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Nisga'a Nation Passes Legislation to Establish Private Property Rights

The Nisga'a Nation has passed a historic law allowing Nisga'a citizens to own their own property. It is the first time in Canada that an aboriginal group has approved legislation to allow for private property rights.

This was possible because under the 2000 Nisga'a Final Agreement, the Nisga'a gained certain self-government rights and freedom from Indian Act regulation. The Indian Act prevents Indian Band members from having fee simple title to their homes located on reserve land and from mortgaging or granting security over their residential property. All reserve land property is owned by the Federal Government.

The Nisga'a Landholding Transition Act gives Nisga'a citizens the opportunity to own their residential property. A Nisga'a citizen who obtains fee simple title to their residential home under the Act will be able to mortgage their property as security for a loan, or to transfer, bequeath, lease or sell their property, to any person. However, the property will always remain Nisga'a lands and be subject to Nisga'a laws.

"This is a significant step toward true self government. It is a process for increasing economic prosperity for our people," said Nelson Leeson, president of the Nisga'a Nation, in a statement, on the Nisga'a Lisims government website.

The Nisga'a Nation is home to about 6,400 Nisga'a citizens.

BC Hydro Releases Q&A on First Nations Consulation with Respect to Power Calls

On November 18, 2009 BC Hydro released Questions and Answers (Q&A) on its website regarding BC Hydro's role with respect to First Nations consultation. The Q&A stems from uncertainty in the nature and scope of consultation required as a result of BC Court of Appeal decisions in Carrier Sekani Tribal Council v. British Columbia Utilities Commission, (2009 BCCA 67) and Kwikwetlem First Nation v. British Columbia Utilities Commission (2009 BCCA 68).

The Q&A is directed to Independent Power Producers (IPPs) to "help in understanding BC Hydro's role regarding First Nations consultation for current and future power acquisition activities."

In the Q&A, BC Hydro describes a shift in assessing IPPs consultations with First Nations, from a risk assessment standpoint in evaluating IPPs proposals (ie. will consultations affect securing of land tenure), to adequacy of consultations prior to submissions of Electricity Purchase Agreements (EPA) to the BCUC under section 71 of the Utilities Commission Act.

One question begging to be answered from this is: how will this affect IPPs in the Clean Power Call, the Bioenergy Call, or future power calls? For the current Clean Power Call, BC Hydro's response is that "further information or action may be required from or by those proponents to enable BC Hydro to complete that assessment."

For the Bioenergy Call Phase II, since the call is in its early stages, BC Hydro intends to incorporate new requirements with respect to First Nations consultation into call documents and timelines, and will update the website accordingly.

For the Standing Offer Program (ongoing acquisition process for projects up to 10 megawatts), this program requires proponents to apply with permits already in place, but BC Hydro notes that it will still assess the adequacy of consultation before offering an EPA to an applicant.

For future power calls, it appears as though BC Hydro will build in this new assessment approach into each call. When assessing the adequacy of consultation, BC Hydro will "seek to identify what, if any, other agencies have already assessed the adequacy of consultation", and this evidence may satisfy their requirements, or they may require "additional evidence to support an IPP proposal".

The factors BC Hydro will consider when assessing First Nations consultation may include:

• Information on how the IPP determined which First Nations to consult.
• Information on the potential degree of impact from a project on aboriginal rights and title, and information on how this assessment was reached.
• Information on the level of consultation and potential avoidance, mitigation or accommodation required for each impact and how this was, or will, be undertaken by the IPP as evidenced by consultation reports, logs, impact benefit agreements, letters of support, correspondence and any other material submitted demonstrating consultation.

What is clear from this Q&A is that the BC Hydro has recognized that the ground rules with respect to First Nations consultation have changed as a result of the Carrier Sekani and Kwikwetlem cases and they are attempting to respond to this in a way that addresses this issue with respect to current power calls and future power calls, to provide some level of clarity for IPP proponents, First Nations and other interested stakeholders.

BC Supreme Court recognizes Aboriginal Right for Nuu-chah-nulth Nations Bands to Fish and Sell Fish Commercially

Today, in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494, Madam Justice Garson of the BC Supreme Court has ruled that the plaintiffs in the action (the Ehattesaht, the Mowachaht/Muchalaht, the Hesquiaht, the Ahousaht, and the Tla-o-qui-aht - five Nuu-chah-nulth Nations aboriginal bands whose territories are located on the west coast of Vancouver Island) have the aboriginal right to fish any species of fish within their respective traditional territories (to a seaward boundary extending nine miles) and to sell fish commercially. Justice Garson found that these rights stem from ancestral practices, which translate into broader modern entitlements to fish and to sell fish, beyond the small-scale sale of fish in commercial markets, however, limited.

The plaintiffs had asserted an aboriginal right to commercially fish all species of fish in their traditional territory and aboriginal title to a portion of the seabed. They claimed that the fisheries regulatory regime unjustifiably infringed their aboriginal rights and title because it failed to recognize and accommodate their aboriginal rights and title. Justice Garson did not consider the aboriginal title claim.

Justice Garson declined to quantify limits on the scope of the right to sale, instead commenting that while it does encompass a right to sell fish in the commercial marketplace, it "does not extend to a modern industrial fishery or to unrestricted righs of commercial scale" and that "like other rights, such a right may be subject to infringement or restriction by government where such infringement is justified." Such limits, she found, are more appropriately addressed at the infringement and justification stages of the analysis as part of the reconciliation process (citing Newbury J.A. comments in Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539, 80 B.C.L.R. (3d) 212 on the rule against courts exercising jurisdiction on such matters as follows "As Cory, J. stated in R. v. Nikal [1996] 1 S.C.R. 1013 ...[t]he government must ultimately be able to determine and direct the way in which these rights should interact. Absolute freedom in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended."

Justice Garson went on to find that the plaintiffs established that the Fisheries Act, its regulations and policies, prima facie infringes their aboriginal rights, with the exception of their rights to harvest clams and to fish for food, social or ceremonial purposes. However, unlike other fishing rights cases, she found that "there is no single or isolated regulatory provision in issue in these proceedings. Rather, it is the "cumulative effect of Canada's fishing regime that I have found restricts Nuu-chah-nulth with respect to their ability to fish and their methods of fishing, including location, time, gear and species."

She declined however to rule on Canada's justification defence and chose not to make any declaration of unjustified infringement. Instead, she granted the parties two years to consult and negotiate a regulatory regime for Nuu-chah-nulth that recognizes their aboriginal rights - or some other manner in which the plaintiffs' aboriginal rights to fish and to sell fish can be accommodated and exercised - without jeopardizing Canada's legislative objectives and societal interests in regulating the fishery. If these consultations and negotiations are not successful, Justice Garson ruled that Canada has leave to apply at a subsequent trial to tender further evidence on justification and the plaintiffs would also have leave to tender further evidence in this regard.

Overall, the case is being treated as a victory for the plaintiffs, in that they have established their aboriginal right to fish for and sell any species of fish found within their traditional territory and Canada must accommodate this right in its regulation of the fisheries.

Following the decision, members of the plaintiff Nuu-chah-nulth Nations bands gathered on the courthouse steps for a press conference, attended by many media personnel, onlookers, lawyers and general public to celebrate the recognition of their aboriginal right to fish and sell fish commercially.