THE NISGA'A FINAL
Mary C. Hurley
Law and Government Division
9 February 1999
Revised 24 September 2001
TABLE OF CONTENTS
B. The Nisgaa Land
THE CALDER DECISION
AND LAND CLAIMS
THE NISGAA FINAL
A. Negotiation Process
B. Substance: Selective Summary
1. Chapter 2: General Provisions
2. Chapter 11: Nisgaa
3. Chapter 12:
Administration of Justice
C. Issues Arising
1. The Constitutional Questions
a. Division of
Charter of Rights and Freedoms
2. The Cost
6. The Extinguishment Question
D. Ratification of the Final Agreement
E. Judicial Proceedings
THE NISGA'A FINAL
The Nisgaa Nation pursued its
claim to traditional Nisgaa territories in the Nass Valley in northern
British Columbia for over a century. The Nisgaa Final Agreement,
initialled by representatives of the Nisgaa Nation and the governments of
Canada and British Columbia in August 1998 and ratified by the Parties between November
1998 and April 2000, thus represents the product of a lengthy process for recognition of
Nisgaa land rights. According to political scientist Frank Cassidy,
[n]o people have asserted their rights for a longer period or with more force than
This paper outlines the historical
background to the Nisgaa Final Agreement, selected Final Agreement
provisions, issues of concern arising during the ratification process, the ratification
process itself, and judicial proceedings related to the Final Agreement. It is
intended to provide a general overview of these elements, and does not purport to provide
an exhaustive analysis of any of them.
As governor of the newly established
colony of Vancouver Island, James Douglas made a series of 14 land purchases from
Aboriginal peoples between 1850 and 1854. The Douglas Treaties cover approximately
358 square miles of land around Victoria, Saanich, Sooke, Nanaimo and Port Hardy, all on
Vancouver Island.(3) In concluding the
treaties, Douglas recognized Aboriginal title, consistent with the principles of the Royal
Proclamation of 1763.(4)
The British Columbia mainland became a
British colony in 1858. According to one authority, the British government began by
acknowledging Aboriginal title in the mainland colony and assuming that Douglas would
arrange for the cession of lands.(5) However,
no treaties were concluded after 1859,(6) and
Douglas took no further action to extinguish Aboriginal title.(7) Instead, he set up Indian villages and allocated land
reserves, with most communities granted only limited acreage. Douglas also offered
Aboriginal people an opportunity, similar to that offered to new settlers, to participate
in the affairs of the colony, including the right to acquire Crown land and become
Vancouver Island and the mainland were
united into one colony in 1866. Joseph Trutch, who had been the dominant Aboriginal
policy maker in British Columbia since 1864, did not accept the existence of Aboriginal
title and described Indians as savages incapable of holding concepts of land title and
ownership.(8) The right of Aboriginal people
to acquire Crown land was removed during his tenure. It was Trutchs position
that Indian title had always been explicitly denied in the province; this doctrine was to
endure for many years.
Under the Terms of Union governing British
Columbias 1871 entry into Confederation, the federal government assumed
responsibility for Indians, consistent with subsection 91(24) of the Constitution Act,
1867, and the provincial government retained authority over land and resources.
Although Aboriginal groups appealed to the federal government for larger reserves, and
there was ongoing conflict between the federal and provincial governments on this issue,
Ottawa did not press the province on the question of Aboriginal title or treaties.
In 1874, 56 B.C. chiefs petitioned the federal Indian Commissioner for B.C. for
implementation of a federal proposal that reserves contain 80 acres per family.
Various other petitions and pleas were made during this period, including by the Nisgaa,
as outlined below.
In 1910 Prime Minister Laurier promised to
take steps to address the land question, and in 1912 the federal and provincial
governments established the McKenna-McBride Commission in order to settle their
differences over Indian affairs and lands. The Commissions 1916 report
focused narrowly on reserve size, rather than on fundamental issues of ownership and
control of land. In 1920, the federal British Columbia Indian Lands Settlement
Act implemented the McKenna-McBride recommendations. Then in 1927, a joint
Senate-House Committee appointed to investigate Aboriginal claims in B.C. recommended that
Aboriginal people receive an annual allotment of $100,000 in lieu of treaties. This
recommendation, too, was implemented. The same year, an amendment to the Indian
Act made it illegal for any person to accept payment from an Aboriginal person for the
pursuit of land claims.
B. The Nisgaa Land
In the 1860s, missionaries entered Nisgaa
territory, followed by non-Aboriginal fishers, farmers and loggers. Concerned about
the influx of settlers, in 1881 the Nisgaa sent a protest delegation to
Victoria. In 1885, three Tsimshian chiefs from the Nass area travelled to Ottawa and
met with Prime Minister John A. Macdonald to discuss land grievances. In 1886, Nisgaa
in the Upper Nass refused to allow surveying by provincial crews, and began an organized
land claim process.
The following year, Nisgaa
and Tsimshian chiefs went to Victoria to discuss land and self-government issues with
Premier William Smithe and federal and provincial officials. Premier Smithe
dismissed their claims, characterizing Aboriginal people prior to contact as little
better than the wild beasts of the field.(9)
The governments did agree to establish a public inquiry into the land issue, however, and,
in 1887-1888, several hearings were held in Nisgaa territory, with Nisgaa
representatives making detailed statements about their ownership of the land and their
desire for a treaty. The subsequent report, however, dismissed Aboriginal
groups demands for the recognition of title and treaties.
Nisgaa society and politics
evolved rapidly after 1888.(10) The Nisgaa
Land Committee was formed in 1907(11) as a
political organization devoted to the resolution of land issues. By 1908, reserves
had still not been set aside for the Nisgaa, who were increasingly concerned
about the absence of protection of Aboriginal interests from non-Aboriginal settlement and
development on their land. In 1909, the Nisgaa Land Committee formed
the Indian Rights Association with other north and south coast B.C. First Nations.
In 1913, the Nisgaa Land
Committee petitioned British authorities, asserting both their right to be compensated for
any lands they might agree to surrender and, more importantly in their view, the right to
reserve other portions of their traditional lands for their own use and benefit on a
permanent basis. Much of the land they wished to reserve, however, had already been
sold by the province. The Nisgaa also declared that the coming of
non-Aboriginal peoples into their territory must be in accordance with the terms of the Royal
Proclamation of 1763. For the Aboriginal peoples of British Columbia, the
petition became an important political text and political catalyst, as well as a symbol of
the political struggle of all Indians for their land rights.(12)
In 1915, a Nisgaa delegation
met with the Minister responsible for Indian Affairs and Duncan Campbell Scott, deputy
superintendent general of Indian Affairs, to defend the petition. Nisgaa
chiefs also asserted and explained their claim to title before the McKenna-McBride
Commission, and lobbied in Ottawa over a six-week period in 1916. That year, the Nisgaa
and 15 other tribal groups formed the Allied Indian Tribes of British Columbia, a
province-wide organization for the pursuit of land claims.(13)
In 1924, 76 square kilometres of reserve
land (cut from their traditional territories of almost 25,000 square kilometres) were
allocated to Nisgaa communities. Claims-related political activity was
effectively prohibited by the 1927 amendment to the Indian Act, which remained in
place until 1951. During this period, the Nisgaa Land Committee was
relatively inactive outside the community.
In 1949, Frank Calder, son of a founder of
the Nisgaa Land Committee, was elected to the British Columbia Legislature;
he used his position to speak out on Indian issues. In 1955, he re-established the
Nisgaa Land Committee as the Nisgaa Tribal Council and became
its president. The Councils purpose was to work toward resolving the land
issue. In 1959, following discussion about launching a common claim with several
other B.C. Aboriginal groups, the Nisgaa decided to pursue an independent
THE CALDER DECISION AND
In 1968 the Nisgaa hired
lawyer Thomas Berger(14) to seek a court
declaration that Aboriginal title to the Nass Valley had never been extinguished.
