NEW AIYANSH, B.C. – The feasts and festivities lasted for days as the Nisga’a First Nation made history as the first Aboriginal nation to have negotiated and ratified a full treaty and settlement with the Provincial government of British Columbia.
The historic first meeting of the Nisga’a legislative body, the Wilt Si’ayuukhl Nisga’a, was May 11, both ceremonious and efficient. Tribal council members took extensive oaths of office and the talking stick was introduced. In all, 18 pieces of legislation touching upon the government and its administration, laws in respect to citizenship, elections, finances, lands and land administration and fish and wildlife were passed.
Everything needed to ensure the new government complied with the treaty’s performance clauses was accomplished. The first nation, actively seeking recognition of title, treaty and self-government rights since its first representatives were turned away on the steps of the British Columbia legislature in Victoria in 1887, finally had its day.
The Nisga’a Final Agreement includes a land claim settlement and a self-government agreement. The Nation now owns and safeguards 1,992 square kilometers of former provincial crown land and former Indian reserves. The Nisga’a will receive $253 million, some of which will target specific goals, such as increasing participation in commercial fishery and forestry practices, as well as covering transition costs, training and other implementation aspects of the agreement.
The treaty settles long-standing land claims issues in the Nass Valley near the Alaska border, clarifying access to resources. The Nisga’a Nation, as Chief Joseph Gosnell happily puts it, “is now ready to do business.”
But the significance of the ratification of the Nisga’a Final Agreement goes far beyond legalities, resources and financial opportunities. Tribal representatives say it is almost impossible to capture what ratification means to the nation as a whole.
“We’re no longer wards under the Indian Act. We’re now Nisga’a citizens,” says Edward Allen, chief executive officer of the Nisga’a Nation. “The fact that the treaty refers to us as Nisga’a Nation is of enormous significance. People are continually struggling for a recognition as a nation. And for us to have negotiated this treaty in an enormous achievement.
“We have achieved the things that we were asked to do in terms of recognition of our people, recognition of our lands, recognition of our authorities. … We’ve brought the treaty home to our people.”
Negotiations with the Nisga’a Tribal Council began in 1976, pre-dating the British Columbia Treaty that brought more than 40 other first nations to the treaty table in recent years.
Under the Nisga’a Final Agreement, the Nisga’a Lisims Government may now make laws relating to a number of areas, including government, citizenship, language and culture and lands and assets. The Nisga’a also have a limited authority to make laws in respect of public order, traffic and transportation, the solemnization of marriages, social and health services for Nisga’a citizens, adoption and education.
Over the next 12 years, the Nisga’a will phase out exemptions to sales tax as well as exemptions from income taxes.
But the road to sovereignty has not been without difficulty. Within two days of final ratification and compliance by the Nisga’a Nation, the political opposition party in the British Columbia Parliament filed suit against the provincial government and the Nisga’a Nation in the Province Supreme Court. The suit states that the Nisga’a treaty should be retracted because it provides the nation with the right to create its own laws, a direct violation of the constitution.
The Liberal opposition, lead by MLA Gordon Campbell, contends the treaty gives Nisga’a Nation the ability to pass laws that will supercede federal and provincial laws.
“Under our federal constitution there are two levels of government, the federal government and provincial government,” says Mike Dejong, Aboriginal affairs critic for the Liberal party. “Our constitution does not contemplate a third level of government, which we say is created by the Nisga’a treaty.
“We’re not opposed to self government per se. But we believe that the mechanism by which self government is being created here requires a constitutional amendment.”
Under provincial law, a constitutional amendment would require a province-wide referendum – something liberals have sought for quite some time.
Nisga’a tribal representatives uniformly reject the claims.
“Self governance is integral to our existence as a people,” Allen says. “And that is the right that we fought for. We have sat down in good faith and negotiated with the federal and provincial governments to define the meaning of our right of self government. And by so doing we have achieved a balance and have been able to carefully calibrate how our jurisdictions will work together.”
The Supreme Court will hear positions from both prosecution and defense over the course of the next two weeks. Should the Liberal Party succeed in its suit, not only would the Nisga’a treaty be irrevocably undermined, but similar treaty negotiations by other first nations would be severely affected.
The government’s position is that a referendum is not the way to resolve the issue. Peter Smith, director of communications for the Ministry of Aboriginal Affairs, explains that the government maintains the majority ought not to make decisions around minority rights. Also, the logistics of a referendum would be almost impossible to clarify. Instituting a referendum would also severely hamper treaty negotiations with first nations.
“There was never any consideration at the beginning of this process that a referendum would be inserted into the Nisga’a negotiation timeline,” Smith said. “That was never part of the framework agreement. To insert what some have termed as “the referendum card” into the Nisga’a process would be completely acting in bad faith.”
While the issues concerning the suit continue to be argued, tribal representatives say they would rather public attention focus upon the positive gains made through the ratification and implementation of the Nisga’a treaty.
“We need to recognize and acknowledge and celebrate the moment. That’s key,” Allen says. “The Mike Dejongs of the world and the Campbells are always going to be there, challenging us. We can’t make them the focus of what we do. We have to make our Aboriginal rights – the implementation of those rights for the benefit of our people – the focus of what we should be doing.
“That’s what people need to hear. This litigation will pass. And we, the people, will still be here.”