Stories

Aboriginals in Canada: segregation or equality?

John Carpay
June 19, 2009
Will Canadian courts uphold the creation of a semi-sovereign Nisga’a “nation” in northwestern British Columbia? Does Canada’s Constitution allow for quasi-independent Aboriginal principalities within Canada, each with the power to pass laws which prevail over Canadian federal and provincial law? To what extent should aboriginals have the same rights and responsibilities as other Canadians? What, specifically, should “aboriginal self-government” mean in practice? What terms and conditions should new treaties incorporate?
Stories

Aboriginals in Canada: segregation or equality?

John Carpay
June 19, 2009
Will Canadian courts uphold the creation of a semi-sovereign Nisga’a “nation” in northwestern British Columbia? Does Canada’s Constitution allow for quasi-independent Aboriginal principalities within Canada, each with the power to pass laws which prevail over Canadian federal and provincial law? To what extent should aboriginals have the same rights and responsibilities as other Canadians? What, specifically, should “aboriginal self-government” mean in practice? What terms and conditions should new treaties incorporate?
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Introduction

Will Canadian courts uphold the creation of a semi-sovereign Nisga’a “nation” in northwestern British Columbia? Does Canada’s Constitution allow for quasi-independent Aboriginal principalities within Canada, each with the power to pass laws which prevail over Canadian federal and provincial law? To what extent should aboriginals have the same rights and responsibilities as other Canadians? What, specifically, should “aboriginal self-government” mean in practice? What terms and conditions should new treaties incorporate?

Chief Mountain, Mercy Thomas and other Nisga’a people are raising these important questions by challenging in court the federal and provincial Nisga’a Final Agreement legislation, which has created a semi-sovereign Nisga’a “nation” in northwestern British Columbia.

Historical Background

There are about 5,500 Nisga’a people, of whom about 2,000 live in the Nisga’a ancestral lands in northwestern British Columbia, near the Alaska border. Of the other 3,500 Nisga’a, most live in Terrace, Prince Rupert, and the greater Vancouver area. Traditionally the Nisga’a governed themselves through their Wilps (Houses or Clans). Each Wilp has its own traditions, stories, customs and lands. The Wilp was the highest political unit within Nisga’a society, governing its own lands and its own affairs, but without authority over other Wilps. Historically, there was no central “Nisga’a government” with authority over the Wilps.

The Nisga’a Final Agreement was negotiated during the 1990s between the federal government, the B.C. government, and the Nisga’a Tribal Council. This Agreement created the Nisga’a Lisims Government as a new and overriding central authority, supplanting the Nisga’a tradition of local government at the Wilp level.

The politicians then in power – Jean Chrétien’s Liberals in Ottawa and Glen Clark’s New Democrats in Victoria – refused requests from prominent constitutional experts to have the Nisga’a Final Agreement legislation referred to the Supreme Court of Canada for an opinion on its constitutionality. B.C. Premier Glen Clark also refused repeated calls for a province-wide referendum on the Agreement.

The Nisga’a Final Agreement provided 1,930 square kilometres of land to the Nisga’a Lisims Government. In contravention of Nisga’a customary law, the ancestral lands belonging to the Wilps were transferred to this new Nisga’a central government. No land has been provided to Nisga’a individuals. Unlike a municipality, the Nisga’a Lisims Government has received full ownership of the land’s forests, waters, precious metals, minerals and other resources.

A semi-sovereign Nisga’a “nation”

In effect since 2000, the Nisga’a Final Agreement legislation provides for a Nisga’a constitution, Nisga’a citizenship, Nisga’a police force, Nisga’a judiciary, and a Nisga’a government with the power to pass Nisga’a laws.

This federal and provincial legislation expressly states that Nisga’a law prevails over Canadian federal and provincial law in matters of:

  • Citizenship
  • Language
  • Culture
  • Land (use, management, zoning, regulation, administration and expropriation)
  • The regulation of businesses, professions and trades
  • Health services
  • Child and family services, including adoption
  • Pre-school to grade 12 education of Nisga’a citizen
  • Post-secondary education on Nisga’a lands
  • Fish and aquatic plants
  • Wildlife and migratory birds.

