CKNW Editorial
for March 27, 2000

As we finally move into what should have been the first stage of Nisga’a, the constitutionality of the deal, perhaps it might be a good time to canvass the arguments. In doing so, let me immediately confess my fragility in this area – I am a person very much interested in constitutions but I make no pretence whatever to being a constitutional lawyer. What I’m about to do is summarize the constitutional arguments on both sides of the case based upon many discussions with Mel Smith, one interview with Tom Berger, who takes the contrary view, and my readings.

And let me say that this is a very important argument indeed. The constitution – that which the politicians pretend we’re not the slightest bit interested in – is no less than the document upon which is founded the rule of law in this country. Our actual laws come from many sources – England, the French Civil Law, statute law from both the federal and provincial parliaments and to some extent, I suppose, from long standing customs. But the fact that we are a country which is governed by the rule of law is set out in the preamble of the Constitution, which says "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law." So whether or not Nisga’a is lawful under our constitution is of fundamental importance.

First the argument that Nisga’a is not constitutional. This is founded upon the premise that all the power capable of being exercised in the country is contained in sections 91 and 92 of the Constitution which divides powers between the federal government and the provinces plus, and this is crucial, the residual clause which in essence says any power not enumerated under 91 or 92 belongs to the federal government. If you read these sections and subsequent decisions of the Supreme Court of Canada it seems clear that all the powers a government can have are contained in these sections.

Nisga’a grants, not devolves – and I’ll come back to that in a moment – grants powers that are within sections 91 and 92 to Nisga’a. The word grants is important because these powers are not devolved, as a province devolves powers to municipalities, subject to recall, but are given outright. They are not retrievable.

This being so, the argument is that while the federal government and the provinces have the power to grant some of their power to Native bands, that can only be done by amending the constitution. And this can only be done by the unanimous consent of Ottawa and the provinces which means, in British Columbia, a referendum.

The argument that this granting of powers is constitutional rests on section 35 of the Constitution and basically the argument is that there is no granting at all but a mere affirmation of what has always been the case.

Here’s what section 35 says, paraphrased for convenience.

"The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed which treaty rights include rights that now exist by way of land claims agreements or may be so acquired."

This means, say the proponents, that since aboriginal peoples governed themselves before the arrival of Europeans, that right of self government is confirmed by section 35 and all that remains is to say what those rights were - which is all Nisga’a does. The argument will, no doubt, also say that since Delgamuukh decided that aboriginal rights were not extinguished by the arrival of the Crown, the right to self government was not extinguished either.

It’s interesting to note, however, that the federal government has changed its tune over the years. You may recall that at Charlottetown the Accord claimed for aboriginals the right of self government meaning, obviously, that the government did not believe they had them already. Charlottetown was rejected in British Columbia by 67.9% of the people and the aboriginal self government clause was one of the reasons.

So there are the arguments. And they are both, as former Supreme Court of Canada Justice Willard Estey said on Friday, decent, honourable arguments.

I prefer the first argument but concede that the current Supreme Court of Canada might well be persuaded of the second.

The point is, of course, that they should have been made and adjudicated on long before we reached this stage.