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The problem with the Nisga’a nation

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Most Canadians don’t know much about the legal status of the Nisga’a, a small First Nations community located in northwestern B.C. Yet this seemingly obscure issue is important to us all — because the 1998 land-claims settlement agreed to by the Nisga’a, Victoria and Ottawa has done nothing less than set a precedent upending the very basic tenets of Canadian constitutional law.

This is why litigants are still fighting the Nisga’a Treaty. This week, a group of plaintiffs — including James Robinson, a Nisga’a ancestral chief with the hereditary title of Chief Mountain — asked the British Columbia Supreme Court to strike down the treaty for non-compliance with Canada’s constitution.

What’s at stake for Canadians? Quite simply, democracy, rights and law.

The constitution is our framework for state power and citizens’ rights. It determines who can — or perhaps more importantly, who cannot–use the coercive power of the state against us. One of the ways it does this is by placing ultimate power in Parliament and the provincial legislatures, reserving sovereign legislative power for those bodies. Theirmembers are elected by universal franchise, and the laws they make must respect prescribed limits on civil and human rights.

The Nisga’a Treaty evaded the constitution by creating a sovereign Nisga’a Nation. This nation is, in effect, a third, aboriginal, order of Canadian government — the first two being federal and provincial. If the Nisga’a model is upheld and emulated, British Columbia alone could ultimately have some 50 or 60 aboriginal governments alien to our constitutional scheme.

There is a legitimate way of revamping federalism. The constitution can be amended in accordance with its own established procedures, but getting the necessary level of agreement among the provinces and the population is time-consuming and challenging. The failed 1992 Charlottetown Accord attempted to do just that. (Incidentally, it would have entrenched aboriginal government.)

Charlottetown’s failure led to a new approach, whereby politicians bypassed the necessary constitutional procedures. The Nisga’a Treaty was its first product: a new order of government created by mere treaty and ordinary legislation.

Nisga’a self-government is a fully legitimate political goal, but it should not be achieved through the Nisga’a Treaty. All of the powers intended to be exercised by Nisga’a government could be legally granted to it through the usual means used with cities and townships: namely, the delegation of powers by provinces and the federal government, which are the only orders of government

that constitutionally possess the underlying powers.

All municipalities in Canada, for instance, from Prince Rupert to St. John’s, have their powers delegated to them, by either the federal or provincial governments. This was the approach taken in the Yukon and the James Bay self-government arrangements, whereby powers were successfully delegated to aboriginal communities.

In the case of the Nisga’a, however, the key characteristics of valid delegation are missing: Neither Canada nor British Columbia can revoke Nisga’a government powers. Even their ability to supervise the exercise of those powers is limited.

The Nisga’a Treaty broke with the constitution. With remarkable sophistry, the treaty pretends that the powers of Nisga’a government are so-called “treaty rights” under section 35 of the constitution, which isn’t true.

By treating Nisga’a government powers as if they were aboriginal rights, the Nisga’a Treaty turns the constitution on its head. Section 35 now has been read as if it were meant to entrench a new order of sovereign government. It creates a territory within British Columbia with paramount powers over those of Canada and British Columbia, and where democratic rights (and possibly other Charter rights) of non-Nisga’a persons can be denied.

Is this legal? That’s what this trial in B.C. will determine.