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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 ] THE NISGA'A TREATY The Nisga'a Treaty does not undermine the Canadian Charter of Rights and Freedoms. Ever since 1982 the Nisga'a have agreed that our government should be subject to the Charter. Accordingly, the Nisga'a Treaty clearly states that the Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in the Treaty. (General Provisions Chapter, paragraph 9, page 18.) We are proud of our free and democratic government and we have included the Charter of Rights protection for all Nisga'a Citizens in our own Nisga'a Constitution as well. Section 25 of the Charter does not, as some have suggested, weaken this guarantee. Our Treaty right is the right to self-government, and the authority to make laws, as set out in the Agreement. (Nisga'a Government Chapter, paragraph 1, page 159) The Agreement states that the Charter applies. Will there be difficult questions about the detailed application of the Charter to our laws in the future? Perhaps. But they will be no more difficult than the questions that Canadian courts and governments face every day in the application of the Charter to laws enacted by the federal and provincial governments. The Nisga'a Treaty does not violate the equality rights of aboriginal women. One of the most disturbing allegations made against the Treaty is that we have somehow acquired the ability to discriminate against Nisga'a women. This is an absurd suggestion. In addition to the guarantees of sexual equality found in sections 15 and 28 of the Charter, section 35(4) of the Constitution Act, 1982 states: Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. This provision would override any other provision of the Constitution Act, 1982 and will govern the interpretation of the Nisga'a Treaty and Nisga'a laws. As mentioned above, section 35(4) was added to the Constitution Act, 1982 at the same time as section 35(3). Nonetheless, opponents of the Treaty have suggested that the Treaty or Nisga'a laws could affect the division of marital property in a way that discriminates against Nisga'a women. This is simply not the case. Federal and provincial laws apply to the Nisga'a Nation, Nisga'a Villages, Nisga'a citizens, and Nisga'a Lands, subject to any conflict or inconsistency with the Final Agreement or the settlement legislation. (General Provisions Chapter - paragraph 13) The Final Agreement is silent about matrimonial property law, divorce, division of property etc. Therefore federal and provincial laws apply. Division of matrimonial property will be determined under provincial laws of general application, to which the Charter obviously applies. The precise nature of the property interest to be held by Nisga'a individuals in their residential property has not yet been determined. (See below.) Certain restrictions on the disposition of interests in some or all parcels of Nisga'a Land to non-Nisga'a persons are likely to be established. Such restrictions could not, however, discriminate between men and women. The Nisga'a Treaty does not perpetuate the Indian Act. No one needs to tell the Nisga'a about the damage that the continued application of the Indian Act over the last 130 years has caused to First Nations. That is exactly why we insisted that it no longer apply to us. (General Provisions, paragraph 18, page 19.)(Canada will still use that act to determine whether an individual is an "Indian", but that determination does not determine whether the person has entitlements under the Treaty.) Further, the Treaty provides that our lands are not "lands reserved for the Indians" within the meaning of the Constitution Act, 1867, nor are they "reserves" as defined in the Indian Act. (General Provisions, paragraph 10, page 18.) Reserves are owned by Her Majesty in right of Canada for the use and benefit of Indian bands. On the effective date, the Nisga'a Nation will own our lands in fee simple. We can dispose of any estate or interest in any parcel of our lands without the consent of the Minister. (Lands Chapter, paragraphs 3 and 4, pages 31-32.) The economic impediments resulting from the reserve system will be gone forever. The Nisga'a Treaty does not deny Nisga'a citizens individual private property. On the effective date, Nisga'a individuals will receive the right to possess their residential lots. This right of possession will provide substantially the same rights as holders of "certificates of possession" have under the Indian Act. (Lands Chapter, paragraphs 33- 35, page 37) For most of these individuals, who do not today have "certificates of possession", this represents an enhancement of their rights. The Treaty contemplates that these initial rights of possession may be replaced with estates or other interests that increase the rights held by these individuals. The nature of