NISGA'A FINAL AGREEMENT | PREAMBLE |
PREAMBLE
WHEREAS the Nisga’a Nation has lived in the Nass Area since time immemorial;
WHEREAS the Nisga’a Nation is an aboriginal people of Canada;
WHEREAS section 35 of the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada, which the Courts have stated include aboriginal title;
WHEREAS the Nisga’a Nation has never entered into a treaty with Canada or British Columbia;
WHEREAS the Nisga’a Nation has sought a just and equitable settlement of the land question since the arrival of the British Crown, including the preparation of the Nisga’a Petition to His Majesty’s Privy Council, dated 21 May, 1913, and the conduct of the litigation that led to the decision of the Supreme Court of Canada in Calder v. the Attorney-General of British Columbia in 1973, and this Agreement is intended to be the just and equitable settlement of the land question;
WHEREAS Canadian courts have stated that the reconciliation between the prior presence of aboriginal peoples and the assertion of sovereignty by the Crown is best achieved through negotiation and agreement, rather than through litigation or conflict;
WHEREAS the Parties intend that this Agreement will result in this reconciliation and establish a new relationship among them;
WHEREAS this Agreement sets out Nisga’a section 35 rights inside and outside of the area that is identified in this Agreement as Nisga’a Lands;
WHEREAS the Parties acknowledge the ongoing importance to the Nisga’a Nation of the Simgigat and Sigidimhaanak (hereditary chiefs and matriarchs) continuing to tell their Adaawak (oral histories) relating to their Ango’oskw (family hunting, fishing, and gathering territories) in accordance with the Ayuuk (Nisga’a traditional laws and practices);
WHEREAS the Parties intend their relationship to be based on a new approach to mutual recognition and sharing, and to achieve this mutual recognition and sharing by agreeing on rights, rather than by the extinguishment of rights; and
WHEREAS the Parties intend that this Agreement
will provide certainty with respect to Nisga’a ownership and use
of lands and resources, and the relationship of federal, provincial and
Nisga’a laws, within the Nass Area;
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
CHAPTER 1
DEFINITIONS
In this Agreement:
"adopted child" means an individual who, while a minor, was adopted by Nisga’a custom or under laws recognized in Canada;
"annual management plan" means a plan approved in accordance with the Wildlife and Migratory Birds Chapter;
"aquatic plants" means all marine and freshwater plants, including kelp, marine flowering plants, benthic and detached algae, brown algae, red algae, green algae, and phytoplankton;
"associated records" means records documenting Nisga’a culture including any correspondence, memorandum, book, plan, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, video tape, machine readable record, and any other documentary materials, regardless of the physical form or characteristics, and any copy of those records;
"available flow" means the volume of flow
of water above that required:
"child" means a person under the age of majority in British Columbia;
"child and family service" means a service
that provides for:
"Crown roads" means the Nisga’a Highway and secondary provincial roads;
"descendant" includes a direct descendant notwithstanding any intervening adoption or any birth outside marriage;
"domestic purposes" means, in the Fisheries Chapter, and in the Wildlife and Migratory Birds Chapter, food, social, and ceremonial purposes;
"effective date" means the date upon which this Agreement takes effect;
"eligible voter" means an individual who:
"Enrolment Appeal Board" means the board established under paragraph 19 of the Eligibility and Enrolment Chapter;
"Enrolment Committee" means the committee established under paragraph 8 of the Eligibility and Enrolment Chapter;
"environmental assessment" means the evaluation of impacts on the environment, and includes screening, study, and review;
"escapement goal" means the number of a species of Nass salmon that the Minister determines is necessary for spawning;
"geothermal resource" means the natural heat of the earth and all substances that derive an added value from it, including steam, water, and water vapour heated by the natural heat of the earth, and all substances dissolved in the steam, water, or water vapour obtained from a well, but does not include:
"gravel materials" means gravel, rock, and random borrow materials used in highway construction;
"heritage sites" includes archaeological, burial, historical, and sacred sites;
"Hydro" means British Columbia Hydro and Power Authority and its successors and assigns;
"initial designated species" means a species designated under paragraph 15 of the Wildlife and Migratory Birds Chapter;
"initial enrolment period" means:
"intoxicants" includes liquor;
"Joint Fisheries Management Committee" means the committee established under paragraph 77 of the Fisheries Chapter;
"Joint Park Management Committee" means the committee referred to in paragraph 106 of the Lands Chapter;
"land claims agreement" means:
"laws of general application" includes federal and provincial laws that apply generally in British Columbia, but does not include federal laws in respect of Indians or lands reserved for the Indians;
"liquor" means:
"Lisims" means the Nass River;
"migratory birds" has the meaning set out in any federal legislation that is enacted further to international conventions and that is binding on British Columbia, and includes the eggs of migratory birds;
"mineral resources" includes minerals and geothermal resources;
"minerals" means ores of metal and all natural
substances that can be mined, and includes:
"minor" means an individual under the age of majority in that person’s place of residence;
"Nass Area" means:
"Nass steelhead" means summer-run Nass steelhead and winter-run Nass steelhead originating in the Nass Area;
"Nass Wildlife Area" means the area described in Appendix J;
"natural boundary" means the visible high water mark of any lake, river, stream, or other body of water where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark on the soil of the bed of the body of water a character distinct from that of its banks, in vegetation, as well as in the nature of the soil itself;
