"After all that - They don't even get the rock?!"
On January 31, 2013 the Kitselas and the Kitsumkalum Reserve communities each signed Incremental Treaty Agreements with the Provincial Government of British Columbia.
Most legal documents require a serious review by experts; those who can read the text and understand the meaning of the words as well as the context they place on each of the legal issues.
Lawyers make their money by challenging the meaning and intent of many legal documents. Even documents prepared by the most learned, most highly recommended lawyers, sometimes get challenged.
Therefore a document with the words “Treaty Agreement” in the heading require special attention. Not only is it a legal agreement but it impacts the long term future of two entire bodies of people; in this case British Columbians and the people calling themselves the Kitselas and the Kitsumkalum.This is not, in any manner, to be construed as legal advice. The intent is to point out some of the details of this agreement for the membership, to raise awareness. Those who desire certainty, or further clarity, should consult a lawyer directly.
The specifics of the agreement are; if the (either) community votes in favour of the Agreement in Principle, it will be given parcels of land. Kitsumkalum will get two and Kitselas three. Maps of these lands are attached above and below.
To begin with, to draw attention to the concerns the membership should have with the agreement, we reference the claim made by the Chief Negotiator for Kitsumkalum. He stated one parcel of land they will receive contains the good rock they need for the quarry. ‘The good rock we need is on the other side of the IR boundary.’
Article 5.2 of the legal text states clearly the rock is not included. The legal agreement also states the Province maintains complete control of any and everything below the surface including the right to charge money for just checking out the rock. If there is a side agreement for the rock and the extraction of the rock, it is not included in this legal agreement.
Note both agreements are in effect identical. Therefore where the word Kitsumkalum appears the same applies to the Kitselas agreement.5.2 Subsurface Resources. Kitsumkalum acknowledges that the subsurface resources located on or under the Lands will not form part of the Lands transferred to Kitsumkalum and nothing in this Agreement limits the Province from collecting and receiving fees or other payments for administering under Provincial Law the exploration, development, extraction and production of subsurface resources from the Lands.
Article 4.1 b) is an issue of conflict. It states the Treaty team received a mandate from the Band to negotiate a Treaty. In 2004 the original Tsimshian Treaty Society, which included all members of the Tsimshian Nation, broke up and a new Society was started. There are no records, or any recollections from any of the elders of the new society asking for or receiving permission in any manner from the membership of either Band.4.1 Kitsumkalum Representations. Kitsumkalum represents and warrants to the Province, with the intent and understanding that the Province will rely thereon in entering into this Agreement, that:
b) its Members have provided it with a mandate to negotiate an AIP and Final Agreement and it is committed to attempt to conclude such negotiations;
Article 5.7 details how the Province has absolutely no responsibility for the land they are transferring. Although this may seem a minor issue, at times these minor issues become a costly oversight. Just like purchasing a car when the seller says “as is”, this legal agreement uses the very same words. This means the Bands are completely responsible for any and everything regarding the land; if they discover buried nuclear waste that is their problem. Even if something not directly on the land, but on lands nearby, (uphill or adjoining), impacts the land transferred, the Province has no responsibility.5.7 Environmental Matters. Kitsumkalum acknowledges and agrees that any of the Lands acquired by the Designated Corporation under this Agreement are acquired “as is”. Kitsumkalum waives the requirement, if any, of the Province to provide a site profile as defined in the Environmental Management Act for any of the Lands and except as otherwise specifically set forth herein, the Province has not given any warranty or representation concerning:
a) the fitness of the Lands for any particular use, including the intended use of it by Kitsumkalum or by a Designated Corporation;
b) the condition of the Lands (including surface and groundwater), environmental or otherwise, including the presence or absence of any toxic, hazardous, dangerous or potentially dangerous substances on or under the Land and on or under any surrounding or neighbouring land and the current and past uses of the Land and any surrounding or neighbouring land;
In fact the legal agreement goes further stating in Article 5.8 a), b), and c) the Bands will not just be responsible for the land but for protecting the Province and any of the Officials of the Province from all lawsuits and costs of anything regarding the land.5.8 Environmental Remediation. Kitsumkalum will from and after the Closing:
a) assume all environmental liabilities relating to the Lands including, but not limited to, all liability for the clean-up of any toxic, hazardous, dangerous or potentially dangerous substances or conditions on or under the Lands or migrating from the Lands (including surface water and groundwater);
b) indemnify and save harmless the Provincial Officials from and against all claims, demands, liabilities, losses, damages, costs or expenses suffered or incurred by them after the Closing arising out of or in connection with all environmental liabilities relating to the Lands, including, but not limited to, any contamination or any other toxic, hazardous, dangerous or potentially dangerous substances migrating from the Lands; and
c) release the Provincial Officials from and against all claims, demands, liabilities, losses, damages, costs, actions, causes of action, suits and proceedings by Kitsumkalum with respect to all environmental liabilities relating to the Lands, including, but not limited to, any contamination or any other toxic, hazardous, dangerous or potentially dangerous substances migrating from the Lands. Are all Rights and the Duty to Consult Extinguished as of January 31, 2013?
Article 8.1 a) is a lengthy sentence. This is likely the most contentious for the Indian peoples concerned about their original and ancestral rights as indigenous people. Almost every imaginable word related to legal challenges is included in this sentence. The placement of these words, their order and combinations is what provides lawyers with the most fun. A run on sentence can be construed to mean many things.
In this case the placement of the words in this long sentence; associated with the Lands to be transferred to Kitsumkalum as a part of this Agreement,
might have a significant impact. Does everything following these words apply to this qualifying statement or does only some of the content apply?
