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Michael W. Posluns,
The StillWaters Group,
First Nations Relations & Public Policy.
Please note new address: mposluns@accglobal.net
Phone 416 656-8613
Fax 416 656-2715
36 Lauder Avenue,
Toronto, Ontario,
M6H 3E3.
We offer Canadian parliamentary debates by topics and bills.
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From: "chris" <cgm@uvic.ca>
To: <sovernet-l@lists.speakeasy.org>
Subject: Nisga'a Final Agreement steals Gitanyow land
Date: Mon, 19 Apr 1999 09:58:04 -0700
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{\plain \line \line IS THE NISGA'A TREATY LEGAL?\line Vancouver Sun, =
April 14, 1999 by Neil Sterritt\line \line It is not too late for =
federal Indian Affairs Minister Jane Stewart and\line provincial =
Aboriginal Affairs Minister Gordon Wilson to make the Nisga'a\line final =
agreement a fair modern-day treaty. They can do what former =
ministers\line have failed to do: Withdraw the overlap lands and deal =
with them properly.\line Justice Paul Williamson, in his recent decision =
in Luuxhon v. The Queen in\line B.C. Supreme Court, set the legal basis =
for the ministers. He affirmed that\line the courts oblige Canada and =
British Columbia ``to negotiate in good faith\line with the =
Gitanyow.''\line He also said this duty ``binds all representatives of =
the Crown.'' Crown\line representatives include Stewart and Wilson and =
the federal and provincial\line chief negotiators.\line \line The law on =
bad faith illustrates why good faith negotiations are required.\line It =
is a legal offence to defraud the public or any person of their =
land\line intentionally. In such cases, showing that the victim lost =
property is not\line necessary.\line It is enough to show that the =
individual was at risk of losing property\line because of a fraud or =
deception. Gitanyow territories have important\line historical, cultural =
and economic value.\line The chiefs went to court in Luuxhon to protect =
their territories from\line encroachment by the Nisga'a treaty.\line =
\line In 1992, the Nisga'a leadership claimed 24,000 square kilometres =
of land in\line northwestern B.C. The claim included the entire Nass =
valley (21,150 square\line kilometres). Nisga'a leaders knew their 1992 =
claim included land owned not\line only by the Gitanyow, but by the =
Gitksan and Tahltan peoples as well.\line Gitksan and Gitanyow chiefs =
gave the Nisga'a Tribal Council a 300-page\line report -- Tribal =
Boundaries in the Nass Watershed -- in 1995. The report\line concluded =
the Nisga'a territory was about 7,800 square kilometres. Gitksan\line =
and Gitanyow chiefs expected Nisga'a leaders to respond to the report: =
They\line have refused comment to this day.\line \line The report was =
given to the provincial and federal ministers and their chief\line =
negotiators in 1995 and again in 1998 (when published by UBC Press). =
They\line too have declined comment. However, the provincial chief =
negotiator of the\line Gitanyow treaty table commissioned a similar =
study in 1995.\line It arrives at essentially the same conclusion. =
Imagining that the two\line provincial negotiators at the Gitanyow and =
Nisga'a treaty tables did not\line discuss these two reports is hard. =
Failure to do so is a lack of good faith\line toward the Gitanyow and =
Gitksan peoples.All three participants -- Nisga'a, Canada and British =
Columbia -- are party\line to this deception. The Nisga'a breached =
aboriginal law by claiming land they\line do not own.\line \line =
However, it is the Crown in Canada and B.C. that has a legally =
enforceable\line fiduciary obligation to protect the interests of the =
Gitanyow (and Gitksan)\line people in the Nisga'a treaty =
negotiations.\line As it stands, the Nisga'a treaty will enshrine =
extensive rights and benefits\line to 84 per cent of Gitanyow territory =
and private property and economic\line rights to key Gitanyow =
lands.\line The Gitanyow therefore went to court because Canada and B.C. =
persisted in\line developing a treaty that would create constitutionally =
protected Nisga'a\line rights over Gitanyow territory. In Luuxhon, =
Justice Williamson said the duty\line to negotiate in good faith must =
include the absence of any appearance of\line ``sharp dealing''; =
disclosure of relevant factors; and negotiation ``without\line oblique =
motive.'' I will discuss these issues as they relate to the\line =
Gitanyow.\line \line The appearance of sharp dealing means that British =
Columbia and Canada must\line always act to fulfil their promises and =
obligations to First Nations. They\line must not employ legal or =
political sleight of hand in their dealings with\line First Nations. =
They must not ignore the evidence and hide behind so-called\line legal =
escape clauses.\line Under the Nisga'a treaty, the Crown will have =
fulfilled its obligation to\line the Nisga'a, but tramples on the rights =
of the Gitanyow. It is not right\line that the first modern-day treaty =
in B.C. creates rights for one aboriginal\line group over the territory =
and objections of another.\line \line Canada and other governments have =
addressed similar overlap issues\line elsewhere. The Naskapi people of =
northern Quebec found themselves in this\line situation when the James =
Bay Cree and Inuit were about to conclude their\line treaty in the =
