Importance of the Nisga'a Treaty to Canadians

By Berger, Thomas R. | Canadian Speeches, September-October 2000 | Go to article overview

Importance of the Nisga'a Treaty to Canadians


Berger, Thomas R., Canadian Speeches


Back in 1967, the leaders of the Nisga'a Tribal Council came into my law office to ask me to sue the government of B.C. to obtain recognition of their Aboriginal title. It took six years, but in 1973 the Supreme Court of Canada gave judicial recognition to the place of Aboriginal rights in Canadian law. On that day, Canada entered the modern era of treaty-making.

Now the Nisga'a are on the verge of signing the first modern treaty in BC history. Last November, by a vote of 70%, the Nisga'a people ratified the treaty. The Legislature of British Columbia is debating a bill to ratify the treaty. And later this spring the scene will shift to Ottawa where Parliament will debate a bill to ratify the treaty.

Under the treaty the Nisga'a will own 1,992 square kilometres of land, approximately 8% of the Nisga'a traditional territory (at least two ranches in BC are larger). The Nisga'a are to receive $190 million in cash, paid over 15 years. The treaty also provides for Nisga'a entitlements to forestry, fishery and wildlife resources.

The treaty represents a hard-fought compromise. The Nisga'a released their claim to ownership of most (90%) of their ancestral lands, and over time will give up their exemptions from income and sales taxation on current Indian reserves.

The BC Liberal Party, the Official Opposition in Victoria, has declared war on the treaty.

Now, as the treaty goes to Ottawa, the Reform Party intends to oppose it.

I believe they are profoundly mistaken in their opposition to the treaty. But the Reformers are right about one thing. It is time to think about the Nisga'a treaty as a Canadian treaty.

The lion's share of the cost of the treaty will be borne by Canada. More to the point, the federal government has the responsibility to complete this unfinished business; settlement of the claims of the First Nations is a national responsibility.

In recent years, Canadian ideas about Aboriginal peoples have undergone a sea change. Once thought to be peoples on the margins of the nation's history and irrelevant to present-day concerns, they are now seen as having a right to fashion a future of their own. In Canada we have a well-developed theory of aboriginal rights, based on the fact that at the time of contact aboriginal peoples were self-governing, organized political communities, using and occupying the land. On August 21st, 1996, Chief Justice Lamer, writing for the Supreme Court of Canada, in R. v. Van Der Peet (1996) 137 D.L.R. (4th) 289; [1996] 2 S.C.R. 507, said:

"In my view, the doctrine of aboriginal rights exists ... because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status."

Now Canadians realize that Aboriginal rights are the axis upon which our relations with the Aboriginal peoples turn. Under the Constitution Act, 1982, section 35, the Aboriginal peoples of Canada are the Indians, the Inuit and the Metis. Aboriginal rights, however, have mainly been delineated in litigation involving Indians. The concept of Aboriginal rights applies as much to the Indians of Canada who have signed treaties as to those with whom treaties were never made, for the treaties themselves were signed to obtain a surrender of Aboriginal fights, including Aboriginal title to the land. The reserve lands guaranteed by treaty are what remains of Indian ownership of their ancestral lands.

Historically, although few treaties were made in the Atlantic provinces and in Quebec, by the mid-eighteenth century the British had established a policy of treating with the Indians for their lands. …

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