In the Nass, New Power Line Jolts First Nations Relations

As the Nisga'a remember it, the great cataclysm that forever transformed the Nass Valley was a case of divine retribution. It was the late 1700s, at a time when the largest Nisga'a village of Lax ksi Luux had become populated by a growing faction of axgoot or "irresponsible" people. For fun, kids inserted burning tree bark into the backs of migrating salmon at night, laughing as the ghostly lights receded downstream.

"When the chiefs heard what had been going on," reads one recounting, "they expected something to happen. They expected the Great Spirit to use either fire or water to kill them all."

In 1775 the Teax volcano erupted, burying Lax ksi Luux under metres of lava. Two thousand Nisga'a perished and the course of the Nass River permanently shifted. The crust of barren, lichen-carpeted lava rock left behind is a moral etched into the landscape, reminding the Nisga'a of who they are and how they came to be.

So it came as no surprise, when the Nisga'a concluded B.C.'s first modern-day land claims agreement in May 2000, that the lava beds received formal protection. Covering 179 square kilometres, the Nisga'a Memorial Lava Bed Park is today one of the most unusual and beautiful parks in the world, and the first provincial park to be managed jointly by an aboriginal people and B.C.*

The park was just one of many firsts established by the May 2000 Nisga'a Final Agreement. The treaty, sought by a string of visionary Nisga'a leaders for 113 years, became a blueprint for later negotiations with other First Nations.

Whether that has been a good thing or not remains very much a matter of debate however. The question has been cast in new relief by the start of work on a $560 million extension of BC Hydro's power grid into the previously un-served northwest. The project will, among other things, see a power line built through the previously protected Lava Bed Park, and escalate a century-old territorial fight with one of the Nisga'a's neighbours.

Great achievements, but not there yet

For more than a century, the Nisga'a fought to separate themselves from the federal Indian Act, which established native reserves and a political relationship that made native people, in the eyes of many, wards of the state. They aspired instead to own outright and freely govern their land.

With the treaty, that came to pass. Tomorrow, Nov. 7, Nisga'a citizens will vote to elect leaders with the power to enact and enforce laws of their own making over lands they clearly own. Starting in January, Nisga'a citizens will also begin to pay income taxes like other Canadians, to support the fledgling institutions the treaty created.

The Nisga'a treaty was the first in Canada to confer a constitutionally protected right of self-government. Along the way, it has created a new certainty over land title.

The Nisga'a now also co-manage Nass River salmon -- one of the healthiest runs left on earth -- with the federal government. The treaty protects their share of fish that return to the Nass and its tributaries.

And the Nisga'a nation, rather than B.C., issues permits for land, forest and resource development across about 2,000 sq. km that the Nisga'a now own outright. Also, companies hoping to develop mines and other resource projects in the Nass watershed must now meet many requirements additional to the federal environmental assessment detailing how a project will affect all facets of Nisga'a economic, social and cultural life.*

So influential are these and other provisions of the 2000 agreement (see sidebar) that over the last dozen years delegations from U.S. tribes, Australia, New Zealand, Norway and points across Canada have visited the Nass to confer with Nisga'a leaders on how to replicate their accomplishment elsewhere.

At the same time, it is apparent that the Nisga'a Treaty remains a work in progress.

"It's taken 12 years to lay our legislative foundation," says Mitchell Stevens, who is standing for re-election as president of the Nisga'a Lisims (Nass) Government (NLG) on Nov. 7. "We're not there yet, but we're getting there."

Others are following. On July 10, this year, members of the Sliammon First Nation voted to accept a treaty agreement. It followed recent deals with the Tsawwassen and Maa-nulth nations, reigniting hopes that after 20 years, the BC treaty process might start to deliver results.

Conflict on the fringes

For the Nisga'a, finalizing the treaty came at a great price: they were on the hook for more than $50 million in loans taken out to complete the deal. (The loan with the federal government has since been repaid in full, several years early.)* "And moving forward, loan payments will not be the only unpleasant, lingering aftertaste.

