Flouting Nisga'a tradition -and Canadian democracy

John Carpay, C2C Journal Published: Wednesday, July 09, 2008
National Post

Is the creation of a semi-sovereign aboriginal Nisga'a "nation" in northwestern British Columbia legally defensible? Setting legal considerations aside, is it the right thing to do? Even amongst the Nisga'a people themselves, you will find individuals who answer "no" to both questions.

There are about 5,500 Nisga'a people, of whom about 2,000 live in the Nisga'a ancestral lands in northwestern B. C., near the Alaska border. Of the other 3,500 Nisga'a, most live in Terrace, Prince Rupert and the Vancouver area. Traditionally, the Nisga'a governed themselves through their Wilps (Houses or Clans). Each Wilp had its own traditions, customs and lands. Historically, there existed no central Nisga'a government with authority over the Wilps.

In the 1990s, the federal government, the B. C. government and the Nisga'a tribal council negotiated the Nisga'a Final Agreement, which created the Nisga'a Lisims government as an overriding central authority, supplanting the Nisga'a tradition of local government at the Wilp level.

The Final Agreement provided 1,930 square kilometres of land to the Nisga'a Lisims government. In contravention of Nisga'a customary law, the ancestral lands belonging to the Wilps were transferred to this new centralized Nisga'a authority. No land was provided to Nisga'a individuals. Unlike a municipality, the Nisga'a Lisims government has received full ownership of the land's forests, waters, precious metals and other resources.

Disturbingly, the Nisga'a Lisims government has the power to pass laws that prevail over Canadian law. It also has the power to determine who is --and who is not --a voting Nisga'a citizen. This means that Nisga'a politicians can effectively hand-pick the voting population, creating a strong temptation for corruption and abuse of office. This would not be the case if the right to vote were universal.

The right to vote, guaranteed by Section 3 of the Charter of Rights, is effectively denied to Canadians who are not of Nisga'a descent, and can also be denied to Canadians of Nisga'a ancestry on an arbitrary, case-by-case basis. This denial of the right to vote, on the basis of descent, ancestry, ethnicity or race, also violates the Charter's Section 15 equality rights.

The Nisga'a government can pass laws creating offences carrying fines and imprisonment, and governing the appointment of Nisga'a prosecutors and judges. It may also establish Nisga'a correctional services for persons imprisoned under such laws.

People living on Nisga'a lands who are denied Nisga'a citizenship and the right to vote must still pay taxes to the Nisga'a "nation." This violates the ancient constitutional principle that there should be no taxation without representation -- a tenet affirmed by the Supreme Court of Canada in 2007.

The flip-side of this coin is representation without taxation: The Nisga'a government receives tens of millions of tax dollars from Canadian taxpayers each year, which it can spend without having to tax its own people. The Nisga'a will never fully achieve democratic accountability so long as the Nisg'a government uses other peoples' money through federal and provincial transfers.

Chief Mountain, Mercy Thomas and other Nisga'a people are raising these important issues by challenging the Nisga'a Final Agreement legislation in court. Chief Mountain (a hereditary Nisga'a chief also known as Sga'nisim Sim'augit) wants the Nisga'a people to have the autonomy necessary to facilitate the blossoming of Nisga'a culture, language and traditions, but without the Nisga'a losing their full rights as Canadian citizens, as they do with the Final Agreement.

The outcome of Chief Mountain's constitutional challenge will have a strong influence on the future direction of aboriginal policy in Canada -- in particular the question of whether it moves toward segregation or equality. - John Carpay is executive director of the Canadian Constitutional Foundation, and counsel for Chief Mountain and other Nisga'a plaintiffs who are challenging the Final Agreement legislation.