VANCOUVER SUN OPINION
October 29, 1998

NISGA'A WON'T KNUCKLE UNDER


Thomas R. Berger, O.C., Q.C.

The leaders of the Nisga'a Tribal Council came into my law office in 1967, three decades ago, to ask me to sue the government of B.C. to obtain recognition of their aboriginal title. It took six years, but in 1973 the Supreme Court of Canada gave judicial recognition to the place of aboriginal rights in Canadian law. With that Canada entered the modern era of treaty-making.

Now the Nisga'a are on the verge of signing the first modern treaty in B.C. history. But the Liberals have launched a lawsuit attacking the Nisga'a treaty. So the Nisga'a have come to see me again, this time to defend the Nisga'a treaty.

The Nisga'a treaty provides for 1,992 sq. km of land, approximately 8% of the Nisga'a traditional territory (at least two ranches in B.C. are larger). The Nisga'a are to receive $190 million, paid over 15 years. The lion's share of the money will be paid by Ottawa. As well, the treaty provides for Nisga'a entitlements to forestry, fishery and wildlife resources.

This is a compromise. To obtain this treaty the Nisga'a gave up their claim to most of their ancestral lands. They will, in stages, give up their exemptions from taxation on Indian reserves.

The Liberals' attack, however, is based on the treaty's provisions for Nisga'a government. The Liberals say these provisions are unconstitutional.

Yes, the Nisga'a Treaty does provide for Nisga'a government. The federal government has taken the position that First Nations have an inherent right to self- government. If you think about it, this must be so. The aboriginal people were here, governing themselves, before the Europeans came. They had their own societies, their own political institutions. The aboriginal people remain in our midst, and both the Federal and Provincial governments are prepared to recognize that the Nisga'a are entitled to govern themselves on their own land and, where it is necessary to protect their identity in respect of their culture, their language and their future.

The political institutions established under the Nisga'a treaty are not race-based, as the opponents of the treaty would have it. You can't subjugate a people who happen to be of one race, take their land, destroy their institutions and then turn around a hundred years later and say, "To allow you to restore the institutions you once had would be contrary to our principles. We don't hold with race-based institutions.

It's bad luck that you were all of one race when we came here. So we are going to deny you the right to govern yourselves on your own land, except to the extent that we decide from time to time to delegate power to you - power that we can withdraw at any time." This of course, ignores the fact that treaties with First Nations are treaties not with a race of people but with distinct political communities. This has been the view taken by the courts for the last 150 years.

The Liberals have, in effect, aligned themselves with the people who, ever since B.C. entered Confederation in 1871 (and even before), have argued that there is no such thing as aboriginal rights and that B.C. should not negotiate with the Indian people.

That's why since 1871 British Columbia has never entered into treaties with the First Nations of this province. And what has that policy achieved for us? We all know the answer: hostility, uncertainty, mistrust and a multitude of lawsuits.

The Liberals have wrapped their opposition to the treaty in the referendum flag. Referendum or no referendum, however, the Liberals' bottom line is: we reject this treaty with the Nisga'a.

What the Liberals are incapable of is seeing this issue from the point of view of the Nisga'a. There was no referendum when their valley was taken from them; no referendum when their children were taken from them and placed in the residential schools, lost to their families and their people; no referendum when for a generation and more the federal government, by an amendment to the Indian Act, denied them the right to sue to recover what they had lost. Now the Liberals say that the restoration of Nisga'a rights is subject to a referendum.

The Nisga'a see the Liberals' lawsuit as nothing more nor less than an attempt to frustrate their 100-year long struggle for recognition of their rights, as an attempt to unravel the Nisga'a treaty.

It is unrealistic to think that, if this treaty is scuttled, it will be possible to negotiate with First Nations in this province. You can't tear up a document painfully arrived at after 20 years of negotiation, and expect the Nisga'a to negotiate for another 20 years. You can't keep moving the goal posts.

If we reject the Nisga'a treaty, the goodwill that has been won, the treaty process that is under way, the steps towards reconciliation that have been taken - all will be lost in a welter of hostility and recrimination. The Liberals' agenda for First Nations in B.C. will, if it prevails, ensure that for as long as we can foresee, the possibility of treaty-making now and in the 21st century will be lost.

The Liberals have left no doubt that they intend to fight their case against the Nisga'a all the way to the Supreme Court of Canada. I want to assure them that the Nisga'a will be there to defend the treaty every step of the way

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