NISGA'A FINAL AGREEMENT |
LANDS |
CHAPTER 3
LANDS
NISGA’A LANDS
General
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On the effective date, Nisga’a Lands consist
of all lands, including islands, within the boundaries set out in Appendix
A except submerged lands, the Gingietl Creek Ecological Reserve, the
Nisga’a Highway corridor, and the lands within the boundaries set
out in Appendix B:
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Appendix B-1
- land in the vicinity of Red Bluff that has been set apart as Indian Reserve
No. 88;
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Appendix B-2
- land in respect of which British Columbia has granted an estate in fee
simple;
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Appendix B-3
- land in respect of which British Columbia has granted an agriculture
lease or woodlot licence; and
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Appendix B-4
- roads associated with the land referred to in Appendix
B-2.
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On the effective date, Nisga’a Lands
comprise 1,992 square kilometres, more or less,
of land in the lower Nass Valley, consisting of:
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1,930 square kilometres, more or less; and
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62 square kilometres, more or less, of lands identified
as former Nisga’a Indian reserves in Appendix
A-4, and which cease to be Indian reserves on the effective date.
Ownership of Nisga’a Lands
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On the effective date, the Nisga’a Nation owns
Nisga’a Lands in fee simple, being the largest estate known in law.
This estate is not subject to any condition, proviso, restriction, exception,
or reservation set out in the Land Act, or any comparable limitation
under any federal or provincial law. No estate or interest in Nisga’a
Lands can be expropriated except as permitted by, and in accordance with,
this Agreement.
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In accordance with this Agreement, the Nisga’a
Constitution, and Nisga’a law, the Nisga’a Nation may:
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dispose of the whole of its estate in fee
simple in any parcel of Nisga’a Lands to any person; and
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from the whole of its estate in fee simple,
or its interest, in any parcel of Nisga’a Lands, create, or dispose
of any lesser estate or interest to any person, including rights of way
and covenants similar to those in sections 218 and 219 of the Land Title
Act
without the consent of Canada or British Columbia.
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A parcel of Nisga’a Lands does not cease to be
Nisga’a Lands as a result of any change in ownership of an estate
or interest in that parcel.
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All methods of acquiring a right in or over land by
prescription or by adverse possession, including the common law doctrine
of prescription and the doctrine of the lost modern grant, are abolished
in respect of Nisga’a Lands.
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If, at any time, any parcel of Nisga’a Lands,
or any estate or interest in a parcel of Nisga’a Lands, finally
escheats to the Crown, the Crown will transfer, at no charge, that parcel,
estate or interest to the Nisga’a Nation.
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Neither:
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any estate or interest of the Nisga’a Nation
or a Nisga’a Village in any parcel of Nisga’a Lands to which
the provincial Torrens system does not apply; nor
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any interest, right, privilege or title of the Nisga’a
Nation or a Nisga’a Village reserved or excepted by the Nisga’a
Nation or Nisga’a Village from any creation or disposition of an
estate or interest in a parcel of Nisga’a Lands
is subject to attachment, charge other than charges
that are liens in favour of Canada or British Columbia, seizure, distress,
execution, or sale, except under an instrument, including a mortgage or
other security instrument, in favour of a person and granted by the Nisga’a
Nation or the Nisga’a Village, or if allowed under a law made by
Nisga’a Lisims Government under paragraph 44 of the Nisga’a
Government Chapter.
Additions to Nisga’a Lands
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If, at any time, the Nisga’a Nation, a
Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen owns the estate in fee simple to any parcel of land within the
boundaries set out in Appendix B-1, B-2,
or B-3, the Nisga’a Nation may, with the consent of the owner, add
that parcel of land to Nisga’a Lands. That parcel of land, together
with any roads identified in Appendix B-4
associated with it, will become Nisga’a Lands upon receipt by Canada
and British Columbia of written notice from the Nisga’a Nation identifying
that parcel of land and attaching the written consent of the owner of that
parcel of land.
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If, at any time:
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British Columbia owns the estate in fee simple
to any land within the boundaries set out in Appendix
B-2; or
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any land within the boundaries set out in
Appendix
B-3 ceases to be subject to an agriculture lease or a woodlot licence
existing on the effective date
British Columbia will offer to sell the estate in fee
simple to that land to the Nisga’a Nation for a price not to exceed
fair market value.
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If, at any time, the Nisga’a Nation, a Nisga’a
Village, a Nisga’a Corporation or a Nisga’a citizen owns
the estate in fee simple to a parcel of land that is contiguous with Nisga’a
Lands, other than land referred to in Appendix
B-1, B-2, or B-3, the Nisga’a Nation may, with the consent of
the owner and the agreement of Canada and British Columbia, add the land
to Nisga’a Lands. If the owner consents and Canada, British Columbia,
and the Nisga’a Nation agree that the land may be added to Nisga’a
Lands, the land will become Nisga’a Lands upon receipt by Canada
and British Columbia of written notice in accordance with that agreement.
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If the Nisga’a Nation adds a parcel of land to
Nisga’a Lands under paragraph 9 or 11, that land will be subject
to:
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any existing charge, encumbrance, licence, or
permit;
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any subsisting condition, proviso, restriction, exception,
or reservation, contained in:
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the original grant or disposition from the Crown,
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any other grant or disposition from the Crown, or
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the Land Act
other than those in favour of the Crown at the time
of the addition of the parcel of land to Nisga’a Lands; and
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any limitation under federal or provincial
law comparable to those set out in subparagraph
12(b), other than those in favour of the Crown at the time of the addition
of the parcel of land to Nisga’a Lands.
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When a parcel of land becomes Nisga’a
Lands under paragraph 9 or 11, any subsisting
condition, proviso, restriction, exception, or reservation referred to
in subparagraph 12(b) or (c) that is in favour of the Crown at the time
of the addition of the parcel of land to Nisga’a Lands, will terminate.
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If the Nisga’a Nation adds a parcel of land to
Nisga’a Lands under paragraph 9 or 11, Appendix
A-1, A-2, and A-3, and Appendix B-1,
B-2, B-3, or B-4, as the case may be, will be amended to reflect the change
to the boundaries of Nisga’a Lands.
Boundary Resolution
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If a Party provides the other Parties with a proposal
to clarify the location of any part of a boundary of Nisga’a Lands,
the Parties will follow the procedure set out in Schedule A.
