Nisga'a
Government

This chapter sets out the Nisga’a Nation’s right to self-government. It includes provisions for the the establishment of a Nisga’a Constitution, basic rules for the structures of Nisga’a Government, a number of areas of Nisga’a Government jurisdiction and rules governing the relationship between Nisga’a laws and federal and provincial laws. Other areas of Nisga’a law making authority are set out elsewhere in the Agreement.

What is the purpose of the Nisga’a Government section?

The Nisga’a Treaty is the first treaty or land claims agreement in Canada to expressly include self-government as an integral part of the Treaty. It provides certainty with respect to Nisga’a rights to self-government, Nisga’a law making authority and the relationship between Nisga’a, federal and provincial laws. The exercise of Nisga’a jurisdiction and authority will evolve over time.

What is the legal status and capacity of Nisga’a Government?

The Nisga’a Nation and each Nisga’a Village will be separate and distinct legal entities. The Nisga’a Nation and each Nisga’a Village will have the capacity, rights, powers and privileges of a natural person, that is, each of them can:

> Enter into contracts and agreements;

> Acquire and hold property or an interest in property, and sell or otherwise dispose of that property or interest;

> Raise, spend, invest or borrow money;

> Sue and be sued; and

> Do other things ancillary to the exercise of its rights, powers and privileges.

The phrase “Nisga’a Government” means both Nisga’a Lisims Government and Nisga’a Village Governments. Most of the jurisdictions are assigned specifically to either Nisga’a Lisims Government or Nisga’a Village Governments. Reference should be had to the text of the Final Agreement to determine which level of Nisga’a Government has jurisdiction over a particular matter.

The Nisga’a Nation will act through Nisga’a Lisims Government and each Nisga’a Village will act through its Nisga’a Village Government.

“Nisga’a Institution” means:

> Nisga’a Lisims Government;

> A Nisga’a Village Government; or

> A Nisga’a Public Institution.

“Nisga’a Public Institution” means a Nisga’a Government body, board, commission or tribunal established under Nisga’a law, such as a school board, health board, or police board, but does not include a Nisga’a Court established under the Administration of Justice Chapter. A Nisga’a Public Institution is not a separate legal entity. The existing School District 92, the Nisga’a Valley Health Board and Wilp Wilxo’oskwhl Nisga’a (WWN) are not Nisga’a Public Institutions, because they have been created under provincial law. If, in the future, Nisga’a Government decides to exercise jurisdiction over education or health, and to create new boards, the new boards would be Nisga’a Public Institutions.

What is the structure of Nisga’a Government?

Nisga’a Lisims Government is made up of all of the members of the Nisga’a Village Governments, at least one representative of each Nisga’a Urban Local and at least three officers — the President, Chairperson, and Secretary-Treasurer — who will be elected by the Nisga’a Nation in a general election.

Each Nisga’a Village Government consists of elected members as set out in the Nisga’a Constitution. There will also continue to be Nisga’a Urban Locals in Greater Vancouver, Terrace and Prince Rupert-Port Edward, to enable Nisga’a citizens residing outside of the Nass Area to participate in Nisga’a Lisims Government. Elections for Nisga’a Government must be held in accordance with the Nisga’a Constitution and Nisga’a law.

What are the requirements for the Nisga’a Constitution?

While the detailed contents of the Nisga’a Constitution are for the Nisga’a to determine, paragraph 9 of the Chapter lists certain fundamental matters which the Parties have agreed must be included or addressed in the Nisga’a Constitution.

In order to be adopted, the Nisga’a Constitution must receive the support of at least 70 per cent of Nisga’a voters who vote in a referendum. This is a different test than that for the Treaty, which requires more than 50 per cent of eligible Nisga’a voters to vote in favour of entering into the Treaty.

Can administrative decisions of Nisga’a public institutions be appealed or reviewed?

Yes. Nisga’a Government will provide appropriate procedures for Nisga’a citizens and other individuals who are ordinarily resident in Nisga’a Lands to appeal or seek review of administrative decisions of Nisga’a Public Institutions.

Administrative decisions are different from legislative decisions, or law making. They concern the application of laws to particular matters, including such matters as the administration and issuance of licences or permits and the regulation of hunting, fishing and other activities.

The procedures, to be determined by Nisga’a Government, will vary depending on the type of the decision and the nature of the interests that are affected. They could include anything from a formal hearing before a panel or tribunal, to a review by a more senior Nisga’a Government official.