The Nisgaa suit, known as the Calder case, was argued in the Supreme
Court of British Columbia in 1969.(15) The
Court accepted the provinces arguments that the Nisgaa had no claim to
title because the Royal Proclamation of 1763 did not apply in British Columbia and
had therefore not recognized Aboriginal title in the province. The judge added that,
even if title did exist, it had been extinguished implicitly by pre-1871 land
legislation. The B.C. Court of Appeal unanimously upheld this ruling, commenting
that at the time of white settlement, the Nisgaa were a primitive people with
few institutions of civilized society and no notions of private property.(16)
The Supreme Court of Canadas 1973
ruling on the Nisgaa appeal represented a landmark for all Aboriginal groups
with outstanding claims.(17) Members of the
Court split on the question of whether the Nisgaa still had title to the
land, but ruled that they had held title prior to the creation of British Columbia. Calder
confirmed that Aboriginal peoples historic occupation of the land gave rise to legal
rights in the land that survived European settlement, thus recognizing the possibility of
present-day Aboriginal rights to land and resources.
The Calder decision prompted the
federal government to develop a policy to address unsettled Aboriginal land claims.
Initially released in 1973, the first comprehensive land claims policy was
adopted in 1976. It provided, inter alia, that only six land claims could be
negotiated in Canada at any one time, and only one per province. In 1986, revisions
to the comprehensive land claim policy allowed for a broader scope of subject matters to
be negotiated within the land claim context, including, for example, offshore wildlife
harvesting rights and resource revenue-sharing.(18)
Most significantly, comprehensive land
claim agreements now benefit from explicit constitutional protection. By virtue of
section 35 of the Constitution Act, 1982, the treaty rights that are
recognized and affirmed under that provision explicitly include rights under existing or
subsequently concluded land claim agreements. In addition, the current Liberal
governments 1995 recognition of the inherent right of self-government as an existing
Aboriginal right under section 35 also had and has consequential effects for comprehensive
land claim processes.(19) The inherent
right policy provides for constitutional protection of the rights set out in
self-government agreements as treaty rights under section 35, either in new treaties, as
part of land claim agreements or as additions to existing treaties.(20)
Excluding the Nisgaa Final
Agreement, 13 comprehensive land claim agreements or modern treaties have been concluded
since the 1973 announcement of the federal governments claims policy, none of which
currently provides explicitly for section 35 protection for self-government.(21)
THE NISGAA FINAL
The evolution in land claim policy
developments was spanned by the Nisgaa land claim process.
Bilateral negotiations between the Nisgaa
and Canada began in 1976 and, in 1989, the parties signed a framework agreement setting
out the scope and process of, and topics for, negotiation. British Columbia was not
yet a party to the process, as the provincial government maintained its longstanding
denial of Aboriginal title and refused to play a role in land claim negotiations.
During the 1980s, however, the activities
of local and provincial First Nation organizations, growing public support for Aboriginal
issues and a series of court decisions in favour of Aboriginal people led the province to
become more responsive to Aboriginal concerns.(22)
In 1989, the Premiers Council on Native Affairs created by the then Social Credit
government recommended that the province establish a specific process for the negotiation
of Aboriginal land claims. In August 1990, the province although continuing
to reject Aboriginal title agreed to join First Nations and the federal government
in tripartite negotiations, and entered the Nisgaa process in October of that
In 1991, the three parties accepted the
Report of the B.C. Claims Task Force established by their representatives, which outlined
the scope and process for land claim negotiations in the province. Significantly,
the newly-elected New Democratic Party (NDP) government recognized Aboriginal title and
Aboriginal peoples inherent right of self-government. Its endorsement of the Task
Force Report enabled the establishment of the B.C. Treaty Commission and treaty
process. It was in this context that the B.C. government began to participate in the
Nisgaa negotiations although these predated and took place outside this
process. Policy documents indicate some of the factors behind the then provincial
governments desire to settle land claims:
Settling aboriginal issues at the
negotiation table instead of in the courts will benefit all British
Columbians, not just aboriginal people. Treaties will bring certainty to land and
resource use, help attract new investment for resource development, create social
stability and put an end to costly legal battles between First Nations and the Province.(23)
Having begun in 1990, tripartite
negotiations on the Nisgaa claim led to the conclusion of a new framework
agreement in 1991. In 1992, the parties also signed an interim protection measures
agreement regarding resources and land use. Between 1991 and 1995, federal and
provincial negotiators held almost 200 consultation and public information meetings in
northwestern British Columbia. Talks continued throughout this period, with various
In February 1996, negotiators for the
three parties initialled an Agreement-in-Principle (AIP) which was signed in March by then
federal Minister of Indian Affairs and Northern Development Ron Irwin, then B.C. Minister
of Aboriginal Affairs John Cashore and Nisgaa Tribal Council President Joseph
Gosnell Sr. On 4 August 1998, Nisgaa representatives and government
negotiators initialled the Nisgaa Final Agreement (the Final Agreement).
B. Substance: Selective Summary Overview
The Final Agreement consists of 22
chapters that exhaustively define Nisgaa rights and responsibilities in
relation to land, natural resources, governance, the administration of justice, the
environment, taxation and numerous other matters.(25)
1. Chapter 2: General Provisions
This pivotal chapter includes the
The Final Agreement is a treaty and a
land claim agreement under sections 25 and 35 of the Constitution Act, 1982 (s. 1).
The Final Agreement does not alter the
Constitution, including the distribution of powers between Canada and British Columbia,
the identity of the Nisgaa Nation as an Aboriginal people under the Constitution
Act, 1982, and sections 25 and 35 of that Act (s. 8).
The Canadian Charter of Rights and
Freedoms applies to Nisgaa Government (s. 9).
Nisgaa Lands and Nisgaa
Fee Simple Lands as defined in the Final Agreement are not lands reserved for the
Indians under the Constitution Act, 1867 or reserves under the Indian
Act (s. 10).
Federal and provincial laws apply to the
Nisgaa and their lands, but the Final Agreement and settlement legislation
prevail to the extent of any inconsistency between them and provisions of any federal or
provincial law (s. 13).(26)
If a Nisgaa law has an
incidental impact in an area over which Nisgaa Government has no authority
that is inconsistent with a federal or provincial law, the latter prevails to the extent
of the inconsistency (s. 54).
Subject to specified exceptions, the Indian
Act ceases to apply to the Nisgaa, except for the purpose of determining
Indian status (s. 18).
The Final Agreement constitutes the
full and final settlement with respect to the Aboriginal rights (including
title) of the Nisgaa Nation (s. 22).
The Final Agreement exhaustively sets
out Nisgaa section 35 rights, which are: the Aboriginal rights
(including title) of the Nisgaa Nation, as modified [into Treaty rights] by
the Final Agreement, the jurisdictions, authorities and rights of Nisgaa
Government, and the other section 35 rights (s. 23).
The Nisgaa release to
Canada any Aboriginal right, including title, that is other than the section 35 rights set
out in the Final Agreement (s. 26), and release Canada and the province from any future
claims whatsoever relating to any act before the Final Agreement takes effect that may
have affected Nisgaa Aboriginal rights, including title (s. 27).
Federal settlement legislation will
provide that British Columbia law not ordinarily applicable to the Nisgaa
will apply, subject to federal law and in accordance with the Final Agreement (s. 29).
The Final Agreement does not affect the
section 35 rights of any Aboriginal people other than the Nisgaa Nation (s.
33) and, should a superior court determine that such rights are adversely affected by the
Final Agreement, the Parties will strive to remedy or replace the offending provision(s)
If another treaty or land claim
agreement adversely affects Nisgaa section 35 rights set out in the Final
Agreement, additional or replacement rights or another suitable remedy will be provided by
British Columbia and/or Canada (s. 35).(27)
Unless explicitly subject to bipartisan
consent, amendments to the Final Agreement require the consent of all three Parties (s.
