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Autonomy and International Law in the Context of the Nisga'a Final Agreement

Hogan, Miles (2004)
Department of Law
Abstract
The Nisga'a Final Agreement (NFA) is a legal agreement between the Nisga'a Nation of the Nass Valley, the government of British Columbia and the Canadian government. For the Nisga'a it is the culmination of over a 100 years of efforts to arrive at a mutually agreeable legal framework of land ownership, resource management and self-government. This paper evaluates the Nisga'a Final Agreement with regard to the Indigenous and Tribal Peoples Convention 1989 (ILO 169), Canada's obligations as a member state of the Organization of American States and obligations stemming from Canada's ratification of the International Covenant on Civil and Political Rights. Although Canada meets ILO 169 standards in other respects it is unclear whether the NFA... (More)
The Nisga'a Final Agreement (NFA) is a legal agreement between the Nisga'a Nation of the Nass Valley, the government of British Columbia and the Canadian government. For the Nisga'a it is the culmination of over a 100 years of efforts to arrive at a mutually agreeable legal framework of land ownership, resource management and self-government. This paper evaluates the Nisga'a Final Agreement with regard to the Indigenous and Tribal Peoples Convention 1989 (ILO 169), Canada's obligations as a member state of the Organization of American States and obligations stemming from Canada's ratification of the International Covenant on Civil and Political Rights. Although Canada meets ILO 169 standards in other respects it is unclear whether the NFA provides the Nisga'a with land they traditionally occupy. Furthermore, the paper concludes that the Nisga'a Final Agreement does not meet ILO 169 standards because Canada has failed to take the necessary steps to identify lands which neighbouring indigenous peoples traditionally occupy. Finally, if the neighbouring indigenous communities do have interests in lands in which the Nisga'a have been granted rights several other provisions of ILO 169 will have been violated. Only independent anthropological and ethnographic studies placed in the context of negotiations undertaken in good faith will be able to resolve these questions with finality. The problem of competing indigenous rights is raised again in regard to Canada's obligations as a member state of the Organization of American States. Canada's obligation to ensure that the process of the demarcation of indigenous lands is done with the fully informed mutual consent of indigenous communities maintaining interests in the land cannot be said to be met, if some of those communities are not included in the process. Additionally, it is debatable whether consent by the Nisga'a community to the process of demarcation through simple majority voting can be said to represent the mutual consent of the Nisga'a community as a whole. Finally, if the demarcation of land does infringe on the rights of neighbouring indigenous communities then the Nisga'a Final Agreement will be violating the right to property as contained in the American Declaration on the Rights and Duties of Man. The NFA complies with Canada's obligations arising from the International Covenant on Civil and Political Rights. (Less)
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author
Hogan, Miles
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1554832
date added to LUP
2010-03-08 15:22:39
date last changed
2010-03-08 15:22:39
@misc{1554832,
  abstract     = {The Nisga'a Final Agreement (NFA) is a legal agreement between the Nisga'a Nation of the Nass Valley, the government of British Columbia and the Canadian government. For the Nisga'a it is the culmination of over a 100 years of efforts to arrive at a mutually agreeable legal framework of land ownership, resource management and self-government. This paper evaluates the Nisga'a Final Agreement with regard to the Indigenous and Tribal Peoples Convention 1989 (ILO 169), Canada's obligations as a member state of the Organization of American States and obligations stemming from Canada's ratification of the International Covenant on Civil and Political Rights. Although Canada meets ILO 169 standards in other respects it is unclear whether the NFA provides the Nisga'a with land they traditionally occupy. Furthermore, the paper concludes that the Nisga'a Final Agreement does not meet ILO 169 standards because Canada has failed to take the necessary steps to identify lands which neighbouring indigenous peoples traditionally occupy. Finally, if the neighbouring indigenous communities do have interests in lands in which the Nisga'a have been granted rights several other provisions of ILO 169 will have been violated. Only independent anthropological and ethnographic studies placed in the context of negotiations undertaken in good faith will be able to resolve these questions with finality. The problem of competing indigenous rights is raised again in regard to Canada's obligations as a member state of the Organization of American States. Canada's obligation to ensure that the process of the demarcation of indigenous lands is done with the fully informed mutual consent of indigenous communities maintaining interests in the land cannot be said to be met, if some of those communities are not included in the process. Additionally, it is debatable whether consent by the Nisga'a community to the process of demarcation through simple majority voting can be said to represent the mutual consent of the Nisga'a community as a whole. Finally, if the demarcation of land does infringe on the rights of neighbouring indigenous communities then the Nisga'a Final Agreement will be violating the right to property as contained in the American Declaration on the Rights and Duties of Man. The NFA complies with Canada's obligations arising from the International Covenant on Civil and Political Rights.},
  author       = {Hogan, Miles},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Autonomy and International Law in the Context of the Nisga'a Final Agreement},
  year         = {2004},
}