Nisga'a treaty isn't a settlement blueprint

Editorial, The Vancouver Sun, 30 November 1998

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.]

The debate over the Nisga'a treaty has already succeeded in one respect. It's added a new cuss word to local language: template. The fear is that if passed, the treaty will be a blueprint for more than 50 treaties still to be negotiated or, worse, that each succeeding band to settle a claim will use it as a base to build on. The word has picked up such a negative semantic charge since Premier Glen Clark first used it last spring that treaty opponents use it the way a revival preacher invokes visions of the pit. Mr. Clark has spent months backing away from the word, saying he meant it could be a rough outline for other treaties to follow.

Ironically, few people -- even proponents -- want it to be a template. Saul Terry, president of the B.C. Union of Indian Chiefs, wrote an open letter titled Why The Nisga'a Agreement Must Not Be A Blueprint. He rejects not just this treaty but any like it.

The federal government (which would pay the majority of cash in the $490-million treaty) rejects it as a pattern, although chief federal negotiator Tom Molloy allows it could be the roughest of outlines. His provincial counterpart Jack Ebbels suggests some aspects might be "transportable". Among those is the "certainty" clause that, if the treaty is passed, would make this a full, final settlement of Nisga'a aboriginal rights. The Nisga'a would release Canada from "all claims, demands, actions or proceedings of whatever kind" in the past, present and future. After years of wearying discussion, that clause replaces the previous phrase, "cede, release and surrender," which the Nisga'a and other First Nations found repugnant.

Some resource companies question whether this new clause is certain enough and it remains to be seen whether it would pass a court challenge. Legal and constitutional expert Mel Smith -- an opponent of the treaty -- believes the clause would pass the legal test, but cautions that when a court first encounters new language invariably it assumes it must mean something other than what the old language did.

Federal and provincial officials have also suggested that some other sections such as the dispute resolution process and many legal definitions for such things as land title and fee-simple ownership will be copied.

While proponents of the treaty might reject the notion that the Nisga'a agreement is a model, if approved it would undoubtedly set the basic negotiating points even if the specifics are mutable. The Supreme Court of Canada's 1996 decision on Van der Peet noted that aboriginal rights are not general and universal and are unique to each community, while the federal and provincial governments have made it clear that the "hard aspects" -- money and land -- will vary widely from case to case.

The Nass Valley, home to the Nisga'a, is an isolated and largely undeveloped area of northern B.C. The Musqueam territory and other bands' traditional territories are now in cities. There are, however, some constants that we believe should form a part in future settlements including the removal of the constraints of the Indian Act, which will allow Indians for the first time to own land, develop land and resources, get a mortgage and pay taxes.

But there are other areas where using the treaty as a guide are of concern. Will it be a starting point for future settlements? Premier Clark is adamant that, if anything, it represents the ceiling, not the floor, in terms of total compensation. But will First Nations regard it that way?

The Nisga'a treaty, for the first time, would provide for provincial law to apply on Indian land with regard to fish and wildlife conservation. But wildlife would be co-managed; if that is repeated in other treaties the number of mini-jurisdictions seems likely to create an administrative tangle.

On the issue of self-government, how would the kinds of rights given to the Nisga'a be applied in urban areas like Vancouver or the North Shore where there are already schools, government, police and courts?

The Nisga'a treaty began its slow journey a quarter-century ago and was negotiated outside the current treaty process. What effect it may have on that process is unclear, although when the agreement in principle was signed in 1996 the first commissioner of the B.C. Treaty Commission, Chuck Connaghan, called it "a significant milestone [that] could be the pattern for future treaties in B.C."

If the treaty is approved, it must not be a template. Rather it should only be a roadmap with some shortcuts drawn in.

Letters to the Vancouver Sun - mailto:sunletters@pacpress.southam.ca

"Treaties and their certainty provisions are really about 'TAKING - OUT' (extinguishing) the Indian Nations. Changing Nations to mere delegated village council or federal municipalities. In some parts of the world it is now called 'ethnic cleansing'. It is practised to a much more subtle level upon our people but it is still genocide. The most deplorable fact in this case is that they expect us to provide our consent. Genocide may seem harsh terminology, but this treaty once and for all, alters the reality of Indigenous Nations. We are being asked to give our consent to eradicating or renouncing that we are distinct Peoples, with distinct identifiable territories, with our own governing systems, with our own distinct languages and histories.

We are being asked to use our power of consent to deny to our future generations the benefits of Title from their homelands. The traditional leadership, along with ordinary Indigenous People, have been usurped by neo-colonial leaderships that are working with the settler governments to bring this aberration of settlement to a final conclusion."