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Inherent right ot self-government (or, what the heck do you think they were doing before we arrived?).

The Nisga's Final Agreement has been negotiated between the federal government, the British Columbia Government, and the Nisga's people, and has now been voted upon and ratified by the Nisga'a people as a whole. It remains to be ratified by the province of British Columbia, and there is currently a lot of public disagreement about whether it ought to be further ratified by a public referendum in British Columbia. Without getting too technical as to whether or not we call this a Treaty, or a land settlement, this agreement does provide us with a very interesting look at what a modern Treaty with an aboriginal people should look like.

First some background. The Nisga'a people have long inhabited the Valley of the Nass River in Northwestern British Columbia, north of Prince Rupert. They were, at the time of first European contact in 1832, quite settled in the valley and exercised jurisdiction over their lands in the usual ways of culture, language, and the exclusion of other groups. Hudson Bay traders at the time described Nisga'a villages as containing "two storey wooden homes, the equal of any in Europe".

They have stayed, and since the original European encroachment have continuously pressured and petitioned the federal/provincial and British Governments for a proper settlement of their land entitlement claims. For example, in 1913, a group of Nisga'a Chiefs petitioned the British Privy Council for a decent settlement. One was not forthcoming. Nisga'a did not move, and neither did they give up. They fought several cases all the way to the Supreme Court of Canada, and in 1971, the Supreme Court of Canada, in the case of Calder v. The Queen, affirmed the existence of aboriginal title to lands not properly sold or surrendered to the Crown. (As an aside, Frank Calder, the Chief of Nisga'a at the time, was the first native to be elected to the BC. Provincial Legislature after the British Columbia government in 1949 granted Indian people a right to vote in provincial elections).

The Federal Government started negotiations with the Nisga'a immediately after the Court's decision, and it has taken until now to get a negotiated compromise agreement. Before we examine some of the terms of the agreement and some of the more common complaints about the agreement, it would be good to consider just for a moment what some of the major themes behind any negotiated agreement of this sort will be. First, history, and the needs of society march on. The Treaty Agreements with aboriginal people signed in the 1700s come out of a much different historical context then those signed in the late 1800s (for example the Prairie Treaties). A fully modern Treaty will have to take into consideration the needs and expectations of a modern population and the mechanisms that any sort of local government will have to meet those needs. A local government would require some measure of control over natural resources, some ability to raise revenues by various kinds of taxation, the ability not only to spend those revenues on the expectations of the modern society (justice, policing, health and welfare, education, public works, etc.) but also to tie their local infrastructure into the existing federal, provincial and international infrastructure.

Second, just as time has not stood still since the 1800s, people have not stood still either. All sorts of intergovernmental and interpersonal private relationships have been built up over the years to handle the day-to-day business of living. The good part about that is that substantial public infrastructure has grown up. Federal and provincial standards exist in all sorts of areas such as education, Social Services and public works and the Nisga'a people are already operating within those areas. A negotiated settlement provides the opportunity of bringing Nisga'a government, where appropriate, under national and provincial standards. The bad part may be that there are private arrangements such as land ownership by Nisga'a and non-Nisga'a members that may not be completely in agreement with any settlement.

Finally, and most importantly, we have to acknowledge that any negotiated settlement is going to be a compromise. A judge once told me that a good settlement is one where everybody thinks they are being bleeped. Some may think that an unduly cynical point of view, but the point remains that in any negotiated settlement there is give and take. Both side are going to think that they are giving up more than they should, but it is the mutual compromise that is the essence of the agreement.

Now to some of the specifics of the Agreement. The Nisga'a government will be given title to over 1990 square kilometres of lands in the lower Nass River to be communally owned by the government. The ownership of the lands will include surface and subsurface rights (i.e.. forest and mineral resources). The Nisga'a government will be given fishing rights including approximately 18% of the Nass River salmon catch (which will be managed jointly with the gederal and provincial Fisheries Authorities) and they will also be given management of their forest resources and their standards of forest management will meet or exceed provincial standards. The Nisga'a government will have the powers to pass laws regarding Nisga'a culture and language as well as the more usual municipal and provincial type laws such as health services, police and courts, all of which must be up to provincial standards. The Nisga'a government will have taxation power over its lands but individual Nisga'a people will give up their income tax exemptions and become fully taxable over an 8 to 12 year waiting period.

