General Provisions

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Contents General Provisions	Overview This chapter sets out the substantive clauses that apply to the entire Agreement and can be thought of as setting out the legal basis of the Treaty. The issue of “certainty” is addressed in the General Provisions chapter and is described in the next part of this summary. What is the nature of the Final Agreement? The Final Agreement is a treaty and a land claims agreement within the meaning of the Constitution Act, 1982. This means that the rights of the Nisga’a Nation set out in the Agreement are recognized and affirmed. The Agreement is binding on the Parties (the Nisga’a Nation, Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of British Columbia). The Parties are entitled to rely on it. Settlement legislation will provide that the Agreement is binding on, and can be relied on by, all persons. Do we have a right to our culture and language? Yes. Nisga’a citizens continue to have the right to practice the Nisga’a culture and to use the Nisga’a language in a manner consistent with the Agreement. What is our relationship to the Constitution of Canada? As pointed out above, the Treaty will receive constitutional recognition and affirmation. However, it does not alter the Constitution of Canada, including the constitutional distribution of powers between Canada and British Columbia, the identity of the Nisga’a Nation as an aboriginal people of Canada, or sections 25 or 35 of the Constitution Act, 1982. Does the Canadian Charter of Rights and Freedoms apply? Yes. The Canadian Charter of Rights and Freedoms applies to Nisga’a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga’a Government as set out in the Agreement. What is the relationship between federal and provincial laws and the Treaty? Federal and provincial laws apply to the Nisga’a Nation and our lands and people. However, if there is any inconsistency or conflict between the Agreement and those federal and provincial laws, the Agreement prevails to the extent of that inconsistency or conflict. The many licenses, permits and other authorizations that are required to be issued to the Nisga’a under the Treaty (for example the commercial recreation tenure, water licenses and so on) will be governed by federal and provincial laws of general application except, again, to the extent that the Treaty provides for different rules. In those cases, the Treaty prevails to the extent of the inconsistency or conflict. Federal legislation will ensure that provincial laws that would not otherwise apply to the Nisga’a, will apply in accordance with the Agreement. Will the Treaty affect our other rights as aboriginal Canadians? No. Nothing in the Agreement alters the identity of the Nisga’a Nation as an aboriginal people of Canada, or the ability of Nisga’a to participate in programs for aboriginal people that are not provided under a Fiscal Financing Agreement. Moreover, Nisga’a citizens who are Canadian citizens or permanent residents will continue to have all of the rights and benefits of other Canadian citizens or permanent residents that are applicable to them. Will the Nisga’a people still be “Indians”? Yes. Nisga’a citizens will still be considered to be “Indians” for the purposes of both federal jurisdiction set out in section 91(24) of the Constitution Act, 1867, and under the Indian Act. However, the Indian Act otherwise does not apply to the Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions or Nisga’a citizens, except as set out in the transition chapter. On the other hand, it is important to remember that neither Nisga’a Lands nor Nisga’a Fee Simple Lands will be “lands reserved for the Indians” within the meaning of section 91(24). What happens if a court strikes down some part of our Treaty? In the unlikely event that a court determines a provision of the Agreement to be invalid or unenforceable, the Parties are committed to making best efforts to amend the Agreement to replace the invalid provision. However, the rest of the Agreement will continue unaffected. The Parties have agreed not to challenge the validity of any provision of the Agreement and a breach by a Party does not relieve any Party from continuing with the other obligations under the agreement. What is the relationship between our Treaty rights and the claims of other aboriginal people? Nothing in the Nisga’a Treaty affects, recognizes or provides any rights under section 35 of the Constitution Act, 1982, for any aboriginal people other than the Nisga’a Nation. If a court determines that another aboriginal people does have aboriginal rights that are adversely affected by a provision of the Treaty, the provision will operate and have effect to the extent that it does not adversely affect those other people’s rights. However, if the provision cannot operate in a way that does not adversely affect those rights, the Nisga’a Nation, Canada and British Columbia will make best efforts to amend the Treaty to remedy or replace the provision. Similarly, if Canada or British Columbia enters into a treaty or a land claims agreement with another First Nation, and the provisions of the other agreement adversely affect Nisga’a rights set out in the Nisga’a Treaty, Canada or British Columbia, as the case may be, must provide the Nisga’a Nation with additional or replacement rights or other appropriate remedies. If, after negotiating, the Parties are unable to reach agreement, the matter will be dealt with by litigation or arbitration under the Dispute Resolution Chapter. How can the Nisga’a Treaty be amended? The Nisga’a Treaty can only be amended with the consent of all three Parties. Canada can consent to an amendment by direction of the Governor in Council (or the federal cabinet). British Columbia can only consent to an amendment with the consent of the Provincial Legislature. The Nisga’a Nation can consent to an amendment by a resolution adopted by at least two thirds of the elected members of Nisga’a Lisims Government. How does federal and provincial freedom of information and privacy laws apply under the Treaty? Nisga’a Government will be treated as a government for the purpose of federal and provincial freedom of information and privacy legislation. Before Canada or British Columbia provide information to Nisga’a Government in confidence, it will be necessary for Nisga’a Government to have enacted a law to maintain the confidentiality of that information. What about further negotiations? While the Agreement is the full and final settlement in respect of the Nisga’a section 35 rights, the rest of the Agreement sets forth many areas in which the Parties have agreed to negotiate and attempt to reach agreement. These other agreements may lead to the addition of a definition of Nisga’a rights in the Treaty, such as Nisga’a fish or wildlife allocations, or they may result in separate agreements, such as agreements for the provision of various government services. Dispute resolution may be available if negotiations do not result in agreements, depending on the specific matter. What are the Interpretation provisions? Interpretation provisions of the General Provisions chapter guide the interpretation of the rest of the Agreement. For example, they describe the meaning of “conflict” and “inconsistency”. The Agreement is to be read without presuming that doubtful expressions are to be resolved in favour of any particular party. The use of the word “will” indicates something that must be done as soon as practicable after the effective date or the other event that gives rise to the obligation. Other similar interpretative rules are provided.

