is because two fundamental Nisga’a instructions provided at the commencement of negotiations: > In dealing with the federal and provincial governments, the Nisga’a Nation would pursue the “common bowl” approach — namely that all Nisga’a share equally in the lands and resources of the Nisga’a traditional territory; and > The Ayuuk is not a matter to be negotiated with the federal and provincial governments, but is an internal matter to guide future decisions of Nisga’a Government. Accordingly the Treaty vests property and rights in the Nisga’a Nation and provides that, within the management regimes set out in the Treaty, Nisga’a Government has the authority to make laws dividing the property and regulating Nisga’a activities. The application of the Ayuuk to the rights in the Treaty is a matter for the Nisga’a Nation to determine, through its governments, after the effective date. It is clear that under the Treaty different parts of Nisga’a traditional territory will be subject to different rules. Similarly, it is clear that aboriginal title and aboriginal rights to lands have been modified, so as to result in a communal ownership of Nisga’a Lands and Nisga’a Fee Simple Lands, and the continuation of hunting, fishing and other rights throughout the territory. However, this does not mean that the Ango'oskw have been eliminated or that the traditional relationship to those territories must now be ignored. It is up to the Nisga’a Nation to determine how the Simgigat and the Sigidimhaanak will continue to be involved in management decisions over which the Nisga’a Nation has authority under the Treaty. For example, Nisga’a law could require that Nisga’a representatives on the Wildlife Committee (WC) and the Joint Fisheries Management Committee (JFMC) consult with or otherwise seek direction from the relevant Simgigat and Sigidimhaanak before determining positions to advance on those bodies. Similarly, Nisga’a law could provide guidance as to where and when Nisga’a citizens exercise their Treaty rights in the various locations throughout the territory. What are the indemnities? Indemnities are a way of assigning risk. The indemnities in the General Provisions make it clear that if Canada or British Columbia are successfully sued on the basis of a Nisga’a aboriginal right or title, other than as set out in the Agreement, the Nisga’a Nation will compensate Canada or British Columbia for its costs, not including legal fees and costs, and for any damages they are obliged to pay.

Contents

Certainty

Overview

“Certainty” in the Treaty means nothing more than the assurance to the Parties that they can rely on the Treaty as setting out all of the rights of the Nisga’a Nation that are recognized and affirmed by section 35 of the Constitution Act, 1982, and the limitations to those rights, to which the Parties have agreed.

It is important to remember that certainty is provided by all of the provisions of the Treaty, not just by the paragraphs in the General Provisions chapter. Certainty is provided with respect to a matter by the specific provisions in the other chapters that deal with that matter.

However, it is necessary for the General Provisions chapter to set out the Parties’ agreement concerning the nature of the Treaty transaction.

What is extinguishment?

Historically the British Crown, and later the Canadian government, approached treaty making on the basis that aboriginal title and aboriginal rights must be “extinguished” by way of a “surrender”. In most treaties in Canada, including most modern land claim agreements, there has been a surrender of aboriginal title and aboriginal rights, and the granting back by the Crown of new treaty rights to the First Nation. All of the aboriginal rights and title are extinguished, and replaced by new rights created by the Treaty.

Many First Nations, including the Nisga’a Nation, have rejected this approach because it is seen as severing the ancestral ties upon which First Nations’ rights are based. Furthermore, “surrender” carries with it the idea of subjugation, defeat or conquest. The challenge has been to agree on an approach to certainty that does not involve extinguishment or surrender, but that still gives the Parties the necessary confidence that the Agreement can be relied upon.

In the same way that the federal and provincial governments do not wish there to be additional aboriginal rights asserted by the Nisga’a Nation, the Nisga’a Nation does not wish there to be additional limitations to our rights imposed by the federal and provincial governments.

What approach to certainty was agreed to in the Agreement in Principle?

In the Agreement in Principle, the Parties agreed to achieve certainty through a method other than extinguishment and surrender. The Agreement in Principle provided that the Final Agreement will exhaustively set out the rights of the Nisga’a Nation. It also provided that prior to the Final Agreement, the Parties would negotiate the “precise legal technique” required to achieve certainty. The additional provisions in the Final Agreement constitute this “precise legal technique”.

Why does the Treaty modify aboriginal rights and title?

If the Nisga’a aboriginal title continued in its unmodified form in the Treaty, there would be little certainty for either the Nisga’a Nation or the other Parties about the enforceability or effectiveness of many of the other provisions of the Agreement. This uncertainty results from the lack of a clear definition of aboriginal title by Canadian courts. The problem was compounded by many of the rulings made by the Supreme Court of Canada concerning aboriginal title in the Delgamuukw decision.

What are the basic features of aboriginal title?

Some of the important features of aboriginal title, according to the Supreme Court of Canada, include:

> Aboriginal title is a sui generis (unique) interest that cannot be completely explained by reference to common law rules of real property or to the rules of property found in aboriginal legal systems.