Designations of Nisga’a Lands
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Nisga’a Lands comprise Nisga’a Public
Lands, Nisga’a Private Lands, and Nisga’a Village Lands.
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Nisga’a Public Lands are Nisga’a Lands
other than those designated by Nisga’a Lisims Government as Nisga’a
Village Lands or Nisga’a Private Lands.
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Nisga’a Private Lands include:
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lands in which Nisga’a Lisims Government
creates an exclusive interest; and
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lands that are otherwise required for uses
that are incompatible with public access, including commercial, cultural,
or resource development uses.
MINERAL RESOURCES
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For greater certainty, in accordance with paragraph
3, on the effective date the Nisga’a Nation owns all mineral resources
on or under Nisga’a Lands.
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Nisga’a Lisims Government has the exclusive authority
to determine, collect, and administer any fees, rents, royalties, or other
charges in respect of mineral resources on or under Nisga’a Lands.
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Nisga’a Lisims Government and British Columbia
may enter into agreements in respect of the application on Nisga’a
Lands of provincial administrative systems relating to:
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claim staking;
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recording and inspecting of subsurface exploration and
development;
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the collection of fees, rents, royalties, and other
charges by British Columbia on behalf of Nisga’a Lisims Government;
and
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other similar matters.
SUBMERGED LANDS WITHIN NISGA’A LANDS
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British Columbia owns the submerged lands
within Nisga’a Lands.
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British Columbia will provide written notice to the
Nisga’a Nation of any proposed disposition of an estate or interest
in, or use or occupation of, submerged lands within Nisga’a Lands.
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British Columbia will not, in respect of submerged lands
within Nisga’a Lands:
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grant an estate in fee simple;
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grant a lease that, with any rights of renewal,
may exceed 25 years;
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transfer administration and control for a
period that may exceed 25 years; or
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otherwise dispose of an estate or interest
in, or authorize the use or occupation of, submerged lands within Nisga’a
Lands if that disposition, use, or occupation would adversely affect Nisga’a
Lands or Nisga’a interests set out in this Agreement
without the consent of the Nisga’a Nation, which
consent will not be unreasonably withheld.
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If the Nisga’a Nation, a Nisga’a
Village, a Nisga’a Corporation, or a Nisga’a citizen applies
to British Columbia to acquire an estate or interest in, or for authorization
to use or occupy, submerged lands within Nisga’a Lands, British
Columbia will not unreasonably refuse to grant the estate or interest or
to issue the authorization if:
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the Nisga’a Nation has consented to the
acquisition, use, or occupation; and
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the proposed acquisition or authorization conforms to
provincial law respecting the disposition, use, or occupation of submerged
lands within British Columbia.
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A dispute as to whether:
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the Nisga’a Nation is unreasonably withholding
consent under paragraph 24; or
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British Columbia is unreasonably refusing to grant an
estate or interest, or to issue an authorization, under paragraph 25
will be finally determined by arbitration under the
Dispute Resolution Chapter.
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For greater certainty, paragraphs 22 to 26 do
not affect any property rights of upland owners of Nisga’a Lands
adjacent to submerged lands.
INTERESTS ON NISGA’A LANDS
Definition of "Interests"
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In paragraphs 29 to 41, "interests" includes estates,
interests, charges, mineral claims, encumbrances, licences, and permits.
Former Interests Cease to Exist
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On the effective date:
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the Nisga’a Nation’s title to Nisga’a
Lands is free and clear of all interests, except:
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those granted or issued under paragraphs 30
to 40,
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those referred to in paragraph 41,
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those continued or issued under the transition
provisions of the Forest Resources Chapter, and
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those granted under the Roads and Rights of
Way Chapter; and
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subject to paragraph 41, and the transition provisions
of the Forest Resources Chapter, every interest that, before the effective
date, encumbered or applied to the lands that are Nisga’a Lands,
ceases to exist.
Replacement Interests
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The Nisga’a Nation, in accordance with paragraphs
31 to 40, and the Roads and Rights of Way Chapter, will grant or issue
interests to those persons who are named in Appendix
C-1 as persons who, immediately before the effective date, had interests
in the lands that comprise Nisga’a Lands on the effective date.
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On the effective date, the Nisga’a Nation will
execute documents granting or issuing to each person named in Appendix
C-1 that person’s interest, as set out in that Appendix.
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A document executed under paragraph 31 for an interest
set out in Part I of Appendix B-1 will be
in the applicable form set out in Appendix B-2
and will include any modifications agreed upon in writing before the effective
date by the Nisga’a Tribal Council and the person entitled to the
interest.
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On the effective date, the Nisga’a Nation will
issue to each person named in Appendix B-5
a certificate of possession for the parcel of Nisga’a Lands ascribed
to that person and described in Appendix B-5.
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On the effective date, the Nisga’a Nation will
issue to each person named in Appendix B-6
a certificate of possession for the parcel of Nisga’a Lands ascribed
to that person and described in Appendix B-6.
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A person to whom the Nisga’a Nation issues a
certificate of possession under paragraph 33 or 34 will have substantially
the same right to possess the described parcel of Nisga’a Lands
as the person would have had as the holder of a certificate of possession
under the Indian Act immediately before the effective date, modified
to reflect Nisga’a Government jurisdiction over, and Nisga’a
Nation ownership of, Nisga’a Lands.
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After the effective date, the Nisga’a Nation
or a Nisga’a Village may, in accordance with Nisga’a law,
replace the certificates of possession issued under paragraphs 33 or 34
with estates or interests in, or licences to use or possess, the described
parcels of Nisga’a Lands. If the certificates of possession are
replaced with licences, the licences will include rights to use and possess
the land comparable to, or greater than, those set out in those certificates
of possession.
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A document referred to in paragraph 31, 33 or 34, or
in paragraph 7 of the Roads and Rights of Way Chapter, will be deemed to
be:
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delivered by the Nisga’a Nation on
the effective date; and
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executed and delivered by each person referred
to in those paragraphs on the effective date, whether or not the document
is actually executed or delivered by that person.