Contents

General
Provisions

Overview

This chapter sets out the substantive clauses that apply to the entire Agreement and can be thought of as setting out the legal basis of the Treaty. The issue of “certainty” is addressed in the General Provisions chapter and is described in the next part of this summary.

What is the nature of the Final Agreement?

The Final Agreement is a treaty and a land claims agreement within the meaning of the Constitution Act, 1982. This means that the rights of the Nisga’a Nation set out in the Agreement are recognized and affirmed. The Agreement is binding on the Parties (the Nisga’a Nation, Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of British Columbia). The Parties are entitled to rely on it. Settlement legislation will provide that the Agreement is binding on, and can be relied on by, all persons.

Do we have a right to our culture and language?

Yes. Nisga’a citizens continue to have the right to practice the Nisga’a culture and to use the Nisga’a language in a manner consistent with the Agreement.

What is our relationship to the Constitution of Canada?

As pointed out above, the Treaty will receive constitutional recognition and affirmation. However, it does not alter the Constitution of Canada, including the constitutional distribution of powers between Canada and British Columbia, the identity of the Nisga’a Nation as an aboriginal people of Canada, or sections 25 or 35 of the Constitution Act, 1982.

Does the Canadian Charter of Rights and Freedoms apply?

Yes. The Canadian Charter of Rights and Freedoms applies to Nisga’a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga’a Government as set out in the Agreement.

What is the relationship between federal and provincial laws and the Treaty?

Federal and provincial laws apply to the Nisga’a Nation and our lands and people. However, if there is any inconsistency or conflict between the Agreement and those federal and provincial laws, the Agreement prevails to the extent of that inconsistency or conflict.

The many licenses, permits and other authorizations that are required to be issued to the Nisga’a under the Treaty (for example the commercial recreation tenure, water licenses and so on) will be governed by federal and provincial laws of general application except, again, to the extent that the Treaty provides for different rules. In those cases, the Treaty prevails to the extent of the inconsistency or conflict. Federal legislation will ensure that provincial laws that would not otherwise apply to the Nisga’a, will apply in accordance with the Agreement.