2. Chapter 11: Nisgaa
The Final Agreements governance
provide that the exercise of Nisgaa
Government jurisdiction will evolve over time (s. 4);
require the Nisgaa Nation
to have a Constitution and specify its required contents (s. 9);
require Nisgaa Government
to consult with non-Nisgaa residents on Nisgaa Lands about
decisions that directly and significantly affect them, to provide that these
individuals may participate in Nisgaa Public Institutions whose activities
affect them, and avail themselves of appeal or review procedures in respect of
administrative decisions (s. 19-21);
provide that the Final Agreement
prevails to the extent of any conflict with provisions of any Nisgaa law (s.
provide that if Nisgaa
Government exercises its discretionary authority to make laws in specified areas, such
laws will prevail over inconsistent federal or provincial laws: these areas include
the administration and management of Nisgaa Government (s. 36), Nisgaa
citizenship (s. 40), culture and language (s. 43), Nisgaa Property in Nisgaa
Lands,(28) the Regulation and
Administration of those Lands (s. 45 and 49), Nisgaa assets on Nisgaa
Lands (s. 55),(29) the organization and
structure for the delivery of health services on Nisgaa Lands (s. 84), child
and family services on Nisgaa lands (s. 91),(30) adoption of Nisgaa children (s. 99),
pre-school to grade 12 education of Nisgaa children on Nisgaa
Lands (s. 101), the devolution of cultural property of Nisgaa citizens
who die intestate (s. 116);
provide that if Nisgaa
Government exercises its discretionary authority to make laws in other specified
areas, federal or provincial laws prevail to the extent of any inconsistency or
conflict: these areas include public order, peace and safety (s. 62),(31) traffic and transportation (s. 74),(32) the solemnization of marriage (s. 76),
provision of social services (s. 79), health services (s. 83),(33)intoxicants (s. 111), emergency preparedness (s. 123);
provide that Nisgaa
Government may adopt federal or provincial laws in relation to matters under its
jurisdiction (s. 129).
3. Chapter 12: Administration
Provisions in this chapter:
state that in the event Nisgaa
Government decides to provide policing within Nisgaa Lands by establishing a
Nisgaa Police Service, it must make laws to establish that Service and a Nisgaa
Police Board: these laws must include provisions that either conform to or are
compatible with provincial laws in identified areas (s. 3 and 4);
provide that the Nisgaa
Police Board may exercise its functions only when the Lieutenant Governor in Council has
approved its structure and appointed its members (s. 6);
authorize the Minister with
responsibility for policing in British Columbia to intervene in policing matters on Nisgaa
Lands if she/he is of the view that such intervention is required to ensure effective
policing (s. 19);
stipulate that if Nisgaa
Government decides to establish a Nisgaa Court to administer Nisgaa
laws, it must make laws providing for judicial standards, supervision and appeal
procedures (s. 33); and
provide that a Nisgaa Court
must be approved by the Lieutenant Governor in Council prior to exercising any functions
(s. 34), define the courts jurisdiction (s. 38-41), and provide for accused persons
liable to a sentence of imprisonment under Nisgaa law to elect to be tried in
the British Columbia Provincial Court (s. 43).
Additional law-making authority is set
out in various chapters of the Final Agreement, each of which sets out conditions under
which and/or the extent to which that authority may be exercised. They include
chapters relating to Forest Resources (Chapter 5), Fisheries (Chapter 8), Wildlife
(Chapter 9), Environmental Assessment (Chapter 10) and Taxation (Chapter 16).
The Final Agreement also contains
provisions relating to the transition from the Indian Acts application to the
Nisgaa in certain areas (Chapter 13), to relationships between the Nisgaa
and regional government (Chapter 18), and to a dispute resolution mechanism to apply to
conflicts among the Parties over the Final Agreements interpretation, application or
implementation (Chapter 19).
C. Issues Arising (34)
Under the terms of the Final Agreement,
ratification by the three Parties was a precondition of its validity.(35) Throughout the ratification process, the Final Agreement
sparked debate on a number of topics. Concerns raised include the following.
1. The Constitutional Questions
Provincial Liberal leader Gordon Campbell
maintained that the Final Agreement amended the Constitution, creating an unconstitutional
third order of government and affecting the fundamental rights of British
Columbians. In his view, a province-wide referendum was required under the
provinces Constitutional Amendment Approval Act, a position shared by Bill
Vander Zalm, leader of the Reform Party of B.C., and others. The then provincial
Premier, federal negotiators, the Nisgaa and others rejected the notion that
the Final Agreement amended the Constitution or necessitated a provincial referendum.
In July 1998, the then Acting Chief
Commissioner of the B.C. Treaty Commission expressed the concern, shared by other
observers, that, quite aside from the technicalities of the constitutional issue per se,
A public referendum is the wrong tool to
use for ratification of treaties, for these reasons:
1. The parties have agreed
2. Treaties are about rights, not
about voter preferences.
3. A referendum is too blunt an
instrument to deliver meaningful input on an issue as complex as a treaty.
The referendum among the Nisgaa
is another matter. Aboriginal rights are collective rights, held by aboriginal
people, not by band councils or tribal councils. The treaty will not be legally
binding until approved by those aboriginal people. And the federal government, which
has a legal obligation to deal with First Nations in the context of a relationship of
trust, needs the ratification of individual members in order to protect its own
position. So, the fact that the treaty will be ratified by Nisgaa
members is not an argument for ratification by voters at large, whose governments have the
authority and responsibility to enter into treaties on their behalf.
In the view of the Acting Chief
Commissioner, a referendum process would mark the end of the negotiation of modern-day
treaties throughout British Columbia.(36)
Constitutionalists also differed on the
issue of the Final Agreements constitutionality. Mel Smith, a former
consultant to previous B.C. governments, criticized the Final Agreement on constitutional
grounds, while others, including Dean Peter Hogg of Osgoode Hall Law School, upheld the
Final Agreements constitutionality as consistent with section 35 of the Constitution
Charter of Rights and Freedoms
Differing views were also expressed on the
question of whether the Canadian Charter of Rights and Freedoms (Charter) applies
to Aboriginal government. In his July 1998 legal opinion for the B.C. Liberal Party,
Mel Smith considered it highly debatable whether a Final Agreement provision stating that
the Charter applies to Nisgaa Government was effective, in light of the terms
of section 32 of the Charter.(37) Smith
questioned whether Nisgaa Government would be under federal or provincial
authority within the meaning of section 32.
Other commentators have taken similar
positions on the relationship between the Charter and the exercise of an inherent right of
self-government. It has been argued that Supreme Court of Canada rulings establish
that the Charter [does] not apply to the independent exercise of governmental
powers by bodies autonomous from the federal and provincial governments.(38)
Some proponents of the section 35 inherent
right of self-government have advanced different reasons for disputing the Charters
application to Aboriginal governments. A 1994 research paper prepared for the Royal
Commission on Aboriginal Peoples (RCAP) reasoned that the language of section 32 did not
encompass and should not be imposed on Aboriginal governments exercising their inherent
section 35 right; that unilateral non-consensual imposition of the Charter would repeat
events of the past when Aboriginal peoples were often not given the opportunity to
participate when important decisions affecting their constitutional rights were
made;(39) that the right of
self-government is protected by section 25 of the Charter,(40) which is clearly intended to shield the rights of
the Aboriginal peoples, and thus the right of self-government, not just from abrogation
[destruction] but from derogation [limitation] by the Charter as well.(41)
Advocates for the view that the Charter
applies to Aboriginal governments include Dean Peter Hogg and Mary Ellen Turpel.