The Nisga'a treaty defined an area that would effectively become the First Nation's private property, while also recognizing important hunting and fishing rights over much of the Nass River watershed, including the 16,000 square km Nass Wildlife Area, and a "Nass Area" comprising about 27,000 square km.*

Today nothing rankles some Nisga'a neighbours more than this. The Nass Wildlife/Nass Area* includes more than 80 per cent of the land that the Gitanyow -- an independent faction of the Gitxsan group directly to the east -- claim as traditional territory.

The treaty settlement has intensified a century-old boundary fight. According to Gitanyow Hereditary Chief Glen Williams, the Nisga'a have invoked the treaty to start harvesting salmon and hunting moose at prime sites on Gitanyow land that were rarely used before, a claim the Nisga'a dispute.* Multiple legal efforts, Williams adds, have not solved the problem.

"[I]n the process of pursuing their land claim, the Nisga'a, first at the negotiation table, have used this privileged position to claim territories in excess of twice their legitimate territory," reads a 1998 book produced by the Gitxsan to document the extent of their traditional territories.

Williams believes the conflict could have been resolved sooner if the federal and provincial governments had not been "so desperate" to sign a deal.

It's difficult for southerners to understand how grave the implications of the clash are for people in the Nass, who still subsist largely on salmon and moose and rely on forests for mushrooms, medicinal plants and wood for heating. Before European settlement, such a resource conflict likely would have been settled in one of two ways: either by establishing family ties through clan adoption and intermarriage, or war.

Such "overlapping claims" were recognized earlier this year in testimony to the federal Standing Committee on Aboriginal Peoples as a key challenge to securing further treaties in B.C. The committee later noted that "better processes" were required, and urged provincial and federal governments to help settle boundaries.

But for the time being, the onus remains with First Nations to solve such issues. "B.C.'s hope is that, as a general principle of the B.C. Treaty Commission process, First Nations are able to resolve overlap issues among themselves," said a spokesman for B.C.'s Ministry of Aboriginal Relations and Reconciliation.

A power line runs through it

The start of construction this summer on the 344 km Northwest Transmission Line from Terrace to Bob Quinn -- due for completion by 2015 -- brought the tension between the Nisga'a and Gitanyow to new heights.

Earlier this year, BC Hydro awarded a contract to the Nisga'a to clear the power line right of way through the Nass Valley, including about 60 km that cross land the Gitanyow claim as theirs.

Joel Starlund, a Gitanyow member who works for the First Nation's hereditary chiefs' office in Kitwancool, insisted on showing me what the disagreement looks like on the ground.

In mid-August we drove about 20 km down the Nass Forest Service Road, also called the Cranberry Road: an ungraded, seasonal, wilderness track that connects the four Nisga'a villages to the Stewart Cassiar Highway. It crosses part of the Nass Wildlife/Nass Area* claimed by the Gitanyow, including the most important moose calving and hunting areas in the entire watershed.

Starlund is 29, well spoken and friendly, but his face flushes deep red when we pass a freshly cleared spur connecting the Cranberry Road to the new power line right of way. Recently cleared by Nisga'a sub-contractors, a large block of second-growth forest has been cut and left to rot, with the exception of a neatly piled stack of about 30 trimmed spruce logs at the side of the road.

Starlund says the spur road wasn't necessary to clear the power line, and instead constitutes a "lumber grab" by a Terrace-based Nisga'a sub-contractor. Not only are the Nisga'a being paid to clear the right-of-way on Gitanyow territory, he says, but they are allowing sub-contractors to sell their trees to the highest bidder.

I mention to Starlund that it's lucky that nobody is working here, leaving us free to explore the site. Starlund is silent for a moment. "This is the first flash point in a war," he says, his eyes suddenly hard. "I wish somebody was here."

Such conflicts will only escalate as the NTL brings more development proposals to the disputed area. Among them is a private energy company's $500 million run-of-river hydro project that, the Gitanyow say, could one day provide millions of dollars each year to their coffers.

Influence of the treaty

Relations with the Nisga'a are warmer to the south, where the Kitsumkalum First Nation announced a draft treaty agreement in principle in September.

The Kitsumkalum, whose traditional territory reaches east to Terrace and extends along the Zymacord River (a tributary of the Skeena) north past Kitsumkalum Lake (see map), finalized a boundary with the Nisga'a in 1998.

