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Introduction | The Present Debate | The Nisga’a Treaty | Conclusion _
_ _ _ _ Nisga’a Tribal Council Presentation to Standing Committee on Aboriginal Affairs and Northern Development [ 11/4/99 ] INTRODUCTION The Nisga'a Tribal Council welcomes the opportunity to appear before this Committee in order to discuss the Nisga'a Treaty, also referred to as the Nisga'a Final Agreement. As you know, the Treaty represents the culmination of more than a century of our people's struggle for a just and honourable settlement of the land question. Throughout this struggle, we have consistently advanced our aboriginal title and our right to govern ourselves within Canada. The Agreement before you does not include everything that we wanted. It is a compromise. But we have always known that compromise is necessary if negotiated agreements are to be reached. We are proud of the Treaty, and we look forward to its early ratification by Canada. Many of you are aware of our Nation's long journey. It is now 112 years since our ancestors, together with chiefs of the Tsimshian Nation, travelled to Victoria, only to be turned away, their requests for treaty negotiations rejected by the provincial government of the day. On May 21, 1913 our people lodged a petition with His Majesty's Privy Council in London, seeking a determination of our rights in and to our ancestral homeland. Accompanying the Petition was a statement that was unanimously adopted at "a meeting of the Nisga'a Nation or Tribe of Indians held at Kincolith on the 22nd day of January, 1913". That statement included the following: We are not opposed to the coming of the white people into our territory, provided this be carried out justly and in accordance with the British principles embodied in the Royal Proclamation. If therefore, as we expect, the aboriginal rights which we claim should be established by the decision of His Majesty's Privy Council, we would be prepared to take a moderate and reasonable position. In that event, while claiming the right to decide for ourselves the terms upon which we would deal with our territory, we would be willing that all matters outstanding between the Province and ourselves should be finally adjusted by some equitable method to be agreed upon which should include representation of the Indian Tribes upon any Commission which might then be appointed Our people have stood by that approach ever since. We insisted on a treaty in accordance with the principles set out in the Royal Proclamation of 1763. We have taken a moderate and reasonable position. And we claim the continuing right to decide for ourselves the terms upon which we will deal with our territory. Unfortunately, our Petition was never considered by the Privy Council. In the same year as our Petition was brought, Duncan Campbell Scott became deputy superintendent general of Indian affairs. Mr. Scott believed that the correct policy to be taken by the government of Canada was the assimilation of our people. He is quoted as saying: I want to get rid of the Indian problem. Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian Question and no Indian Department. His policies were reflected in the administration of the Indian Act for many years thereafter, with the tragic results of which we are all aware. No doubt he considered that he was pursuing a policy of "equality". In 1927 your predecessors in Parliament made it an offence to raise money to prosecute any claim of an Indian tribe or band, including a claim in respect of the land question. They also banned the so-called potlatch, our traditional feast system. For many years the land question, like our culture, was forced underground. But the land question did not go away. First Nations were not assimilated despite the Indian Act, despite the residential schools, the poverty, the years of watching our land and resources disappear in order to make other people wealthy. We survived. And today the Nisga'a Nation stands before you, proud of our survival, proud to enter into the new relationship defined by the Nisga'a Treaty. The modern era in our struggle begins with the birth of the Nisga'a Tribal Council in 1955. It inherited the task of the Nisga'a Land Committee of a generation before. Obviously the task has not been an easy one. In 1967 we were faced with the continued refusal of both the federal and provincial governments to negotiate a settlement of the land question. Accordingly we commenced the litigation known as the Calder case, after our President of the day, Dr. Frank Calder, now our president emeritus. While our case was working its way through the law courts, the federal government, under the leadership of Prime Minister Pierre Trudeau introduced the famous White Paper, to which reference has been made during the present debate. In the eyes of many, the White Paper embodied a policy not of equality but of assimilation and denial of our rights as aboriginal people. That policy was rejected. Moreover, its fundamental premise, that aboriginal rights are nothing more than "historical might- have-beens", was rejected by the Supreme Court of Canada in its decision in Calder, handed down in 1973. The Court ruled that aboriginal title exists at common law, regardless of any grant or act of recognition by the Crown. Even though the Court divided evenly on the question of whether our aboriginal title had been extinguished prior to Confederation, the decision led Prime Minister Trudeau to observe that "maybe you have more rights than we thought you did". More importantly it led to the establishment of the federal government's Comprehensive Land Claims policy in 1973, under which many other aboriginal people have negotiated and reached land claims agreements, or modern treaties. Negotiations between Canada and the Nisga'a Tribal Council commenced in 1976, more than 23 years ago. In the early years, the government of British Columbia attended only as observers, a fact that made final agreement impossible. In the early 1980's the Nisga'a participated with other aboriginal groups in persuading governments to include what is now section 35(1) and (2) in the new constitutional package. Since 1982 it has been beyond all doubt that aboriginal people in Canada do have rights in the Constitution Act, 1982 - a part of the supreme law of Canada. Those provisions were accompanied by another provision, section 37, that required a First Ministers' Conference at which there would be discussed the "identification and definition" of the rights of aboriginal peoples to be included in the Constitution of Canada. That First Ministers' Conference, in which the Nisga'a Nation participated as a member of the Assembly of First Nations, led to the addition, in 1983, of subsections 35(3) and (4) to the Constitution Act, 1982. Those amendments mean that section 35(1) recognizes and affirms rights in future land claims agreements in the same way as other treaty rights. Land claims agreements were finally understood to be modern treaties. And section 35(4) puts it beyond all doubt that aboriginal and treaty rights are guaranteed equally to male and female persons. Of course, since the Calder case the courts have ruled consistently in favour of the continued existence of aboriginal and treaty rights, in such cases as Sparrow, Gladstone, Delgamuukw, and Sioui, to mention only a few. In almost every case the Courts have urged that negotiation, rather than litigation is the proper means to achieve the reconciliation of these historic, ancestral rights with the sovereignty of the Crown and the reality of modern Canada. At all times, the Courts have said, the honour of the Crown must be maintained. And so we persevered with negotiations, despite endless hours of frustration, reversals and apparent lack of progress. Many of us have grown old at the negotiating table. Then, in 1990 the government of British Columbia, under the Social Credit administration of Premier William Vander Zalm, finally agreed to join the negotiations. It still took six years of gruelling talks before our efforts resulted in the Agreement in Principle signed in March 1996, three and a half years ago. An intense public debate about the contents of our agreement has carried on ever since. During the almost two and half years following the Agreement in Principle, while we were negotiating the Final Agreement, the agreement was discussed and analysed, public hearings were held by a provincial legislative committee, news stories and editorials were written and broadcast, academic articles were published and numerous public meetings were held. Few other legislative initiatives in recent memory have received the detailed public attention that has surrounded our agreement. Almost a year and a half ago, in July 1998, we reached the Final Agreement and commenced this long process of ratification. Our people ratified the Treaty almost exactly one year ago. British Columbia ratified the Treaty in April, following the longest legislative debate on any issue in the history of British Columbia. Now it is Parliament's turn.
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