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The Importance of the Nisga’a Treaty to Canadians | Thomas R. Berger, O.C., Q.C.

Corry Lecture, Queen’s University, Kingston, Ontario
[02/10/99]
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Back in 1967, the leaders of the Nisga'a Tribal Council came into my law office 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. On that day, 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. Last November, by a vote of 70%, the Nisga'a people ratified the treaty. The Legislature of British Columbia is debating a bill to ratify the treaty. And later this spring the scene will shift to Ottawa where Parliament will debate a bill to ratify the treaty.

Under the treaty the Nisga'a will own 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 in cash, paid over 15 years. The treaty also provides for Nisga'a entitlements to forestry, fishery and wildlife resources.

The treaty represents a hard-fought compromise. The Nisga'a released their claim to ownership of most (90%) of their ancestral lands, and over time will give up their exemptions from income and sales taxation on current Indian reserves.

The B.C. Liberal Party, the Official Opposition in Victoria, has declared war on the treaty.

Now, as the treaty goes to Ottawa, the Reform Party intends to oppose it.

I believe they are profoundly mistaken in their opposition to the treaty. But the Reformers are right about one thing. It is time to think about the Nisga'a treaty as a Canadian treaty.

The lion's share of the cost of the treaty will be borne by Canada. More to the point, the federal government has the responsibility to complete this unfinished business; settlement of the claims of the First Nations is a national responsibility.

In recent years, Canadian ideas about Aboriginal peoples have undergone a sea change. Once thought to be peoples on the margins of the nation's history and irrelevant to present-day concerns, they are now seen as having a right to fashion a future of their own. In Canada we have a well-developed theory of Aboriginal rights, based on the fact that at the time of contact Aboriginal peoples were self-governing, organized political communities, using and occupying the land. On August 21st, 1996, Chief Justice Lamer, writing for the Supreme Court of Canada, in R. v. Van Der Peet (1996) 137 D.L.R. (4th) 289; [1996] 2 S.C.R. 507, said: "In my view, the doctrine of aboriginal rights exists ... because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status."

Now Canadians realize that Aboriginal rights are the axis upon which our relations with the Aboriginal peoples turn. Under the Constitution Act, 1982, section 35, the Aboriginal peoples of Canada are the Indians, the Inuit and the Metis. Aboriginal rights, however, have mainly been delineated in litigation involving Indians. The concept of Aboriginal rights applies as much to the Indians of Canada who have signed treaties as to those with whom treaties were never made, for the treaties themselves were signed to obtain a surrender of Aboriginal rights, including Aboriginal title to the land. The reserve lands guaranteed by treaty are what remains of Indian ownership of their ancestral lands.

Historically, although few treaties were made in the Atlantic provinces and in Quebec, by the mid-eighteenth century the British had established a policy of treating with the Indians for their lands. This policy was enshrined in the Royal Proclamation of 1763, by which the British, after defeating the French for the right to determine North America's future, set out their policy of recognizing Aboriginal rights. By 1850, treaties had been made with the Indians for the surrender of virtually the whole of southern Ontario; beginning in the 1870s, as settlement proceeded westward across the prairies, treaties were made with the Indians to enable the construction of the Canadian Pacific Railway to proceed, opening the country to agricultural settlement. Treaties were also made to allow development of resources on the frontier. The prospect of gold in the Klondike led to the signing of Treaty 8 in 1899. As late as 1921 a treaty was made with some of the Indian tribes of the Northwest Territories as a consequence of the discovery of oil at Fort Norman.

In British Columbia, however, treaty-making ground to a halt. The old Crown colony of B.C. had refused to enter into treaties. After the new government of British Columbia refused to enter into the treaty-making process. B.C. entered into Confederation in 1871.

In 1867, Joseph Trutch, chief commissioner of lands and works of the Crown Colony of British Columbia, wrote:

"The Indians have really no right to the lands they claim, nor are they of any actual value or utility to them, and I cannot see why they should either retain these lands to the prejudice of the general interests of the Colony, or be allowed to make a market of them either to the Government or to Individuals."

The dispute over Aboriginal title and Indian reserves became a continuing source of acrimony between Canada and British Columbia. In 1885 the completion of the Canadian Pacific Railway brought a rush of new immigrants to British Columbia. The province, which had been easily accessible only by the Pacific, could now be reached by rail from eastern Canada. By the end of the century, the province's white population had greatly increased; resource industries and road and rail networks had extended throughout the province.

>From time to time, the federal government urged B.C. to recognize Aboriginal title so treaties could be made.

But in the end the federal government turned its back on the Indians of B.C.

The Indian people of B.C. were regarded by both the federal and provincial governments, not as a people with a claim deserving of fair and honourable consideration, but as mendicants. Aboriginal treaty-making was officially regarded as belonging to a world of the past. Determined that this question should never be raised again, the Parliament of Canada included a provision in the Indian Act of 1927 that made it an offence punishable by law to raise funds for the purpose of pursuing any Indian land claim. It was not until 1951 that this prohibition was repealed.

The Nisga'a, however, would not give up. In 1967, the Nisga'a Indians filed a lawsuit in the Supreme Court of British Columbia. Aboriginal title, they alleged, had never been extinguished in British Columbia.

It was difficult at that time to convince lawyers and judges that the Aboriginal peoples of Canada possess rights based on the indisputable fact that they occupied vast areas if not the whole of this continent before the Europeans colonized it. The Indians had their own institutions, their own laws, their own economy, their own cosmology. But of this lawyers and judges remained unaware. They could not accept that people without a written language could, nevertheless, have an elaborate legal system of their own. And, as for their Aboriginal title, how could the courts acknowledge it? It was not recorded in a system of title deeds and land registration; it was not a form of private property but property held communally by the tribe or the nation. The Nisga'a lost their case in the British Columbia courts.