This is not the delegation of federal and provincial powers to a municipal-style Aboriginal government. By way of illustration, the City of Calgary cannot make laws which prevail over Alberta’s provincial laws; Toronto cannot pass bylaws which take precedence over federal legislation; and Vancouver is fully subject to the laws of B.C. and Canada. By contrast, the Nisga’a Lisims Government can pass laws regarding adoption, health care, education, and fisheries management which prevail over the laws of Canada and British Columbia.

Over a century of Privy Council and Supreme Court of Canada rulings categorically state that all legislative authority in Canada is either provincial or federal; our Constitution does not provide for a “third level” or “third order” of government. All power – including the federal government’s section 91(24) jurisdiction over “Indians and Lands Reserved for Indians” – is exhaustively distributed between Ottawa and the provinces. But the Nisga’a Final Agreement legislation – and other, similar legislation passed since 2000 – creates a new form of Aboriginal government with power to reject and replace Canadian law.

Curtailing the right to vote and other Charter rights

In addition to being able to pass laws which prevail over Canadian law, the Nisga’a Lisims Government also has the power to determine who is – and who is not – a Nisga’a citizen, entitled to vote. This means that Nisga’a politicians can effectively choose the voting population, creating a strong temptation for corruption and abuse of office which would not exist if the right to vote was universal.

The right to vote, guaranteed by section 3 of the Canadian Charter of Rights and Freedoms, is denied to Canadians who are not of Nisga’a descent, and can also be denied to Canadians of Nisga’a ancestry if the Nisga’a Lisims Government refuses to confer Nisga’a citizenship on them. This denial of the right to vote, on the basis of descent, ancestry, ethnicity or race, also violates the Charter’s section 15 equality rights.

The Nisga’a government can pass laws creating offences carrying fines and imprisonment, and laws governing the appointment of Nisga’a prosecutors and judges. The Nisga’a government may also establish Nisga’a correctional services for persons convicted, sentenced and imprisoned under such laws.

The Nisga’a government is empowered to pass laws which violate the Canadian Charter of Rights and Freedoms if such laws conform to “the free and democratic nature of the Nisga’a Government set out in the Agreement.” Section 1 of the Canadian Charter of Rights and Freedoms allows Canada’s federal and provincial governments to pass legislation which violates rights and freedoms if the government persuades a court that the violating legislation is a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.” Section 9 of Chapter 2 of the Nisga’a Final Agreement states that “The Canadian Charter of Rights and Freedoms applies to Nisga’a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga’a Government as set out in this Agreement.” If the nature of the Nisga’a Government is already “free and democratic” it is doubtful that the Nisga’a government would have to justify its legislation under section 1 of the Charter.

Last but not least, section 25 of the Charter states that the Charter “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” including “any rights or freedoms that now [referring to 1982] exist by way of land claims agreements or may be so acquired.” This is critical and not widely known nor understood: if the Nisga’a government’s existence and powers are interpreted as an “aboriginal, treaty or other right or freedom that pertains to the aboriginal peoples of Canada” then the Charter will not apply to the Nisga’a government or to laws which it passes.

Taxation without representation, and representation without taxation

People living on Nisga’a lands who are denied Nisga’a citizenship and the right to vote must still pay taxes to the Nisga’a “nation.” This violates the ancient constitutional principle that there should be no taxation without representation, affirmed by the Supreme Court of Canada in 2007 in Kingstreet Investments v. New Brunswick. It also violates the Charter’s section 15 equality guarantee.

The flip side of this coin is representation without taxation: the Nisga’a government receives tens of millions of tax dollars from Canadian taxpayers each year, which it can spend without having to tax its own people. The Nisga’a will never fully achieve democratic accountability so long as the Nisg’a government uses “other peoples’ money” through federal and provincial transfers. The Nisga’a government also enjoys various tax exemptions not available to Canadian municipalities.

