Joe Gosnell Answers Treaty Critics
Vancouver Sun Forum, Jan. 29, 1999
Many opponents of the Nisga'a treaty have based their arguments on misinformation, distortion and fear.
The B.C. government's advertising campaign did not respond in detail to opponents' many erroneous statements, while senior federal politicians have, until very recently, been almost completely silent. The press, with few exceptions, has concentrated on reporting the criticisms and conflict but not correcting the inaccuracies.
As the debate in the provincial legislature proceeds, it is necessary to attempt to correct at least some of the misrepresentations.
1. The Nisga'a treaty is not the result of a recent initiative, nor were negotiations a matter of mere policy.
The Nisga'a people and other First Nations in B.C. have sought negotiated treaties ever since Europeans first arrived. The Nisga'a have persisted in our struggle ever since. Our trips to Victoria, our petition to the Privy Council in 1913 and our litigation resulting in the 1973 Supreme Court of Canada decision in Calder v. Attorney General of British Columbia, have all led to the negotiating table in 1976.
Other developments have vindicated our quest including the constitutional recognition and affirmation of our existing aboriginal rights. The courts have made it abundantly clear that the negotiation of treaties is not something to be done at the whim of federal or provincial politicians. It is not a partisan political choice, it is a constitutional and moral obligation, rooted in the history and legal system of our country.
2. The Nisga'a treaty is not a "Glen Clark deal".
It is a tripartite agreement that has been under negotiation between the Nisga'a Tribal Council and the federal government since 1976. British Columbia joined negotiations in 1990 under Social Credit premier Bill Vander Zalm.
The Nisga'a treaty reflects many years of discussions with federal and provincial governments of all political stripes. The only constant has been the Nisga'a leadership.
3. The Nisga'a final agreement is not primarily an agreement between the Nisga'a and British Columbia.
Canada, not British Columbia, has primary responsibility for treaty making. The Constitution Act, 1867 assigns exclusive jurisdiction over "Indians, and lands reserved for Indians" to the federal government. Historically, provincial governments were not parties to treaties and many First Nations still totally reject any provincial involvement in the negotiations.
Because the province owns public lands and title to many resources and because aboriginal title constitutes an interest to which provincial Crown title is subject, it was considered necessary and desirable to include the province as a full party to the Nisga'a treaty.
However, the federal government's primary role is reflected by the fact that most of the money and the principal authority regarding Nisga'a government, fiscal arrangements and fisheries, comes from Canada.
4. The Nisga'a final agreement is not a "template".
Opponents, who refer to the "Nisga'a template" and not the "Nisga'a treaty", insist the Nisga'a agreement will be applied like a cookie cutter in all of the other negotiations under way in the province. This suggestion would be too absurd to be taken seriously if it were not being repeated so frequently.
The Nisga'a Tribal Council had neither the desire nor the mandate to negotiate for anyone other than the Nisga'a nation.
5. The Nisga'a treaty will not establish an "enclave".
In her column in The Vancouver Sun on Nov. 17, Barbara Yaffe repeated the claim the Nisga'a treaty raises issues "like ghettoizing native people by creating enclaves". Oxford defines an "enclave" as "foreign territory surrounded by one's own territory". Nisga'a land (the main parcel of land to be owned as an estate in fee simple by the Nisga'a nation) can in no way be described as "foreign territory". The treaty makes it clear all federal and provincial laws, including the Charter of Rights and Freedoms, apply to Nisga'a lands.
One of our fundamental goals is to negotiate our way into Canada. It is mischievous to say that the result is the creation of foreign territory within Canada or to characterize the limited area of our territory as a "ghetto".
6. Nisga'a government will not have jurisdiction over land currently owned by non-Nisga'a within the Nass Valley.
Recent articles in The Vancouver Sun and elsewhere have suggested that non-Nisga'a residents will be subject to Nisga'a government jurisdiction, while being denied the ability to run or vote for Nisga'a government. This is simply wrong. All of the existing fee-simple properties are expressly excluded from Nisga'a lands. Residents will continue to have the right to vote for federal, provincial and regional governments.
These residents already have a level of representation on the Nisga'a Valley health board and on the district school board far in excess of their numbers. This participation would continue and if those bodies were replaced by institutions created by Nisga'a government, some means of ensuring their participation would be provided. There is no authority for the Nisga'a government to tax these people or their properties.
7. Virtually all Nisga'a government laws will be restricted to Nisga'a citizens and Nisga'a lands.
The laws that can be made, with a very few well-defined exceptions, deal with Nisga'a citizens, Nisga'a treaty rights and Nisga'a property.
The treaty would limit Nisga'a government authority to "laws to preserve, promote, and develop Nisga'a culture and Nisga'a language". It expressly does not include the authority to make laws in respect of intellectual property, the official languages of Canada or prohibition of activities outside Nisga'a lands.
Why do people such as Bill Vander Zalm, Gordon Campbell and Melvin Smith believe that federal or provincial laws should prevail over Nisga'a laws in respect of Nisga'a language or Nisga'a culture?
Do they really wish to retain the ability to undermine First Nations' languages and cultures in the future, as their predecessors did in the past?
Nisga'a government can make laws that prevail over federal and provincial laws regarding its own administration, management and operation. However, any Nisga'a law inconsistent with the treaty is invalid. The treaty requires the Nisga'a government to meet fundamental standards of democratic and financial accountability and comply with the charter.
There are many areas over which the Nisga'a government will have no authority including criminal law, industrial relations and accreditation or certification of professions and trades.
8. The treaty does not deny anyone democratic rights.
Almost all Nisga'a government jurisdiction is restricted to Nisga'a citizens and Nisga'a lands.
However, Nisga'a citizenship and the ability to participate in Nisga'a government is not restricted to persons who meet the eligibility criteria. Nisga'a government has the authority to grant citizenship to people, extending to them the rights and responsibilities of all Nisga'a citizens.
The Nisga'a insisted on this power in recognition that there will be residents who are, in every meaningful way, full members of the communities and should be included in the democratic functions of Nisga'a government.
If the activities of Nisga'a government or its institutions significantly and directly affect non-Nisga'a residents, the treaty requires involvement - from consultation to the right to vote or be guaranteed representation - depending on the nature of the activity and its effect on other people.
The issue of non-Nisga'a participation is not a simple one that can be solved by facile slogans about equality or by forcing Nisga'a people to have internal decisions about our rights determined by the wishes of non-Nisga'a.
9. Nisga'a government is not an "order of government" equivalent to the federal or provincial governments, nor is it equivalent to a municipal government.
The treaty recognizes the right to self-government and provides authority to make laws. This right is recognized and affirmed by Section 35 of the Constitution Act, 1982. However, this constitutional protection is not the same as the constitutional entrenchment of the federal and provincial governments.
The Nisga'a government would not have any exclusive jurisdiction. All existing federal and provincial jurisdiction will continue to apply. However, Nisga'a laws will also apply - something that is known as "concurrent jurisdiction". This is very common in Canada, as federal, provincial and municipal laws often overlap, despite the establishment of exclusive jurisdictions.
Whoever thinks the Nisga'a or any other First Nation will return to the negotiating table to accept whatever crumbs people like Gordon Campbell or Bill Vander Zalm are willing to offer must face the reality that this will not happen.
The treaty is a balanced and sensible reconciliation of issues that have frustrated and divided British Columbians for more than a century. It should be celebrated as the proof that people of good faith can resolve their differences without confrontation or litigation.
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