CKNW Editorial
for August 1, 2000

As regular listeners will know, I was not surprised at the result in the Nisga’a case. In an editorial a couple of months ago I said that this decision, for the reasons given, would be the way a judge would go if he wanted to break new ground.

The issue seems complicated but isn’t really. The Constitution is silent on the question of aboriginal self government though it is not on rights. Section 35 says that Native rights are secure but doesn’t, of course, spell out what they might be. The later amendment to this section included such new rights bands might get by negotiation as "constitutionalized".

The question, then, is what rights did natives have which should be "constitutionalized by section 35?

Delgamuukw decided that there were land rights. Not complete rights such as is held by the crown but rights nevertheless, including ownership and usage. Delgamuukw did not decide whether or not self government was a right that was covered by section 35. Indeed all the law, prior to this case, held that the entire spectrum of government was covered by the Constitution including sections 91 and 92 which sets out federal powers and provincial powers. The Supreme Court of Canada decided long ago that there was only room for two governments in the governing pie – no others could share. Unless, of course, those governments agreed to share as happened with Nisga’a. But prior to the ruling of Mr Justice Williamson in the Nisga’a case it was taken as settled law that to permit Indians to share power would require a constitutional amendment meaning, since BC is a party, a referendum in British Columbia. And therein lies the nub of the case.

Is the Nisga’a Treaty an attempt to amend the constitution without going through the amending process or is native self government a pre-existing right so that all the Treaty did was flesh out the bones of self government the Indians were always entitled to? Mr Justice Williamson decided the latter.

I think he’s right in the sense that I believe that the higher courts will accept his invitation to go this route. I personally think this is wrong, and contorts the reality of our society but that it is right in the sense that this is the way the socializing function of our courts now works.

What does this mean?

I think the meaning is critical, and perhaps catastrophic, to the governance arrangements we now have. It is true that in other provinces natives have treaties but does anyone believe for a moment that bands right across the country will not clamor to have them re-opened on the grounds that the question of self government either was not raised at the time or was denied them on the grounds that any such right as may have existed was extinguished by the Crown?

Mr Justice Williamson skipped neatly past the question of rights of non natives living on native lands and I’ll deal with that at another time no doubt. What we’re faced with here, in total, is the court saying that there is another discrete form of government in Canada and that all citizens are not equal. While natives have every right to say that it has been they who have been denied full citizenship in the past, Mr Justice Williamson redresses the deficiency and then some.

The point made by Gordon Gibson yesterday that non Native taxpayers will have considerable reluctance to continue to fund native bands should give considerable pause for thought.

The matter should proceed through to the Supreme Court of Canada if only for the reason that two retired justices of that court clearly have a different view of the matter than does Mr Justice Williamson. Moreover, the point can only be settled finally by a Supreme Court of Canada ruling.

What a pity it is that the Courts cannot be asked at the same time what effect the Williamson ruling, if sustained, will have on the rest of native bands.

What is an absolute certainly is that the gravy train for lawyers, accountants and other experts in the Indian Industry will be chugging along for at least another decade if not longer.