Gerald Wesley, the chief negotiator for the Tsimshian Tribal Council (which includes the Kitsumkalum), says the current six-stage structure of the B.C. treaty process owes its existence to the Nisga'a Treaty. "From a structural and process perspective, we have indeed followed much of what the Nisga'a have set out more than 12 years ago," he says. "And much of what they have done is comparable to the issues and format that we've got on the table now."

Like the Nisga'a Treaty, the Kitsumkalum agreement includes the creation of "treaty settlement lands," which will be owned outright by the Kitsumkalum, with limited hunting and fishing rights across a much wider traditional territory akin to the Nigsa'a Nass Wilderness Area. (A boundary disagreement with one of their other neighbours remains unresolved.)

The Kitsumkalum will vote on the agreement in principle early in the New Year. If it's approved, a final agreement could be in view within two years. Like other treaties being negotiated now, it will likely echo the Nisga'a agreement in avoiding the use of terms like "extinguish," "cede," or "surrender" in describing the First Nation's relationship to any traditional territory. It was a change from historical treaty language, one that the Nisga'a demanded as a prerequisite to signing the treaty.

"For the Nisga'a, those words may as well have been coming from the Antichrist," says a former federal government bureaucrat who worked on the Nisga'a treaty (and who asked not to be named). "With the deep aboriginal attachment to land, you ask them to 'surrender' it? Never."

Tom Molloy, who also worked closely on the Nisga'a treaty as the federal government's chief negotiator (he's a lawyer with Miller Thomson's Saskatoon office) says that Ottawa no longer requires such terminology thanks to the "modified approach" devised during the Nisga'a treaty. In it the Nisga'a agreed that their aboriginal rights and title were modified -- but not extinguished.*

"[Aboriginal] rights continue to exist where-ever and whatever they are," he says. "But they have been modified by whatever provisions the treaty contains, and there's an agreement that the only rights that will be exercised are the ones in the treaty." Alternative to treaties?

But not everyone buys the distinction. "I don't really find anything useful from the Nisga'a Treaty," says the Gitanyow's Williams, who says the Gitanyow's own treaty negotiations have been stalled for seven years. "It's basically a model of extinguishment [of land title] by B.C. and Canada."

As Williams tells it, the Nisga'a model is simply a bad deal: Canada and B.C. give you back land that you already own, pay you off with a capital transfer over time, and convert a fraction of your territory into fee simple ownership. "Eventually you have to pay taxes, and you have to pay for your own treaty."

In the short term, the Gitanyow are taking a different path to the "certainty" of land title so badly needed for economic development. In September, they signed what's known as a "reconciliation agreement" with the province. It established a "Joint Resources Governance Forum," that is supposed to streamline Crown-First Nation consultation and decision-making for development across 6,285 sq. km. Funding of $600,000 will also help the Gitanyow explore alternative energy and carbon-offset projects.

Since 2005, at least five such agreements have been struck with BC First Nations, including the Haida and Coastal First Nations. Might others also forgo treaties for such short-term agreements?

"Reconciliation agreements are steps toward a treaty," says former federal negotiator Molloy. "It helps move forward and it certainly doesn't preclude a treaty. It's just another tool to allow governments and First Nations to get certainty."

Williams says the Gitanyow agree: despite stalled negotiations, the nation still aspires to a treaty. "For our security and certainty in the future, we would like to get some type of agreement with B.C. and Canada that is entrenched in their law."

The trouble with taxes

On Jan. 1, the Nisga'a will begin paying income taxes, fulfilling treaty terms that phased-in tax obligations: delaying them eight years for transaction taxes and 12 years for income taxes.

The same approach has become a federal demand for all new treaties. "Canada is now absolutely entrenched in eliminating the tax status benefits that are currently in place," says Kitsumkalum negotiator Gerald Wesley. "That is one of the big personal obstacles that our membership is very conscious of."

It's not all bad, Wesley says. When the day comes that he gives up his tax exempt status, much of what he pays will go to the Kitsumkalum government rather than to B.C. or Canada. "That will be significant for us, being able to contribute to being self governing and providing services for our members."

