Nisga’a Jurisdiction under the Nisga’a Final Agreement: A Primer

One of the core elements of self-government is jurisdiction, or the substantive power to make decisions about certain things.[1] While Indian Band Councils can exercise jurisdiction by passing by-laws under the Indian Act,[2] many First Nations are concerned about the fact that this authority is merely delegated to them by Canadian law. An alternative to the Indian Act is the exercise of inherent jurisdiction, which stems from the fact that First Nations in North America have existed since time immemorial as self-governing political communities.[3] One way in which these powers can be recognized in Canadian law is through negotiated self-government agreements.

            The Nisga’a have persistently pursued their rights since at least 1887, when a delegation of elders travelled to Victoria only to have their request for a treaty rebuffed. A few years after bringing the Calder case to the Supreme Court of Canada in 1973, the Nisga’a entered into negotiations with Canada under the comprehensive claims process that Calder helped to start. British Columbia joined the negotiations in 1991 and a tripartite agreement was finalized in 1998.[4] The Nisga’a Final Agreement recognizes the Nisga’a Lisims Government and the Nisga’a Village Governments as the governments of the Nisga’a Nation and the Nisga’a Villages (which were formerly Indian bands) respectively. The table below summarizes the jurisdiction recognized in Chapters 11 and 12 of the Nisga’a Final Agreement.

            All Nisga’a jurisdiction is concurrent with the jurisdiction of the federal and provincial governments: that is, in any area where the Nisga’a Government can legislate, federal and provincial laws also apply. Where there is a conflict between a Nisga’a law on the one hand and a federal or provincial law on the other, the agreement says which of the two will apply. The law that applies is said to be paramount. 

Constitution

The Agreement provides for the creation of Nisga’a Constitution to set out the workings of Nisga’a Government and to assign responsibilities between Nisga’a Lisims Government and Nisga’a Village Governments. The Constitution is to recognize the role of elders in interpreting the Ayuuk, or Nisga’a customary law. (Art. 11.9–11)

Government

The Nisga’a Government may make laws about its own operation and administration, including elections and financial administration. Nisga’a law is paramount in the case of conflict. (Art. 11.34–38)

Citizenship

The Nisga’a Lisims Government can make laws about citizenship in the Nisga’a Nation, and Nisga’a law is paramount in the case of conflict. It cannot, however, impose a requirement on Canada or British Columbia to confer rights or benefits and it has no effect on Canadian citizenship and immigration. (Art. 11.39-40)

Culture and Language

The Nisga’a Lisims Government may make laws to preserve, promote, and develop Nisga’a culture and Nisga’a language. Nisga’a law is paramount in the case of conflict. However, the Nisga’a Government does not have jurisdiction to create laws about intellectual property or the official languages of Canada or to prohibit activities outside of Nisga’a lands. (Art. 11.41–43)

Property in Nisga’a Lands

The Nisga’a Government has jurisdiction over real property interests in Nisga’a lands. Nisga’a laws are paramount in the case of conflict. When Nisga’a law creates estates that are recognized by federal and provincial laws, Nisga’a law in respect of those estates will be consistent with laws of general application other than land registry systems. (Art. 11.41-46)

Regulation, Administration and Expropriation

The Nisga’a Government has jurisdiction over zoning and the regulation of trades and professions, other than accreditation, certification and professional standards. Such Nisga’a laws are paramount in the case of conflict. The Nisga’a Government also has the power to expropriate lands for its own public purposes. (Art. 11.47–52)

Nisga’a Assets

The Nisga’a Government can make laws regarding the management of its own non-land assets on and off Nisga’a lands. Nisga’a law is paramount in respect of assets on Nisga’a Lands, while federal and provincial laws are paramount in respect of assets off Nisga’a Lands. (Art. 11.53–58)

Public Order, Peace, and Safety

The Nisga’a Government can make laws to prohibit actions on Nisga’a Lands that that may constitute a nuisance or trespass or a danger to public health, order, peace or safety. The jurisdiction of the Nisga’a Government does not extend to criminal law, and federal and provincial laws are paramount in the case of conflict. (Art. 11.59–62)