> Aboriginal title has various “dimensions”:

a. It is inalienable, that is, it cannot be transferred, sold or surrendered to anyone other than the Crown;

b. Its source arises not from the Royal Proclamation of 1763, or by grant from the Crown. Rather it arises from the prior occupation of Canada by aboriginal peoples, and from the relationship between common law and pre-existing systems of aboriginal law;

c. Aboriginal title is held communally. In a statement that sounds very much like the Nisga’a common bowl philosophy, the Court says:

> “Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community.”

> The content of aboriginal title can be summarized by two propositions:

a. Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of aboriginal rights; and

b. Those protected uses must not be irreconcilable with the nature of the group's attachment to that land.

Aboriginal title is more than a “bundle” of aboriginal rights, or practices, cultures and traditions that are “integral to the group's distinctive culture.” Rather, aboriginal title is a right to the land itself. Subject to the limits described below, the land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under section 35(1).

There is an “inherent limit” on the uses to which the land can be put. Lands subject to aboriginal title cannot be put to such uses as may be “irreconcilable” with the nature of the occupation of that land and the relationship that the particular group had with the land, which together have given rise to aboriginal title in the first place. After pointing out that aboriginal title arises from occupation, which is determined by reference to the activities and uses to which the group has put the land, the Chief Justice concluded that there exists a “special bond” between the aboriginal group and the land. This, he continued, creates an inherent limitation on the uses to which the land can be put. By way of example, he continued, if title is established on the basis that the land was used as a hunting ground, it could not be strip mined; if a group claims land because of its “ceremonial or cultural significance”, it may not use the land in such a way as to destroy that relationship by, for example, turning it into a parking lot.

The principle seems to be that the uses to which a group puts aboriginal title land are unlimited, except to the extent that the use would prevent the special relationship from continuing into the future. The limitation would seem to depend on the nature of past use, and the compatibility of present or proposed uses with that use in the future.

However, the Chief Justice continued:

“ ...what I have just said regarding the importance of the continuity of the relationship between an aboriginal community and its land, and the non-economic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideration. On the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited in the way I have described. If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so.”

An infringement of aboriginal title is valid only if it is intended to address a legislative objective that is “compelling and substantial” and if it is consistent with the special fiduciary relationship between the Crown and aboriginal people.

The Chief Justice ruled that objectives such as “the development of agriculture, forestry, mining, and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims” are all sufficiently compelling and substantial to meet the first test for infringement of aboriginal title.

The second test is whether an infringement of aboriginal title is consistent with the fiduciary relationship. Three aspects of aboriginal title are relevant to the reconciliation of aboriginal title with the sovereignty of the Crown:

a. Aboriginal title encompasses the right to the exclusive use and occupation of land;

b. It encompasses the right to choose to what uses land can be put, subject to the limit described above; and

c. Lands held pursuant to aboriginal title have an inescapable economic component.

The application of these “aspects” is unclear — the right to the exclusive use is said to be a limited priority. Moreover, it may not require priority. Consultation may suffice.

Moreover, compensation “is relevant to the question of justification” as well, although the Court did not go so far as to say that compensation is due for all past infringements of aboriginal title, nor did it rule on how the amount of compensation should be determined.

How does the Final Agreement deal with these issues?

The Final Agreement builds on the basic approach set out in the Agreement in Principle. The Preamble includes the statement:

“Whereas the Parties intend their relationship to be based upon a new approach to mutual recognition and sharing, and to achieve this mutual recognition and sharing by agreeing on rights, rather than by the extinguishment of rights.”

The key paragraphs of the General Provisions chapter dealing with certainty are as follows:

The Final Agreement is binding on the Parties and they can rely upon it. Settlement legislation will provide that the Agreement is binding and it can be relied upon by all other persons.

The Nisga’a Nation represents that in respect of the matters dealt with in the Agreement, it has the authority to enter and it does enter into the Agreement on behalf of all persons who have aboriginal rights, including aboriginal title, in Canada based on their identity as Nisga’a. This is why a referendum of the Nisga’a Nation is required — in order to apply to all Nisga’a persons and to ensure that all Nisga’a persons are entitled to the rights and benefits set out in the Treaty.

Similarly Canada and British Columbia represent and warrant to the Nisga’a Nation that they have the authority to enter into the Agreement.

The Agreement is the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of the Nisga’a Nation. This means that no further settlement in respect of those rights can be sought or achieved.

The Agreement exhaustively sets out Nisga’a section 35 rights (those rights that are recognized and affirmed by the Constitution of Canada), the geographic extent of those rights, and the limitations to those rights, to which the Parties have agreed. The Agreement clearly states that the Nisga’a section 35 rights are:

a. Aboriginal rights, including aboriginal title, as modified by the Agreement;

b. The jurisdictions, authorities and rights of Nisga’a Government; and

c. The other Nisga’a section 35 rights, which are not aboriginal in origin, but have been achieved through the Treaty.