While conceding that the extent to which the Charter constrains Aboriginal self-government
is unclear, Hogg and Turpel nevertheless conclude it is probable that a court would
hold that Aboriginal governments are bound by the Charter. In their
view, since a self-government agreement requires a statute to indicate that it binds third
parties, [t]he statute implementing the self-government agreement probably
constitutes a sufficient involvement by the Parliament of Canada to make the Charter
applicable.(42) On the question
of whether the Charters section 25 shield might exempt the exercise of
Aboriginal self-government from Charter application, Hogg and Turpel consider blanket
immunity unlikely, although [t]he application of the Charter, when viewed
with section 25, should not mean that Aboriginal governments must follow the policies
and emulate the style
of the federal and provincial governments. Section 25
allows an Aboriginal government to design programs and laws which are different, for
legitimate cultural reasons, and have these reasons considered as relevant should such
differences invite judicial review under the Charter.(43)
The 1996 RCAP Reports
intermediate solution was founded on principles that: 1) in their
relations with governments, including Aboriginal governments, all in Canada are entitled
to the protection of the Charters general provisions; and 2) the Charter should be
interpreted, by virtue of section 25, so as to allow scope for Aboriginal
distinctiveness. Although the Constitution Act, 1982 did not provide
explicitly for Aboriginal governments, if section 35(1) is interpreted as
recognizing the inherent right [of self-government],
section 32(1) should be read
in a way that takes account of this recognition.(44) In the RCAPs view, the terms of section 32 allow
for subjecting government bodies that are not explicitly named to the Charter. In
addition, the Charters application to Aboriginal governments is tempered by
the mandatory provisions of section 25, which preclude Charter interpretation that
would undermine their basic powers. While section 1 of the Charter is available to
Aboriginal governments, section 25 also enables an Aboriginal government to argue
that certain governmental rules and practices, which may seem unusual by general Canadian
standards, are consistent with the particular culture, philosophical outlook and
traditions of the Aboriginal nation, and as such are justified.(45)
2. The Cost
It was argued that negotiators misled the
public by originally quoting a $190-million price tag for the Final Agreement, while the
real cost was estimated at approximately $500 million when direct and indirect costs were
factored in. Some critics placed the cost of the Final Agreement at over
Federal government documents(46) explained that under the terms of the
Final Agreement, the Nisgaa will receive a total of one-time payments of
$253 million, in 1999 dollars. This figure represents a capital transfer of
$196.1 million to be paid over 15 years, principally by the federal government;
$11.8 million, shared by Canada and B.C., for the purchase of commercial fishing
vessels and licences; $40.6 million to be paid over five years for transition and
implementation activities, including $30 million federal money for infrastructure and
capacity development and training, and $10.6 million for activities such as fisheries
studies, forestry training, preparation of Nisgaa laws, and so forth; and an
estimated $4.5 million for forestry transition funding. In addition, Canada
will pay $10.3 million for the establishment of a fisheries conservation trust and
$3.2 million to B.C. to assist persons potentially affected by the Final Agreement;
Canada and the province will share estimated costs of $3.1 million for surveying Nisgaa
Lands and $30 million for purchasing third party interests.
The documents indicate that British
Columbias major contribution to the settlement costs is in the form of land, with
Nisgaa Lands under the Final Agreement valued at approximately
$108.6 million in 1999 dollars, forgone forestry revenues valued at
$37.5 million, and approximately $40 million for paving the Nisgaa
Highway. The total cost of the Final Agreement, including ascribed values, is quoted
as $487.1 million in 1999 dollars, with the federal share being $255 million.
In addition, a three-way funding
arrangement among Canada, British Columbia and the Nisgaa is set out in the
Fiscal Financing Agreement (FFA), a renegotiable five-year deal that is one of several
side agreements to the Final Agreement. The initial FFA provides for annual
transfers to the Nisgaa of over $32 million, 90% of which is already
available under current arrangements with Indian Act Nisgaa First
Nations. These moneys are to provide for program and service delivery related to
health, social, education and other local services, as well as land and resource
management. Nisgaa Government will contribute to the cost of program
and service delivery under a second side agreement, an Own-Source Revenue Agreement (OSRA)
that details how Nisgaa Government revenues such as commercial and investment
income and taxation income will serve to reduce fiscal transfers from Canada and B.C. over
time. The term of the OSRA is a minimum of 12 years; it may be continued for
successive two-year periods.
Some observers branded certain of the
Final Agreements Chapter 11 self-government provisions undemocratic. Critics
expressed concerns that the Nisgaa Constitution explicitly requires
democratic accountability of Nisgaa Government only to Nisgaa
citizens, that voting rights for Nisgaa Government are restricted to
Nisgaa citizens, as determined by Nisgaa law, while Nisgaa
Government is entitled to pass laws affecting non-Nisgaa residents on Nisgaa
Lands.(47) The Final Agreement does not,
however, prevent the conferring of citizenship under Nisgaa law on
non-Aboriginal persons such as non-Nisgaa residents on Nisgaa
The Nisgaa self-government
structure was also criticized as instituting race-based government that is contrary to the
notion of equality before the law and accords the Nisgaa special
status. It was further argued that the Final Agreement would introduce
taxation without representation for non-Nisgaa residents. In fact,
Chapter 16 of the Final Agreement, dealing with taxation, explicitly restricts Nisgaa
Governments direct taxation jurisdiction to Nisgaa citizens on Nisgaa
Lands. Chapter 16 does provide for the possibility of federal and/or provincial
negotiations with the Nisgaa for the purpose of attempting to reach agreement
on the extent, if any, to which that direct taxation authority might be provided in
respect of non-Nisgaa residents on Nisgaa Lands.(48)
Some, including, initially, the then B.C.
Premier, characterize the Final Agreement as a template for subsequent B.C.
treaties. Critics suggest that as a result, treaty settlements will ultimately prove
unduly costly for the province, and engender unduly numerous, complex and balkanized
The Nisgaa do not share the
template view of the Final Agreement. Other B.C. First Nations, and
other commentators also argue against the notion that the Final Agreement is or can serve
as a template for subsequent modern treaties, given the vastly differing circumstances and
geographical contexts of First Nations and their claims across the province.(49) Government spokespersons agree that the
template characterization is incorrect, but add that certain provisions would likely be a
common feature of future treaties. These most likely include the central
General Provisions. It is also worth noting in this respect that
numerous provisions of the Final Agreement themselves reflect provisions relating to
analogous substantive subject matters in previous comprehensive land claim agreements.
The Gitanyow First Nation has been engaged
in negotiations under the British Columbia treaty process since 1993. Most of the
territory claimed by the Gitanyow lies within the Nass watershed; under the terms of the
Final Agreement, the Nisgaa hold title to portions of this territory.
The Gitxsan(50) and Tahltan Nations also
claim territory in the Nass watershed.(51)
In March 1998, prior to the conclusion of
the Final Agreement, hereditary chiefs of the Gitanyow initiated court proceedings seeking
declarations: (1) that in undertaking to negotiate a treaty with the Gitanyow under
the B.C. treaty process, and in proceeding with those treaty negotiations, the federal and
provincial Crowns are obliged to negotiate in good faith and to make every reasonable
effort to conclude and sign a treaty with the Gitanyow; and (2) that for the federal
and provincial Crowns to conclude a treaty with the Nisgaa or to allow
the designation for any purpose related to the Nisgaa Treaty over lands and
resources in respect of which Gitanyow, Canada and British Columbia are involved in a
treaty process until treaty negotiations with the Gitanyow are concluded would be
contrary to the Crowns duty to negotiate in good faith, significantly undermine the
Gitanyow claim to overlapping territory in the Nass Valley and nullify the
Gitanyow treaty process.(52)
In March 1999, Williamson J. of the
British Columbia Supreme Court ruled on the first issue. He held that, while the
federal and provincial Crowns were not under an obligation to enter into treaty
negotiations with the Gitanyow, having done so their fiduciary obligations toward
Aboriginal peoples resulted in a duty to negotiate in good faith that was
binding on all Crown representatives. A declaration to that effect was issued.(53) In April, Canada and British Columbia
appealed the ruling on the basis, inter alia, that subjecting the treaty process to
court supervision could turn negotiations into an avenue for litigation.(54) Originally scheduled for May 2000, the appeal, like the
second question raised by the Gitanyow, remains in abeyance.(55) In November 1999, subsequent to the resumption of active
negotiations in June of that year,(56) the
federal and B.C. governments made the Gitanyow a land and cash offer.(57) Although the Gitanyow criticized the joint offer for
failing to take adequate account of their concerns,(58) the parties have continued to negotiate,(59) with some progress apparently achieved in
2000 and 2001.(60)
The overlap issue affects many claims in
British Columbia. In deciding a preliminary procedural matter in the Gitanyow case,
Williamson J. noted that myriad Court applications seem inevitable unless the treaty
negotiation process deals with overlapping claims. In his view, if the
parties fail to deal with [this] conspicuous problem, they may well face Court imposed
settlements which are less likely to be acceptable to them than negotiated
In Delgamuukw v. British
Columbia, the Supreme Court of Canada encouraged the negotiation rather than
litigation of Aboriginal title claims, adding that [t]hose negotiations should also
include other Aboriginal nations which have a stake in the territory claimed.(62) The British Columbia Treaty Commission
has also underscored the urgent need for governments and First Nations to address the
sensitive overlap question.
