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THE NISGA'A AGREEMENT IN PRINCIPLE

By Professor Hamar Foster, Faculty of Law In February, Canada, British Columbia and the Nisga'a Tribal Council signed an Agreement-in-Principle respecting the Nisga'a land question. If a Final Agreement is ratified and enacted into law, it will become a treaty protected by the Constitution Act, 1982. This remarkable and historic achievement has been a long time coming.

The Nisga'a have always felt strongly about their territory. One of the first missionaries reported that he found "the idea of ownership so strong among the Indians" that he could not procure land for his mission. "Every mountain, every valley, every stream was named, and every piece belonged to some particular family." But the government did not acknowledge this ancient title.

So when a royal commission visited Naas Harbour in 1887, the chiefs protested. They demanded a treaty recognizing their rights to a portion of their traditional territory, compensating them modestly for the remainder, and guaranteeing them certain powers of self-government.

The commissioners said that such a treaty was out of the question, that the law would not permit it. The chiefs were astonished. "When they made the laws that you speak about," Charles Russ explained, they had never been to see us ... I would like to ask, sirs, if there was one chief of the Naas present when that law was made, and whether they asked him to speak for the Naas people? ... You see these chiefs present laugh. We cannot believe the words we have heard, that the land was not acknowledged to be ours. We took the Queen's flag and laws to honour them. We never thought that when we did that she was taking the land away from us."

The commissioners replied that the government could only set apart such tracts of land as it deemed sufficient, nothing more. Russ replied: "Set it apart; how did the Queen get the land from our forefathers to set it apart for us? It is ours to give to the Queen, and we don't understand how she could have it to give to us."

It was a good point, because the law was not quite as the commissioners had said. Treaties had been made with nearly all of the tribes from the Ontario border to the Rockies, and should have been made in BC as well. But the government of British Columbia rejected the concept of Aboriginal title, and treaties could not be made without its cooperation.

On more than one occasion, lawyers and even its own legally trained ministers advised the federal government that failing to make treaties was legally risky, because it probably left Crown ownership of public lands in BC subject to the prior, unextinguished rights of the Indians. But the province was adamant, and Ottawa lacked the political will to force the issue.

[The policy the federal government adopted instead is summed up in a telegramme that the minister of the interior sent in 1877 to his top official in BC. "Indian rights to soil in British Columbia," said David Mills, himself a trained lawyer, "have never been extinguished. Should any difficulty occur, steps will be taken to maintain the Indian claims to all the country where rights have not been extinguished by treaty. Don't desire to raise the question at present but Local Government must instruct [the commission appointed to set aside Indian reserves] to make reserves so large as to completely satisfy the Indians."

This did not happen. The province not only had a very distinct idea of what was satisfactory; it also kept a colonial law on the books that forbade Indians from pre-empting land as other British Columbians could. So they could not even reclaim their land by purchasing it under the pre-emption statute. At the end of the day, less than half of one percent of the province was reserved for Indians. Nearly all the lands of the Nisga'a were taken from them without compensation.

As a result, there was not "one law for all British Columbians." Not only did the government deny Aboriginal title; the legislature legally prohibited Indians from voting and standing for election. Yet the Nisga'a did not give up. They may not have been allowed to run for office or go to court - the provincial Crown would not consent, and until 1973 consent to sue the Crown was legally required - but they could at least make their case in public. Charles Barton and Arthur Calder, whose father was one of the chiefs who addressed the royal commission in 1887, therefore organized the Nisga'a Land Committee. Through the Committee, the Nisga'a worked both independently and in concert with other tribes to have the land question settled.

They even hired a lawyer, and in 1913 they sent a petition to the authorities in London. They also supported the Allied Tribes of British Columbia, which pressed the federal government either to recognize Indian land rights or to help them get the matter before the courts. Neither request was granted. Instead, in 1927 a frustrated parliament made raising funds for Indian claims illegal unless the government consented in writing. Denied access to the legislative and judicial processes, the Nisga'a now could not even raise money to advance their cause by appealing to public opinion.