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The Nisga’a Nation will, as soon as practicable
after the effective date, physically deliver the applicable document:
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to each person named in Appendix
B-1, C-5, or C-6; or
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to any other person who, before the effective
date:
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was identified in writing to the Nisga’a
Tribal Council by Canada or British Columbia as the person who, instead
of a person named in Appendix B-1 or C-5,
should receive an interest referred to in Appendix
B-1 or C-5 by reason of death, any form of transfer, error or operation
of law, or
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was identified in writing to Canada and British
Columbia by the Nisga’a Tribal Council as the person who, instead
of a person named in Appendix B-6, should
receive an interest referred to in Appendix
B-6 by reason of death, any form of transfer, error or operation of
law
and the Appendix will be amended to reflect the change.
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If Canada or British Columbia notifies the Nisga’a
Nation that an interest granted under paragraph 30, 31, 33, or 34:
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is in the name of a person who was not actually entitled
to the interest on the effective date; or
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contains a clerical error or a wrong description of
a material fact
the appropriate Parties will take reasonable measures
to rectify the error.
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Any right of way of the nature described in section
218 of the Land Title Act that is granted by the Nisga’a
Nation under this Agreement is legally binding and enforceable notwithstanding
that the Nisga’a Lands to which the right of way relates are not
subject to the Land Title Act.
Licences and Traplines
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The traplines, guide outfitter licence and certificate,
and angling guide licences set out in Appendix
B-7 are retained by the persons who hold those interests on the effective
date in accordance with provincial laws of general application and the
Wildlife and Migratory Birds Chapter. If an interest referred to in this
paragraph is not renewed or replaced, that interest will cease to exist.
Indemnities
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British Columbia will indemnify and save harmless the
Nisga’a Nation from any damages, losses, liabilities, or costs,
excluding fees and disbursements of solicitors and other professional advisors,
that the Nisga’a Nation may suffer or incur in connection with or
as a result of any claims, demands, actions, or proceedings relating to
or arising out of:
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the omission from Appendix
B-1 of the name of a person who, immediately before the effective date,
had an interest in Nisga’a Lands that had been granted by British
Columbia; or
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the incorrect naming of a person in Appendix
C-1 as a person entitled to an interest, where another person was actually
entitled, immediately before the effective date, to the interest in Nisga’a
Lands that had been granted by British Columbia.
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Canada will indemnify and save harmless the Nisga’a
Nation from any damages, losses, liabilities, or costs, excluding fees
and disbursements of solicitors and other professional advisors, that the
Nisga’a Nation may suffer or incur in connection with or as a result
of any claims, demands, actions, or proceedings relating to or arising
out of:
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the omission from Appendix
B-1 or C-5 of the name of a person who, immediately before the effective
date, had an interest in or a certificate of possession in respect of Nisga’a
Lands that had been granted by Canada; or
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the incorrect naming of a person in Appendix
C-1 or C-5 as a person entitled to an interest or certificate of possession,
where another person was actually entitled, immediately before the effective
date, to the interest or the certificate of possession in respect of Nisga’a
Lands that had been granted by Canada.
SITE REMEDIATION
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British Columbia will inspect the sites set out in Schedule
B and will undertake, or cause to be undertaken, appropriate remediation
of any contamination at each site as follows:
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British Columbia, or the person undertaking the
remediation, will give notice to the Nisga’a Nation no more than
60 days before commencing the remediation; and
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whether a site is contaminated, and the nature and extent
of the appropriate remediation, will be determined under British Columbia
law and, for the purposes of those determinations, the use of the site
will be deemed to be either:
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the actual use of the site on the date of
the notice under subparagraph (a); or
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if the site is not in use on the date of the
notice under subparagraph (a), the use identified in Schedule B.
NISGA’A FEE SIMPLE LANDS OUTSIDE NISGA’A
LANDS
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Nisga’a Fee Simple Lands consist of Category
A Lands and Category B Lands as described in Appendix
B.
Category A Lands
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Category A Lands are the parcels of land set
out in Appendix B-2 and D-3, and consist
of:
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the lands identified
as former Nisga’a Indian reserves in Appendix
B-2 and D-3; and
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certain lands adjacent to some of those former Nisga’a
Indian reserves.
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On the effective date, the lands outside Nisga’a
Lands that are identified as former Nisga’a Indian reserves in Appendix
D-2 and D-3 cease to be Indian reserves.
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On the effective date, the Nisga’a Nation owns
the estate in fee simple to Category A Lands.
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The estate in fee simple to Category A Lands is subject
to the rights referred to in subparagraph 50(1)(a)(iii) of the Land
Act but is not subject to any other conditions, provisos, restrictions,
exceptions, or reservations set out in section 50 of the Land Act,
and no estate or interest in Category A Lands can be expropriated from
the Nisga’a Nation, a Nisga’a Village, a Nisga’a Corporation,
or a Nisga’a citizen except as permitted by, and in accordance with,
this Agreement.
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On the effective date, subject to paragraph 51, the
estate in fee simple to Category A Lands is free and clear of all estates,
interests, charges, mineral claims, encumbrances, licences, and permits,
except those set out in Appendix B-4.
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On the effective date, the Nisga’a Nation owns
all mineral resources on or under Category A Lands, free and clear of all
estates, interests, charges, mineral claims, encumbrances, licences, and
permits, except for the mineral claims set out in Appendix
B-4.
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On the effective date, British Columbia owns the submerged
lands within the Category A Lands other than the submerged lands within
the Category A Lands described in Appendix B-2
as former I.R. Nos. 24, 27, and 27A, and extensions, and those submerged
lands are owned by the Nisga’a Nation.
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A parcel of Category A Lands ceases to be Category A
Lands if no estate or interest in that parcel is owned by the Nisga’a
Nation, a Nisga’a Village, a Nisga’a Corporation or a Nisga’a
citizen.
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If the Nisga’a Nation disposes of the estate
in fee simple in the Category A Lands described in Appendix
B-2 as former I.R. No. 15 and extension, it will reserve to itself
a blanket right of way for the purpose of providing road access across
that parcel to adjacent lands. The Nisga’a Nation will, on request
of British Columbia, assign the benefit of the right of way over that portion
of that parcel upon which the forest service road existing on the effective
date is located, in accordance with the following:
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any assignment will be on reasonable terms,
including the location of the requested right of way area, its width considering
the intended use, its effect on neighbouring lands and payment of fair
compensation, but, notwithstanding subparagraph (d) of the definition of
"fair compensation", particular cultural values will not be included in
the determination of fair compensation; and
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if British Columbia and the Nisga’a
Nation are unable to agree on the terms of the assignment, including the
reasonableness of the proposed terms or location of the requested right
of way area, the terms of the assignment will be finally determined by
arbitration under the Dispute Resolution Chapter, but the arbitrator will
not have authority to require British Columbia to accept an assignment
of the right of way.
