June 13, 2007 - by Joseph Quesnel
Posted First Perspective
An historic challenge to the Nisga'a Treaty in British Columbia will begin tomorrow.
Chief Mountain, hereditary Nisga’a chief Sga’nisim Sim’augit (also known as James Robinson), and Nisga’a matriarch Nisibilada (also known as Mercy Thomas), will appear before the B.C. Court of Appeal on Thursday June 14 to argue that their constitutional claim deserves to go to trial, and should not be dismissed on purely procedural grounds, as was done in the past.
Their constitutional court action actually commenced back in 2000. The action claims that the Nisga’a Final Agreement violates Canada ’s constitution by creating a semi-independent Nisga’a state whose laws prevail over Canadian law. The Nisga’a government later applied, of its own choosing, to be added as a defendant. The action was dismissed on purely procedural grounds in October of 2005, over an alleged delay by the plaintiffs in providing documents.
On Thursday June 14, the B.C. Court of Appeal will hear argument as to whether the 2005 decision to dismiss the action should be reversed. This constitutional challenge has not yet been heard as to its actual merits.
The Nisga’a Agreement came into force in 2000. It created a Nisga’a government in north-western B.C. with the power to grant or withhold Nisga’a citizenship -- even from individuals of Nisga’a descent. Only Nisga’a citizens are allowed to vote in elections. Some critics of the treaty argue that this allows the Nisga’a government to effectively select the voting population.
The Nisga’a Agreement expressly states that Nisga’a law prevails over Canadian federal and provincial law in fourteen areas of jurisdiction.
Chief Mountain opposes what he calls a "third order” of government created by the Nisga’a Treaty, stating “It hurts our people by taking away our ancestral lands and human rights. It hurts all Canadians by undermining the Canadian constitution. I vow to fight for my people’s rights to be Canadian citizens and to be protected by the Charter of Rights. Those rights have been taken away illegally, by the Nisga’a treaty.”
According to a press release from the right-leaning Canadian Constitution Foundatiom, prominent legal experts agree with Chief Mountain and Nisibilada that the “third order” of government created by the Nisga’a Treaty violates Canada ’s constitution. Retired Supreme Court of Canada Justices William McIntyre and the late Willard Estey, retired B.C. Court of Appeal Justice D.M. Michael Goldie, former NDP Attorney-General Alex MacDonald, the late Mel Smith, Q.C. and former B.C. Attorney-General Geoff Plant have all stated publicly that parts of the Nisga’a Treaty are unconstitutional and therefore illegal.
Chief Mountain’s constitutional challenge has received funding from the Canadian Constitution Foundation, a registered charity with a mandate to promote and defend Canadians’ constitutional freedoms.