Wednesday, October 10, 2007
Allison Hanes
National Post
Two Nisga'a elders, who for seven years have pitted themselves against the governments of British Columbia and Canada, were yesterday allowed to resume a constitutional challenge of the historic treaty that paved the way for the kind of autonomy for which many First Nations have long been clamouring.
The matriarch and an ancestral chief say the Nisga'a treaty, which established self-government for their people in a northern swath of B.C., replaced one "dictatorship" with another, creating a body that operates outside Canadian law, the Charter of Rights and in direct violation of their own traditional principles.
Two years ago, their fight was nearly derailed when a judge quashed their action for procedural reasons.
But two B.C. Court of Appeal decisions later, that dismissal has been reversed and their challenge has been revived so it can now be judged on the merits.
James Robinson, also known by his inherited title Sga'inism Sim'augit, or Chief Mountain, professed himself relieved by the latest turn of events.
"It's very important," he said of the challenge in an interview. "It has to do with our lands that were stripped from us through the Nisga'a treaty. The land is everything to us. We have nothing without our land."
The treaty, which went in to effect in 2000, handed over $253-million, title to land held in trust and power over 14 areas of jurisdiction to the Nisga'a Lisims Government.
But John Carpay, executive director of the Canadian Constitutional Foundation, said it goes much further.
"It expressly states that in 14 areas of law, Nisga'a law will prevail over Canadian federal and provincial law.
"It's a quasi-independent nation, it's a semi-independent country," he said. "It would undermine Canadian sovereignty."
If the Nisga'a treaty is not overturned, Mr. Carpay said it would open the door to similar agreements with First Nations across Canada -- which is why the foundation is funding the court challenge.
Mercy Thomas, who goes by her matriarchal name Nisibilada, said that at stake for her people are human rights and proprietorship of Nisga'a territory, which is passed down through the generations according to a matriarchal system of clans.
The treaty has given the autonomous government control over use, development and sale of the lands. So far, she said, logging, mineral exploration and highway construction have taken place without consultation or compensation to the clans to whom they rightfully belong. "They have broken the sacred laws of the Nisga'a people. The law says that you cannot infringe on the lands that belong to each tribal group," she said. "You cannot take their lands away. You cannot take their songs or dances or crests away and yet that's what they did."
Ironically, the hereditary system was protected under the previous treaty for more than 100 years. While neither Chief Mountain or Nisibilada say they are opposed to self-government --in fact both support it -- they say the system created by the treaty is in many ways worse than what they had.
Nelson Leeson, the president of the Nisga'a Lisims Government, said he was disappointed by the ruling but vowed to defend a pact that was more than a century in the making. "We worked really hard with this treaty and we want to get on with our lives," he said. "[The constitutional challenge] is kind of an anchor behind us as we move forward."
BACK STORY:
The B.C. Court of Appeal overturned the dismissal of litigation challenging the Nisga'a treaty. - The Nisga'a Accord saw Canada and B.C. cede to the Nisga'a 2,000 square kilometres of land, pay them $253-million in cash and grant them some self-governing powers. - Before the deal was signed in 1999, then-opposition leader Gordon Campbell launched a challenge to the treaty, arguing it gave the Nisga'a powers superseding those of the provincial and federal governments. Mr. Campbell has since supported the accord while Premier. - Mercy Thomas, who is also known by her matriarchal name Nisibilada, told the appeal court in 2006 that the treaty imposed a government that she considered a dictatorship and stripped her of her rights. - James Robinson, also known by his inherited title Sga'inism Sim'augit, or Chief Mountain, alleged that the pact created an illegal third order of government that stripped them of rights held sacred by other Canadians.