Will Nisga’a Laws be available to the public?

Yes. Nisga’a Lisims Government will maintain a public registry of Nisga’a laws in the English language and, at the discretion of Nisga’a Lisims Government, in the Nisga’a language.

What relations will exist between Nisga’a Government and residents of Nisga’a Lands who are not Nisga’a citizens?

The Nisga’a Treaty recognizes that non-Nisga’a persons residing within Nisga’a Lands may be affected by some Nisga’a Government decisions. These persons include residents of the Villages, including non-Nisga’a spouses, workers and others, as well as our neighbours who reside on the fee simple properties that are excluded from Nisga’a Lands.

Nisga’a Government will consult with these individuals about any decision that directly and significantly affects them. Moreover, where the activities of a Nisga’a Public Institution directly and significantly affect these persons, such as those of a future school board or health board, Nisga’a Government will ensure that these persons can participate, through such means as the opportunity to make representations, to vote for or run for office, to have guaranteed seats on the Institution, or other comparable measures.

Who will be the first members of Nisga’a Government?

The detailed transitional measures for Nisga’a Government are set out in the Nisga’a Constitution. The Parties have agreed that, until the first elections for Nisga’a Lisims Government and Nisga’a Village Governments are completed, the officers of the Nisga’a Tribal Council and the chief councillors and councillors of the four bands will, together with the Nisga’a Urban Local representatives, comprise Nisga’a Government. Elections must be held no later than six months after the effective date.

What is the relationship between Nisga’a laws and the Treaty?

In the event of an inconsistency or conflict between the Treaty and the provisions of any Nisga’a law, the Treaty prevails to the extent of the inconsistency or conflict. This is the same relationship that exists between the Treaty and federal and provincial laws.

What is the relationship between Nisga’a laws and federal and provincial laws?

For the most part, Nisga’a laws will operate “concurrently”, or at the same time, with federal and provincial laws. This approach is different from that in which a government's jurisdiction is “exclusive”. The question that must be answered for each area of jurisdiction is, what happens if a valid Nisga’a law is different from a valid federal or provincial law?

There are two kinds of differences. Some laws are “inconsistent”. This means they require people to do different things. Other laws are in “conflict”. This means that if a person complies with one law, he or she must violate the other law.

For each subject matter, the Treaty specifies which laws prevail. When Nisga’a laws prevail, the test is inconsistency or conflict. When federal and provincial laws prevail, the test is whether the laws are in conflict.

It is necessary to read the Treaty to see which laws prevail in each circumstance. Generally Nisga’a laws prevail with respect to matters that are primarily internal, and federal and provincial laws prevail if the subject matter is governed by national or provincial laws or standards.

What areas of Nisga’a jurisdiction are set out in the Nisga’a Government section?

Some subject matters are assigned to Nisga’a Government. These are areas in which Nisga’a Lisims Government and Nisga’a Village Governments can both make laws, as determined by the Nisga’a Constitution. Most subject matters are assigned specifically to either Nisga’a Lisims Government or Nisga’a Village Governments.

Nisga’a Government

Nisga’a Government may make laws with respect to the administration, management and operation of Nisga’a Government, including such matters as the establishment of Nisga’a Public Institutions, the powers, duties, and remuneration of members, officials, employees and appointees of Nisga’a Institutions, financial administration, and elections, by-elections and referenda.

Nisga’a Lisims Government may also make laws with respect to the creation, amalgamation, dissolution, or naming of Nisga’a Villages on Nisga’a Lands, and Nisga’a Urban Locals.

Nisga’a citizenship

Nisga’a Lisims Government may make laws with respect to Nisga’a citizenship.

Culture and language

Nisga’a Lisims Government may make laws to preserve, promote and develop Nisga’a culture and Nisga’a language, including laws to authorize or accredit the use, reproduction and representation of Nisga’a cultural symbols and practices, and the teaching of Nisga’a language. This does not, except as may be provided by a future federal or provincial law, include jurisdiction to make laws with respect to intellectual property, such as patents or copyrights, the official languages of Canada, or the prohibition of activities outside of Nisga’a Lands.