the greater interests will be determined by the Nisga'a Nation after the Treaty is in place. It is not a matter for the federal and provincial governments to decide for us. We are currently developing an approach under which we expect to move towards replacing the initial rights of possession with individual estates in fee simple, in a short time after the effective date of the Treaty. No doubt most of the Nisga'a Lands outside of the villages will continue to be owned by our Nation for the benefit of all of our people, and for the welfare of future generations. But this is no more "socialistic" than is the owning of Crown land by the federal and provincial governments. The Nisga'a Treaty does not create a racial "enclave" within Canada. Many opponents have said that Nisga'a Lands will be an "enclave" within Canada. The Oxford Dictionary defines an "enclave" as "foreign territory surrounded by one's own territory". But Nisga'a Lands can in no way be described as "foreign territory". The treaty makes it absolutely clear that all federal and provincial laws apply to Nisga'a Lands, in accordance with the terms of the treaty. (General Provisions Chapter, paragraph 13, page 18). We have always said that one of our fundamental goals is to negotiate our way into Canada. It is mischievous to say that the result of our efforts has been the creation of foreign territory within our country. The Nisga'a Treaty does not disenfranchise non-Nisga'a. Opponents of the Nisga'a Treaty invariably ignore the fact that the Treaty sets out the Nisga'a Nation's right to self-government. The laws that can be made by Nisga'a Government, with a very few well defined exceptions, are laws that deal with Nisga'a citizens, Nisga'a treaty rights and Nisga'a property. It must be remembered that Nisga'a Government will not have any jurisdiction over land currently owned by non-Nisga'a within the Nass Valley. All of the existing fee simple properties are expressly excluded from Nisga'a Lands. (Lands Chapter, paragraph 1, page 31). The residents of these private parcels will continue to have the right to vote for federal, provincial and regional governments, as they always have. Almost all Nisga'a Government jurisdiction is restricted to Nisga'a citizens and Nisga'a Lands. What possible justification is there for requiring the Nisga'a to give non-Nisga'a people the right to vote for or run for office in a government that will have virtually no jurisdiction over them, and that will primarily be dealing with the rights and assets of Nisga'a people? It is important to remember that neither Nisga'a citizenship nor the ability to participate in Nisga'a Government is restricted to "participants", that is, persons who meet the eligibility criteria set out in the Treaty. (Eligibility and Enrolment Chapter, paragraph 1, page 241). That is, while only participants have the right to demand Nisga'a citizenship, Nisga'a Government has the authority to establish citizenship criteria that could include others. (Nisga'a Government Chapter, paragraphs 9(p) and 39, pages 161 and 167, respectively). We insisted on such a power because of the recognition that there are and will be residents who are, in every meaningful way, full members of our communities and who should be included in the democratic functioning of Nisga'a Government. However, the criteria for including others in our Nation must be left to our people to establish, and not be determined for us by Canada or British Columbia. Today non-Nisga'a residents of the Nass Valley enjoy a level of representation on the Nisga'a Valley Health Board and on the Board of School District #92 Nisga'a that is far in excess of their numbers. This participation will continue after the effective date, and, if those bodies are replaced by institutions created by Nisga'a Government, an appropriate means of ensuring their continued participation will be established. If the activities of Nisga'a Government or its institutions significantly and directly affect those residents, we have agreed to devise means to include them in our decision making process, which may range from consultation to the right to vote, to a guarantee of representation on a Nisga'a Government institution, depending on the nature of the activity and the effect on the residents concerned. (Nisga'a Government Chapter, paragraphs 19-22; pages 163-164.) The point is that the issue of non-Nisga'a participation in the activities of a government that will only rarely affect non-Nisga'a people is not a simple one that can be solved by slogans about democracy or by forcing Nisga'a people to have our internal decisions about our own rights determined by the wishes of non-Nisga'a, as they have been for so long. The Treaty provides the tools, the principles and the flexibility for the Nisga'a to continue to live in harmony with our non-Nisga'a neighbours. The