Good faith expected

Page 5

Dear Editor:

The Gitanyow Hereditary Chiefs in Northwest British Columbia are culturally Gitksan, although a separate entity from the Delgamuukw (vs the Queen) plaintiffs. The chiefs are currently working on a national campaign to stop the much hailed Nisga'a Final Agreement in its present form. The Nisga'a treaty is currently being read in Victoria, then moves to Ottawa after it's ratified in B.C. No one disputes the fact that the Nisga'a deserve a treaty on land to which they are entitled, however some serious issues remain.

Most British Columbians know that about 130 per cent of the province is claimed by First Nations because many of the land claims overlap each other. The Crown has a duty to address the overlapping claims issue, especially in light of the Nisga'a treaty, which gives the Nisga'a exclusive rights to 84 per cent of their neighbor's traditional territory, the Gitanyow (formerly Kitwancool) - land that both governments accepted for negotiation in 1994 as part of Gitanyow's claim.

The Nisga'a Agreement-in-Principle threatens the Gitanyow people with loss of their traditional lands and with it, loss of traditional food supplies and alienation from their cultural, spiritual and historic property.

Canada and British Columbia have a duty to protect Gitanyow interests but so far they have received no protection. That's why the Gitanyow are forced to challenge the historic Nisga'a treaty in B.C. Supreme Court. The Gitanyow have asked the high court to declare that the B.C. and federal governements must negotiate a treaty in good faith.

Justice Williamson's ruling could have significant ramifications on the first modern-day treaty which has been initialed but not yet ratified. The chiefs are seeking a declaration that the Crown is not negotiating in good faith. The Gitanyow could then ask the court at a subsequent trial to make a second declaration that by signing the Nisga'a treaty, the Crown has breached its duty to negotiate in good faith, in effect, nullifying the Gitanyow treaty process.

The hereditary chiefs contend good faith is the Crown's legal duty. However, the Crown argued vigorously in the high court that it only has a "moral, honorable and political duty" to negotiate in good faith. Also that the court has no place in binding the Crown into good faith negotiations. The governments also made it clear that the Nisga'a final agreement is "inviolate."

The Gitanyow maintain negotiations must be based on the Gitanyow perspective of oral and archeological evidence, Aboriginal rights and title as outlined in s.35(1) of the Constitution, good faith, and by the principles stated in Torngat and Delgamuukw. The chiefs oppose the Crown model of cash, land selection and the cede and surrender of any Aboriginal rights and title.

The Gitanyow chiefs say if the government continues to demonstrate an unwillingness to negotiate in good faith, the "made in B. C." treaty process will only continue to fan the flames of uncertainty, rather than extinguish them. The Crown must address this deficiency in the Nisga'a treaty now, before it moves to the ratification stage this spring in Ottawa.

Gitanyow Hereditary Chiefs