Nisga’a property in Nisga’a Lands

Nisga’a Lisims Government may make laws with respect to matters relating to the property interests of the Nisga’a Nation, a Nisga’a Village or a Nisga’a Corporation in Nisga’a Lands, such as:

> The use and management of those Nisga’a Lands;

> The possession of those Nisga’a Lands, including the granting of rights and any conditions or restrictions on those rights;

> The disposition of an estate or interest in any parcel of those Nisga’a Lands;

> The conditions on, and restrictions subject to which, the Nisga’a Nation, a Nisga’a Village or a Nisga’a Corporation may create or dispose of estates or interests in any parcel of Nisga’a Lands;

> The conditions or restrictions, to be established at the time of the creation or disposition of an estate or interest of the Nisga’a Nation, a Nisga’a Village or a Nisga’a Corporation with respect to that and any subsequent disposition; and

> The reservation or exception of interests, rights, privileges and titles from any creation or disposition of an estate or interest in those Nisga’a Lands.

Regulation, administration and expropriation of Nisga’a Lands

Nisga’a Government may make laws with respect to matters related to the regulation and administration of Nisga’a Lands, such as:

> The use, management, planning, zoning and development of Nisga’a Lands;

> The establishment and operation of a land title or land registry system, for those Nisga’a Lands to which provincial land title legislation does not apply;

> Regulation, licensing and prohibition of the operation on Nisga’a Lands of businesses, professions, and trades, including the imposition of licence fees or other fees;

> Designation of Nisga’a Lands as Nisga’a Private Lands or Nisga’a Village Lands;

> Expropriation by Nisga’a Government for public purposes and public works, of estates, or interests in Nisga’a Lands.

Nisga’a assets

Nisga’a Government may make laws with respect to matters relating to the property interests of the Nisga’a Nation, Nisga’a Villages and Nisga’a Corporations in their assets, other than real property, such as:

> The use, possession, and management of those assets;

> The conditions on, and restrictions subject to which, the Nisga’a Nation, Nisga’a Villages and Nisga’a Corporations may dispose of those assets that are on Nisga’a Lands.

Public order, peace and safety

Nisga’a Government may make laws with respect to the regulation, control or prohibition of any actions, activities or undertakings on Nisga’a Lands or, with some exceptions, on submerged lands within Nisga’a Lands, that constitute, or may constitute, a nuisance, a trespass, a threat to public order, peace or safety or a danger to public health.

Duty to accommodate

Under federal and provincial human rights legislation, there is a duty on employers and employee organizations to reasonably accommodate people’s religion and culture. The extent and nature of the accommodation will vary depending on the circumstances and is normally adjudicated by human rights tribunals. However, it is often unclear what cultural aspects of a people or group require accommodation.

Nisga’a Lisims Government may make laws prescribing the aspects of Nisga’a culture, including aspects such as cultural leave from employment, to be accommodated in accordance with federal and provincial laws of general application. For example, Nisga’a Lisims Government could prescribe the nature of the duties associated with a death in a Nisga’a citizen's family. However, the extent of any requirement by an employer to accommodate those duties would be determined by the federal or provincial law.

Industrial relations

The Treaty does not provide jurisdiction over industrial relations to Nisga’a Government. However, labour issues often affect cultural matters and could have an impact on the Agreement. Therefore, where in any industrial relations matter or industrial relations proceeding involving employees employed on Nisga’a Lands, other than a matter or proceeding under a collective agreement (such as a grievance arbitration), an issue arises with respect to this Agreement or Nisga’a culture, the matter or proceeding will not be concluded until notice has been served on Nisga’a Lisims Government. Nisga’a Lisims Government will have the right to make representations concerning this Agreement or the effect of the matter or proceeding on Nisga’a culture.

It is important to note that this right to make representations does not affect federal or provincial jurisdiction with respect to industrial relations, employment standards and occupational health and safety.

Human resource development

At the request of any Party, the Parties will negotiate and attempt to reach agreements for Nisga’a Lisims Government delivery and administration of federal or provincial services or programs that are intended to improve the employability or skill level of the labour force and persons destined for the labour force, or to create new employment or work experience opportunities.

Buildings, structures, and public works

Subject to the Roads and Rights of Way Chapter, Nisga’a Government may make laws with respect to the design, construction, maintenance, repair, and demolition of buildings, structures and public works on Nisga’a Lands.

