Course:FRST270/Wiki Projects/The Land Question and contemporary forest managment of the Nisga'a Lisims Government

The Land Question and contemporary forest managment of the Nisga'a Lisims Government

Summary

The nature of forest management on the lands of the Nisga'a Nation goes well beyond the conventional relationship between a tenure licensee and the provincial government of British Columbia. It instead sets a precedence for nation to nation relationships, organized through treaties, between the colonial state of Canada, its provinces and First Nations within Canada. Below is a brief review of the Nisga'a Final Agreement (the Agreement) and of some aspects of forest-based ecosystem management carried out by the Nisga'a Lisims Government in respect to its relationship with the governments of British Columbia and Canada.

Description

Geography

The traditional Nisga’a territory covers some 24,000km square kilometers around the Nass River Valley in Northwestern British Columbia. The Nisga’a now own and are largely sovereign on approximately 2,000 square kilometers of their original territory. There are four main village sites with the main village, New Aiyansh, being about 100km north of Terrace, in the heart of the Coast Mountains.

History

It is recognized in the Final Agreement “the Nisga'a Nation has lived in the Nass Area since time immemorial.” While debate continues around the exact number of years of habitation it is observed that for several thousands of years Indigenous people lived among the lands we now know as British Columbia. The many and distinct societies were self governing and organized and relied on a deep relationship with the lands and waters they inhabited. With the Royal Proclamation of 1763 it was decreed “Indian people not be disturbed in their use and occupation of the land” and that land that First Nations occupy can only be sold to the Crown and only after what would be effective prior, free and informed consent. Despite this, not much of British Columbia was ever settled through treaty but instead usurped from Aboriginal peoples.

The Nisga’a recognized the invasive nature of the new settlers and in 1887 a delegation of Nisga’a, led by Chief Israel Sgaat’iin, travelled by canoe to Victoria “to confirm the rights of his people to hold ownership of their land,” but they were denied a hearing. The Nisga’a subsequently formed their first Land Committee and continued to pursue “the land question.” In 1913 the Nisga’a sent a delegation to London, England to submit a petition to the Imperial Parliament. In this petition the Nisga’a made it clear they were not opposed to the colonial settlers but pleaded that they follow their own protocol of the Royal Proclamation. Differed to the Canadian courts, the terms of the judicial process were not suitable to the Nisga’a Nation. In 1927 the Parliament of Canada rejected any discussion of land claims and “a provision was added to the Indian Act that effectively barred the collection of money to advance claims, a remarkable prohibition that only ended in 1951."

The case was again taken up by the Nisga’a Tribal Council in 1955, led by Frank Calder. 2:40] Launching their legal action in 1968, the case resulted in the Calder Decision of 1973 which “forced the federal government to develop a policy to address Aboriginal land issues across Canada. … This became known as the Comprehensive Claims Policy, dealing with areas of Canada where Aboriginal people’s claims to Aboriginal rights have not been addressed by the treaties or other legal means.”(158) The Calder Decision, while technically being a loss for the Nisga’a, opened up the case of aboriginal land title in a significant way. Three judges ruled that Aboriginal title continues to exist, three ruled that it was extinguished and one abstained from a ruling. Six months thereafter, the Federal government announced they would begin working on treaties that had not been formalized with First Nations before. The Supreme Court had demonstrated that the Federal government cannot ignore the “legal existence of Aboriginal land rights.” Negotiations for treaty between the Nisga’a and the federal government began soon after the Calder case. The government of British Columbia did not join negotiations until 1990. From this point forward began the long journey for the Nisga’a of negotiations resulting in the Final Agreement, signed in 1998 and came into effect on May 11, 2000. Simultaneously, and aside to the Nisga’a negotiations, the British Columbian government established the process for further treaty negotiations.

Tenure arrangements

Lands

Under the Agreement the Nisga’a own 1,992 square kilometers of land, including former reserve lands that are outside of the established boundary. The lands are divided into Nisga’a Public Land, Nisga’a Village Land, encompassing four village sites and Nisga’a Private Land. The ownership is a full fee simple estate, “the largest and most complete interest in land that can be owned by any subject of the Crown.” Existing private fee simple parcels, agricultural lease areas and woodlot licenses were not part of the transfer of ownership at the time of the agreement., besides some exceptions in the different catagories of lands found in appendix classifications. While the extent of rights differ on some parcels, namely previous reserves, the Nisga’a, at large, have full control of their lands and the resources on them including subsurface resources, but not the rights to submerged lands. Furthermore, the Nisga’a maintain a right to harvest wildlife in the Nass Wildlife Area of 16,101 square kilometers and harvest fish in the greater Nass Area of 26,838 square kilometers. The federal and provincial governments must work in consultation with the Nisga’a Government if they seek to use Nisga’a lands.