Will the Treaty affect our other rights as aboriginal Canadians?

No. Nothing in the Agreement alters the identity of the Nisga’a Nation as an aboriginal people of Canada, or the ability of Nisga’a to participate in programs for aboriginal people that are not provided under a Fiscal Financing Agreement. Moreover, Nisga’a citizens who are Canadian citizens or permanent residents will continue to have all of the rights and benefits of other Canadian citizens or permanent residents that are applicable to them.

Will the Nisga’a people still be “Indians”?

Yes. Nisga’a citizens will still be considered to be “Indians” for the purposes of both federal jurisdiction set out in section 91(24) of the Constitution Act, 1867, and under the Indian Act. However, the Indian Act otherwise does not apply to the Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions or Nisga’a citizens, except as set out in the transition chapter.

On the other hand, it is important to remember that neither Nisga’a Lands nor Nisga’a Fee Simple Lands will be “lands reserved for the Indians” within the meaning of section 91(24).

What happens if a court strikes down some part of our Treaty?

In the unlikely event that a court determines a provision of the Agreement to be invalid or unenforceable, the Parties are committed to making best efforts to amend the Agreement to replace the invalid provision. However, the rest of the Agreement will continue unaffected.

The Parties have agreed not to challenge the validity of any provision of the Agreement and a breach by a Party does not relieve any Party from continuing with the other obligations under the agreement.

What is the relationship between our Treaty rights and the claims of other aboriginal people?

Nothing in the Nisga’a Treaty affects, recognizes or provides any rights under section 35 of the Constitution Act, 1982, for any aboriginal people other than the Nisga’a Nation. If a court determines that another aboriginal people does have aboriginal rights that are adversely affected by a provision of the Treaty, the provision will operate and have effect to the extent that it does not adversely affect those other people’s rights. However, if the provision cannot operate in a way that does not adversely affect those rights, the Nisga’a Nation, Canada and British Columbia will make best efforts to amend the Treaty to remedy or replace the provision.

Similarly, if Canada or British Columbia enters into a treaty or a land claims agreement with another First Nation, and the provisions of the other agreement adversely affect Nisga’a rights set out in the Nisga’a Treaty, Canada or British Columbia, as the case may be, must provide the Nisga’a Nation with additional or replacement rights or other appropriate remedies. If, after negotiating, the Parties are unable to reach agreement, the matter will be dealt with by litigation or arbitration under the Dispute Resolution Chapter.

How can the Nisga’a Treaty be amended?

The Nisga’a Treaty can only be amended with the consent of all three Parties. Canada can consent to an amendment by direction of the Governor in Council (or the federal cabinet). British Columbia can only consent to an amendment with the consent of the Provincial Legislature. The Nisga’a Nation can consent to an amendment by a resolution adopted by at least two thirds of the elected members of Nisga’a Lisims Government.

How does federal and provincial freedom of information and privacy laws apply under the Treaty?

Nisga’a Government will be treated as a government for the purpose of federal and provincial freedom of information and privacy legislation. Before Canada or British Columbia provide information to Nisga’a Government in confidence, it will be necessary for Nisga’a Government to have enacted a law to maintain the confidentiality of that information.

What about further negotiations?

While the Agreement is the full and final settlement in respect of the Nisga’a section 35 rights, the rest of the Agreement sets forth many areas in which the Parties have agreed to negotiate and attempt to reach agreement. These other agreements may lead to the addition of a definition of Nisga’a rights in the Treaty, such as Nisga’a fish or wildlife allocations, or they may result in separate agreements, such as agreements for the provision of various government services. Dispute resolution may be available if negotiations do not result in agreements, depending on the specific matter.

What are the Interpretation provisions?

Interpretation provisions of the General Provisions chapter guide the interpretation of the rest of the Agreement. For example, they describe the meaning of “conflict” and “inconsistency”. The Agreement is to be read without presuming that doubtful expressions are to be resolved in favour of any particular party. The use of the word “will” indicates something that must be done as soon as practicable after the effective date or the other event that gives rise to the obligation. Other similar interpretative rules are provided.