Prime Minister Pierre Trudeau, speaking on the subject of Aboriginal rights in Vancouver on 8 August 1969, said, "Our answer is no. We can't recognize Aboriginal rights because no society can be built on historical `might have beens'."

So there was no relief to be had in the courts, and no acknowledgement of Aboriginal claims by the federal government. The era of treaties was over. The Nisga'a appealed to the Supreme Court of Canada. This appeal was to be instrumental in the overthrow of Canadian government policy.

In February, 1973 when the Court handed down its judgment, the Nisga'a appeared to have lost, four to three (known as Calder v. A.G.B.C. (1973), 34 D.L.R. (3d) 145; [1973] S.C.R. 313). But six judges held that Aboriginal rights were recognized under Canadian law. Three held that they had never been extinguished, three that they had. The seventh judge held against the Nisga'a on a technicality. Although technically the Nisga'a lost their case, in fact they won a moral victory. Moral victories are often just that, but this was a moral victory which changed federal policy forever.

All six judges supported the view that English law in force in British Columbia when colonization began had recognized Aboriginal title to the land. For the first time, Canada's highest court had unequivocally affirmed the concept of Aboriginal title. Mr. Justice Judson, in describing the nature of Aboriginal title, concluded:

"The fact is that when the settlers came the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means... What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished."

Mr. Justice Hall, writing for the three judges who were prepared to uphold the Nisga'a claim, urged that the courts should adopt a contemporary view and not be bound by past and mistaken notions about Indians and Indian culture. He suggested that the courts of British Columbia, which had asserted that the Nisga'a were at the time of settlement "a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property," had assessed Indian culture by the same standards that the Europeans applied to the Indians of North America two or more centuries before. Mr. Justice Hall rejected this approach. He concluded that the Nisga'a had their own concept of Aboriginal title before the coming of the Europeans and were entitled to assert it in a contemporary way. He said: "What emerges from the ... evidence is that the [Nisga'a] in fact are and were from time immemorial a distinctive cultural entity with concepts of ownership indigenous to their culture and capable of articulation under the common law ..."

The decision of the Supreme Court catapulted the question of Aboriginal title into the political arena. On August 8th, 1973, the federal government announced that it intended to settle Aboriginal land claims in all parts of Canada where no treaties had yet been made.

Mr. Justice Hall's judgment has become the basis for the assertion of Aboriginal land claims throughout Canada. In R. v. Sparrow (1990), 70 D.L.R. (4th) 385; [1990] 1 S.C.R. 1075 and in Delgamuukw v. The Queen (1997), 153 D.L.R. (4th) 193, the Supreme Court of Canada broke the tie; they upheld the view of Aboriginal title expressed in the judgment of Mr. Justice Hall.

The Constitution Act, 1982, adopted 19 April 1982, protects Aboriginal rights: "The existing Aboriginal rights and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed." These words are binding not only on the federal government but also on the provinces. They give the Aboriginal people the means to enforce their right to a distinct place in the life of the nation.

The courts and the Constitution have laid the groundwork for the settlement of claims based on Aboriginal claims. What does settlement of these claims entail?

In the Robinson treaties made in the 1850s and the numbered treaties, 1871 to 1921, reserves were set aside for the Indians, and hunting, fishing and trapping rights protected. In the James Bay and Northern Quebec Agreement, 1975, and in the recent land claims agreements made in the North West Territories and the Yukon, additional lands were set aside, much greater in extent than the old reserves, together with funds for economic development, royalties on the development of minerals, and, of course, hunting, fishing and trapping rights have been guaranteed.

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 are still here, and both Canada and B.C. 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 some opponents of the treaty allege. 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.

Canada has unfinished business in B.C. An historic obligation, a constitutional obligation must be fulfilled. The negotiations with the Nisga'a were undertaken by Canada over 20 years ago (B.C. officially entered negotiations eight years ago).

There were people in the old Colony of B.C. who, before Confederation, opposed treaty-making. There were people who followed the same line after Confederation. There was always a good reason, as they saw it, to oppose treaties. No one accuses them of racism or of bigotry. Their views are held quite sincerely.

But the fact that they prevailed in the last century and so far in this century has meant that Canada's constitutional obligation to B.C.'s First Nations has never been fulfilled. Of course, it has meant a century of bitterness, of unrest and lawsuits. And the price of procrastination keeps rising. More and more judgments are handed down affirming the rights of First Nations. The people who claimed we had no obligations, legal or moral, to First Nations, have been proved wrong. They may shout at the top of their voices, but they have travelled in the wrong direction for 100 years.

Soon the debate will shift to Parliament. A few things must be remembered.

The Courts have said that Canada must negotiate with First Nations.

The B.C. Liberals and Reform have, in effect, aligned themselves with the people who, ever since B.C. entered Confederation in 1871 (and even before), have argued 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.

It is unrealistic to think that, if the Nisga'a 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.

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 B.C. Liberals' agenda and that of Reform 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.

We can't let that happen.

The Nisga'a Treaty is vital to the future of the Nisga'a Nation. It is vital to British Columbia. It is also vital to Canada. It is Canada which bears ultimate responsibility to ensure that the treaty-making process reaches the Pacific.

Canada has tried to be a good citizen of the world. This treaty, as Chief Joseph Gosnell told the B.C. Legislature, can be "a beacon of hope for Aboriginal people around the world"; proof, he said that "reasonable people can sit down and settle historical wrongs".
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