Legislation which cannot be changed

Unlike all other legislation, which can be amended as necessary to deal with new needs and changing circumstances, the federal and provincial Nisga’a Final Agreement legislation cannot be changed without the approval of 70% of Nisga’a citizens voting in a referendum. This is because the Nisga’a Final Agreement legislation purports to give effect to an “aboriginal or treaty right” under section 35 of the Constitution Act, 1982. With its constitutional status, this legislation is a straightjacket which cannot be amended by Canada or by B.C. Even simple, urgent and non-controversial changes cannot be enacted without the approval of 70% of Nisga’a voters in a referendum. Practically speaking, the legislation is forever frozen in constitutional concrete, because B.C. and Canada have abdicated their constitutional authority to change this legislation.

Changing Canada’s Constitution

The Nisga’a Final Agreement legislation contemplates a presidential form of government rather than a Parliamentary system of responsible government. The Nisga’a people have lost their right to be governed by a constitution “similar in principle to that of the United Kingdom” as guaranteed by the preamble to the Constitution Act, 1867 (formerly the British North America Act).

This profound constitutional change away from Parliamentary government, along with the permanent abdication of federal and provincial power to a new form of Aboriginal government, have been implemented without regard to the Amending Formula, which requires the consent of seven provinces with more than 50% of Canada’s population.

Ethnic-based rights, ethnic-based government

The Nisga’a Final Agreement legislation provides that only persons of Nisga’a descent, ancestry, or ethnicity have the right to vote and to run for office in this new quasi-independent country. The creation of this Nisga’a “nation” based expressly and overtly on ethnicity is a repudiation of the enlightened liberal ideal of equality before the law for all citizens. Instead, this legislation creates different rights for different people, depending primarily on an immutable characteristic: a person’s descent or ancestry, which is fundamentally similar to a person’s ethnicity or race.

Constitutionalizing the reserve system

Because the Nisga’a Final Agreement legislation has constitutional status as a Section 35 “aboriginal or treaty right,” the legislation constitutionalizes many aspects of Canada’s reserve system: collective property ownership, centralized planning, government-owned and government-run businesses, special tax exemptions, and the absence of private property rights. Money from the federal and provincial governments goes to the Nisga’a government, not to the Nisga’a people. This legislation alienates the Nisga’a people from Canada while simultaneously entrenching financial dependence. Government ownership of land and businesses discourages Nisga’a entrepreneurs and workers from creating wealth for the Nisga’a people. The Nisga’a people will continue to depend on government for housing, employment, education, health care, and social assistance – a terrifying prospect to marginalized Nisga’a lacking the favour of those in power.

Chief Mountain’s principled response

James Robinson is a Nisga’a ancestral chief with the hereditary title of Chief Mountain: Sga’Nisim Sim’Augit. Chief Mountain opposes the “third order” of government created by the Nisga’a Final Agreement:

“I have rights as a Canadian and a Nisga’a which are best protected under the Canadian constitution, not a constitution passed by a government controlled by family cliques.”

“This hurts our people by taking away our ancestral lands and human rights. It hurts all Canadians by undermining the Canadian constitution. I vow to fight for my people’s rights to be Canadian citizens and to be protected by the Charter of Rights. Those rights have been taken away illegally, by the Nisga’a treaty.”

“The Chief Mountain of centuries past would have fought to the death to preserve his ancestral lands and his people’s rights. I inherited a heavy responsibility. I have no choice but to fight in the courtrooms to preserve my culture, as the Nisga’a Government is a dictatorial form of government. There is no opposition party. If anyone speaks against their actions, the speakers are ostracized. I am prepared to stake all that I have on this because it will erode my culture, my traditions, our way of life, and the future of our children yet unborn.”