Traffic and transportation

Nisga’a Government may make laws with respect to the regulation of traffic and transportation on Nisga’a Roads to the same extent as municipal governments have authority with respect to the regulation of traffic and transportation in municipalities in British Columbia.

Solemnization of marriages

Nisga’a Lisims Government may make laws with respect to solemnization of marriages within British Columbia including prescribing conditions under which individuals appointed to perform marriages under Nisga’a law can perform the marriage ceremony.

Individuals appointed by Nisga’a Lisims Government to solemnize marriages will be registered by British Columbia as persons authorized to solemnize marriages, and they will have all the associated rights, duties and responsibilities of a marriage commissioner.

Social services

Nisga’a Lisims Government may make laws with respect to the provision of social services by Nisga’a Government to Nisga’a citizens, other than the licensing and regulation of facility-based services off Nisga’a Lands.

If Nisga’a Lisims Government makes laws with respect to the provision of social services, at the request of any Party, the Parties will negotiate and attempt to reach agreements with respect to exchange of information, avoidance of double payments, and related matters. Moreover, at the request of any Party, the Parties will negotiate and attempt to reach agreements for administration and delivery by Nisga’a Government of federal and provincial social services and programs for all individuals residing within Nisga’a Lands.

Health services

Nisga’a Lisims Government may make laws with respect to health services on Nisga’a Lands.

At the request of any Party, the Parties will negotiate and attempt to reach agreements for Nisga’a Lisims Government delivery and administration of federal and provincial health services and programs for all individuals residing within Nisga’a Lands.

Aboriginal healers

Nisga’a Lisims Government may make laws with respect to the authorization or licensing of persons who practice as aboriginal healers on Nisga’a Lands.

Any Nisga’a law with respect to aboriginal healers will include measures, with respect to competence, ethics and quality of practice that are reasonably required to protect the public.

Child and family services

Nisga’a Lisims Government may make laws with respect to child and family services on Nisga’a Lands, provided that those laws include standards comparable to provincial standards intended to ensure the safety and well-being of children and families.

At the request of Nisga’a Lisims Government, Nisga’a Lisims Government and British Columbia will negotiate and attempt to reach agreements with respect to child and family services for Nisga’a children who do not reside on Nisga’a Lands.

Laws of general application with respect to reporting of child abuse apply on Nisga’a Lands.

Child custody

Nisga’a Government has standing in any judicial proceedings in which custody of a Nisga’a child is in dispute, and the court will consider any evidence and representations with respect to Nisga’a laws and customs in addition to any other matters it is required by law to consider.

Adoption

Nisga’a Lisims Government may make laws with respect to the adoption of Nisga’a children, provided that those laws:

> Expressly provide that the best interests of the child be the paramount consideration in determining whether an adoption will take place; and

> Require Nisga’a Lisims Government to provide British Columbia and Canada with records of all adoptions occurring under Nisga’a laws.

Nisga’a law applies to the adoption of a Nisga’a child residing off Nisga’a Lands if:

> The parent, parents or guardian of the child consent to the application of Nisga’a law to the adoption; or

> A court of competent jurisdiction dispenses with the requirement for that consent.

There are special rules governing what happens if the Director of Child Protection becomes the guardian of a Nisga’a child.

Pre-school to Grade 12 education

Nisga’a Lisims Government may make laws with respect to pre-school to Grade 12 education on Nisga’a Lands of Nisga’a citizens, including the teaching of Nisga’a language and culture, but those laws must provide for:

> Curriculum, examination and other standards that permit transfers of students between school systems at a similar level of achievement and permit admission of students to the provincial post-secondary education systems; and

> Certification of teachers, other than for the teaching of Nisga’a language and culture, by:

a. A Nisga’a Institution, in accordance with standards comparable to standards applicable to individuals who teach in public or independent schools in British Columbia; or

b. A provincial body having the responsibility to certify individuals who teach in public or independent schools in British Columbia; and

> Certification of teachers, for the teaching of Nisga’a language and culture, by a Nisga’a Institution, in accordance with standards established under Nisga’a law.

If Nisga’a Lisims Government makes laws with respect to education, at the request of Nisga’a Lisims Government or British Columbia, those Parties will negotiate and attempt to reach agreements concerning the provision of Kindergarten to Grade 12 education to:

> Persons other than Nisga’a citizens residing within Nisga’a Lands; and

> Nisga’a citizens residing off Nisga’a Lands.