Nisga'a Treaty does not include the power of Nisga'a Government to impose taxation without representation. We unequivocally agreed that our power to impose taxation under the Treaty is limited to Nisga'a citizens on Nisga'a Lands. (Taxation Chapter, paragraph 1, page 217) It has been suggested that paragraph 3 of the Taxation Chapter provides for taxation without representation. In fact it does the opposite. It provides that any Nisga'a Government taxation authority over persons other than Nisga'a citizens on Nisga'a Lands would only be provided if a future agreement, outside of the treaty, is negotiated and agreed to between the Nisga'a Nation and Canada, British Columbia, or both. No doubt the appropriate means of representation in light of whatever authority might be provided would be a subject matter for those negotiations. The Nisga'a Treaty does not create an exclusive Nisga'a commercial fishery. The Nisga'a Treaty sets out clear entitlements and allocations for fish and wildlife. The approach is one of sharing. For example, the Treaty provides a formula under which our share of each species of the Nass salmon return to Canada will be determined. That share will vary depending on the abundance of the resource. In low run years we may even harvest less than our current harvest for domestic purposes. (Fisheries Chapter, Schedule A, pages 123-124.) We will have the right to sell Nass salmon, in accordance with various federal and provincial laws referred to in the Treaty. (Fisheries Chapter, paragraphs 31-32, page 107). However, there could never be a situation in which the Nisga'a commercially harvest a species of Nass salmon at the same time as commercial and recreational fishermen are prevented from harvesting that species. (Fisheries Chapter, paragraph 33, page 107) The Nisga'a Treaty does not fail to protect aboriginal rights of neighbouring First Nations. None of the provisions of the Agreement interfere with the rights of any other First Nation. To place the matter beyond doubt we agreed to include provisions to that effect in the Treaty. (General Provisions, paragraphs 33-35; page 22) Although some have argued that these provisions are ineffective, in our view the Treaty could not be clearer. The Nisga'a Treaty is not overly generous to the Nisga'a Nation. There has been little discussion of what we have contributed to this Agreement. Remember that the Nisga'a Lands that we will own under the Treaty are but a small part of our traditional territory. We commissioned a Price Waterhouse study of the present value of the resources that have been removed from our traditional territory -- resources taken without compensation to the Nisga'a. The amount was in excess of two billion dollars. A number of our people voted against the Treaty because they believed that it should have included much more land, resources, compensation and jurisdiction. Many were reluctant to give up the current tax exemption provided under the Indian Act. However, the majority of us (over 70% of those voting) voted to accept the package, not because it gave us everything that we wanted, or believe that we should have, but because the majority of us decided that it is an acceptable compromise. Nonetheless we continue to believe that governments simply do not have enough money to truly compensate the Nisga'a Nation for what has already been taken from us. The Nisga'a Treaty is not "entrenched in constitutional concrete". The Nisga'a Treaty is protected by section 35 of the Constitution Act, 1982. More precisely, the rights set out in the Treaty will be "recognized and affirmed". This does not mean that the Treaty cannot be amended. An amending procedure is included in the Treaty. (General Provisions Chapter, paragraphs 36-43). The procedure requires the consent of the Parties. What some people seem to be suggesting is that Canada or British Columbia should be able to alter the Treaty unilaterally, without the consent of the Nisga'a Nation. This defeats the entire purpose of the Agreement. But it must also be recognized that the Supreme Court of Canada has indicated that section 35 is not absolute. It has ruled that aboriginal and treaty rights can be infringed, if the infringement is justified, and consistent with the honour of the Crown. Is this not sufficient? Do opponents of the Treaty wish governments to be able to infringe our rights in a way that violates the honour of the Crown? The Nisga'a Treaty does not alter the Constitution of Canada. This is clearly set out in the General Provisions Chapter, paragraph 8, page 17. Under the treaty, Nisga'a Government will not have any exclusive jurisdiction. Put another way, federal and provincial laws will continue to apply to the Nisga'a Nation, Nisga'a Villages, Nisga'a Lands and Nisga'a Citizens. However, Nisga'a laws will also apply. The application of more than one government's