But the cause did not die. Soon after the ban on fund-raising was lifted in 1951, the Nisga'a revived their Land Committee by forming the first Tribal Council in BC. Then, urged on by such men as James Gosnell, brother of current Tribal Council President Joseph Gosnell, and Frank Calder, son of Arthur Calder, they launched the lawsuit that transformed Indian land policy in this country.

The Supreme Court of Canada delivered its decision in Calder v. Attorney General of British Columbia in 1973. In it, six of the seven justices ruled that, when Europeans arrived in BC, the Nisga'a enjoyed an interest in their lands - traditionally referred to as "Indian title" - that was recognized by Canadian law. Although three of those six held that this interest had been extinguished prior to 1871, the other three said that it continued to burden the underlying title of the Crown. The seventh judge ruled that, because the province had not consented to the lawsuit, he did not have to decide the case; so, on the crucial question of whether the Nisga'a still had title, the result was a draw.

That, finally, was enough for Ottawa. The federal government developed a land claims policy, and in 1976 the Nisga'a were the first tribe in BC to begin negotiations for recognition of their Aboriginal rights.

But it was not enough for British Columbia. The Social Credit government of the day took the position that Calder changed nothing. The case was a draw so, technically, there was no Aboriginal title and nothing to negotiate. The province therefore refused to come to the table. It relented only after several more judicial decisions affirmed and strengthened Calder, rendering the nature of the Crown's title to much of British Columbia increasingly uncertain and vindicating the legal opinions provided to Ottawa over one hundred years earlier. The judges who made these decisions urged the parties to negotiate treaties.

The province did not become a full-fledged participant in the treaty talks with the Nisga'a until the NDP were elected in 1991. More than four hard years of negotiating followed, culminating in the Agreement-in-Principle signed last month. It came twenty years after the negotiations began, and one hundred and nine years after Charles Russ explained to a royal commission that honouring the Queen's laws should not mean forfeiting your lands.

At the University of Victoria, these developments have been followed with interest. Many Faculties and Departments offer courses that deal with Aboriginal issues, including ones on Aboriginal Law, the Indian Act, the history of Aboriginal-European Relations, etc. (a complete list can be obtained from the Aboriginal Liaison Office on campus). It is right that this should be so, because resolving the BC Indian Land Question - as it has been called since at least 1875 - has important implications for all Canadians.

Doubts and concerns are already being expressed about the Agreement-in-Principle, and this is to be expected. Some changes may in fact be made to it before a Final Agreement is signed. But, as discussion and criticism of the Agreement proceeds, British Columbians should not lose sight of the significance of what has been achieved.

Some will say that nearly 2,000 square kilometers of land is a lot of land, and that $190 million is a lot of money. They will be right. But the land - only about 10% of the original claim - is much less than the Nisga'a believe they are entitled to. So is the money, which is compensation for over a century of rent-free exploitation of Nisga'a territory. A Price-Waterhouse study commissioned by the Nisga'a estimated that, since the late nineteenth century, non-Aboriginal industry has extracted between two and four billion dollars worth of fish, timber and minerals from their traditional territories.

These facts, coupled with the judicial decisions referred to above, surely establish that neither the land nor the cash are "race-based" benefits; they are restitution and compensation to the people whose legal rights were violated. Moreover, the Charter of Rights will apply to the new Nisga'a government, tax exemptions will be phased out, and the Indian Act - described a century ago by the Tsimshian as "small shoes for feet too large" - will no longer restrict Nisga'a government and economic development. This is a considerable achievement, even if it takes us all a little time to get used to the new shoes.

Others will say that the Nisga'a have given up a great deal. They will also be right. But ancient disputes are not resolved by refusing, ever, to compromise. Those who would tell the Nisga'a that they failed should think again about the constraints under which the parties operate and the years it has taken to secure this Agreement. The negotiators and those who preceded them have struggled, in the face of enormous odds and massive governmental indifference and even obstruction, to assert their identity and to recover their territory. This does not place their achievement beyond criticism; but it ought to make us pause before we proclaim loudly that the Agreement is a bad deal - for either side.

In an era of roadblocks, rhetoric and even violent confrontation, the Nisga'a Agreement-in-Principle sends a message of hope to all British Columbians, hope that we can resolve our unfinished business honourably. After so long, this is surely cause for celebration.


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