Access

Public access onto Nisga’a Public Lands is allowed for reasonable temporary use for recreation and non-commercial purposes. This includes access for the purpose of hunting and fishing which may be regulated through permits or licenses. The Nisga’a Lisims Government has the right to regulate access, and does not allow any exploitative or degrading activity. Any changes will be communicated to the BC and Canadian governments. The Agreement does not affect public access to lakes and rivers. Individuals who own private fee simple lots within Nisga’a Public Lands may not be withheld consent of access but must offer fair compensation and ensure the terms of access are agreed upon.

Management

It is set out in the terms of agreement that management of natural resources must meet or exceed provincial standards. The Nisga’a Lisims Government makes it apparent in their publications that they intend to live up to this and enact a greater sustainable approach to resource management and land use. The Nisga’a Lisims Government has a published Forest Act, Land Act and implements Land Use Plans accordingly. As listed on their website, the Forest Act sets out the different areas of responsibility of the Nisga’a including, but not limited to:

“Ayuukhl Nisga'a Areas of Responsibility:

• Forest Resources Management and planning
• Timber harvesting and reforestation
• Nisga'a Public Lands Forest Development Plan
• Nisga'a Village Lands Forest Development Plan
• Botanical Forest Products
• Permit Fee Structure
• Protection of Forest Resources
• Forest Fires
• Pests
• Diseases
• Integrated Resource Management Plans
• Resource Inventories
• Recreation Site Management plans
• Dragon Lake
• Provision of mapping and geographic information services to Nisga'a Lisims Government
• Compliance and Enforcement for Forest Resources
• Forest Resource Policy Development
• Supporting Village Governments with Forest Resources related issues”

“The Nisga’a laws must not be more intrusive to the environment than the British Columbia Forest Practices Code.” Edward Allen writes of the highlights of the Final Agreement relative to forestry management that the Nisga’a achieved recognition of “the inherent right of self-government as set out in our treaty that defines our jurisdiction and law making authority in the areas of lands, language, culture, education, health, child protection, traditional healing practices, fisheries, wildlife, forestry, environmental protection, and policing, and the relationship of those laws to federal and provincial jurisdictions.”

Affected Stakeholders

Nisga’a Nation

The Nisga’a nation, after over a century of campaigning, finally are awarded their vision for self-determination and governance within, albeit it a portion of, their ancestral territory. This has many implications and particularly allows for forest management which is sound and sustainable based on their ideals. It is hoped that the Final Agreement will allow for the Nisga’a to prosper and revitalize their Nation.

Non-Nisga’a Fee Simple Land Holders

In Dancing in Both Worlds, a non-Nisga’a resident expresses an understanding and acceptance of the Final Agreement, remarking that he will experience no adverse affects and that the relations in the Nass area are improved between settlers and Nisga’a.

Interested Outside Stakeholders

Government

Both the federal government and the government of BC are interested in this arrangement to see how modern treaty works in actuality, and to see legal pluralism at work within the Canadian Constitution.

Industry

Industry will have to apply to the Nisga’a Lisims Government for operation licenses and use Nisga’a contractors where available. Nisga’a industry will benefit by this and it will give the Nisga’a the opportunity to enact their ideal forest management.

Controversy

This area would reflect the previous and ongoing controversy and court challenges, notably put forth by the Campbell governments, and the Gitanyow.

Discussion

The monumental nature of the Nisga’a Final Agreement is that it defines Aboriginal Rights in the Canadian Constitution and establishes a First Nation with political agency and authority alongside the provincial and federal governments.

“Our Treaty is a treaty and land claims agreement within the meaning of section 25 and 35 of the Constitution Act, 1982. Our Treaty is a full and final settlement in respect of our aboriginal rights, including aboriginal title, in Canada. The treaty comprehensively sets out all our treaty rights; we do not assert any aboriginal rights outside of the treaty.”

Assessment

Leslie King writes “It is clear that the Nisga’a success in co-management derives in large part from the legal recognition of aboriginal rights, their successful negotiation of the agreement with Canada and British Columbia, and their clarity of goals with regard to enshrining traditional knowledge and culture in natural resource management regimes.”

I have not collected enough research to appropriately assess the fundamental nature of the Nisga’a Forest Management initiative in respects to its relations with the governments of British Columbia and Canada, or the effectiveness of their forest management program. I can only hope that this limited information shines some light on the very real possibility and momentum of First Nations, and importantly, the colonial state to work towards just and righteous cooperation in managing this young and diverse state known as Canada.

Recommendations

Any recommendations I may make can only be directed towards the settler-colonial society, given my qualification. In this regard I implore political and industrial officials, as well citizens themselves to recognize the implications of this example of self-determination of a First Nation and the working relationship of legal plurality under the Canadian Constitution.

Maps

References

This conservation resource was created by Course:FRST270.