Provincial Expropriation of Category A Lands
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A provincial expropriating authority may expropriate
an estate or interest in Category A Lands from the Nisga’a Nation,
a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen under provincial legislation only if the expropriation is:
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justifiable and necessary for a provincial public purpose;
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of the smallest estate or interest necessary, and for
the shortest time required, for that provincial public purpose;
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by and for the use of a provincial ministry or agent
of the provincial Crown; and
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with the consent of the Lieutenant Governor in Council.
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If a provincial expropriating authority expropriates
less than the estate in fee simple in Category
A Lands from the Nisga’a Nation, a Nisga’a Village, a Nisga’a
Corporation, or a Nisga’a citizen, British Columbia will provide
the owner of the interest expropriated with fair compensation.
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If a provincial expropriating authority expropriates
the estate in fee simple, including the mineral resources, in Category
A Lands from the Nisga’a Nation, a Nisga’a Village, or a
Nisga’a Corporation, British Columbia will provide the owner of
the estate in fee simple with:
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equivalent Crown land if:
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the owner and the Nisga’a Nation request compensation
in the form of equivalent Crown land, and
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equivalent Crown land is available; or
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fair compensation if:
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the owner and the Nisga’a Nation do
not request equivalent Crown land,
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equivalent Crown land is not available, or
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the owner, the Nisga’a Nation, and
British Columbia otherwise agree.
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If a provincial expropriating authority expropriates
the estate in fee simple, including the mineral resources, in Category
A Lands from a Nisga’a citizen, British Columbia will provide the
owner of the estate in fee simple with fair compensation.
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If a provincial expropriating authority expropriates
the estate in fee simple, excluding any mineral resources, in Category
A Lands under paragraph 55, the owner of the estate in fee simple and the
Nisga’a Nation may require British Columbia to include the mineral
resources in the expropriation. If the owner and the Nisga’a Nation
require British Columbia to include the mineral resources in the expropriation,
paragraph 57 applies to the expropriation.
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Unless British Columbia and the Nisga’a Nation
otherwise agree, any lands provided by British Columbia to the Nisga’a
Nation, a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen as compensation for an expropriation of an estate or interest in
Category A Lands will become Category A Lands.
Category B Lands
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Category B Lands are the parcels of land outside Nisga’a
Lands set out in Appendix B-6 and D-7.
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On the effective date, the Nisga’a Nation owns
the estate in fee simple to Category B Lands.
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The estate in fee simple to Category B Lands is subject
to the conditions, provisos, restrictions, exceptions, and reservations
set out in paragraph 50(1)(a) of the Land Act, except that set out
in subparagraph 50(1)(a)(i) of the Land Act, but no estate or interest
in Category B Lands can be expropriated from the Nisga’a Nation,
a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen except as permitted by, and in accordance with, this Agreement.
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On the effective date, subject to paragraph 65, the
estate in fee simple to Category B Lands is free and clear of all estates,
interests, charges, mineral claims, encumbrances, licences, and permits,
except those set out in Appendix B-8.
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On the effective date, British Columbia owns the submerged
lands within the Category B Lands.
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On the effective date, British Columbia owns the mineral
resources on or under the Category B Lands that are reserved to the Crown
under subparagraph 50(1)(a)(ii) of the Land Act.
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A parcel of Category B Land ceases to be Category B
Lands if no estate or interest in that parcel is owned by the Nisga’a
Nation, a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen.
Provincial Expropriation of Category B Lands
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A provincial expropriating authority may expropriate
the estate in fee simple or any interest in Category B Lands from the Nisga’a
Nation, a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen under provincial legislation only if compensation is provided in
accordance with paragraphs 69 to 72.
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If a provincial expropriating authority expropriates
less than the estate in fee simple in Category B Lands from the Nisga’a
Nation, a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen, British Columbia will provide the owner of the interest expropriated
with fair compensation.
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If a provincial expropriating authority expropriates
the estate in fee simple in Category B Lands from the Nisga’a Nation,
a Nisga’a Village, or a Nisga’a Corporation, British Columbia
will provide the owner of the estate in fee simple with:
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equivalent Crown land if:
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the owner and the Nisga’a Nation request
compensation in the form of equivalent Crown land, and
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equivalent Crown land is available; or
fair compensation if:
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the owner and the Nisga’a Nation do
not request equivalent Crown Land,
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equivalent Crown land is not available, or
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the owner, the Nisga’a Nation and British
Columbia otherwise agree.
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If British Columbia expropriates the estate in fee simple
in Category B Lands from a Nisga’a citizen, British Columbia will
provide the owner with fair compensation.
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Unless British Columbia and the Nisga’a Nation
otherwise agree, any lands provided by British Columbia to the Nisga’a
Nation, a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen as compensation for an expropriation of an estate or interest in
Category B Lands will become Category B Lands.
FEDERAL ACQUISITION OF INTERESTS IN NISGA’A
LANDS AND NISGA’A FEE SIMPLE LANDS
General
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Canada acknowledges that it is of fundamental importance
to maintain the size and integrity of Nisga’a Lands and Nisga’a
Fee Simple Lands, and therefore, as a general principle, estates or interests
in Nisga’a Lands, or Nisga’a Fee Simple Lands, will not be
expropriated under federal legislation.
Governor in Council Consent
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Notwithstanding paragraph 73, an estate or interest
in a parcel of Nisga’a Lands, or Nisga’a Fee Simple Lands,
may be expropriated under federal legislation if the Governor in Council
consents to the expropriation.
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The Governor in Council will consent to an expropriation
of an estate or interest in a parcel of Nisga’a Lands, or Nisga’a
Fee Simple Lands, only if the expropriation:
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is justifiable and necessary for a federal public purpose;
and
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is of the smallest estate or interest necessary, and
for the shortest time required, for that federal public purpose.
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The Governor in Council will not consent to an
expropriation of a parcel of Nisga’a Lands, or Nisga’a Fee
Simple Lands, if other lands suitable for the federal public purpose are
reasonably available.
