Nisga'a dissidents challenge landmark treaty

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Wearing a traditional hat of red cedar bark trimmed with mink fur, Nisga'a hereditary chief James Robinson sat in the Supreme Court of British Columbia, Monday, to witness the long-delayed launch of a legal attack on a landmark treaty that established a homeland for his people in northern British Columbia 10 years ago.

Ever since the Nisga'a Final Agreement was signed with great fanfare in 2000, Mr. Robinson, also known as Sganisim Sinngaut, or Chief Mountain, has been trying to strike it down.

His case was dismissed in 2005 on procedural issues, but two years later it was reinstated by the B.C. Court of Appeal.

This week it is finally being heard by Madam Justice Lynn Smith of the Supreme Court of B.C.

Chief Mountain says it has been a long wait and he blamed the provincial and federal governments for foot dragging on the case.

"It's taken 10 years and it's like they are stalling this case so the Nisga'a treaty can be more entrenched," he said outside court. "I believe they have been buying time, because the longer the treaty is in place, the harder it will be to dismantle."

Chief Robinson said he is against the treaty, which gave the Nisga'a control over about 2,000 square kilometres of territory in the Nass Valley, because large tracts of traditional land weren't included.

His family clan, he said, lost most the land it had long claimed a traditional right to.

"About 92 per cent of the hereditary lands were surrendered," he said. "That's taking away everything of who we are. What does Chief Mountain mean without the mountains?"

In court, however, his lawyer, Paul Jaffe, is attacking the deal not over issues of land allocation, but on larger legal questions.

Mr. Jaffe told court the Nisga'a treaty is unconstitutional because it established a third tier of government, which was given powers it shouldn't have.

The Nisga'a government, he said, has been granted authority over taxation, health care, wildlife management, justice and other matters that should have been left under the control of federal and provincial parliaments.

"We are asking this court to consider whether the form of government set up under the Nisga'a Final Agreement is acceptable under the Charter," said Mr. Jaffe.

Mr. Jaffe said the legal challenge should not be seen as an attack on treaties or on the ambitions of the Nisga'a to have control of their traditional lands.

"There's [no]dispute as to the noble objective of aboriginal self-government," he said.

But Mr. Jaffe argued that in pursuing a settlement, the federal and provincial governments went too far in shifting powers to the Nisga'a.

"The transfer of legislative powers … is derogation and not delegation and is therefore not constitutional," he said.

He noted that in 1998, Premier Gordon Campbell, who was then leader of the opposition, attacked the pending treaty, saying it created "a third order of government that was never envisaged by our Constitution."

Mr. Jaffe said the Nisga'a government has broad legislative powers that allow it to decide who are citizens, and to tax people, including non-aboriginals who live in the area, even if they don't have any voting rights.

He said taxation without representation violates a fundamental right of all Canadians.

Mr. Jaffe said by signing over such broad powers to the Nisga'a government, federal and provincial authorities had written "a recipe for chaos."

That prompted Judge Smith, however, to wonder why, if the treaty is so flawed, it seems to have been working so well for the past decade.

"But Mr. Jaffe, there is no evidence of dysfunction or unworkability," she said.

Mr. Jaffe countered that neither is there any evidence before the court showing the treaty is working fairly.

"But you are right," he conceded, "there is no evidence before you of any challenges [to Nisga'a tax regulations)]r of any health-care problems in the Nass Valley."

Lawyers for the Nisga'a and the B.C. and federal governments have yet to make their arguments in the case.