Kahtou 0004
August 2000

Despite the short-term uncertainty caused by the B.C. Supreme Court, treaty negotiations should not be stalled until higher courts rule on aboriginals' inherent right to self-government. Vancouver Sun The B.C. Supreme Court's decision upholding the constitutional validity of the self-government provisions of the Nisga'a treaty could, in the short-term, raise expectations in aboriginal communities, create more uncertainty and further slow progress on treaty settlements.

But B.C. Liberal leader Gordon Campbell intends to appeal the ruling to the B.C. Court of Appeal and, if necessary, to the Supreme Court of Canada. So, in the longer term, this case could further clarify what form of self-government will pass constitutional muster, speeding up negotiations and helping to bring a measure of certainty.

Since the 1997 Delgamuukw decision in which the Supreme Court of Canada determined that aboriginal people have title to their land, most natives' expectations have been raised about the size and scope of treaty settlements. The spectacular failure to reach a single agreement in B.C. after some serious negotiations in the last three years is, in part, due to these heightened expectations.

This latest decision will likely ratchet up their hopes further. Reflecting the sentiments within their communities, aboriginal negotiators will probably make demands that federal and provincial negotiators cannot or will not meet until the appeals are heard, impeding any substantive progress on treaty talks.

The B.C. Liberals went to court to argue that the powers granted to the Nisga'a government are equal to, or in some cases, supercede those of the federal and provincial governments. The Liberals contended that because sovereign power is already fully distributed between Ottawa and the provinces, the Nisga'a Treaty contravenes the Constitution Act. To make it legal, they said, it requires a constitutional change and, under B.C. law, any constitutional change must pass a referendum. Since Victoria refused to hold a referendum on the treaty, the Liberals asked the court to set aside the treaty's unconstitutional provisions.

In dismissing the case, Mr. Justice Paul Williamson ruled that aboriginal people have an inherent right to self-government -- a right that can not be extinguished. It is the first time that a court has acknowledged that.

The judge also ruled that sovereign power was not fully exhausted between Parliament and the provincial legislatures. In other words, there is some residual power that could be distributed to aboriginal governments.

As to the Liberals' claim that the denial of voting rights to non-Nisga'a living on Nisga'a territory contravenes the Charter of Rights and Freedoms, the court found that it is merely speculative since no one yet has actually been denied those rights.

Mr. Justice Williamson pointed out that the treaty permits the Nisga'a government to grant citizenship to non-Nisga'a and he noted many Canadians already have their voting rights abridged by provincial residency requirements and laws and bylaws of municipalities and administrative boards.

In his ruling, the judge noted that the courts have been encouraged to be liberal in their rulings regarding aboriginal people, saying: "... in light of the admonition of the Supreme Court of Canada that where there is ambiguity, constitutional or statutory provisions are to be given a large and liberal interpretation in favour of aboriginal people, one comes to the conclusion that the purpose of [Section 25 of the Constitution Act] is to shield the distinctive position of aboriginal peoples in Canada from being eroded or undermined by provisions of the Charter."

Because of the uncertainty Mr. Justice Williamson's ruling causes in the short term and the long-term importance of settling these claims, the B.C. Court of Appeal and, if necessary, the Supreme Court of Canada must make it a priority to rule on this matter.

This does not mean, however, that while awaiting the appeal that the First Nations Summit (which represents 51 bands), the federal and provincial governments should not continue to work at resolving some of the other outstanding issues at the 45 treaty tables under the B.C. Treaty Commission.

If Mr. Justice Williamson's decision is upheld and the Supreme Court of Canada agrees with his landmark ruling that aboriginal people have an inherent and inextinguishable right to govern themselves, this will fundamentally change not only the current B.C. treaty negotiations, but the way Canada and all of the provinces deal with aboriginal people in the future.