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Before the Governor in Council considers an expropriation
of an estate or interest in a parcel of Nisga’a Lands, or Nisga’a
Fee Simple Lands, it will ensure that Canada has:
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consulted the Nisga’a Nation;
-
ensured that reasonable efforts have been made to acquire
the estate or interest through agreement with the owner of the estate or
interest; and
-
provided the Nisga’a Nation with all information
relevant to the expropriation other than federal Cabinet documents.
-
If the Governor in Council consents to an expropriation,
Canada will provide the Nisga’a Nation with the reasons for the
expropriation.
Effect of Expropriation
-
If an estate or interest in a parcel of Nisga’a
Lands is expropriated under paragraph 74, Nisga’a
laws continue to apply to that parcel of land except to the extent that
those laws are inconsistent with the ability to use and occupy that land
for the purpose for which that estate or interest was expropriated.
-
If less than the estate in fee simple as described in
paragraph 3 in a parcel of Nisga’a Lands is expropriated under paragraph
74, the owner of the estate in fee simple in that parcel of land may continue
to use and occupy that land, except to the extent that the use or occupation
is inconsistent with the purpose for which that estate or interest was
expropriated.
-
If there is an expropriation under paragraph 74 of the
estate in fee simple as described in paragraph 3 in a parcel of Nisga’a
Lands, or of the estate in fee simple in a parcel of Nisga’a Fee
Simple Lands, Canada will, at the request of Nisga’a Lisims Government,
ensure that reasonable efforts are made to acquire alternative land of
equivalent significance and value to offer as part or all of the compensation
for the expropriation. Any alternative land that is contiguous with Nisga’a
Lands may become Nisga’a Lands in accordance with paragraph 9.
-
Canada will ensure that the owner of the estate or interest
that is expropriated under paragraph 74 receives compensation, taking into
account:
-
the cost of acquiring alternative land of
equivalent significance and value;
-
the market value of the estate or interest
that is expropriated;
-
the replacement value of any improvements
on the land that is expropriated;
-
disturbance caused by the expropriation; and
-
if the owner of the estate or interest that
is expropriated is the Nisga’a Nation, a Nisga’a Village,
a Nisga’a Corporation, or a Nisga’a citizen, any adverse
effect on any cultural or other special value of the land to the Nisga’a
Nation or a Nisga’a Village.
-
If less than the estate in fee simple as described in
paragraph 3 in a parcel of Nisga’a Lands, or less than the estate
in fee simple in a parcel of Nisga’a Fee Simple Lands, has been
expropriated under paragraph 74 but is no longer required for the purpose
for which it was expropriated, Canada will ensure that the interest in
those lands is transferred at no charge to the owner of the estate in fee
simple. The terms of that transfer will be negotiated by the Nisga’a
Nation and Canada at the time of the expropriation.
-
If the estate in fee simple as described in paragraph
3 in a parcel of Nisga’a Lands, or a parcel of Nisga’a Fee
Simple Lands, has been expropriated under paragraph 74 but is no longer
required for the purpose for which it was expropriated, Canada will ensure
that the estate in fee simple is transferred at no charge to the Nisga’a
Nation or the Nisga’a Village, as the case may be. The terms of
that transfer will be negotiated by the Nisga’a Nation and Canada
at the time of the expropriation.
-
The consent of the Governor in Council is not required
to determine whether the estate or interest is no longer required for the
purpose for which it was expropriated.
-
The Nisga’a Nation or Canada may refer a dispute
in respect of the value and nature of the compensation, or the terms of
transfer, to be finally determined by arbitration under the Dispute Resolution
Chapter.
INITIAL SURVEYS
-
Before the effective date, or as soon as practicable
after the effective date, surveys will be conducted of the boundaries of
Nisga’a Lands and Nisga’a Fee Simple Lands in accordance
with instructions to be issued by the Surveyor General of British Columbia
and approved by the Parties (the "Initial Surveys").
-
British Columbia and Canada will, as agreed between
them, pay the full cost of the Initial Surveys.
-
The Parties may, before or after the effective date,
amend Appendices A and D to reflect minor adjustments that may be agreed
upon by the Parties as a result of the Initial Surveys.
COMMERCIAL RECREATION TENURE
-
After the effective date, at the request of the Nisga’a
Nation, British Columbia will issue a commercial recreation tenure (the
"Nisga’a commercial recreation tenure") to the Nisga’a Nation,
or to a Nisga’a Corporation designated by the Nisga’a Nation,
for the areas set out in Appendix E based
on the "Nisga’a Commercial Recreation Tenure Management Plan" developed
by the Nisga’a Tribal Council and British Columbia and approved
on July 6, 1998.
-
The term of the Nisga’a commercial recreation
tenure will be 27 years.
-
If no request is made under paragraph 90 within 90 days
after the effective date, British Columbia will issue the Nisga’a
commercial recreation tenure to the Nisga’a Nation no later than
100 days after the effective date.
-
The first seven years of the term of the Nisga’a
commercial recreation tenure will be a phase-in period, and during that
period:
-
the Nisga’a commercial recreation tenure
will permit, but not require, the Nisga’a Nation or the designated
Nisga’a Corporation to carry out activities in accordance with the
Nisga’a Commercial Recreation Tenure Management Plan; and
-
British Columbia will not issue another commercial
recreation tenure within the areas set out in Appendix
E that conflicts with the Nisga’a Commercial Recreation Tenure
Management Plan.
-
The Nisga’a Nation may, with the consent of British
Columbia, which consent will not be unreasonably withheld, assign the Nisga’a
commercial recreation tenure to a Nisga’a Corporation, and upon
that assignment British Columbia will release the Nisga’a Nation
from any obligations under the tenure that are assumed by the assignee.
HERITAGE SITES AND KEY GEOGRAPHIC FEATURES
-
On the effective date, British Columbia will
designate as provincial heritage sites the sites
of cultural and historic significance outside Nisga’a Lands that
are set out in Appendix F-1. The Parties
acknowledge that those sites may have cultural or historic significance
to persons or groups other than the Nisga’a Nation.
-
On the effective date, British Columbia will:
-
record the Nisga’a names and historic
background information for the geographic features that are set out in
Appendix
F-2 in the British Columbia Geographic Names data base (BCGNIS); and
-
name or rename in the Nisga’a language
the geographic features that are set out in Appendix
F-3.
-
After the effective date, the Nisga’a Nation
may propose that British Columbia name or rename other geographic features
with Nisga’a names, and British Columbia will consider those proposals
in accordance with applicable provincial laws.