Duty to Accommodate

Nisga’a Lisims Government can make laws prescribing the aspects of Nisga’a culture which must be accommodated by employers under federal and provincial human rights law. (Art. 11.63)

Industrial Relations

While jurisdiction over labour law remains with the federal and provincial governments, Nisga’a Lisims Government has the right to make representations in labour law matters involving people employed on Nisga’a lands. (Art. 11.64–67)

Buildings, Structures and Public Works

Nisga’a Government may make laws concerning buildings and public works on Nisga’a lands, subject to a separate chapter on Roads and Rights of Way. Federal and provincial laws are paramount in the case of conflict. (Art. 11.69–71)

Traffic and Transportation

The Nisga’a Government has the same jurisdiction over traffic and transportation on Nisga’a roads as municipal governments in British Columbia have over municipal roads. Federal and provincial laws are paramount in the case of conflict. (Art. 11.75–77)

Solemnization of Marriages

Nisga’a Lisims Government can appoint people to solemnize marriages and can make laws about the conditions under which they may do so. Those appointed to solemnize marriages will have all the rights, duties, and responsibilities of a marriage commissioner under the provincial Marriage Act. Federal and provincial laws are paramount in the case of conflict. (Art. 11.75–77)

Social Services

Nisga’a Lisims Government can make laws about its own provision of social services to its own citizens, but cannot provide for the licensing of facilities outside Nisga’a lands. (Art. 11.78–81)

Health Services

Nisga’a Lisims Government can make laws about health services on Nisga’a lands. Federal and provincial laws are paramount in the case of conflict, except that Nisga’a law is paramount where it concerns the organization and structure for the delivery of health services. (Art. 11.82–85)

Aboriginal Healers

Nisga’a Lisims Government can make laws about the licensing of Aboriginal healers for practice on Nisga’a lands, which must include competence, ethics, and quality of practice requirements. Nisga’a law is paramount in the case of conflict. (Art. 11.86–88)

Child and Family Services

Nisga’a Lisims Government can make laws about child and family services on Nisga’a Lands, provided that they provide standards comparable to provincial laws. Nisga’a law is paramount in the case of conflict. However, British Columbia may act in an emergency in which a child is at risk and then refer the matter back to Nisga’a Lisims Government after the emergency. Laws of general application about the reporting of child abuse apply on Nisga’a Lands. (Art. 11.89–93)

Child Custody

Nisga’a Government has standing in court cases concerning the custody of a Nisga’a child, and courts are to consider the Nisga’a Government’s evidence about Nisga’a laws and customs. (Art. 11.94–95)

Adoption

Nisga’a Lisims Government can make laws about the adoption of Nisga’a children. Nisga’a law is paramount in the case of conflict, as long as its laws provide that the best interest of the child is the primary consideration. Nisga’a Lisims Government must also provide British Columbia and Canada with records of all adoptions occurring under Nisga’a laws. Nisga’a law will apply to the adoption of Nisga’a children residing off Nisga’a lands if the parents or guardians of the child consent to its application or a court dispenses with the requirement of consent. Where the state becomes the guardian of a Nisga’a child, it will provide notice to Nisga’a Lisims Government and will consent to the application of Nisga’a law unless there is good reason to believe it is not in the best interest of the child to do so. (Art. 11.96–99)

Pre-School to Grade 12 Education

Nisga’a Lisims Government can make laws about pre-school to grade 12 education, as long as those laws provide for standards that permit the transfer of students to other school systems and permit admission to provincial post-secondary education. They must also provide for the certification of teachers. Certification may be awarded by a Nisga’a Institution in accordance with standards to comparable to those for teachers in public or independent schools in British Columbia, or by a provincial body. For the teaching of Nisga’a language and culture, certification must by a Nisga’a Institution in accordance with Nisga’a law. Nisga’a law is paramount in the case of conflict. (Art. 11.100–102)

Post-Secondary Education

Nisga’a Lisims Government can make laws regarding post-secondary education on Nisga’a Lands, and can establish its own degree-, diploma-, or certificate-granting post-secondary institutions on Nisga’a lands. Nisga’a law must include standards for post-secondary that are comparable to provincial standards. Nisga’a law is paramount in the case of conflict. Nisga’a Lisims Government can also provide post-secondary education outside Nisga’a Lands according to federal and provincial laws. (Art. 11.103–107)

