Bad faith is still bad faith

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While the British Columbia Liberal Party and the federal Reform Party rage impotently against the imminent ratification of the Nisga'a Final Agreement in the House of Commons, chiefs of a people directly affected by the terms of the agreement have abandoned the political process and are preparing for the worst.

The Gitanyow Hereditary Chiefs have already secured a legal decision in British Columbia Supreme Court that backs up their contention the provincial and federal governments are required by law to negotiate in good faith. This, the Gitanyow claim, doesn't allow the Nisga'a deal to be finalized while negotiations for a treaty covering the same land are ongoing with the Gitanyow.

As they await the results of their legal action in provincial court, the chiefs are also considering a similar legal action in Federal Court, but community members are preparing for a more dangerous fight.

"People are quite concerned and scared, in fact, of what will happen early in the year 2000 because of the serious impacts that have not been dealt with by either government," said Gitanyow chief negotiator, Glen Williams.

The appeal of the Luuxhon decision, rendered by the British Columbia Supreme Court in March, is scheduled to be heard in May 2000, long after the Nisga'a agreement is scheduled to achieve ratification in Ottawa. The ruling that Canada and British Columbia have an obligation to bargain in good faith is being challenged by both governments, who claim that treaty negotiation is like buying a used car - anything goes. The trial judge ruled that wasn't the case. The second phase of the Luuxhon trial, where the Gitanyow are asking the court to rule that, by negotiating with both the Nisga'a and the Gitanyow for the same land at the same time, Canada and British Columbia were bargaining in bad faith, has been delayed by the appeal.

"By granting lands and resources that are covered in our negotiations, the governments are negotiating in bad faith and are actually in breach of their fiduciary duty," Williams said.

The 2,000-member community, in which hereditary chiefs handle state and political matters and work closely with the elected council that handles administrative matters, is preparing itself for the worst. Williams said the members are prepared to use force to defend their traditional homeland.

"More and more, that's been discussed. How do we do it and when do we start? We feel so helpless and yet we watch on TV the debate going on and knowing what problems that we have had and now the government is giving more weight to the Nisga'a Final Agreement and giving it the legal effect come Jan. 1," he said. "That's less than two months away and yet here we are. We have to make plans of how we defend ourselves and how we'll exercise our rights on the territory. Some people are very firm in that they'll have to slaughter us or else summon the peacekeepers."

Asked if that meant a potential armed confrontation with their neighbors, the Nisga'a people, Williams said, "I certainly hope that's not the case. What we've been trying to say to government is we want peace on the land, so for the time being, amend the Nisga'a Final Agreement to exclude our lands and resources or else put those lands in abeyance until we've had our day in court. Our position has always been against the two governments. But it's very possible that our actions will have to be against the Nisga'a central government or the Nisga'a Tribal Council."

Gitanyow chiefs say their predicament has revealed some very disturbing facts about the British Columbia treaty negotiation process, something other Nations in the process are beginning to see as well.

Williams said the First Nations in the treaty process are coming to believe that the process is a trap. Government negotiators put off talking about the most essential issue - extinguishment - until the Native parties to the negotiation have invested so much time and effort and borrowed so much money to finance te negotiation process that they can't turn back.

"From our perspective, certainty should be discussed first and foremost and is the essence of any treaty or agreement with government, but they're really reluctant to talk about certainty, or another model of certainty that we've advanced with a recognition of who we are and how do we reconcile our interests with the Crown and how our rights will continue to be exercised, and work together," Williams said.

In mid-November, Indian Affairs Minister Robert Nault met with First Nations Summit chiefs and seemed to verify Williams' contention when he told the chiefs that Cabinet wouldn't allow him to change the rules of the process to deal with complaints from the First Nations.

"People are getting very, very frustrated with the lack of mandates of government negotiators and the inability of Cabinet to consider revising their mandates," Williams said.