PARKS AND ECOLOGICAL RESERVE
Definitions
-
In paragraphs 99 to 118:
-
"Park" means Anhluut’ukwsim Laxmihl Angwinga’asanskwhl
Nisga’a, the Nisga’a Memorial Lava Bed Park; and
-
"Ecological Reserve" means the Gingietl Creek Ecological
Reserve, # 115.
General
-
Subject to this Agreement, British Columbia’s authority
and responsibilities in respect of the Park and the Ecological Reserve
will continue.
-
Subject to paragraph 101, Nisga’a citizens have
the right to traditional uses of the lands and resources within the Park
and the Ecological Reserve, including domestic resource harvesting, in
accordance with this Agreement and in a manner consistent with any management
plan agreed to by the Nisga’a Nation and British Columbia.
-
Unless the Nisga’a Nation and British Columbia
otherwise agree, British Columbia will not permit commercial resource extraction
or other commercial activity within the Park or the Ecological Reserve.
-
The Nisga’a Nation has the right to participate
in the planning, management, and development of the Park and the Ecological
Reserve in accordance with this Agreement.
Anhluut’ukwsim Laxmihl Angwinga’asanskwhl
Nisga’a, Nisga’a Memorial
Lava Bed Park
-
Unless the Nisga’a Nation and British Columbia
otherwise agree, British Columbia will continue the Park as a Class "A"
provincial park or a provincial park with an equivalent classification.
-
On the effective date, the boundaries of the Park are
as set out in Appendix G-1.
-
Nisga’a history and culture are, and will be
promoted as, the primary cultural features of the Park.
-
In order to facilitate the planning, management, and
development of the Park, British Columbia and the Nisga’a Nation
will continue the Joint Park Management Committee that was established
under the Memorandum of Understanding between the Nisga’a Tribal
Council and British Columbia dated April 30, 1992.
-
The Joint Park Management Committee will review and
make recommendations to the Minister and Nisga’a Lisims Government
in respect of:
-
the development and periodic revision of the
master plan, and all other plans, applicable to or proposed for the Park;
-
encumbrances, park use permits, and other
interests and authorizations, applicable to or proposed for the Park;
-
any business plans, operations budgets, and
capital budgets proposed for the Park;
-
archaeological and other research projects,
cultural and interpretive programs, publications, and communications strategies
proposed for the Park or the Ecological Reserve;
-
planning and management of activities, including
development, on Crown land and Nisga’a Lands that could affect the
Park;
-
issues relating to the management of the Ecological
Reserve; and
-
issues relating to traditional uses of resources,
including cedar trees.
-
The Joint Park Management Committee has no
more than six members. The Nisga’a Nation
and British Columbia will each appoint no more than three members as their
representatives.
-
The Joint Park Management Committee will meet as often
as is necessary to carry out its responsibilities, and will establish its
procedures.
-
Whenever possible, the Joint Park Management Committee
will carry out its responsibilities by consensus. If there is no consensus,
the Joint Park Management Committee will submit the recommendations of
each Party’s representatives.
-
After considering the recommendations of the Joint Park
Management Committee made under paragraph 107, the Minister, on a timely
basis, will approve or reject in whole or in part the recommendations,
other than those in respect of Nisga’a Lands, made by the Joint
Park Management Committee or its members, and will provide written reasons
for rejecting in whole or in part those recommendations. Any approval or
rejection of a recommendation will be consistent with this Agreement.
-
If special circumstances make it impracticable to receive
recommendations from the Joint Park Management Committee, the Minister:
-
may make the decision or take the action that
the Minister considers necessary, without receiving recommendations from
the Joint Park Management Committee;
-
will advise Nisga’a Lisims Government
and the Joint Park Management Committee as soon as practicable of that
decision or action; and
-
will provide Nisga’a Lisims Government
and the Joint Park Management Committee with written reasons for that decision
or action.
-
British Columbia has the responsibility to fund the
Park in accordance with appropriations for parks in British Columbia. British
Columbia will provide similar treatment over time to the Park as it generally
provides to comparable parks in British Columbia.
Gingietl Creek Ecological Reserve
-
Unless the Nisga’a Nation and British Columbia
otherwise agree, British Columbia will continue the Ecological Reserve
as an ecological reserve or another equivalent designation.
-
On the effective date, the boundaries of the Ecological
Reserve are as set out in Appendix G-2.
-
At the request of the Nisga’a Nation, the Nisga’a
Nation and British Columbia will jointly determine whether, and the terms
and conditions under which, a road across the Ecological Reserve can be
located, constructed, and controlled, in a manner that will have minimal
adverse impact on the unique ecological values for which the Ecological
Reserve was established.
-
If it is determined under paragraph 116 or 118 that
a road across the Ecological Reserve can be constructed, the Nisga’a
Nation may construct, operate, and maintain the road as if it were a Nisga’a
road that is not within Nisga’a Village Lands, and British Columbia
will issue to the Nisga’a Nation an exclusive and perpetual right
of way for those purposes, in accordance with the terms and conditions
determined under paragraph 116 or 118.
-
The Nisga’a Nation or British Columbia may refer
a dispute under paragraph 116 or 117 to be finally determined by arbitration
under the Dispute Resolution Chapter.
Other Parks
-
British Columbia will consult with the Nisga’a
Nation in respect of planning and management of other provincial parks
in the Nass Area.
-
On the effective date, British Columbia will establish,
and thereafter continue, Bear Glacier Park as a Class "A" provincial park,
or a provincial park with an equivalent classification, with the boundaries
set out in Appendix G-3.
-
At the request of any of the Parties, the Parties will
negotiate and attempt to reach agreement on the establishment of a marine
park in the Nass Area, but, for greater certainty, Canada is not obliged
to establish a national park, national park reserve, or a national marine
park, or to reach agreement on the establishment of a national park, national
park reserve, or a national marine park.
WATER VOLUMES
Nisga’a Water Reservation
-
On the effective date, British Columbia will establish
a Nisga’a water reservation, in favour of the Nisga’a Nation,
of 300,000 cubic decametres of water per year from:
-
the Nass River; and
-
other streams wholly or partially within Nisga’a
Lands
for domestic, industrial, and agricultural purposes.
