By Walkem, Ardith
Canadian Dimension , Vol. 34, No. 1
On April 22, 1999, the province of British Columbia officially ratified the Nisga'a Agreement. As I write this, the federal government is steamrolling it through the House of Commons, and the deal is expected to be ratified before the new year. The Nisga'a Agreement is the first "modern" treaty to be negotiated in B.C., and both Ottawa and the province hope it will be the dawning of a modem treaty era in B.C. A cause for celebration, right? Well, no.
The attacks on the' Nisga'a Agreement were almost enough to make me support the deal. Almost. The Nisga'a Agreement was sold in B.C. and across Canada by a million-dollar ad campaign. These ads, featuring soaring vistas of lands and trees and people, are enough to make my heart swell.
Within British Columbia there are more Indigenous nations and Indigenous languages than anywhere else in the country. British Columbia is also the only province that has remained largely unceded Aboriginal-title territory. Treaties were signed elsewhere in Canada as settlers made their way across our territories. In B.C., because the colonial governments ran out of money and Indigenous nations were not so eager to enter into treaties, no formal arrangements were ever made.
When Europeans first arrived in North America, newcomers were prevented from acquiring any interests in lands already held by Indigenous peoples. Under existing international law, the newcomers could only acquire an interest in land through sale, cession (Indigenous peoples voluntarily giving the land), or conquest.
The only exception to these rules was where lands were terra nullius (or "empty") -- not already owned or occupied by Indigenous peoples. In B.C., instead of negotiating livable arrangements, settlers asserted that Indigenous peoples were so uncivilized as to lack the ability to hold title to the land and resources. Thus, the land was indeed terra nullius, empty of any pre-existing title, rights, or interests.
But Indigenous nations in B.C. have never agreed to sell or give away our lands and resources, nor did we agree to become bound by the laws and regulations of the newcomers. Not until now -- until the Nisga'a Agreement.
The main features of the Nisga'a Agreement consist of a land-for-cash exchange. In exchange for agreeing to cede the majority of their territory, the Nisga'a receive an amount of cash plus recognition of their ownership to a minuscule portion of their traditional territory (somewhere in the neighbourhood of five per cent).
The federal and provincial governments have refused to recognize this title. For all practical purposes, Aboriginal title within B.C. is treated as though it does not exist. Both governments refuse to acknowledge the simple fact: Indigenous peoples were here first; we have an interest, as nations, in the lands and resources. Instead, the legal regime of Canada is structured so that Indigenous peoples are denied access through a complex system of laws to our lands and resources. We have to ask, "Please, Canada, can I have some land?" or, "Please, province, can I have some water, timber, or fish so I can sustain the lives of my people?"
At the same time that this system is in place, Canadians and British Columbians are often heard to complain about the "burden" that Indigenous peoples place on the system, and what huge sums of money go into supporting them in Canada today. The fact is Indigenous peoples are denied access to the lands and resources that could sustain the lives of our people, which could pull our people from poverty.
Through modern land-claims agreements, Canada asks that Indigenous peoples fundamentally alter our relationship to the land, which is the foundation of our cultures. Indigenous peoples, through modern treaties, are asked to: (1) replace our inherent right to self-determination with a limited and delegated form of self-government; (2) recognize the primacy of Canadian laws over our own laws; and (3) exchange our Aboriginal title to our territories for "fee simple" title to treaty-settlement lands. …