"neutral appointing authority" means the British Columbia International Commercial Arbitration Centre or, if the Centre is unavailable to make a required appointment, any other independent and impartial body or individual acceptable to the Parties;
"Nisga’a annual fishing plan" means a plan, or an in-season adjustment to a plan, approved in accordance with the Fisheries Chapter;
"Nisga’a child" means a minor who is or is eligible to become a Nisga’a citizen;
"Nisga’a citizen" means a citizen of the Nisga’a Nation as determined by Nisga’a law;
"Nisga’a Constitution" means the constitution of the Nisga’a Nation adopted in accordance with the Nisga’a Government Chapter;
"Nisga’a Corporation Intermediary" means a corporation that is incorporated under federal or provincial law, all of the shares of which are owned legally and beneficially by the Nisga’a Nation, a Nisga’a Village, a Nisga’a settlement trust, another Nisga’a Corporation Intermediary, or any combination of those entities;
"Nisga’a Court" means a court established under the Administration of Justice Chapter;
"Nisga’a fish allocation"
means a Nisga’a fish entitlement under this Agreement, or a right
to harvest fish under the Harvest Agreement referred to in the Fisheries
Chapter, for which there is:
"Nisga’a fisheries"
means:
"Nisga’a Highway"
means the following:
"Nisga’a Institution"
means:
"Nisga’a laws" includes the Nisga’a Constitution;
"Nisga’a Lisims Government" means the government of the Nisga’a Nation described in the Nisga’a Constitution;
"Nisga’a Nation" means the collectivity of those aboriginal people who share the language, culture, and laws of the Nisga’a Indians of the Nass Area, and their descendants;
"Nisga’a participant" means an individual who is enrolled;
"Nisga’a Police Service" means a police service established under the Administration of Justice Chapter;
"Nisga’a Private Lands" means Nisga’a Lands that are designated as Nisga’a Private Lands by Nisga’a Lisims Government;
"Nisga’a Public Institution" means a Nisga’a Government body, board, commission, or tribunal established under Nisga’a law, such as a school board, health board, or police board, but does not include the Nisga’a Court referred to in the Administration of Justice Chapter;
"Nisga’a public officer"
means:
"Nisga’a section 35 rights" means the rights, anywhere in Canada, of the Nisga’a Nation, that are recognized and affirmed by section 35 of the Constitution Act, 1982;
"Nisga’a tribe" means the Laxsgiik (Eagle), Laxgibuu (Wolf), the Gisk’aast (Killerwhale), or the Ganada (Raven) tribe of the Nisga’a Nation;
"Nisga’a Urban Locals" means the entities established for the purpose of participation in Nisga’a Lisims Government by Nisga’a citizens residing outside of the Nass Area;
"Nisga’a Village Lands" means Nisga’a Lands that are designated as Nisga’a Village Lands of a particular Nisga’a Village by Nisga’a Lisims Government;
"Nisga’a wildlife allocation" means a Nisga’a wildlife entitlement to a defined share of the total allowable harvest of a designated species;
"Nisga’a wildlife entitlement" means a right to harvest wildlife or migratory birds under this Agreement, but does not include a right to harvest wildlife or migratory birds under federal or provincial laws of general application;
"overage" means the amount calculated in accordance with Schedule B of the Fisheries Chapter in any year in which the Nisga’a harvest of a species exceeds the amount of that species that the Nisga’a Nation is entitled to harvest in Nisga’a fisheries in that year;
"overharvest" means the amount in any year by which, as a result of harvesting in Canadian fisheries, the escapement goal exceeds the actual escapement for a species of Nass salmon;
"participating Party" means a Party that:
"Party" means a party to this Agreement;
"private road" means a road on a private right of way area on Nisga’a Lands;
"project" means any undertaking or proposed undertaking in relation to a physical work or activity;
"provincial Torrens system" means the Land Title Act and all other laws of British Columbia in respect of the registration of title to, rights in, claims against, and estates and interests in, land, whether legal or equitable;
"Ratification Committee" means the committee established under the Ratification Chapter;
"Regional District of Kitimat-Stikine" means the Regional District of Kitimat-Stikine as it exists on the effective date, and any successor regional government;
"Registrar" means "Registrar" as defined in the Land Title Act;
"road" means the surface area of lands constructed and used for vehicular passage, and includes surfacing, bridges, drainage and support works, traffic control structures, and other works required to maintain the integrity of the travelled surface;
"secondary provincial road" means a road existing on the effective date located on a right of way area granted by the Nisga’a Nation or a Nisga’a Village to British Columbia as described in Appendix C-1, subject to changes permitted under this Agreement;
"settlement legislation" means the Acts of Parliament and the Acts of the Legislature of British Columbia that give effect to this Agreement;
"Simgigat and Sigidimhaanak" means individuals who are Nisga’a chiefs, and Nisga’a matriarchs, respectively, in accordance with Ayuukhl Nisga’a;
"stream" includes a natural watercourse or source of water supply, whether usually containing water or not, and a lake, river, spring, ravine, swamp, and gulch;
"submerged lands" means lands below the natural boundary;
"survey plan" means a plan based on a survey, made by a British Columbia Land Surveyor, that complies with the regulations in respect of surveys and plans made by the Surveyor General of British Columbia;
"total allowable harvest" means the maximum number of a designated species, as determined by the Minister, that may be harvested in the Nass Wildlife Area in each year, commencing on April 1 and ending on March 31;
"voting officer" means an individual who has been authorized by the Ratification Committee to issue ballots for the referendum at a place of voting;
"wildlife" means:
"Wildlife Committee" means the committee established under paragraph 45 of the Wildlife and Migratory Birds Chapter;
"wildlife fish" means:
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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