-
The Nisga’a water reservation will have priority
over all water licences other than:
-
water licences issued before March 22, 1996;
and
-
water licences issued pursuant to an application
made before March 22, 1996.
-
The Nisga’a Nation, a Nisga’a Village,
a Nisga’a Corporation, or a Nisga’a citizen may, with the
consent of the Nisga’a Nation, apply to British Columbia for water
licences for volumes of flow to be applied against the Nisga’a water
reservation.
-
The total volume of flow under water licences to be
applied against the Nisga’a water reservation of each stream may
not exceed:
-
the percentage of the available flow, specified
in Schedule C, of each stream set out in that Schedule; or
-
50% of the available flow of any stream not
set out in Schedule C.
-
If the Nisga’a Nation, a Nisga’a
Village, a Nisga’a Corporation, or a Nisga’a citizen applies
to British Columbia for a water licence for a volume of flow to be applied
against the Nisga’a water reservation and:
-
the Nisga’a Nation has consented to the application;
-
the application conforms to provincial regulatory requirements;
-
the application is for a volume of flow that, together
with the total volume of flow licenced for that stream under this paragraph,
does not exceed the percentage of available flow for that stream referred
to in paragraph 125; and
-
there is a sufficient unlicensed volume of flow in the
Nisga’a water reservation
British Columbia will approve the application
and issue the water licence. The volume of flow approved in a water licence
issued under this paragraph will be deducted from the unlicensed volume
of flow in the Nisga’a water reservation.
-
If a water licence issued under paragraph 126
is cancelled, expires, or otherwise terminates, the volume of flow in that
licence will be added to the unlicensed volume of flow in the Nisga’a
water reservation.
-
A water licence issued under paragraph 126 will not
be subject to any rentals, fees, or other charges by British Columbia.
-
If the Nisga’a Nation, a Nisga’a Village,
a Nisga’a Corporation, or a Nisga’a citizen applies to British
Columbia for a water licence for a volume of flow from a stream wholly
or partially within Nisga’a Lands and:
-
all of the available flow for that stream
referred to in paragraph 125 is licensed under paragraph 126;
-
the Nisga’a Nation has consented to
the application;
-
the application conforms to provincial regulatory
requirements; and
-
the stream contains a sufficient volume of:
-
unrecorded water, and
-
flow to ensure conservation of fish and stream
habitats, and to continue navigability, as determined by the Minister in
accordance with the provisions of this Agreement to meet the volume of
flow requested in the application
British Columbia will approve the application and issue
the water licence. The volume of flow approved in a water licence issued
under this paragraph will not be deducted from the unlicensed volume of
flow in the Nisga’a water reservation.
-
British Columbia will consult with the Nisga’a
Nation about all applications for water licences in respect of streams
wholly or partially within Nisga’a Lands.
-
If a person other than the Nisga’a Nation, a
Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen has a water licence and reasonably requires access across, or an
interest in, Nisga’a Lands for the construction, maintenance, improvement,
or operation of works authorized under the licence, Nisga’a Government
may not unreasonably withhold consent to, and will take reasonable steps
to ensure, that access or the granting of that interest, if:
-
the licence holder offers fair compensation
to the owner of the estate or interest affected; and
-
the licence holder and the owner of the estate
or interest affected agree on the terms of the access or the interest,
including the location, size, duration, and nature of the interest.
-
If the Nisga’a Nation, a Nisga’a
Village, a Nisga’a Corporation, or a Nisga’a citizen has
a water licence approved under paragraph 126 or 129 and reasonably requires
access across, or an interest in, Crown land for the construction, maintenance,
improvement, or operation of works authorized under the licence, British
Columbia will grant the access or interest on reasonable terms.
-
British Columbia or the Nisga’a Nation may refer
a dispute arising under paragraph 131 or 132 to be finally determined by
arbitration under the Dispute Resolution Chapter.
-
If the Nisga’a Nation, a Nisga’a Village,
a Nisga’a Corporation, or a Nisga’a citizen has a water licence
approved under paragraph 126 or 129 and reasonably requires access across,
or an interest in, lands set out in Appendix
B-2 for the construction, maintenance, improvement, or operation of
works authorized under the licence, the Nisga’a Nation, Nisga’a
Village, Nisga’a Corporation, or Nisga’a citizen may acquire
the access or interest in accordance with provincial laws of general application.
-
The Nisga’a Nation may nominate a water bailiff
under the Water Act for:
-
that portion of the Nass River within Nisga’a
Lands; and
-
other streams wholly or partially within Nisga’a
Lands
and British Columbia will not unreasonably withhold
appointment of that nominee.
-
Notwithstanding paragraph 128, if British Columbia appoints
a water bailiff nominated by the Nisga’a Nation under paragraph
135, the water bailiff will be compensated in accordance with provincial
laws of general application.
-
This Agreement is not intended to grant the Nisga’a
Nation any property in water.
-
This Agreement does not preclude the Nisga’a
Nation, a Nisga’a Village, a Nisga’a Corporation, or a Nisga’a
citizen from selling water in accordance with federal and provincial laws.
-
The Nisga’a Nation, a Nisga’a Village,
a Nisga’a Corporation, or a Nisga’a citizen may apply in
accordance with provincial laws of general application for a water licence
in respect of a stream wholly outside Nisga’a Lands.
Nisga’a Hydro Power Reservation
-
In addition to the Nisga’a water reservation
established under paragraph 122, British Columbia will establish a water
reservation in favour of the Nisga’a Nation, for 20 years after
the effective date, of all of the unrecorded waters of all streams, other
than the Nass River, that are wholly or partially within Nisga’a
Lands (the "Nisga’a Hydro Power Reservation"), to enable the Nisga’a
Nation to investigate the suitability of those streams for hydro power
purposes, including related storage purposes.
-
If the Nisga’a Nation applies for a water reservation
for hydro power purposes on a stream subject to the Nisga’a Hydro
Power Reservation, British Columbia will, after considering the results
of any investigations referred to in paragraph 140, establish a water reservation
for hydro power purposes and any related storage purposes on the unrecorded
waters of that stream if it considers that stream to be suitable for hydro
power purposes.
-
If British Columbia establishes a water reservation
for a stream under paragraph 141, the Nisga’a Hydro Power Reservation
will terminate in respect of that stream.