In many respects, the Nisga'a self-government is being brought within the modern frame work of federal, provincial, municipal governments in that the Charter of Rights, the Criminal Code of Canada, and provincial and federal laws of general application all will apply on the Nisga'a lands. The province retains ownership and control over water rights and the Indian Act no longer applies to the Nisga'a government and people, except for defining membership.

So what is wrong with this settlement, or at least what are the chief complaints concerning it? One of the most often voiced complaints is the (at least to the present time) refusal of the provincial government to put this settlement to a provincial referendum. The people of British Columbia are being expected (along with the federal government) to finance a major land settlement and are not being consulted directly. Fair enough, but is direct consultation really necessary? As an Albertan, for example, I do not recall being consulted about guaranteeing hundreds of millions of dollars worth of loans to mall owners, pork butchers, and cell phone manufacturers. So if we don't need public consultation for well connected white guys why do we need it for settling native claims? But perhaps that is too cynical, and after all two wrongs would not make a right anyway.

A better answer concerning public consultation involves the whole negotiation process. This Treaty was negotiated in good faith over a long time and involves a substantial give and take. The Nisga'a are giving up a substantial amount of their claims (and not every native leader is Canada is pleased with the precedent they may have set). While you may find fault with any negotiated settlement, you cannot ignore the give and take within the settlement process itself. Why would you bother negotiating a complicated settlement over 25 years if it could be overturned in a Referendum because of a few provisions that opposition could focus in on? Much better in that case to have it decided by a judge, and then it is never subject to any public consultation, review or compromise. The Nisga'a have not gone away yet and they are not going away. The Nisga'a people can say to those who would derail a settlement, "Fine, if you win, the negotiated settlement is out the window and rather than a made in BC solution, we will let federally appointed Supreme Court of Canada Judges sitting in Ottawa cut the diamond for us!"

We have to keep in mind that this is not something that governments are doing just because they want to do it, but rather because they have to do it. The highest courts in the land have directed that unresolved aboriginal land claims must be settled, either by negotiation or by court action. The Nisga'a and other aboriginal groups will either have either settlement or their day in court. Period.

So what are some of the compromise items that the Nisga'as gave up in negotiation that they may not have to give up in court? Of course, we weren't in the rooms during the process, but we can make some educated guesses. For starters, the settlement lands are much smaller than originally claimed. The Supreme Court has recently said in the Delgamuuk v. British Columbia case that a First Nation can prove the size of its core area, at least in part, by oral traditions. If this matter were to go to court now, the Nisga'as' ability to prove a larger area would be much enhanced. They gave up the right to have the land settlement incorporated into reserve status and the existing smaller reserves within the boundaries of the land settlement are giving up their individual reserve status. The Nisga'a people have given up their right to be income tax and provincial tax free on their lands (they are no longer a reserve) along with other features of the Indian Act such as the protection from seizure and garnishee proceedings. All federal and provincial laws of general application, including wildlife laws will apply throughout the Nisga'a lands. Generally speaking, throughout the rest of Canada Indians can be exempted from the federal and provincial wildlife regulations depending upon whether the land is reserve land, occupied land, or unoccupied land.

It is interesting to note that back at the turn of the century (the last one) the Nisga'a were not looking for exclusive jurisdiction over the lands but they specifically petitioned the British government for a "sharing" of resources with the colonists. The present agreement seems to be just that, at last.

So when we are reading about the settlement, the ratification process, and the disagreements people have with specific provisions of the settlement, perhaps we can step back, just for a moment, from specific details and think about the larger issues. A deal has to be made: the Nisga'as' right of self-government and their actual practice of self-government which goes back thousands of years needs to be brought into a present day framework, so what will we do? The issues won't go away by ignoring them. What are the territorial, jurisdictional, and funding requirements of a modern government and what are the difficult compromises that you would have to make to get a settlement which, while not perfect, is one that you could live with and would provide for the next 100 years of development of local autonomy and authority?

The Nisga'a have a website at The site has a lot of informative information about the people and a great deal more detail about the Treaty details and the Treaty making process than could be put into this column. Please visit the site and its links.

Fred R. Fenwick is a lawyer with the firm of Walsh Willkins in Calgary, Alberta.
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Author:Fenwick, Fred R.
Date:Feb 1, 1999
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