Chief Mountain wants the Nisga’a people to have the autonomy necessary to facilitate the blossoming of Nisga’a culture, language and traditions, but without the Nisga’a losing their full rights as Canadian citizens.

Prominent legal authorities reject the Nisga’a Final Agreement legislation

In March of 2000, before the Nisga’a Final Agreement legislation passed, prominent legal authorities warned that it violated Canada’s constitution.

Retired Supreme Court of Canada Justices Willard Estey and William McIntyre, along with retired B.C. Court of Appeal Justice Michael Goldie, told the Senate Committee on Aboriginal Peoples that the Nisga’a Final Agreement would:

create a third order of government . . . which will have virtually all the powers of an independent sovereign state, including the power to make laws which will take precedence over the long established laws of Canada and British Columbia. … An independent self-governing nation state will be created within the boundaries of Canada.

Alex Macdonald, former NDP Attorney-General of B.C., told the Senate Committee on Aboriginal People that the Nisga’a Final Agreement changes Canada’s Constitution, and that the Nisga’a government is not like a municipality:

Had we given municipal status to the Nisga’a people, they would be the majority, and they would make the by-laws and so forth. And it would have been delegated power. However, to kiss power goodbye is not only a mistake for Parliament or a legislature to commit, but it is unconstitutional. You are part of the Parliament of Canada. You can delegate your law-making powers; that happens all the time. You cannot abandon them.

Regarding the right to vote, Alex Macdonald noted that “a person may be arrested, fined and jailed pursuant to a [Nisga’a government] bylaw, yet have no voice in the government that made the bylaw.” He warned that the Agreement would create endless litigation thanks to its numerous provisions calling for consultation and negotiations. He also noted that the Agreement reduces the ability of the Attorney General of B.C. to investigate allegations of favouritism and corruption raised against Nisga’a police.

The late Mel Smith, Q.C. told Gordon Campbell, then B.C.’s Opposition Leader, that the transfer of federal and provincial authority to the new Nisga’a government “amounts to an irretrievable delegation of legislative power.”

Gordon Gibson, who serves on the Advisory Board of the Canadian Constitution Foundation and is the Fraser Institute’s Senior Fellow in Canadian Studies, has this to say about Chief Mountain’s court challenge:

Indian governments in Canada generally and under the Nisga’a Treaty specifically are small governments with very large powers. This poses a danger to individual freedom.

While ostensibly democratic in arrangement, Indian governments may not be so in practice. When a small government without the usual public service traditions has under its direct political control (in addition to the usual things) most jobs, housing, welfare, aspects of health care, access of children to higher education and other things central to individual life, it becomes not only imaginable but demonstrable in a regrettable number of cases that instead of the people controlling the government – the democratic theory – one finds a government so strong that it can control the people. This is the collective reality.

When one notes in addition that this control is financed by other people’s money (the general taxpayer) an important normal constraint (by what would otherwise be local taxpayers worried about their taxes) effectively disappears…

Most of the usual checks and balances are non-existent. The human rights laws of Canada and British Columbia do not apply. Access to the courts is restricted. There is no Ombudsman. There is no Official Opposition. Charter rights are in doubt…

Unfortunately, the federal and provincial governments rejected the recommendation of constitutional experts to refer the Nisga’a Final Agreement legislation to the Supreme Court of Canada for an opinion on its constitutionality. Instead, the federal and B.C. governments invoked closure of debate to pass the legislation.

Chief Mountain’s court challenge to the Nisga’a Final Agreement legislation is a way to stop the creation of more semi-sovereign “nations” within Canada’s border. Unless a court rules that Canada’s constitution does not allow a “third level” or “third order” of government, Canada may eventually have over 600 quasi-independent Indian “nations” within its borders.

Canada’s illiberal Constitution

Chief Mountain’s court challenge invites discussion of the unmentionable topic of race, and whether racial distinctions should be enshrined in law. Should some Canadians have different rights and different legal status based on ancestry, descent or ethnicity?