But 12 years after signing their final agreement, the Nisga'a are struggling to make its tax terms work. Nisga'a president Stevens says it's the one issue they would change if they could do the treaty over.

"Taxation matters (including property tax) are still currently in negotiation," reads a July 2012 newsletter to the Nisga'a public from the Nisga'a Lisims Government. "There are still issues which are stalled due to federal or provincial representatives not having proper mandates to deal with issues at hand."

The slowed negotiations reflect a much more serious problem, says Stevens.*

"To date the federal government has not adopted a federal implementation policy for the Nisga'a treaty that would mandate all government departments to be aware of and comply with the requirements of the Nisga'a treaty, and all modern treaties for that matter," says Stevens.

A spokesperson for Aboriginal Affairs said that the Nisga'a treaty created an Implementation Committee to provide an intergovernmental venue for resolving such issues, but only for the first 10 years. All three parties to the treaty, the spokesperson said, are now "in the process" of re-establishing this committee. A representative of Revenue Canada said the federal government could not comment on the status of tax negotiations with any First Nations.

But the issue worries other First Nations now in the treaty process. "This [Nisga'a] treaty was supposed to have changed their whole relationship on a government-to-government basis," says the Kitsumkalum's Wesley, who says many B.C. First Nations are watching this issue closely. "But they're still dealing with Indian Affairs."

Meeting the Growing Nose Being

While the Nisga'a government pursues tax negotiations, the treaty's most important product for many of its citizens 12 years later, are the roads they travel every day throughout the upper Nass Valley.

It takes an entire day to drive the return trip from the Nisga'a capital of New Aiyansh to Gingolx (see my Google map with photos, right), the most remote Nisga'a village, situated where the Nass empties into the Pacific Ocean. The trip is made possible by the Nisga'a Highway, a wonder of road engineering that cost the province $41 million to pave. The highway not only connects the Nisga'a villages as a nation, it provides access to Terrace, a vital supply centre for everything they cannot harvest or make themselves.

A necessary stop on the road to Gingolx is Laxgalts'ap*: the site of a new Nisga'a museum that houses more than 300 artifacts repatriated from the Canadian Museum of Civilization and the Royal British Columbia Museum in 2010 as part of the treaty (see some here). The museum opened last May.

On a sunny day in August the museum is deserted, except for my 17-year-old tour guide who introduces me to Gwaxts'agat, a powerful supernatural creature also known as "Growing Nose Being"-- a recurring character in Nisga'a storytelling ever since the great volcano erupted more than 200 years ago.

"As the people watched the lava flow over their villages, Gwaxts'agat suddenly emerged to block the lava's advance," reads one popular account. "For days, Gwaxts'agat fought back the lava by blowing on it with its great nose. Finally, the lava cooled and Gwaxts'agat retreated into the mountain where it remains to this day."

My guide is young enough never to have known a time when the Nisga'a were without a treaty, and she possesses an impressive depth of knowledge about her culture. But in a curious way, she is also very open about pointing out imperfections: a huge bird carving created for the museum, to my eyes a wonder of artistry, is cracking because the wrong log was chosen. She motions toward a row of lava rocks along the front wall. They were brought in from the Lava Bed Park, she says with a grimace, disapproving of their presence in the room. "We were taught it's bad luck to move those..."

The moment comes back to me later, when I learn that the northwest transmission line will be built through a section of the lava park. For that, the park boundary was amended by agreement in the fall of 2011. Late in September, a BC Hydro spokesperson confirms that a Park Use Permit is "expected imminently to enable the construction to take place."

Mitchell Stevens tells me there were two possible routes for the transmission line -- one bisecting a wilderness area rich in fish and wildlife, the other through the park. "The Nisga'a nation is satisfied with the current routing of the line," he told me. Yet in the wider context of the Nisga'a Treaty, with all of its high hopes and successes, the amended park boundaries bear a lesson. Bad luck or not, the lava rocks will be moved to make way for a transmission line. What is solemnly written on paper, or even in stone, can be changed.

*Story updated at 1:15 p.m. on Thursday, Nov. 15, 2012.