Nov 21/98: Gitksan-Nisga'a deal "is an act of aggression"


A Gitksan leader claims the Nisga'a Treaty is an illegal land grab of lands belonging to other aboriginal peoples and its ratification must be halted until the conflicting land claims are settled

The Vancouver Sun
November 21, 1998, p. A21
Op/Ed by Neil Sterritt

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.]

Neil Sterrit was the leader of Gitksan-Wet'suwet'en peoples from 1981-87 and led them in the precedent-setting Delgamuukw case that was eventually decided last December by the Supreme Court of Canada. He was a treaty negotiator for the Gitksan, co-author of the book, Tribal Boundaries in the Nass Watershed, and has studied the land claims issue since 1973. [S.I.S.I.S. note: Sterritt was also a member of The Chiefs' Governance Working Group - a federal consultative body to Canada's Department of Indian Affairs.]

The land area claimed by the Nisga'a in their treaty is a land grab at the expense of their tribal neighbours to increase the amount of land they would retain under the provincial government five-per-cent land selection policy. As Peter Williams, president of the Gitanyow, said following a 1984 meeting with the Nisga'a, "This is not an overlap the Nisga'a are talking about. It is an act of aggression." Although the Nisga'a have based their negotiations on a claim to the entire Nass watershed, between 1968 and now, the Nisga'a have not presented any credible evidence to support their claim north of the Kinskuch River area. In fact, the record shows that knowledgeable Nisga'a elders early in this century provided evidence about their territory, which today's Nisga'a leaders have chosen to ignore.

On Aug. 4, just before initialling of the Nisga'a treaty in Aiyansh, Premier Glen Clark said that 1,930 square kilometres of Crown land would be signed over as private property to be held jointly by the Nisga'a people - so-called fee-simple title. He said that represented five per cent of the Nisga'a traditional territory, which presumed that the Nisga'a territory was 38,000 square kilometres. A month later, the province began its ads that said the Nisga'a territory was 24,000 square kilometres, which means that the Nisga'a will have title to eight per cent.

The land settlement raises three important questions about the Nisga'a treaty. How much land did the Nisga'a hold aboriginal title to? Did the Nisga'a claim more territory than they could prove title to? Did the Nisga'a obtain treaty rights or other benefits over land belonging to their neighbours? Two issues have been fundamental to the modern land claims treaty process: The amount of land claimed; and, whether that claim is exclusive of other claims. In all modern treaties, the resolution of competing claims has been considered. Yet in their negotiations, the Nisga'a were neither required to prove the extent of their title nor to resolve overlaps.

This is a serious violation of aboriginal law and of federal policy. It also ignores specific guidelines set by the Supreme Court of Canada in its December 1997 decision on the Delgamuukw case that involved the Gitksan and Wet'suwet'en peoples. Evidence suggests that the Nisga'a claimed three times the territory they were entitled to, obtaining land, rights and benefits over aboriginal territory which rightfully belongs to their neighbours - the Gitanyow, Tahltan and my people, the Gitksan. The Gitanyow, Gitksan and Tahltan believe the legitimate claim of the Nisga'a is closer to 8,000 sq. km. than 24,000 sq. km. That's based on the undisputed claim by the Nisga'a to 4,303 sq. km. in the Nass watershed, and 3,486 sq. km. at Portland Canal and Observatory Inlet. At the expense of their neighbours, the Nisga'a wrongly inflated their claim.

During their Aug. 4, celebration, at which their final agreement was initialled, the Nisga'a were praised by both governments for standing by their 1996 agreement-in-principle following the landmark Delgamuukw case that extended the definition of aboriginal rights. Why did they not rely on Delgamuukw to advance their negotiations even further? Arguably because they acquired rights and benefits in their neighbours' lands that they would not have received if the provincial and federal governments had demanded "good faith" negotiations with their neighbours. In Delgamuukw, the Supreme Court said "aboriginal title encompasses an exclusive right to the use and occupation of the exclusion of both non-aboriginals and members of other aboriginal nations."

Where there are competing claims, the court also said that treaty negotiations "should also include other aboriginal nations which have a stake in the territory claimed." In Canada, the practice up until the Nisga'a negotiations has been to "sever" from negotiations those parts of an agreement subject to a competing claim. The Nisga'a claim includes all 21,150 sq. km. of the Nass River watershed, as well as an area of land surrounding Portland Canal and Observatory Inlet. But the Gitanyow, Gitksan and Tahltan also have valid claims in the Nass watershed. Gitanyow hereditary chiefs claim 5,294 sq. km. in the Nass watershed and say their border with the Nisga'a intersects the Nass River between the Tchitin and Kinskuch rivers, 25 kilometres above the Nisga'a village of Aiyansh. That is near the location of the Nisga'a boundary that the Nisga'a themselves asserted in the Calder case, a claim for aboriginal title filed in 1968 and decided by the Supreme Court of Canada in 1973. The Gitksan claim 9,053 sq. km. upriver from the Gitanyow and the Tahltan claim is for 2,287 sq. km. at the Nass headwaters.

How large then is Nisga'a "traditional territory"? In their struggle for recognition in the early part of this century, knowledgeable Nisga'a leaders made ownership statements about their territories that contradict the claim of today's Nisga'a leaders. Those earlier claims were corroborated at the time and until now by the Gitanyow and Gitksan. E.N. Mercer, the personal emmissary of Nisga'a Chief Sgat'iin, was a member of a 1916 delegation to Ottawa and a "chief of Aiyansh." Mercer provided evidence for the location of the Nisga'a boundary at the Tchitin River to ethnologist Marius Barbeau. Mercer also produced a map showing the juxtaposition of "Aiyansh" territory with Gitanyow (also called Kitwancool) territory.