laws to the same subject matter 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". Problems only arise if it is uncertain which law prevails if the laws are inconsistent. Because there are no areas of exclusive Nisga'a jurisdiction, there will often be areas in which Nisga'a laws and federal or provincial laws deal with the same subject matter. A key part of the negotiations was determining which government's laws will prevail in respect of each and every area over which Nisga'a Government has authority. Opponents of the treaty say that if there is an inconsistency in laws, federal or provincial laws should always prevail over Nisga'a laws, even if the Nisga'a laws deal solely with Nisga'a people, Nisga'a culture, Nisga'a lands or other purely internal matters. Why is this dominance so important to these people? Why do they insist that First Nations should always be subordinate to federal and provincial governments? Of course the argument is never framed in terms of dominance and subordination. Rather the opponents wrap themselves in the assertion that all law making power is exhaustively divided between federal and provincial governments and that there is just no place in Canada for authority that is not delegated and controlled by these two levels of government. This is what they mean when they say that First Nations' governments must be municipal governments. They assert that the federal or provincial governments must be able to "take back" First Nations' authority, and that First Nations' laws must always give way to federal and provincial laws. They say, in effect, that federal and provincial governments should only enter into agreements on self government if they can break those agreements at will. But this is to deny the reality of First Nations as self-governing peoples within Canada. It is to assert that the authority of aboriginal peoples over our own lives and cultures was implicitly extinguished by Canada's fathers of Confederation. It is to deny that there is anything left to reconcile with the sovereignty of the Crown. It is to deny the honour of the Crown in its treating with aboriginal peoples. And it is therefore to deny the inherent right of self government. The Nisga'a Nation recognizes the sovereignty of the Crown. Through the Treaty, Canada, British Columbia and the Nisga'a have achieved a reconciliation between this sovereignty and the ancient rights of the Nisga'a people. The Nisga'a Treaty is not a "blueprint" or "template" for other treaties in British Columbia and across Canada. We know that at one point former British Columbia Premier Glen Clark, whose support of the Nisga'a Treaty has been as steadfast as that of the Prime Minister, referred to the Nisga'a Treaty as a "template". We believe that he was referring not to the detailed contents of the Agreement, but rather to the model that it establishes for resolving differences through negotiation and compromise rather than litigation. Opponents of the Treaty have seized on this term, and the similar term "blueprint", and now insist on claiming that the Nisga'a Treaty will be applied mechanically in all of the other negotiations currently under way in British Columbia or elsewhere in Canada. This suggestion would be too absurd to be taken seriously if it were not being repeated so frequently. First, the Nisga'a Tribal Council has publically and repeatedly stated that we have neither the desire nor the mandate to negotiate on behalf of anyone other than the Nisga'a Nation. The template argument is based on the demeaning assumption that other First Nations will simply agree to the Nisga'a approach, regardless of their own circumstances, desires and priorities. Moreover, even if the federal and provincial governments were to expressly instruct their negotiators to go forth and "replicate" the Nisga'a Final Agreement elsewhere in the province, this would be an impossible task. The unique circumstances of the Nisga'a make certain arrangements possible with respect to, for example, land or fisheries, that would not be possible in urban or inland areas. There are between 5,000 and 6,000 Nisga'a people. Some other First Nations have fewer than 1,000 people, and some have fewer than 100. Obviously arrangements will be very different depending on the size of the population, the nature of the traditional territory and its resources, the proximity of urban areas, other third party alienations and so on. Finally, in recognition of these obvious facts, the federal government has stated that the Nisga'a Final Agreement is not a "template". If the parties at other negotiating tables choose to adopt certain aspects of the Nisga'a Final Agreement, it will be because they consider that it makes sense to do so, not because the Nisga'a approach has predetermined the outcome of those talks.
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