Another combination of words later in the sentence impact how one can determine the answer to this question; in respect of such matter or that any such matter
. The five words before ‘or’ can be argued to be applied to all the earlier content of the sentence. The following four words then could be argued, remove the qualification of restricting the issue only to the lands being transferred and, apply to all lands.
Therefore, as a lawyer is apt to do argue something he is paid to argue, Article 8.1 a) could mean both Bands agree, by signing these documents, they will never ever again have any right to take any legal action whatsoever against any government; Municipal, Regional, Federal or Provincial, on anything associated with their rights and title on any of their territory.
If we pick out the words from the actual text and place them in an order a good government lawyer might use to argue, (if either Band suggested they were going to sue for their rights), they have already signed a legal document stating;
[The Bands] will not initiate any court action or proceed to challenge any Governmental Action [on anything that] constitutes an unjustifiable infringement of any aboriginal rights or title.ARTICLE 8 - OTHER ACKNOWLEDGEMENTS AND COVENANTS
8.1 Other Kitsumkalum Covenants. Kitsumkalum further acknowledges and covenants that:
a) during the term of this Agreement, it will not initiate any court action or proceed to challenge any Governmental Action associated with the Lands to be transferred to Kitsumkalum as a part of this Agreement, on the basis that the Province has failed to fulfill any duty to consult or accommodate in respect of such matter or that any such matter constitutes an unjustifiable infringement of any aboriginal rights or title of Kitsumkalum. THIS MUST BE READ AND RE-READ TO DETERMINE APPLICABLE CONTEXT
Try again with the Kitselas reference;a) during the term of this Agreement,
it will not initiate any court action or proceed to challenge any Governmental Action
associated with the Lands to be transferred to Kitselas as a part of this Agreement,
on the basis that the Province has failed to fulfill any duty to consult or accommodate in respect of such matter
that any such matter constitutes an unjustifiable infringement of any aboriginal rights or title of Kitselas.
The lengthy sentence in Article 8.1 a) begins with the words a) during the term of this Agreement.
This is as important to understand as is the moment in which this legally binding agreement comes into effect.
Article 3 addresses these matters. The effective date was the moment it was signed. This means as of January 31, 2013 both Bands are bound by the agreement. 3.1 Effective Date. This Agreement comes into effect when it has been executed and delivered by both Parties.
The term of the agreement, meaning how long this legal agreement remains in force, requires some back and forth referencing through the Articles.
Article 3.2 specifically addresses the amount of time the agreement will remain in effect. It states towards the end of the paragraph “[…]If no survival period is expressly provided for any particular covenant that covenant shall continue indefinitely […].”3.2 Term. The transfer of the Lands under this Agreement is subject to the satisfaction or waiver of the conditions set out in section 5.12 on or before the dates provided therein and subject to the Closing conditions set out in section 5.13. Subject to section 3.3 the covenants of the parties will survive until the effective date of the Final Agreement or for such other period that may be expressly provided in relation to any particular covenant, whichever is first to occur. If no survival period is expressly provided for any particular covenant that covenant shall continue indefinitely or until the effective date of the Final Agreement.
Article 8 does have a time limit “survival period” and it is on completion of a final agreement.For greater certainty, and in accordance with section 3.2, the obligations of Kitsumkalum under this section 8.1 come to an end upon the effective date of the Final Agreement even if that date is prior to the end of any period specified in subsection (a) through (d) above.
If there is no final Agreement achieved the restrictions on suing for rights and title continue indefinitely.
The second part of Article 8, - 8.1 b) further protects the Provincial and Federal Government from any fiduciary responsibility referencing the Indian Act and the Constitution Act of 1867. It is these two acts and the reserve lands, which have protected Indians for the last 146 years. The legal Agreement contains words specifically designed to ensure the Reserves do not get any bigger; period. b) any of the Lands that may be transferred to a Designated Corporation in accordance with this Agreement will not be “lands reserved for the Indians” within the meaning of section 91(24) of the Constitution Act, 1867 or a reserve within the meaning of the Indian Act and after Closing Kitsumkalum will not at any time seek to add any of the Lands to its reserve lands;
To sum up a good lawyer will easily be able to argue;
As of January 31, 2013, the Kitselas and Kitsumkalum Bands have bound their people to never take any legal action against any government regarding their rights and title and will never have any claim against any government or company for the duty to consult. Kitsumkalum acknowledges they do not have any rights to the rock they need for the quarry and both Bands will be completely responsible for any expenses related to the land to the extent of paying for any lawsuits anyone might have against the Crown for anything regarding the land.
This agreement to never sue in regards to; an unjustifiable infringement of any aboriginal rights or title
was put into legal effect at the moment of signing; prior to the membership voting on the Agreement in Principle already negotiated.
A good lawyer could also argue this agreement is invalid as the signatories for the Bands misrepresented themselves. Article 4.1 b) states its Members have provided it with a mandate.
Even if the AIP is approved, without having achieved a mandate from the membership prior to the signing of the document, the document has no legal force or impact.
An even better lawyer will argue, as the negotiations have not been challenged since 2004, and as the members were always aware the negotiations were underway, by their lack of objection or legal actions or protestations against the negotiations. they have in effect provided a mandate.
Read the Kitselas agreement by clicking here
Read the Kitsumkalum agreement by clicking here
The Lakelse Lake lands to be gained by the Kitselas are in orange.
The Hai Lake lands to be gained by the Kitselas are in orange.
The Kleanza lands to be gained by the Kitselas are in orange.
Map of Rocy Quarry Land Kitsumkalum will aquire if the AIP is approved are in orange.