Administration of Justice

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Contents Administration of Justice	Overview This chapter sets out the involvement of Nisga’a Nation in policing, the provision of community correction services, and the establishment of a Nisga’a Court. The general approach is one of establishing structures that are integrated into the overall structures established by British Columbia and Canada that relate to the administration of justice. The chapter balances the need for local involvement in these matters with the desirability of avoiding completely separate structures. How can the Nisga’a Nation establish a Nisga’a police service? The Nisga’a Nation will have authority with respect to the provision of policing within Nisga’a Lands, similar to those of municipalities in British Columbia with a population greater than 5,000 people. If Nisga’a Lisims Government chooses, it may make laws to establish a Nisga’a police board and a Nisga’a police service. Or instead, it may enter into agreements by which some or all of the policing will be provided by the provincial police service (RCMP) or other police services. It may also have a combination of a Nisga’a police service as well as the continued presence of the provincial police. The Parties wish any Nisga’a police service to be responsive to the needs and priorities of the Nisga’a Nation, to have the full range of police responsibilities and authorities and to contribute to the administration of justice, social order and public security. If Nisga’a Lisims Government decides to establish a Nisga’a police board, it must make laws including provisions that substantially conform with provincial laws with respect to standards, swearing in, use of force, discipline and dismissal, and the consideration of public complaints. It must also include laws that are compatible with provincial legislation with respect to selection standards and code of conduct for police officers, mechanisms to ensure police independence, accountability and competence, and police operations generally. The Nisga’a police board must carry out a number of roles in the direction and administration of the Nisga’a police service. It will be the employer of members of the police service. Once the Nisga’a Lisims Government has enacted laws to establish a police board, the Lieutenant Governor In Council must consider and decide whether the appropriate standards have been met as set out in the Treaty. If so, it approves the structure and membership and appoints the members of the Nisga’a police board. Why is the approval of Lieutenant Governor In Council necessary? It is necessary that policing be provided by police services that are accountable to the public and independent of politicians. The elaborate structures set out above are intended to ensure this. The Attorney General of British Columbia has ultimate authority with respect to administration of justice in British Columbia. Do Nisga’a police officers have the same authority as other police officers? Yes. Members of the Nisga’a police force will have all of the same powers, duties, privileges, liabilities and responsibilities of other peace officers according to law. Their authority extends throughout British Columbia, however, it will normally be restricted to Nisga’a Lands, except in the case of an emergency or upon request for assistance from other police services. As a part of the Attorney General’s overall responsibility for administration of justice, he or she retains the same powers he or she has over other police services to ensure that effective policing is provided in accordance with standards prevailing elsewhere in British Columbia. This power extends to, if necessary, the reorganization of policing or by appointing individuals as constables, using the provincial police service or by other means. This power is similar to the Attorney General’s power with respect to other police services in British Columbia. What are community correction services? These services are set out in the Treaty and include matters relating to bail, probation, conditional sentences, parole supervision and other forms of conditional release, preparation of reports for courts and other justice agencies, alternative custody programs and certain family court counsellor functions to be set out in the agreement. Nisga’a Government has the authority to appoint persons to provide services with respect to persons charged and convicted of offences under Nisga’a laws. In addition, agreements can be negotiated with British Columbia or Canada to allow persons appointed by Nisga’a Government to deliver federal and provincial services. The Treaty does not authorize Nisga’a Government to establish places of confinement to punish people for offences, unless this is otherwise achieved through an agreement. Can the Nisga’a establish a Nisga’a Court? Yes. Until the date that Nisga’a Lisims Government decides to establish a court, any offences under Nisga’a laws will be tried in the Provincial Court of British Columbia. If Nisga’a Lisims Government does decide to establish a Nisga’a Court, it will make laws to ensure that the court and its judges comply with generally recognized principles with respect to judicial fairness, independence and impartiality, provide for means of supervision of the judges, and provide for the means of appeals from decisions of the court to the ordinary courts of British Columbia. The court may commence functioning when the Lieutenant Governor in Council (the Provincial Cabinet) has approved the Nisga’a Court’s structure, procedures and method of selection of judges. The Court’s powers will include reviewing administrative decisions of Nisga’a public institutions, adjudicating prosecutions arising out of Nisga’a laws, and adjudicating disputes between Nisga’a citizens on Nisga’a Lands that would otherwise be in small claims courts. The court may also adjudicate, with the consent of the parties, in disputes between persons. The court will have the authority to impose penalties and other remedies under the laws of Nisga’a Government, British Columbia and Canada, in accordance with generally accepted principles of sentencing and may apply traditional Nisga’a methods and values such as using Nisga’a elders to assist in adjudicating in a sentencing. If an accused person may receive a sentence of imprisonment under Nisga’a law, he or she has the choice to be tried in the Provincial Court of British Columbia. The Nisga’a court may not impose on persons who are not Nisga’a citizens any sanction or penalty different in nature generally imposed by the ordinary courts, without the person's consent. In this way, the court could utilize traditional methods that are unique to Nisga’a culture with respect to Nisga’a citizens, and others if they consent to the application of the Nisga’a approach. Can decisions of the Nisga’a Court be appealed? Yes. The Treaty provides generally for appeals to the Supreme Court of British Columbia and then, in accordance with the ordinary law, to the British Columbia Court of Appeal and the Supreme Court of Canada. Can the Court serve other functions? The Nisga’a Court may be assigned additional powers and duties by laws of British Columbia or Canada. The Lieutenant Governor in Council may appoint judges of the Nisga’a Court as Provincial Court judges, justices of the peace or referees. If this happens, the Nisga’a Court judge would be able to sit as the Provincial Court and carry out the functions of that court. However, there is no Treaty right that would require this to occur. Can the Administration of Justice Chapter be reconsidered? Yes. The Parties agree to review the Chapter no later than 10 years after the effective date. This is in order to assess how well the Chapter has functioned and to make any changes to which the Parties may agree.