The First Nations Summit, Canada and B.C.,
in reviewing the treaty process as a result of the Delgamuukw decision, have agreed to
examine the issue of overlaps. The Treaty Commission believes that experience in
B.C. and elsewhere will lead the parties to conclude that it is essential to resolve
issues relating to overlap claims early in negotiations, well before the parties agree to
the contents of an Agreement-in-Principle.(63)
The BCTC proposed that agreements in
principle should be signed only if a number of key guidelines [in the area of overlapping
claims] are met.(64) This position
was reiterated by the Chief Commissioner of the BCTC in testimony before parliamentary
committees considering federal ratification legislation.(65)
The general consensus among the Parties,
the BCTC, First Nations groups and other experts in Aboriginal matters is that overlap
situations are best resolved between or among affected First Nations prior to the
conclusion of any land claim agreement. According to the Minister of Indian Affairs
and Northern Development, current federal policy holds that despite the absence of an
overlap agreement, a treaty may be concluded with a First Nation that is ready to settle
where: 1) the group has held good faith negotiations with its neighbour(s); 2)
measures to resolve the overlap have proved unsuccessful; and 3) the treaty explicitly
provides that it will not affect any Aboriginal or treaty rights of any other Aboriginal
6. The Extinguishment Question
The highly problematic
extinguishment language of cession and surrender used in previous land claim
agreements was not reiterated in the Final Agreement. According to some, essentially
the same result flows from the modified rights approach in Chapter 2 general
provisions referred to above dealing with exhaustive definition of section 35 rights and
release. This issue remains a pressing one for First Nations for which
extinguishment or its equivalent ought not to be a pre-condition for treaty
conclusion. The opposing view holds that the language is necessary because treaties
must produce certainty and ensure finality.
In this respect, it should be noted that
reports to the federal government have addressed the extinguishment issue. In 1995,
both the federal fact finder mandated to explore alternative treaty models(67) and the Royal Commission on Aboriginal
Peoples suggested that certainty might be achieved without extinguishment, with the latter
recommending that the policy be abandoned in favour of one viewing modern treaties as
instruments of co-existence.(68) The then
Minister of Indian Affairs said that he would use these reports and other proposals in
giving further consideration to the extinguishment issue. In April 1999, the United
Nations Human Rights Committee recommended to the federal government that the
practice of extinguishing inherent aboriginal rights be abandoned as incompatible with
article 1 of the [International Covenant on Civil and Political Rights].(69) To date, no comprehensive new policy has
been released, leaving a contentious issue for Aboriginal groups unresolved.
D. Ratification of the Final
The validity of the Final Agreement hinged
on ratification by the Nisgaa, British Columbia and Canada.
For the Nisgaa, ratification
processes involving Nisgaa assembly consideration of the Final Agreement,
followed by a referendum, were completed in November 1998. Members of the Nisgaa
Nation endorsed the Final Agreement by a vote of 1,451 (61%) to 558 (23%), with 356 (15%)
eligible voters not taking part in the vote.(70)
Among Nisgaa opponents to the Final Agreement, a prominent concern appeared
to be that too much territory had been conceded by Nisgaa negotiators in
light of the area initially claimed.(71)
Ratification by Canada and B.C. required
signature of the Final Agreement by an authorized Minister of the Crown, and the enactment
of settlement legislation. On 30 November 1998, Bill 51, the Nisgaa
Final Agreement Act, was introduced in the British Columbia Legislative Assembly.
The ratification bill passed second reading on 13 January 1999, with detailed study
in Committee of the Whole beginning the following day.(72)
Following a government motion to end debate, the bill was passed on 22 April 1999.(73) Conflicting views on the constitutional issues
referred to above, and other legal and constitutional questions, found frequent expression
throughout the Bill 51 legislative process.
On 4 May 1999, then Minister of
Indian Affairs and Northern Development Jane Stewart signed the Final Agreement on behalf
of Canada. The federal legislative process began with the introduction in the House
of Commons of Bill C-9, An Act to give effect to the Nisgaa Final Agreement,
on 21 October 1999. On 1 November, the bill was referred to the House of
Commons Standing Committee on Aboriginal Affairs and Northern Development following a time
allocation motion to limit second reading debate. Bill C-9 was reported back to the
House of Commons without amendment following hearings in Ottawa and British Columbia from
3 November through 25 November, during which the Committee heard various
contrasting views supporting and opposing the Final Agreement, primarily on legal and
constitutional grounds. Several hundred amendments proposed by members of the then
Reform Party having been defeated at report stage, Bill C-9 was passed by the House
of Commons on 13 December, and introduced in the Senate the following day.
The Standing Senate Committee on
Aboriginal Peoples to which the bill was referred on 9 February 2000 held hearings in
Ottawa from 16 February to 23 March. Generally speaking, the evidence
before the Committee addressed issues similar to those raised before the House of Commons
Committee, in particular, the constitutionality of the Final Agreement, and actual or
potential inequities arising from the unresolved overlap issue.(74) On 29 March, Bill C-9 was reported back to the Senate
without amendments but with Observations urging the negotiating Parties to ensure that
overlap issues are resolved to the satisfaction of concerned First Nations prior to the
conclusion of land claim agreements with any of them. During the course of third
reading debate, it was proposed that third reading be delayed for six months to enable the
government to consider a reference to the Supreme Court of Canada on the constitutionality
of the Final Agreement, as some witnesses before the Committee had urged. This
proposal was defeated, and Bill C-9 adopted on 13 April 2000. The Governor
General gave Royal Assent the same day.
The enactment of Bill C-9 by Parliament
concluded ratification processes mandated by the Final Agreement, giving legal effect to
the first modern treaty in British Columbia. The Final Agreement took effect on 11
May 2000, and will be implemented in accordance with the Implementation Plan agreed to by
the three Parties. In the first year following ratification, for example, the Nisgaa
Legislature (the Wilp Siayuukhl Nisgaa) adopted approximately 20 pieces
of legislation as authorized by the Final Agreement.(75)
On 19 October 1998, the British Columbia
Liberals initiated proceedings in the Supreme Court of British Columbia against the
federal and provincial governments and the Nisgaa Tribal Council seeking
declarations, inter alia, that the Final Agreement:
is unconstitutional because it
establishes a Nisgaa Government with authority to make laws which, in certain
areas, prevail over federal and provincial laws to the extent of any
inconsistency or conflict;
constitutes an unauthorized and
unconstitutional derogation of the powers and authority of the B.C. Legislative Assembly
and of the federal Parliament; and
breaches the Charter guarantee of
democratic rights by denying non-Nisgaa citizens any right to vote for, or to
participate as members in, Nisgaa Government.(76)
The provincial Liberals contended that the
Final Agreements measures ought not to have been brought into effect by provincial
and federal legislation until the adoption of resolutions to amend the Constitution by the
Legislative Assembly and Parliament. They expressed their commitment to a
delegated, truly municipal-style of aboriginal self-government, and maintained
that British Columbians are entitled to a province-wide referendum on the basic
principles for treaties.(77)
In February 1999, a B.C. Supreme Court
judge concluded that the Liberals court case should not proceed until legislation
ratifying the Final Agreement had been adopted by both the provincial legislature and
Parliament.(78) The case proceeded in May 2000 and, on
24 July 2000, Williamson J. dismissed the plaintiffs application.(79) In essence, he made the following findings:
Although the Aboriginal right of
self-government had been diminished by the British Crowns assertion of sovereignty
and after Confederation, it had never been extinguished.