Gambling and Gaming

The Nisga’a Government does not have jurisdiction over gaming and gambling, but British Columbia will only licence gaming or gambling facilities on Nisga’a Lands if they comply with conditions established by the Nisga’a Government. (Art. 11.108–109)

Intoxicants

The Nisga’a Government has the authority to regulate or prohibit the sale and consumption of intoxicants on Nisga’a Lands and has a monopoly on liquor sales. If the Nisga’a Government moves to prohibit alcohol, a referendum is not required. (Art. 11.110–114)

Devolution of Cultural Property

Nisga’a Lisims Government can make laws regarding the passing of property with cultural significance to the Nisga’a Nation, such as ceremonial regalia, where Nisga’a citizens die without a will. It also has standing in judicial proceedings regarding the validity of the will of a Nisga’a citizen or the passing of cultural property by will. Nisga’a law is paramount in the case of conflict. (Art. 11.115–120)

Other Areas of Legislative Jurisdiction

The Nisga’a Government has jurisdiction to make laws in respect of other matters dealt with by the treaty, such as hunting and fishing rights. (Art. 11.121)

Emergency Preparedness

On Nisga’a Lands, Nisga’a Lisims Government has the powers and duties of a local authority when it comes to emergency preparedness. This includes the power to declare a local state of emergency, but does not affect the power of Canada to declare a national emergency or the power of British Columbia to declare a provincial emergency. Federal and provincial laws are paramount in the case of conflict. (Art. 11.122–125)

Policing

Nisga’a Lisims Government has the authority to establish a Nisga’a Police Board and Nisga’a Police Service. These services must comply with standards that are comparable to those applicable in British Columbia and they are subject to supervision and potential replacement by the provincial government. (Art. 12.1–22)

Community Corrections

The Nisga’a Government may appoint officers to provide community correction services for people charged with or convicted of offences under Nisga’a law. The Nisga’a Nation may enter into agreements with Canada and British Columbia to enable those officers to provide community corrections services under federal or provincial law. The treaty does not authorize the Nisga’a Government to establish jails or prisons other than lockups operated by the Nisga’a Police Service. (Art. 12.23–29)

Courts

Nisga’a Lisims Government may create a Nisga’a Court, as long as its structure and procedures are approved by the provincial government. Nisga’a Lisims Government has the power to appoint judges of the Court. The Court is to exercise the functions imposed by Nisga’a law, including the review of Nisga’a administrative decisions, prosecutions under Nisga’a law, and disputes between Nisga’a citizens on Nisga’a Lands that would otherwise be in the jurisdiction of the Provincial Court of British Columbia. Parties can appeal to the Supreme Court of British Columbia, and, where a person is facing jail time as a consequence of a prosecution under Nisga’a law, that person can elect to be tried in the Provincial Court of British Columbia instead of Nisga’a Court.

[1] Stephen Cornell, Catherine Curtis & Miriam Jorgensen, “The Concept of Governance and its Implications for First Nations”, Joint Occasional Papers on Native Affairs (Tucson and Cambridge, 2004: Udall Center for Studies in Public Policy and Harvard Project on American Indian Economic Development) at 14.

[2] RSC 1985, c 1-15, particularly ss 81, 83 and 85.1. For an argument for an expansive reading of these by-law powers which could allow Aboriginal governments to exercise substantive power in the here and now, see Naiomi Metallic, “Indian Act By-Laws: A Viable Means for First nations to (Re)Assert Control over Local Matters Now and Not Later” (2016) 67 UNBLJ 211.

[3] Kent McNeil, “The Jurisdiction of Inherent Right Aboriginal Governments” (2007) Research Paper for the National Centre for First Nations Governance, at 3, online: < http://fngovernance.org/ncfng_research/kent_mcneil.pdf>.

[4] The history leading to the conclusion of the Nisga’a Final Agreement is summarized in Campbell et al v BC (AG) & Canada (AG) & Nisga’a Nation et al, 2000 BCSC 1123 at paras 21–31.