Opposition tries to stop Nisga'a deal

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The Liberal Party of British Columbia has gone to court to stop the Nisga'a accord, saying it re-invents the Canadian Constitution and therefore requires a constitutional amendment and a referendum involving all the people in the province.

Three Liberal members of the British Columbia legislature - party leader Gordon Campbell, Aboriginal Affairs critic, Mike deJong and Attorney General critic, Geoffrey Plant - filed suit against the Attorneys General of British Columbia and Canada on Oct. 18. The papers were filed with the Supreme Court of British Columbia in Vancouver.

The Liberal plaintiffs have asked the court to declare there is no sense in ratifying the Nisga'a agreement as it now exists because the agreement violates Section 52 of the Constitution Act, 1982. The act states: "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect."

In other words, the official Opposition in British Columbia is arguing that Canada and the province have negotiated a deal with the Nisga'a people which is contrary to Canadian law. All three parties initialled the agreement in New Aiyansh, B.C. in Nisga'a territory on Aug. 4, signifying that a long and, at times, bitter period of negotiation had been successfully completed. The Nisga'a people are scheduled to vote on the acceptability of the agreement on Nov. 6 and 7.

A second request in the statement of claim asks the court for a declaration that many, if not all, of the sections which restore self government to the Nisga'a people are "inconsistent with the exclusive and exhaustive distribution of legislative authority between the Parliament of Canada and the provincial legislatures."

Aboriginal leaders who favor ratification of the accord say those sections were painfully negotiated and represent attempts to recognize that the Nisga'a people have a valid claim to Aboriginal title over their traditional lands and, since the land was never surrendered and was not acquired by the province in a legal manner, have the right to continue to govern themselves and their land as they had for thousands of years before European colonization.

The Liberal members also want the British Columbia Supreme to rule that provisions of the agreement which limit the rights to vote for Nisga'a leaders and to belong to the Nisga'a Nation to people of Nisga'a ancestry is contrary to the Charter of Rights and Freedoms.

This is the second of two ongoing legal attempts to scuttle the Nisga'a agreement. A previous court challenge was filed jointly by the Fisheries Survival Coalition, a Prince Rupert, B.C. based resource lobby group, and a federal Reform Party member.

Premier Glen Clark said both challenges will be vigorously fought. He suggested the court action is more about politics than it is about legalities. He dared the Opposition leader to come right out and declare that he is opposed to making treaties with First Nations.

"This treaty is not about amending the Constitution - it's about the Nisga'a exchanging legal rights for treaty rights. It attains the certainty and finality that all British Columbians desire. If the Liberal Opposition wants to take the position that making treaties is not necessary, its leaders should be honest and say so," he said.

One of the country's foremost constitutional scholars supports Clark's position. Professor Peter Hogg of York University's Osgoode Hall Law School said the agreement does not require a constitutional amendment or a referendum.

"The Constitution of Canada is a defined term in Section 52(3) of the Constitution Act, 1982. The definition lists the Constitution Act, 1867, the Constitution Act 1982 and other constitutional instruments. None of these documents will be amended by entering into the Nisga'a treaty," Hogg wrote. "As a matter of policy, in my opinion, it would be undesirable to hold a referendum every ime a treaty is entered into with Aboriginal people. It would be difficult to communicate all the issues in a balanced way in a province-wide referendum campaign."

If a treaty was defeated in a referendum, Hogg said, the Aboriginal people would then have to go to court to vindicate their rights to land, resources and self government.

"The Supreme Court of Canada said in the Delgamuukw case that it was willing to do that, but it was better for governments to reach negotiated agreements with Aboriginal people. I agree with the court," Hogg said.

Nisga'a Tribal Council President, Joe Gosnell, said the Liberals are playing a dangerous game with this court challenge. He suggests the party is threatening the entire treaty process, not just the Nisga'a deal.