Sections 91 and 92 of the Constitution
Act, 1867 did not exhaustively distribute all legislative power to Parliament and the
provincial legislatures, but only the powers previously held by the colonies. They
did not, for example, interfere with the Royal Prerogative to negotiate treaties with
Aboriginal groups, or supersede the constitutional Preamble, under which unwritten
principles and values are fundamental to the Constitution.
Aboriginal rights represented such
unwritten principles under pre-Confederation imperial policy and after
Confederation. Rulings of the Supreme Court of Canada
[support] the submission that aboriginal
rights, and in particular a right to self-government akin to a legislative power to make
laws, survived as one of the unwritten underlying values of the Constitution
outside of the powers distributed . . . in 1867. The federal-provincial division of
powers . . . was aimed at a different issue and was a division internal to the
The Aboriginal peoples of Canada,
including the Nisgaa, had legal systems prior to contact that continued in
diminished form. Since 1867, Canadian courts have enforced Aboriginal laws,
demonstrating that a limited right to self-government persisted following the Crowns
assertion of sovereignty.
The Supreme Court of Canada has
confirmed that under section 35 of the Constitution Act, 1982, treaty rights such
as those set out in the Final Agreement, like Aboriginal rights, are not absolute.
Section 35 rights may be infringed by Parliament or the provincial legislature, subject to
the requirement that the Crown justify any such interference, consistent with the honour
of the Crown.
Thus, while section 35 guarantees and
protects the limited self-government the Nisgaa retained after the assertion
of sovereignty, decisions taken pursuant to the exercise of this now-treaty right are
subject to infringement.
The [Final Agreement], negotiated in full
knowledge of the limited effect ... of the constitutional promise of s. 35, itself
limits the new Nisgaa governments rights to legislate...
As a result of these limitations, Nisgaa
governmental powers are neither absolute nor sovereign.
The Final Agreement does not violate the
voting rights provision in section 3 of the Canadian Charter of Rights and Freedoms:
first, section 25 of the Charter shields Nisgaa treaty rights from erosion by
other Charter provisions(80) and, second, the voting
rights provision applies exclusively to elections to the House of Commons and provincial
It is not unusual for citizens to be
subject to laws without having had any participation in selection of candidates or
candidacy for the institution that enacts the laws, as provincial residency requirements
and other regulatory or administrative practices demonstrate.
The plaintiffs filed a Notice of Appeal of
this ruling to the British Columbia Court of Appeal. However, in August 2001, the
B.C. Liberals, in government and hence party to the Agreement since May 2001, abandoned
their appeal.(81) The Liberal Government is following
through on a controversial campaign commitment to hold a province-wide referendum on
treaty principles within a year of its election.(82)
Critics of the planned referendum process express concerns, among others, that it will
foster increased polarization among the provinces Aboriginal and non-Aboriginal
residents, subject minority rights to the rule of the majority, exacerbate economic
uncertainty, and is unlikely to produce useful guidelines.
There have been at least three other
challenges to the Final Agreements constitutionality:
In a Statement of Claim filed in October
1998, a group of plaintiffs with interests in the B.C. fisheries(83) sought to overturn the Final Agreement or to force a referendum.
The group argued, inter alia, that the Final Agreement purports to establish
a government not authorized by the Constitution, fails to ensure that Nisgaa
government is sufficiently responsible, and establishes a commercial fishery based on
race. The case has not proceeded.
In December 1999, a separate group of
plaintiffs(84) launched a class action suit alleging, inter
alia, not only that the creation of an unauthorized order of government is
unconstitutional, but also that neither Parliament nor the B.C. Legislative Assembly has
the authority to transfer lands and resources to the Nisgaa. The case
has not proceeded.
In March 2000, members of the Kincolith
band of the Nisgaa Nation initiated a challenge to the Final Agreement,
alleging, among other things, that it violates the Charter as well as the constitutional
division of powers.(85) This proceeding is not the
first to be commenced by the same litigants; in 1998, the British Columbia Supreme Court(86) and Court of Appeal(87)
rejected their application challenging the legality of the Agreement-in-Principle.
During the week of 17 September 2001, Canada, British Columbia and the Nisgaa
Nation went before the provinces Supreme Court seeking to have portions of the
plaintiffs statement of claim in the current action removed or amended.(88)
(1) Early sections of this paper draw heavily on previous
work by Jill Wherrett of the Parliamentary Research Branch.
Frank Cassidy, Aboriginal Land Claims in British Columbia, in Ken Coates, ed. Aboriginal
Land Claims in Canada: A Regional Perspective, Copp Clark Pitman, Toronto, 1992,
While the word treaty was not used in documents, Douglass land purchases
have consistently been upheld as treaties by the courts (R. v. White and Bob,
1964; R. v. Bartleman, 1984; Claxton v. Saanichton Marina Ltd.,
1989). The Douglas treaties are similar in principle to those signed in Ontario in
As described in the report of the B.C. Claims Task Force: From the earliest
days of its presence in North America the British Crown pursued a policy, set out in the
Royal Proclamation of 1763, that recognized aboriginal title. Aboriginal land
ownership and authority was recognized by the Crown as continuing under British
sovereignty. An effect of the policy was that only the Crown could acquire lands
from First Nations, and only by treaty. By the 1850s, the Crown had signed major
treaties with the First Nations in eastern Canada. Ultimately, that process
continued west to the Rockies, in advance of European settlement. In most of these
treaties First Nations ceded title to the Crown in exchange for substantial land reserves
and other rights. British Columbia Claims Task Force, Report of the British
Columbia Claims Task Force, Ministry of Aboriginal Affairs, Province of British
Columbia, 28 June 1991. The Report may be accessed via the website of the
British Columbia Ministry of Aboriginal Affairs, at http://www.aaf.gov.bc.ca/aaf/pubs/bcctf/toc.htm.
Paul Tennant, Aboriginal Peoples and Politics: The Indian Land Question in
British Columbia, 1849-1989, University of British Columbia Press, Vancouver, 1990, p.
B.C. was not signatory to Treaty 8, which extended into northeastern B.C.
A variety of explanations have been offered as to why no further treaties were
signed. Cassidy, see footnote 2, states that Douglas ran out of funds and was unable
to obtain additional resources from the British government (p. 13). Tennant, see
footnote 5, considers this as one possibility, but notes that Douglas did have large sums
at his disposal for the mainland colony. He suggests that Douglas altered his
principles after signing the Vancouver Island treaties, to subscribe to a system that
anticipated the assimilation of Indians and the abandonment of traditional communities for
homesteads (Chapter 3, esp. p. 36-37).
Tennant (1990), p. 40.
Quoted ibid., p. 58.
Ibid., p. 85-86. For example, a Nisgaa newspaper provided a
vehicle for organizing the land movement in the area and revival meetings
(substituting for the outlawed potlatch) served as a platform for speeches on the land
Some sources give 1890 as the year of the Committees establishment.
Tennant (1990), p. 89.
With the formation of this larger entity, the Indian Rights Association dissolved.
Then NDP leader in British Columbia and a colleague of Frank Calder.
Calder et al. v. Attorney General of British Columbia (1969), 8 Dominion Law
Reports D.L.R. (3d), 59-83.
Calder et al. v. Attorney General of British Columbia (1970), 13 Dominion
Law Reports D.L.R. (3d), 64-110.