In both the 1867 and 1982 components of Canada’s Constitution, the enlightened liberal ideal of racial equality is not completely dominant. Section 91(24) of the Constitution Act, 1867 gives the federal government jurisdiction over “Indians and Lands reserved for Indians.” Section 35 of the Constitution Act, 1982 recognizes and affirms the “aboriginal and treaty rights” in existence in 1982. There can be no meaningful “aboriginal rights” if all Canadians are equally entitled to exercise them. The existence of “aboriginal rights” requires the existence of “Aboriginals” and “non-Aboriginals,” thereby requiring a distinction which is based (with few exceptions) on descent or ancestry. In similar fashion, the federal government’s jurisdiction over “Indians and Lands reserved for Indians” requires the existence of “Indians” and “non-Indians,” and this in turn also requires a racial or ethnic distinction. Supreme Court of Canada Justice Ian Binnie described the Indian Act as “race-based legislation” while questioning counsel during the hearing of R. v. Kapp (constitutional challenge to race-based commercial fisheries) on December 11, 2007.

It has become very popular in some legal and academic circles to assert that Section 91(24) and Section 35 have nothing to do with race, because these sections are based on “aboriginality.” In contrast to race or ethnicity, it is claimed, “aboriginality” refers to the existence of aboriginal societies in Canada when Europeans began settling here in the 1600s.

No one denies that Aboriginals lived in organized societies before the arrival of the French and the British. However, the concept of “aboriginality” does not change the fact that, in order to exercise aboriginal rights in 2008, a person must necessarily be Aboriginal. And being Aboriginal, in turn, is based (with few exceptions) on ancestry or descent, otherwise described as ethnicity or race.

In other words, the difference between “race” and “aboriginality” is purely one of semantics, not of substance. Both terms refer to the reality that, in 2008, in order to be an Indian or to possess aboriginal rights, one must be of a certain ancestry or descent.

The same logic applies to treaty rights, which are possessed only by Canadians who are descendants of Indians who signed a treaty. The popular slogan that “treaty rights are not race-based” is akin to declaring “an eagle is not a bird.”

Questions for judges, politicians and the Canadian public

Canada’s Constitution burdens Canadian judges and politicians – and the public at large – with the responsibility of defining the nature and extent of constitutionally enshrined aboriginal and treaty rights.

Most – if not all – Canadians agree that economic and social conditions on Indian reserves are deplorable. Economically and socially isolated from the Canadian mainstream, Indian reserves experience tragically high rates of unemployment, poverty, alcoholism, suicide, drug abuse, crime, family breakdown, and fatherless homes. These problems occur in the context of paternalistic policies like the Indian Act, and the weakness or absence of individual property rights on reserves. Canada’s Constitution, legislation, government policies and Aboriginal political elites all send a very strong message to Indians that they should be different from other Canadians, and that they should refrain from integrating themselves into the Canadian economy and society. To the extent that this message is heard and heeded, the results have been disastrous for Indians, and a source of shame for all Canadians.

In opposition to Canada’s 140-year tradition of race-based legislation and policy stands the classical liberal vision of a Canada in which Canadians celebrate differences but deal with each other on the basis of equality; a nation where individuals have equal rights as well as the freedom to use those rights differently; a country where special provisions are made on the basis of need, not on the basis of race, ethnicity, ancestry or descent.

The racial segregation of B.C.’s commercial fishery (challenged in R. v. Kapp), and the creation of semi-sovereign Indian “nations,” are examples of public policies which extend and entrench the legal distinctions between Aboriginal and non-Aboriginal Canadians. The imposition of a different legal status on Indians has served Indians poorly in the first 140 years of Canada’s history. The outcome of Chief Mountain’s constitutional challenge, and the soon-to-be-released Supreme Court of Canada’s decision in R. v. Kapp, will have a strong influence on the future direction of aboriginal policy in Canada, as well as the content of future treaties.

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