CKNW Editorial
for March 24, 2000

The question of the constitutionality of the Nisga'a agreement is very much in front of us. We will be hearing, in a moment, from former Supreme Court Justice Willard Estey and hear what he said in testimony before the Senate Committee looking into the matter before they pass the Nisga'a bill.

But the issue is before us even if the Senate decides to approve the treaty because there is a lawsuit before the Supreme Court of British Columbia on this very point brought by the BC Liberal party and the Fisheries Survival Coalition.

Briefly, again, this is the issue. The powers to govern the country are set out in sections 91 and 92 of the Constitution Act which divide these powers between the federal government and the provinces. It has been held by the Supreme Court of Canada that the totality of power to govern is covered by the Constitution and these and one or two other sections. The Nisga'a Treaty purports to grant to Nisga'a a number of the powers contained in section 91and 92. It's critical to note that it doesn't delegate them but grants them making them irretrievable by either the provinces or Ottawa at a later date.

Mel Smith and others have argued - their arguments now backed by Mr Estey and another former Supreme Court of Canada Justice, William McIntyre - that the only way these powers can be granted is by a constitutional amendment which would requite unanimous consent of all provinces and Ottawa. Under BC law that would require a referendum.

Leaving aside the utter stupidity of both governments in not getting a court ruling before they acted, the question arises as to what would happen if the courts agree with the opinion that the treaty is unconstitutional? Would this mean that the treaty would be washed out entirely and we would all have to go back to square one?

I don't see why it should. There are really three arguments here which must be met. The constitutional question can be met by the senior governments delegating as opposed to granting powers to Nisga'a to govern their lands ... in other words, a form of municipal government would be created. This was done with the Sechelt band.

The second question is that of protection of the rights of non Nisga'a living on the Nisga'a lands. This is more difficult as matters presently stand because Nisga'a, once passed into law, would constitutionalize the form of government the treaty grants. If it wasn't constitutionalized, one could tailor different solutions for different bands.

The notion of one person, one vote sounds great but what would you do where the band has a trailer park whose population outnumbers natives? What this requires is some hard thinking - I've no doubt that a solution could be found which does justice both to inalienable rights of citizens and the unusual nature of Indian self government.

The third issue is the Nisga'a only fishery which certainly offends against the law of the land as it presently stands. If you have a native only fishery that clearly is a race based fishery.

The vast majority of the Nisga'a treaty does not concern itself with the matters I have raised. And in the case of self government, a huge portion of the remaining difficulties would be eliminated if the parties did now what they should have done in the first place - developed a municipal style government with powers devolved rather than granted.

This entire process has come a cropper because the government of British Columbia used the process as a political issue only. I spoke with Glen Clark during the final days of the approval process and he really believed he could win an election on Nisga'a.

The people of BC ought to have had a referendum in any event and they are entitled to one if, as I suspect, the courts finally rule this deal unconstitutional If the three areas I have mentioned are cleared away - and they can and should be - I have no doubt that the public would support the treaty in a province wide vote.

This has been a massive screw-up from the beginning and in my opinion, the treaty ought to be cleaned up in the areas I have mentioned before it is dragged through the courts.