Calder et al. v. Attorney General of British Columbia,  S.C.R. 313.
Minister of Indian Affairs and Northern Development, Comprehensive Land Claims Policy,
Minister of Supply and Services, Ottawa, 1987. While the new policy allowed
Aboriginal parties to retain some rights to land, it did not resolve Aboriginal concerns
about loss of other rights under the federal requirement that Aboriginal title to lands
and resources be surrendered in exchange for defined rights set out in a land claim
Aboriginal Self-Government: The Government of Canadas Approach to
Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government,
Minister of Public Works and Government Services, Ottawa, 1995.
Ibid., p. 8.
The James Bay and Northern Quebec Agreement (1977); the Northeastern Quebec Agreement
(1978); the Inuvialuit Final Agreement (1984); the Gwichin Agreement (1992); the
Nunavut Land Claims Agreement (1993); the Sahtu Dene and Métis Agreement (1994); seven
Yukon First Nation Final Agreements and corresponding Self-Government Agreements based on
the Council for Yukon Indians Umbrella Final Agreement (1993). Other developments in
the area of comprehensive land claims are ongoing. For example, in May 1999,
representatives of the Labrador Inuit Association and the governments of Canada and
Newfoundland and Labrador initialled the Labrador Inuit Land Claims
Agreement-in-Principle. In July 1999, the Labrador Inuit voted in favour of the
AIP. In January 2000, the Dogrib Comprehensive Land Claim and Self-Government
Agreement-in-Principle was signed by the Dogrib Treaty 11 Council and the governments of
Canada and the Northwest Territories.
Report of the British Columbia Claims Task Force (1991).
Then B.C. Ministry of Aboriginal Affairs policy document entitled, Information sheet
Treaty Negotiations in B.C.
These included the temporary suspension of negotiations in 1995 owing to an absence of
agreement between the federal and provincial governments on implementation of the terms of
the 1993 Canada-B.C. Memorandum of Understanding on cost-sharing. Information on the
MOU is contained in a 1999 document prepared for the B.C. government by Grant Thornton
Management Consultants entitled Financial and Economic Analysis of Treaty
Settlements in British Columbia, located at http://www.aaf.gov.bc.ca/aaf/pubs/thorntonapp.htm#a.
The full text of the Final Agreement may be consulted at http://www.aaf.gov.bc.ca/aaf/treaty/nisgaa/docs/nisga_agreement.html.
Analogous provisions are found in other land claim agreements. See, for example, s.
3.1.22 and 3.1.23 of the 1992 Gwichin Comprehensive Land Claim Agreement.
Sections 34 and 35 did not appear in the AIP, and relate to potential difficulties arising
as a result of overlapping claims by First Nations conducting separate treaty
negotiations. See subsequent text under the heading The Overlap
Under the Final Agreement, the Nisgaa Nation becomes fee simple owner of
Nisgaa Lands, as defined in Chapter 1.
In the event of conflict between Nisgaa law concerning Nisgaa
assets off Nisgaa Lands and federal or provincial law, the latter prevails.
Nisgaa law-making authority in this area must provide for standards
comparable to provincial standards.
Criminal law is expressly excluded from Nisgaa Government authority.
Nisgaa law-making authority in these areas is specified as being to the
same extent as [British Columbia] municipal governments have authority.
Nisgaa Government is required to notify British Columbia and Canada of its
intention to make laws in areas of social services, health services, child and family
services, adoption and education, and to consult with Canada or B.C., at the request of
either, on a number of specific topics in relation to which the parties may negotiate
agreements (s. 27-29).
Material under this heading was gathered, in part, from media reports of responses to the
Final Agreement since August 1998.
See Chapter 22, Ratification.
British Columbia Treaty Commission, News Release, Referendum Is the Wrong Way
to Ratify Treaties, Vancouver, 30 July 1998, accessible via the BCTC website,
Section 32 provides that the Charter applies to the Parliament and the government of
Canada and to the legislature and government of each province in respect
of all matters within their respective authority.
Kenneth Tyler, Another Opinion: A Critique of the Paper Prepared by the Royal
Commission on Aboriginal Peoples Entitled: Partners in
Confederation, Paper prepared for the Continuing Legal Education Program of
the Canadian Bar Association on the topic The Inherent Right of Aboriginal
Self-Government, Toronto, 1994, p. 23-24. Supreme Court of Canada
decisions cited by Tyler discuss the scope of section 32 in the context of cases involving
litigation between private parties and challenging university, hospital and college
policies. The first of these, R.W.D.S.U. v. Dolphin Delivery Ltd.
(1986), 33 D.L.R. (4th) 174, is frequently cited in relation to the application of
section 32. In it, McIntyre J. stated: Section 32(1) refers to the
Parliament and Government of Canada and to the legislatures and governments of the
provinces in respect of all matters within their respective authorities.
(p. 194) It is my view that s. 32 of the Charter specifies the
actors to whom the Charter will apply. They are the legislative, executive and
administrative branches of government. (p. 195) It would also seem that
the Charter would apply to many forms of delegated legislation, regulations, Orders in
Council, possibly municipal by-laws, and by-laws and regulations of other creatures of
Parliament and the legislatures. It is not suggested that this list is
exhaustive. (p. 198) It is worth noting that the Charter has been found
to apply to First Nation by-laws under the Indian Act and the Cree-Naskapi
(of Québec) Act.
Kent McNeil, Aboriginal Government and the Canadian Charter of Rights and
Freedoms: A Legal Perspective, p. 3. The document is contained
on the RCAP compact disk and may be obtained from the Library of Parliaments
Reference Branch. In the Final Agreement, the Nisgaa agreed to the
application of the Charter to their governments and legislation.
Subsection 25(b) reads The guarantee in this Charter of certain rights and freedoms
shall not be construed so as to abrogate or derogate from any aboriginal rights or
freedoms that pertain to the aboriginal peoples in Canada, including
that now exist by way of land claim agreements or may be so acquired. It is
generally agreed that section 25 serves as a shield that protects Aboriginal and treaty
rights from adverse effects of Charter rights and, in particular, from challenge under
section 15 of the Charter. The prohibition of racial discrimination in that section
is not to be interpreted, that is, as an abrogation or derogation from Aboriginal or
McNeil, note 39, p. 5.
Peter Hogg and Mary Ellen Turpel, Implementing Aboriginal Self-government:
Constitutional and Jurisdictional Issues (1995), 74 Canadian Bar Review 187,
p. 214. The article was originally prepared for the RCAP, and is also published
in a RCAP volume entitled Aboriginal Self-Government: Legal and Constitutional
Issues (Ottawa: Minister of Supply and Services Canada, 1995).
Ibid., p. 215.
Report of the Royal Commission on Aboriginal Peoples, Volume II, Part One, Restructuring
the Relationship (Ottawa: Minister of Supply and Services, 1996), p. 231.
Ibid., p. 232.
Department of Indian Affairs and Northern Development (DIAND), Backgrounder,
Financial Arrangements, Nisgaa Final Agreement:
Summary of One-Time Costs, May 1999, available via the DIAND website at
under the heading Government of Canada Signs Historic Nisgaa
In this respect, it is worth noting that under the Indian Act, Indian bands have
been authorized to establish their own membership codes since 1985, and that only band
members are entitled to vote in band council elections. From an interpretive point
of view, the fact that the Nisgaa Constitution must spell out accountability
measures in respect of Nisgaa citizens does not signify that it is precluded
from instituting additional accountability measures.
Since 1988, the Indian Act has authorized First Nations to collect taxes on reserve
land, including land leased to non-Aboriginal residents or businesses. First Nation
property taxation by-laws must be approved by the federal Minister of Indian Affairs and
Northern Development. Numerous British Columbia First Nations have enacted taxation
by-laws since 1990. The B.C. Indian Self-Government Enabling Act of 1990
prevents double taxation by providing for provincial and municipal authorities to withdraw
from taxing reserve lands when First Nation taxation by-laws take effect.