Contents

Administration
of Justice

Overview

This chapter sets out the involvement of Nisga’a Nation in policing, the provision of community correction services, and the establishment of a Nisga’a Court. The general approach is one of establishing structures that are integrated into the overall structures established by British Columbia and Canada that relate to the administration of justice. The chapter balances the need for local involvement in these matters with the desirability of avoiding completely separate structures.

How can the Nisga’a Nation establish a Nisga’a police service?

The Nisga’a Nation will have authority with respect to the provision of policing within Nisga’a Lands, similar to those of municipalities in British Columbia with a population greater than 5,000 people. If Nisga’a Lisims Government chooses, it may make laws to establish a Nisga’a police board and a Nisga’a police service. Or instead, it may enter into agreements by which some or all of the policing will be provided by the provincial police service (RCMP) or other police services. It may also have a combination of a Nisga’a police service as well as the continued presence of the provincial police. The Parties wish any Nisga’a police service to be responsive to the needs and priorities of the Nisga’a Nation, to have the full range of police responsibilities and authorities and to contribute to the administration of justice, social order and public security.

If Nisga’a Lisims Government decides to establish a Nisga’a police board, it must make laws including provisions that substantially conform with provincial laws with respect to standards, swearing in, use of force, discipline and dismissal, and the consideration of public complaints. It must also include laws that are compatible with provincial legislation with respect to selection standards and code of conduct for police officers, mechanisms to ensure police independence, accountability and competence, and police operations generally.

The Nisga’a police board must carry out a number of roles in the direction and administration of the Nisga’a police service. It will be the employer of members of the police service.

Once the Nisga’a Lisims Government has enacted laws to establish a police board, the Lieutenant Governor In Council must consider and decide whether the appropriate standards have been met as set out in the Treaty. If so, it approves the structure and membership and appoints the members of the Nisga’a police board.

Why is the approval of Lieutenant Governor In Council necessary?

It is necessary that policing be provided by police services that are accountable to the public and independent of politicians. The elaborate structures set out above are intended to ensure this. The Attorney General of British Columbia has ultimate authority with respect to administration of justice in British Columbia.

