The Nisga’a Treaty: A civil libertarian perspective Vol. 32 No. 3

The following is the text of a BCCLA press release issued on 3 December 1998:

The B.C. Civil Liberties Association today announced its support for the Nisga’a people’s right to a limited form of self-government as set out in the proposed Nisga’a treaty. The Association also expressed its belief that a referendum of B.C. voters on this issue is not necessary.

BCCLA President Andrew Irvine noted that the Nisga’a treaty represents significant restorative justice for the Nisga’a people and thus received the support of the BCCLA.

“The treaty is a recognition by the federal and provincial governments that the Nisga’a have a justified claim to their ancestral lands,” said Irvine. “Over the years the Nisga’a have been stripped of their ancestral lands and stripped of control over their culture and institutions without legal process. Neither the Nisga’a living 120 years ago, nor any of their descendants, have signed away their right to self-determination and control over their lands. This treaty rectifies that injustice.”

The BCCLA notes that in the treaty the Nisga’a have agreed to significantly less autonomy than they had 120 years ago, and have placed themselves under important Canadian laws, such as the Charter of Rights and Freedoms, the Criminal Code, and various provincial statutes.

“The Nisga’a Nation will be a part of Canada and part of British Columbia—a unique political entity which melds the protection of their way of life with the reality of our modern Canadian democracy,” observed Irvine.

The treaty is the culmination of 22 years of negotiations, in which all sides gave up claims in order to reach an agreement. And as with many negotiated settlements, experience may demonstrate that adjustments need to be made in the future. The BCCLA considered closely the question of the extent to which non-Nisga’a living on Nisga’a lands should have a say in matters which affect them. The BCCLA concluded that, on balance, the treaty provides for significant opportunities for non-Nisga’a to participate in governance on issues that directly affect them.

“We recognize that in order for the Nisga’a to maintain sovereignty over their lands and institutions, the treaty cannot guarantee non-Nisga’a the right to vote in all matters. Yet the Association will monitor the Nisga’a government’s efforts to ensure real accommodation of non-Nisga’a interests given the guarantee of Nisga’a control over public institutions,” promised Irvine.

While coming to its decision to support the current treaty process, the BCCLA judged that given B.C.’s system of representative government, a referendum would be unnecessary in the circumstances. Furthermore, it would be unfair to the Nisga’a who entered into the negotiations on the understanding that ratification of the treaty would be by a vote in the legislature, this method already a significant departure from the tradition that treaties are approved by Cabinet.

The BCCLA also forsees that there would likely be insurmountable practical problems with putting the treaty to a referendum. “A yes vote would be clear, but how should a no vote be interpreted?” Irvine asked. “Did the voters think that the Nisga’a would get too much money or too little? Too much land or too little? Too many spring salmon or too few? And what would the parties do with a no vote—go back and start negotiating all over again? But why would they come to a different conclusion? And if the question is ’Do you agree in principle with limited sovereignty for the Nisga’a?’ most people would probably say yes even if they did not support this particular treaty. Referenda work only where a yes or no answer gives clear instructions to the government on a single issue. A referendum on this treaty just wouldn’t do the job we want referenda to do.”