By way of example, the governance chapter in the Sechelt Agreement-in-Principle, signed in
April 1999, is not modelled on the Final Agreement. Under the Sechelt AIP, the first
to be reached under the B.C. Treaty Commission process, Sechelt self-government will
continue under existing self-government arrangements, as set out in the 1986 Sechelt
Indian Band Self-Government Act, which are not constitutionally protected. The
AIP may be consulted at the B.C. Ministry of Aboriginal Affairs website, at:
The Gitanyow are culturally Gitxsan.
A discussion of overlapping claims in the Nass River watershed from the Gitxsan and
Gitanyow perspective can be found in Neil Sterritt, The Nisgaa
Treaty: Competing Claims Ignored!, B.C. Studies, No. 120, Winter
1998-99, p. 73.
(52) Gitanyow First Nation v. Canada,
 1 C.N.L.R. 66, par. 1 (B.C.S.C.).
(53) Luuxhon et al. v. Her Majesty The
Queen in Right of Canada et al.,  3 C.N.L.R. 89, par. 70-75.
(54) DIAND, News Release, Federal
Government Concerned Decision Undermines Treaty Negotiation Process Appeals Luuxhon
Ruling, Vancouver, 21 April 1999, available online at http://www.inac.gc.ca/nr/prs/j-a1999/index_e.html.
(55) Correspondence with DIAND official, 20
(56) British Columbia Treaty Commission, Annual
Report 1999, First Nations in Stage 4, Agreement in Principle
Negotiations: Gitanyow Hereditary Chiefs, June 1999, accessible via the
BCTC website, at http://www.bctreaty.net/annuals/99stage4.html.
(57) B.C. Ministry of Aboriginal Affairs, Treaty
Negotiations Information Bulletin, Canada and B.C. Present Settlement Offer to
Gitanyow, 29 November 1999, located at http://www.aaf.gov.bc.ca/aaf/gitoffernov27.htm.
(58) Suzanne Fournier, Offer Insulting, Say
Gitanyow, Vancouver Province, 30 November 1999, p. A15.
(59) British Columbia Treaty Commission, Annual
Report 2000, Status of Each Negotiation, June 2000, accessible via
the BCTC website, at http://www.bctreaty.net/annuals/00status.html.
(60) British Columbia Treaty Commission, Annual
Report 2001: The Year in Review, Status of Each Negotiating Table,
September 2001, accessible via the BCTC website, at http://www.bctreaty.net/annuals/2001%20Annual%20Report.pdf
(61) Gitanyow First Nation v. Canada,
 4 C.N.L.R. 47, par. 41 (B.C.S.C.).
(62)  3 S.C.R. 1010, par. 185-86.
(63) British Columbia Treaty Commission, Annual
Report 1998, Overlaps, located at http://www.bctreaty.net/annuals/98overlaps.html.
(64) British Columbia Treaty Commission, Newsletter,
Overlap Agreements a Must in Treaty Negotiations, Vancouver, October 1998,
located at http://www.bctreaty.net/updates/oct98overlap.html.
(65) See, for example, Standing Senate Committee on
Aboriginal Peoples, Issue No. 4, 23 February 2000, evidence of Miles Richardson,
available via the Committees website.
(66) Ibid., Issue No. 7, 23 March
2000, evidence of Hon. Robert Nault, P.C., available via the Committees
(67) The Hon. A.C. Hamilton, A New Partnership,
Minister of Public Works and Government Services, Ottawa, 1995. Hamilton advised
that certainty could be secured by incorporating six essential elements in treaties,
including: provisions detailing the land and resource rights of all Parties as well
as the rights of others affected by the treaty; mutual assurance clauses in which the
Parties agree to abide by the treaty; mutual statements that the treaty satisfies the
claims of all Parties to the land covered by the treaty and that no future claims will be
made except as they arise under the treaty; a dispute resolution process, and so forth.
(68) Royal Commission on Aboriginal Peoples, Treaty
Making in the Spirit of Co-Existence: An Alternative to Extinguishment, Minister
of Public Works and Government Services, Ottawa, 1995.
(69) Concluding Observations of the Human Rights
Committee: Canada, CCPR/C/79/Add.105, 7 April 1999, par. 8. See
also Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Canada, E/C.12/1/Add.31, 10 December 1998. The documents may
be accessed via the website of the United Nations High Commissioner for Human
(70) Canada NewsWire, Official Results of the
Vote on the Nisgaa Treaty and the Nisgaa Constitution, New
Aiyansh, B.C., 13 November 1998. With this vote, members of the Nisgaa
Nation also accepted the Nisgaa Constitution provided for in Chapter 11 of
the Final Agreement.
(71) In April 2000, the B.C. Supreme Court ruled
that the interlocutory injunction application of a small group of Nisgaa
seeking to prevent the coming into force of federal ratification legislation ought not to
proceed while the bill was still before the Senate: House of Sganisim,
Nisibilada v. Canada, 5 April 2000,  B.C.J. No. 831 (Q.L.), affirmed
by the British Columbia Court of Appeal on 20 April,  B.C.J. No. 821. On
20 April, following the completion of ratification proceedings by Parliament, the
B.C. Supreme Court denied the application, ruling that in the circumstances of the case,
it is not appropriate to take the extraordinary step of enjoining the executive from
carrying out its statutorily authorized duties.
(72) The debates may be consulted via the website of the
B.C. Legislative Assembly, at http://www.legis.gov.bc.ca/1998-99/hansard/,
under the heading Hansard Finals. Chapter 2 General Provisions, debated
from 19-21 January 1999, and Chapter 11 Nisgaa Government provisions,
debated from 13-20 April 1999, may be of particular interest.
(73) Adjournment of the Legislative Assembly coinciding with
the appointment of a new Minister of Aboriginal Affairs interrupted examination of Bill 51
between 1 February and 29 March.
(74) Parliamentary proceedings relating to Bill C-9 can be
consulted via each Committees website according to the dates indicated.
(75) Edward Allen, The Year So Far, the Year Ahead,
Hakakaa: The Key To The Nisgaa Nation, Vol. 1, No. 1,
July 2001, accessible via the Nisgaa Nation website, at http://www.ntc.bc.ca/July01opt.pdf.
(76) British Columbia Liberal Party, Press Statement on
Nisgaa Court Proceedings, Victoria, 19 October 1998.
(78) Gordon Campbell et al. v. Attorney General of
British Columbia et al.,  B.C.J. No. 233 (Q.L.).
(79) Campbell et al. v. A.G.B.C./A.G.Can. & Nisgaa
Nation et al., 2000 BCSC 1123.
(80) See note 40 and accompanying text.
(81) The Final Agreement provides that No Party
will challenge, or support a challenge to, the validity of any provision of this
Agreement (Chapter 2, section 20).
(82) In August 2001, a committee of Liberal members of the
Legislative Assembly was formed to solicit public opinion across the province on
appropriate referendum questions, and to report back to the government by 30 November
2001. The NDPs 2 MLAs announced they would boycott Liberal committee
proceedings and form a parallel committee, with First Nations representation, to conduct
their own broad consultations.
(83) Including the B.C. Fisheries Survival Coalition,
individual commercial fishermen, the Area C Salmon Gillnet Association and Reform Member
of Parliament John Cummins.
(84) The group includes a non-Aboriginal plaintiff, who may be
joined by others in similar circumstances, claiming his rights as a home owner will be
affected when his property is surrounded by Nisgaa-owned land, and the B.C.
Citizens First Coalition.
(85) Sganisim Simaugit v. Canada, British
Columbia, the Nisgaa Nation et al., also known as the Chief
(86) Frank Barton and James Robinson v. Nisgaa
Tribal Council et al., Kamloops Registry No. 24853, 31 July 1998.
(87) Frank Barton and James Robinson v. Nisgaa
Tribal Council, CA025009 and 025019, 1 October 1998.
(88) Interview with DIAND official, 21 September 2001.