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The Nisga'a's Private Struggle

Andrew Findlay

| March 3, 2010

Image by: Gary Fiegehen | Nik West

Home ownership comes to the Nisga’a Nation – along with concerns about an erosion of traditional values.

Last October members of the Nisga’a Lisims government gathered at the village of New Aiyansh (population: 1,800) in the chambers of their civic headquarters, an impressive post-and-beam structure with large windows overlooking the Nass River Valley that would put most aging city halls to shame. They were there to give official assent to the so-called Landholding Transition Act, making the Nisga’a the first band in Canada whose members would be able to put their name on a title and become fee-simple owners of once federally owned reservation land. The significance of the occasion would be lost to the average Canadian homeowner, for whom property ownership is something to be taken for granted, or at least commonly aspired to. Yet to the Nisga’a, it is one of the most profound moments in the unfolding of their treaty, known as the Nisga’a Final Agreement.

That historic treaty, the first modern-day treaty in B.C., was signed with the federal and provincial governments in 1998 and came into effect on May 11, 2000. It attempted to balance self-determination with greater integration into Canadian society and included $196 million in cash, annual financing of $33 million, 2,019 square kilometres of land (an area two-thirds the size of Metro Vancouver) and fish and timber rights. Two years ago, the Nisga’a started paying GST, and in 2013 they’ll start paying income tax. The treaty also included the transfer of reservation land to the band, from which flowed the Landholding Transition Act and a move away from the traditional model of communal land ownership.

Although the landholding act affects only city lots in the four Nisga’a villages, totalling 10 square kilometres – or about half of one per cent of the land ceded to the Nisga’a – it has both practical and immense symbolic importance. “This is very significant for the Nisga’a as a step toward true self-government,” says an enthusiastic Kevin McKay, chair of the Nisga’a Lisims government, over the phone from his office in New Aiyansh. “The opportunity to own land fee-simple will enable people to use their land as collateral to get a loan from the bank or transfer land onto family members.”

But the move has also stirred up fierce debate within First Nations communities across the province. On the one side, supporters hope it will enable the Nisga’a to walk into the bank with heads held high to finance their dreams – that by establishing private property rights, the cycle of dependency will end. But on the other side are critics who see the landholding act as a cultural sellout and a desperate measure by a native band that’s been backed into an economic and social cul-de-sac.

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Hello there. Just a few

Submitted by Anonymous on Mon, 2010-04-05 14:17.

Hello there. Just a few clarifications. First, the Nisga'a government is not a "sovereign state". They are still bound by provincial and federal laws, the Constitution Act 1982, the Charter etc. Also, whenever major decisions are being made to do with resources within the Nisga'a territory it has to be cleared by whichever government's mandate the decisions falls under (fisheries-federal, forests-provincial). So you could see the Nisga'a government as more of a municipal government with extensive administrative responsibilities. As far as the payment goes what the province got back in exchange, "certainty" and "extinguishment" of Nisga'a claims to any further rights or lands, will be worth the money in resource development. the province has suffered from what is known as the "B.C. discount" on its natural resources, which basically means whenever a company wants to extract resources on contested land the province is compelled to give them a rebate because of the extra risk involved. So now that the province has legal assurances that much of a land around the Nass Valley is non-contestable they can start demanding full market value from companies for access to its resources. Also with the money, more than $40 million of that $190 million is going to pay lawyer fees etc. and $2 million per year plus interest is going back to the federal government for loans the Nisga'a took out to pursue the negotiations. If you add that to the new tax revenues coming out of the Agreement then the governments will make their money back and much more over the long run. As far as "preferential treatment" goes, you need to understand the historical-legal context. Court decisions over the past 40 years have gradually strengthened indigenous claims to land. BC's case is unique because for most of the province no treaties were ever signed to hand title over to the Crown. That means that there was never a legitimate transfer of property rights. So when you look at it from a practical legal perspective the case for Crown title is on thin ice, and the governments know that. In fact, in a related case in Australia (Mabo 1992) it was found that Aboriginal title had never been extinguished, which means all of the lands that were inhabited pre-contact are still vested in Aboriginal title and so should be subject to negotiations. All of this is to say that the Agreement is not an example of preferential treatment, but a pragmatic response to the current and future price of maintaing the status quo land policy.

Hello there. Just a few

Submitted by Anonymous on Sat, 2010-04-03 23:01.

This whole agreement is

Submitted by JohnnyMac (not verified) on Sat, 2010-04-03 18:43.

This whole agreement is still a fascinating conundrum to me. My parents lived in New Aiyinsh for several years and on visiting them, as well as on various visits of my own to other parts of the Nass Valley, I have had the opportunity to observe and interact with the Nisga'a firsthand. It is, indeed, a spectacularly beautiful part of this province that has been ceded to these people as their own, private property. As we contemplate the significance of the existence of a sovereign state within the boundaries of our province and the complexities of a multi-level governmental system already hampering our economic growth and development - I can't help but wonder why WE paid THEM 196 million in cash, as well as a continued 33 million ANNUALLY?? Are our politicians deliberately TRYING to create a climate for civil war? The racial tension and resentment this preferential treatment can create on the basis of the settlement of "traditional land claim treaties" unsupported by any clear documentation should be extremely disturbing for every resident and taxpayer in BC. This is nothing but disgusting politicking at the expense of taxpayers and industry. 2,019 square kilometers of land is far more property than any other native-born BC resident can hope to own in his/her lifetime. Shame on our government and all negotiators involved in this process. Shame on the Department of Indian and Norther Affairs. We need an outside audit of that department immediately, and their financial balance sheet to become a matter of public record as soon as possible.