-
If, after British Columbia establishes a water reservation
under paragraph 141, the Nisga’a Nation applies for a water licence
for hydro power purposes and any related storage purposes for a volume
of flow from the stream subject to that water reservation, British Columbia
will grant the water licence if the proposed hydro power project conforms
to federal and provincial regulatory requirements.
-
If British Columbia issues a water licence under paragraph
143 for a stream, the water reservation established under paragraph 141
will terminate in respect of that stream.
SCHEDULE A -- BOUNDARY RESOLUTION
-
Within a reasonable time after a Party provides
the other Parties with a written proposal to
clarify the location of a part of a boundary of Nisga’a Lands, the
Parties will negotiate and attempt to reach agreement on whether, how,
and at whose cost to undertake the proposed clarification of boundary location.
-
Unless the Parties otherwise agree, the cost as between
the Parties of any field survey undertaken to clarify the location of a
part of a boundary of Nisga’a Lands will be borne by:
-
the Party authorizing an activity causing
the need for clarification of the boundary location; or
-
the Party proposing clarification of the boundary
location, if no Party has authorized an activity causing the need for clarification
of the boundary location.
-
If the Parties do not agree on whether, how, or
at whose cost to undertake the proposed boundary clarification, any Party
may refer the matter to be finally determined by arbitration under the
Dispute Resolution Chapter.
-
If the Parties agree to undertake the field survey of
a part of a boundary of Nisga’a Lands, or if an arbitrator orders
the field survey of a part of a boundary of Nisga’a Lands, the Parties
will provide notice to the Surveyor General of British Columbia of the
agreement of the Parties or the order of the arbitrator.
-
Upon receiving notice under paragraph 4, the Surveyor
General will prepare and submit to the Parties for approval provisional
survey instructions, based on prevailing provincial survey standards, for
the part of the boundary of Nisga’a Lands.
-
After the Parties have approved the survey instructions
for the part of the boundary of Nisga’a Lands, the Surveyor General
will issue the approved survey instructions to the British Columbia Land
Surveyor designated by the Party responsible for the costs of the survey
or, where more than one Party is responsible, to the British Columbia Land
Surveyor designated by those Parties. The Party or Parties responsible
for the costs of the survey will be determined in accordance with paragraphs
2 and 3.
-
After the designated British Columbia Land Surveyor
has, in accordance with the approved survey instructions, completed the
field survey and submitted the required survey plans to the Surveyor General
and the Parties, Appendix A will be amended
to reflect the survey.
SCHEDULE B – LIST OF SITES
Sites On Nisga’a Lands That Are Not On
Former Nisga’a Indian Reserves
Site Name and Use
Forestry Activities
Lavender Logging Camp
Ksedin Logging Camp
SUP 16189
Ginlulak Log Sort and Dump
SUP 9764
Kwinatahl Camp
Sim Gan Logging Camp and
Dryland Sort
SUP 19897 and 22417
Tower Logging Camp
Monkley Log Dump
Upper and Lower Clark
Log Sort and Dump
|
General Location
Located in general vicinity of Taylor Creek
on Nass Kwinatahl FSR 7876-04
103P.046
Northern side of Nisga’a Highway at 10km
from Ginlulak 103P.013
On Ishkeenickh Road at 2.5km from Nisga’a
Highway turnoff 103P.003
Near Kwinatahl River on Ksadin to Alice
Arm Road 103P.035
In vicinity of bridge crossing of Ishkheenickh
River 103I.093
In vicinity of northwestern corner of
former IR12, Lacktesk 1031.092
In vicinity of eastern boundary of former
IR9 and Ishkheenickh Road RO7816 103P.003 |
Kinskuch Log Sort and Dump
Log Sort and Dump
Omar Island Log Sort
River Shack Fuelling Area
Water Gauge and Stoney Point General Work
Area
14k General Work Area
Dragon Lake Forestry Camp
Sort Yard
Landfills
New Aiyansh Landfill
Ksedin Landfill
Highway Activities
MOTH Gravel Pits |
In vicinity of former IR53, southern shore
of Nass River opposite mouth of Kinskuch River 103P.056
On eastern side of Nass River where
road comes down to river west of Cassiar DL3061
103P.025
Nass River in vicinity of former IR29A
103P.014
In vicinity of southwestern corner
of former IR29 Zaulzap, near Nisga’a Highway
103P.014
On northern side of Nisga’a Highway at
18km from Ginlulak 103P.014
In vicinity of Nisga’a Highway at 14km
from Ginlulak 103P.014
In area of campground
103P.036
On both sides of Nass - Kinskuch FSR near
junction with Nass - Kwinatahl Road 103P.046
At end of Dump Road
103P.025
Southern side of Nisga’a Highway, 12km
from Ginlulak 103P.014
Listed in Schedule A, Roads and Rights
of Way Chapter |
Sites On Nisga’a Fee Simple Lands That
Are Not On Former Nisga’a Indian Reserves
Site Name and Use General Location
Echo Cove Logging Camp |
Iceberg Bay
103I.091 |
SCHEDULE C -- WATER VOLUMES
Streams partially within Nisga’a
Lands for which a percentage of available water flow has been specified:
Stream Name |
Percentage of
Available Flow |
B.C.G.S. Map
References |
Scowban Creek
(unofficial name) |
50% |
103P.001 |
Ishkheenickh River |
26% |
103I.062, 103I.063,
103I.072, 103I.073, 103I.074, 103I.082, 103I.083, 103I.084, 103I.092, 103I.093
and 103I.094 |
Ksemamaith Creek |
29% |
103P.003, 103P.004,
103P.013 and 103P.014 |
Kshadin Creek |
10% |
103P.044, 103P.045,
103P.046, 103P.054 and 103P.055 |
Tseax River |
10% |
103I.094, 103I.095,
103I.096, 103P.004, 103P.005, 103P.006, 103P.014, 103P.015, 103P.016, 103P.017,
103P.025 and 103P.026 |
Kwinatahl River |
10% |
103P.033, 103P.034,
103P.035, 103P.043, 103P.044 and 103P.045 |
Tchitin River |
10% |
103P.044, 103P.045,
103P.046, 103P.054, 103P.055, 103P.056, 103P.064 and 103P.065 |
Ksedin Creek |
12% |
103I.084, 103I.085,
103I.093, 103I.094, 103I.095, 103P.003 and 103P.004 |
CHAPTERS:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
APPENDICES:
A
B
C
D
E
F
G
H
I
J
K
L
M
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