Post-secondary education

Nisga’a Lisims Government may make laws with respect to post-secondary education within Nisga’a Lands, including:

> The establishment of post-secondary institutions with the ability to grant degrees, diplomas or certificates;

> The determination of the curriculum for post-secondary institutions established under Nisga’a law;

> The accreditation and certification of individuals who teach or research Nisga’a language and culture; and

> The provision for and coordination of all adult education programs.

These laws will include standards comparable to provincial standards with respect to:

> Institutional organizational structure and accountability;

> Admission standards and policies;

> Instructor qualifications and certification;

> Curriculum standards sufficient to permit transfers between provincial post-secondary institutions; and

> Requirements for degrees, diplomas or certificates.

Nisga’a Lisims Government may prescribe the terms and conditions under which Nisga’a post-secondary institutions may enter into arrangements with other institutions or British Columbia to provide post-secondary education outside Nisga’a Lands.

Gambling and gaming

British Columbia will not licence or approve gambling or gaming facilities on Nisga’a Lands other than in accordance with any terms and conditions established by Nisga’a Government that are not inconsistent with federal and provincial laws of general application. Any changes in federal or provincial legislation or policy that permits the involvement of aboriginal peoples in the regulation of gambling and gaming will, with the consent of Nisga’a Lisims Government, apply to Nisga’a Government.

Intoxicants

Nisga’a Government may make laws with respect to the prohibition of, and the terms and conditions for the sale, exchange, possession or consumption of intoxicants, on Nisga’a Lands.

The Nisga’a Nation, its agents and assignees have:

> The exclusive right to sell liquor on Nisga’a Lands in accordance with laws of general application; and

> The right to purchase liquor from the British Columbia Liquor Distribution Branch in accordance with federal and provincial laws of general application.

British Columbia will authorize persons designated by Nisga’a Government, in accordance with provincial laws of general application, to approve or deny applications for special occasion or temporary permits to sell liquor.

Devolution of cultural property

“Cultural property” includes:

> Ceremonial regalia and similar personal property associated with a Nisga’a chief or clan; and

> Other personal property that has cultural significance to the Nisga’a Nation.

Nisga’a Lisims Government may make laws with respect to who inherits of the cultural property of a Nisga’a citizen who dies without a will.

Nisga’a Lisims Government has standing in any judicial proceeding in which the validity of the will of a Nisga’a citizen, or the inheriting of the cultural property of a Nisga’a citizen is at issue, including any proceedings under wills variation legislation.

Nisga’a Lisims Government may commence an action under wills variation legislation in British Columbia to vary a will of a Nisga’a citizen that provides for a devolution of cultural property.

Other areas of jurisdiction

In addition to the laws that Nisga’a Government may make under this Chapter, Nisga’a Government may make laws with respect to other matters as set out in, and in accordance with, other Chapters of the Agreement.

Emergency preparedness

Nisga’a Lisims Government, with respect to Nisga’a Lands, has the rights, powers, duties, and obligations of a local authority under federal and provincial legislation with respect to emergency preparedness and emergency measures.

This means, in part, that Nisga’a Lisims Government may declare a state of local emergency, and exercise the powers of a local authority with respect to local emergencies in accordance with federal and provincial laws with respect to emergency measures, but any declaration and any exercise of those powers is subject to the authority of Canada and British Columbia set out in those federal and provincial laws.

Other matters

The authority of Nisga’a Government to make laws with respect to a subject matter includes the authority to make laws and to do other things as may be necessarily incidental to, or connected with exercising that authority. Nisga’a Government may also make laws and do other things that may be necessary to enable each of the Nisga’a Nation, a Nisga’a Village, and Nisga’a Government to exercise its rights, or to carry out its responsibilities, under this Agreement.

Nisga’a Government may provide for the imposition of penalties, including fines, restitution, and imprisonment for the violation of Nisga’a laws, within the limits set out for summary conviction offences in the Criminal Code of Canada or the British Columbia Offence Act.

Nisga’a Government liability

Elected members of Nisga’a Government are immune from actions for damages for matters arising in the course of their duties, while that person is, or was, an elected member. However, these protections do not apply if the person is guilty of dishonesty, gross negligence or malicious or wilful misconduct or if the cause of action is libel or slander.

Otherwise, Nisga’a public officers and Nisga’a Government will have similar protections from liability as apply to municipalities in British Columbia.