"Our [Aiyansh hunting ground] extended from the Nass to Lava Lake. The [Kitwancool] village is near Kitwanga Lake. It is called [Kitwancool] Lake...Their hunting ground is from that lake down to the Nass River, also towards (K)itwanga." On this map, the Nisga'a-Kitwancool border runs below Cranberry River and Kinskuch River. Mercer also explained that the 'Kitwancool' people won Meziadin Lake in battle. In the Nisga'a treaty settlement, the Nisga'a would get title to 0.041 square kilometres (140 hectares) of land at Meziadin Lake. Peter Nisyok, a 70-year-old Nisga'a chief, went before the McKenna-McBride Royal Commission on Indian Affairs in 1915 and drew a map that left no doubt about the extent of Nisga'a territory - Gitxsits'uutsxwt and Gitangyahlxw, both located at the Tchitin River. Before the same commissioners, the Gitanyow agreed with the border drawn on Nisyok's map and other Nisga'a elders' testimony that the Nisga'a territory stopped slightly above the Tchitin River confluence with the Nass.

William Gogak, a leading member of the House of Gwinuu of the Kitwancool Frog Clan, told commissioners that the land from Kitanqaoqu (Nisyok's Gitangyahlxw) and Kitsizozquiot (Nisyok's Gitxsits'uutsxwt) "belong[s] to my family and and from the last two mentioned places there was no space whatever; not even the space of one inch right up to the lake [at Meziadin]." Not a single Nisga'a leader of the day disputed the evidence of Gitanyow chiefs who described and claimed their territory from the Tchitin River north to Meziadin Lake, west to the headwaters of the Kinskuch, and east to include territory in the watersheds of the Kiteen and Cranberry rivers.

In fact, there is strong evidence for a contiguous Nisga'a Gitanyow boundary about 25 kilometres above Aiyansh, extending northwest along the height of land between the Tchitin and Kiskuch rivers and eastward to the Kiteen River. Many times over the past 30 years, Gitanyow and Gitksan leaders have met with the Nisga'a to try to resolve a constantly expanding claim by the Nisga'a in the Nass watershed. Finally, in 1995, under a joint Gitksan-Nisga'a protocol, the Gitksan presented the Nisga'a leadership with an exhaustive study of all known evidence bearing on the overlap issue that concluded that the Nisga'a boundary is between the Tchitin and Kinskuch rivers.

For the past three years, the Nisga'a have not responded. The Gitksan and Gitanyow asked for a mediator to review the issue. But the Nisga'a only agreed after initialling their final agreement in August and in the face of court action. Had the provincial and federal governments severed the land with overlapping claims from the Nisga'a negotiations, this would not have been necessary. The failure of the provincial and federal governments to respond has had serious consequences for the Gitksan, Gitanyow and Tahltan people in the Nass watershed because if the treaty is approved, the Nisga'a would have:

- Ownership of Gitanyow territory between the Tchitin and Kinskuch rivers and five parcels of fee simple land in Gitanyow territory at Kinskuch Lake, Jade Lake, Meziadin Junction, Meziadin Lake and Grizzly Bear Lake.

- Fee-simple land in Gitksan territory at Kwinageese Lake.

- Fisheries management control over the whole of Gitanyow, Gitksan and Tahltan territory.

- Wildlife management area in the whole Gitanyow territory and in nearly 50 per cent of Gitksan territory.

- An extensive commercial recreation tenure in Gitanyow territory at Kinskuch, Jade and the Niska lakes.

- Three provincial heritage site designations: one in Gitanyow territory where the Grease Trail crosses the Cranberry River, another at Treaty Creek at the Gitksan-Tahltan boundary: the third, at Nass Lake in Tahltan territory. Not only do the sites violate aboriginal law, they constitute revisionist history. The Treaty Creek heritage site will commemorate an event to which the Nisga'a were not a party.

- Provision to officially record place names within Gitanyow and Gitksan territory. The Nisga'a would rename Cranberry River "Ksi W'iipdalks", which means water of cranberry and is a recent, literal translation of the Euro-Canadian name. Xsiyagasgiit ("water/down/along/laying" is the documented Gitanyow, Gitksan and Nisga'a name for the river.

The simple answers to the questions posed at the beginning are that the Nisga'a claimed more than three times their entitlement and will end up with 1,930 sq. km. The evidence is that the Nisga'a border with the Gitanyow is between the Tchitin and Kinskuch rivers. Their legitimate claim, therefore, is 7,800 sq. km. This is based on a territory of 4,300 sq. km. in the Nass watershed and 3,500 sq. km at Portland Canal and Observatory Inlet. The Nisga'a through negotiation have been granted by the federal and provincial governments fee-simple title to lands in Gitanyow and Gitksan territories as well as fisheries management over Gitanyow, Gitksan and Tahltan lands and the "treaty right" to hunt in Gitanyow and Gitksan lands.

In addition, they have obtained commercial recreation tenure and the right to establish three heritage sites in land that is not within their traditional territory. And the Nisga'a have obtained symbolic government recognition of their claim to the entire Nass watershed with the right to record recently invented placenames - none of which appear in the historic record of the Nisga'a themselves. There are crucial lessons to be learned from the Nisga'a treaty experience. First, aboriginal nations must use proper evidentiary and research methods to prove their boundaries when an overlap occurs. Secondly, territorial overlaps must be resolved before a treaty is concluded. Thirdly, it is not right to sacrifice the land entitlement of one nation to obtain a treaty with another nation. Finally, a binding third-party process is an absolute requirement when the aboriginal parties cannot resolve the overlap.

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