Do Nisga’a police officers have the same authority as other police officers?

Yes. Members of the Nisga’a police force will have all of the same powers, duties, privileges, liabilities and responsibilities of other peace officers according to law. Their authority extends throughout British Columbia, however, it will normally be restricted to Nisga’a Lands, except in the case of an emergency or upon request for assistance from other police services.

As a part of the Attorney General’s overall responsibility for administration of justice, he or she retains the same powers he or she has over other police services to ensure that effective policing is provided in accordance with standards prevailing elsewhere in British Columbia. This power extends to, if necessary, the reorganization of policing or by appointing individuals as constables, using the provincial police service or by other means. This power is similar to the Attorney General’s power with respect to other police services in British Columbia.

What are community correction services?

These services are set out in the Treaty and include matters relating to bail, probation, conditional sentences, parole supervision and other forms of conditional release, preparation of reports for courts and other justice agencies, alternative custody programs and certain family court counsellor functions to be set out in the agreement.

Nisga’a Government has the authority to appoint persons to provide services with respect to persons charged and convicted of offences under Nisga’a laws. In addition, agreements can be negotiated with British Columbia or Canada to allow persons appointed by Nisga’a Government to deliver federal and provincial services.

The Treaty does not authorize Nisga’a Government to establish places of confinement to punish people for offences, unless this is otherwise achieved through an agreement.

Can the Nisga’a establish a Nisga’a Court?

Yes. Until the date that Nisga’a Lisims Government decides to establish a court, any offences under Nisga’a laws will be tried in the Provincial Court of British Columbia. If Nisga’a Lisims Government does decide to establish a Nisga’a Court, it will make laws to ensure that the court and its judges comply with generally recognized principles with respect to judicial fairness, independence and impartiality, provide for means of supervision of the judges, and provide for the means of appeals from decisions of the court to the ordinary courts of British Columbia.

The court may commence functioning when the Lieutenant Governor in Council (the Provincial Cabinet) has approved the Nisga’a Court’s structure, procedures and method of selection of judges. The Court’s powers will include reviewing administrative decisions of Nisga’a public institutions, adjudicating prosecutions arising out of Nisga’a laws, and adjudicating disputes between Nisga’a citizens on Nisga’a Lands that would otherwise be in small claims courts. The court may also adjudicate, with the consent of the parties, in disputes between persons. The court will have the authority to impose penalties and other remedies under the laws of Nisga’a Government, British Columbia and Canada, in accordance with generally accepted principles of sentencing and may apply traditional Nisga’a methods and values such as using Nisga’a elders to assist in adjudicating in a sentencing. If an accused person may receive a sentence of imprisonment under Nisga’a law, he or she has the choice to be tried in the Provincial Court of British Columbia. The Nisga’a court may not impose on persons who are not Nisga’a citizens any sanction or penalty different in nature generally imposed by the ordinary courts, without the person's consent. In this way, the court could utilize traditional methods that are unique to Nisga’a culture with respect to Nisga’a citizens, and others if they consent to the application of the Nisga’a approach.

Can decisions of the Nisga’a Court be appealed?

Yes. The Treaty provides generally for appeals to the Supreme Court of British Columbia and then, in accordance with the ordinary law, to the British Columbia Court of Appeal and the Supreme Court of Canada.

Can the Court serve other functions?

The Nisga’a Court may be assigned additional powers and duties by laws of British Columbia or Canada. The Lieutenant Governor in Council may appoint judges of the Nisga’a Court as Provincial Court judges, justices of the peace or referees. If this happens, the Nisga’a Court judge would be able to sit as the Provincial Court and carry out the functions of that court. However, there is no Treaty right that would require this to occur.

Can the Administration of Justice Chapter be reconsidered?

Yes. The Parties agree to review the Chapter no later than 10 years after the effective date. This is in order to assess how well the Chapter has functioned and to make any changes to which the Parties may agree.