In order to ensure that the provisions of the Agreement are effective, and can be relied on, the aboriginal rights, including the aboriginal title, of the Nisga’a Nation are modified, and continue as modified, as set out in the Agreement.

“Modified” means “changed” or “altered”; it does not mean “surrendered and replaced”. It is necessary to modify the aboriginal title and aboriginal rights to ensure that the Nisga’a Nation has the rights set out in the Treaty, which are in many ways quite different from aboriginal title and aboriginal rights as described by the Supreme Court of Canada. Modification is also necessary to enable the Nisga’a Nation to fulfill its promises of sharing with the other governments, in accordance with the terms of the Agreement.

More specifically, aboriginal title is modified into the estates in fee simple described in the Lands Chapter to Nisga’a Lands and Nisga’a Fee Simple Lands. This estate in fee simple is the largest estate known to law and represents the most complete set of rights to land devised by the English-Canadian legal system. It is not subject to the limitations that exist on aboriginal title described above.

If, despite the Agreement and the settlement legislation, the Nisga’a Nation continues to have an aboriginal right, including aboriginal title, that is other than, or different in attributes (characteristics) or geographical extent from, the rights set out in the Agreement, that right is “released” to Canada to the extent that the right is other than or different from the rights as set out in the Agreement. This is to make it clear that the Parties are entitled to rely upon the description of the rights set out in the Treaty and that there are no other legal attributes to those rights, or other rights that no one has thought of, that are recognized and affirmed by the Constitution of Canada. Otherwise the Agreement would not be the full and final settlement of the claim. Similarly, the Nisga’a Nation releases Canada and British Columbia and all other persons from claims relating to or arising from violations of aboriginal rights, including aboriginal title, in the past.

A “release” is a contemporary legal technique that enables people to reach agreement to settle a dispute, without fear that the dispute will continue despite the negotiated agreement. A release is used in a legal transaction in which the parties reach an agreement about a disputed claim without proceeding to court. For example, a person who is injured in a car accident and receives a cash settlement from the other driver, or his or her insurance company, will sign a release that provides that they have no further right to sue the driver based on that car accident. However, no one could say that the person has “surrendered” to the other driver (or to his or her insurance company).

While a release ensures that no further claims can be brought based upon the same subject matter, it does not suggest defeat and oppression.

Why does the Treaty not clearly set out the rights of the Simgigat and the Sigidimhaanak under the Ayuuk?

The Preamble acknowledges the ongoing importance to the Nisga’a Nation of the Simgigat and Sigidimhaanak continuing to tell their Adaawak relating to their Ango'oskw. However, it does not set out the ongoing rights that these people will have under Nisga’a law. This is because two fundamental Nisga’a instructions provided at the commencement of negotiations:

> In dealing with the federal and provincial governments, the Nisga’a Nation would pursue the “common bowl” approach — namely that all Nisga’a share equally in the lands and resources of the Nisga’a traditional territory; and

> The Ayuuk is not a matter to be negotiated with the federal and provincial governments, but is an internal matter to guide future decisions of Nisga’a Government.

Accordingly the Treaty vests property and rights in the Nisga’a Nation and provides that, within the management regimes set out in the Treaty, Nisga’a Government has the authority to make laws dividing the property and regulating Nisga’a activities. The application of the Ayuuk to the rights in the Treaty is a matter for the Nisga’a Nation to determine, through its governments, after the effective date.

It is clear that under the Treaty different parts of Nisga’a traditional territory will be subject to different rules. Similarly, it is clear that aboriginal title and aboriginal rights to lands have been modified, so as to result in a communal ownership of Nisga’a Lands and Nisga’a Fee Simple Lands, and the continuation of hunting, fishing and other rights throughout the territory. However, this does not mean that the Ango'oskw have been eliminated or that the traditional relationship to those territories must now be ignored. It is up to the Nisga’a Nation to determine how the Simgigat and the Sigidimhaanak will continue to be involved in management decisions over which the Nisga’a Nation has authority under the Treaty.

For example, Nisga’a law could require that Nisga’a representatives on the Wildlife Committee (WC) and the Joint Fisheries Management Committee (JFMC) consult with or otherwise seek direction from the relevant Simgigat and Sigidimhaanak before determining positions to advance on those bodies. Similarly, Nisga’a law could provide guidance as to where and when Nisga’a citizens exercise their Treaty rights in the various locations throughout the territory.

What are the indemnities?

Indemnities are a way of assigning risk. The indemnities in the General Provisions make it clear that if Canada or British Columbia are successfully sued on the basis of a Nisga’a aboriginal right or title, other than as set out in the Agreement, the Nisga’a Nation will compensate Canada or British Columbia for its costs, not including legal fees and costs, and for any damages they are obliged to pay.