1970s. All parties worked expeditiously to resolve the\line oversight by =
the time the James Bay agreement was ready to be implemented in\line =
1978.\line Unlike the Naskapi situation, however, the Nisga'a overlap is =
not an\line oversight -- it is overt.\line Moreover, in July 1997, the =
provincial government's standing committee on\line aboriginal affairs =
recommended the B.C. Treaty Commission deal with\line unresolved =
overlaps. Canada and B.C. have ignored this recommendation.\line \line =
The duty to disclose relevant factors calls on negotiators across Canada =
to\line try to resolve territorial overlaps with all affected parties. =
This was not\line done for the Nisga'a treaty.\line The federal and =
provincial governments encourage tribal groups to resolve\line =
overlapping claims themselves. This is as it should be.However, this =
approach works only if both aboriginal parties intend to\line resolve =
the overlap ``in good faith.'' What happens if a party claims land\line =
without reason or foundation, and Crown representatives know this to be =
so?\line Further, what happens if the party has no intention of =
resolving the\line overlap?\line \line The Crown has taken the position, =
with the support of aboriginal people, to\line conclude treaties over =
undisputed lands, but not where there is an\line overlapping claim. =
However, what if Canada and B.C. want a treaty so badly\line that they =
are prepared to look the other way?\line By exaggerating their claim, =
the Nisga'a will get extensive rights and\line benefits outside their =
traditional territory. For example, they will get fee\line simple lands =
and economic benefits in key Gitanyow lands.\line The Nisga'a will also =
get fisheries management and a ``treaty right to\line hunt,'' along with =
Nisga'a heritage sites and place-naming in Gitanyow\line territory. Such =
rights and benefits are withheld from overlapping claims in\line the =
Yukon.\line \line When they took their own aboriginal title claim to =
court (the Calder case,\line 1969-73), the Nisga'a only claimed their =
actual territory of about 7,800\line square kilometres. Thus, Canada and =
B.C. have known since 1969 the actual\line size of the Nisga'a's legal =
claim to territory. Yet Canada and B.C. have\line chosen to overlook =
this fact throughout the Nisga'a treaty negotiations.\line As mentioned =
above, the Gitksan and Gitanyow provided an exhaustive analysis\line of =
aboriginal boundaries in the Nass valley to B.C. and Canada in 1995. =
It\line found the Calder border of 1969 to be substantially =
correct.\line An internal provincial government report supports the =
findings of the\line Gitksan/Gitanyow report. Provincial ads on the =
Nisga'a treaty are\line deliberately misleading. They fail to mention =
these facts.\line Neither B.C. nor Canada has shown facts that =
contradict the findings of the\line reports on tribal boundaries, the =
Nisga'a's self-imposed boundary in Calder,\line nor the B.C. =
government's internal report. It can only be assumed that such\line =
evidence does not exist.\line \line Have Canada and B.C. negotiated with =
the Gitanyow with oblique motive? I\line believe they have. Canada and =
B.C. have negotiated with the Gitanyow with\line the intention of =
vindicating and facilitating Nisga'a encroachment over\line Gitanyow =
territory.\line Also, since the 1997 judgment in Delgamuukw, both Canada =
and B.C. are aware\line of the high standard set by the Supreme Court of =
Canada. The court said:\line ``Those negotiations should also include =
other aboriginal nations which have\line a stake in the territory =
claimed.''\line This aspect of Delgamuukw requires that the Gitanyow be =
part of Nisga'a\line negotiations, at least with respect to Gitanyow =
territory and resources. It\line was not in the federal or provincial =
government's interest to do this.\line Canada and B.C. have ignored the =
Delgamuukw ruling in concluding the Nisga'a\line final agreement. Their =
efforts to push through the Nisga'a treaty may be\line motivated in part =
to bypass this obligation. This is another oblique motive\line for =
accelerated Nisga'a negotiations at the expense of Gitanyow rights.\line =
``The Honour of the Crown.'' Gitanyow hereditary chiefs argue the =
Nisga'a\line people are not entitled to entrenched treaty rights or =
benefits in Gitanyow\line territory without Gitanyow consent.\line If =
Canada and British Columbia feel compelled to sign a treaty now, =
they\line should, but only on lands to which the Nisga'a hold aboriginal =
title. The\line Nisga'a description in Calder defines their title =
area.\line \line Courts direct that the Crown must not conspire with a =
First Nation ready to\line take advantage of political or strategic =
opportunity to get treaty rights\line over a neighbour's territory =
(Delgamuukw and Luuxhon).\line The Crown must remove all overlap lands =
from the Nisga'a treaty. Canada and\line British Columbia have a legal, =
ethical and moral obligation to suspend all\line rights and benefits =
ceded to the Nisga'a in Gitanyow, Gitksan and Tahltan\line =
territory.\line It is the right thing for ministers Wilson and Stewart =
to do. It is\line consistent with the direction from the courts.\line =
\line The honour of the Crown is at stake.\line \line Neil Sterritt was =
the leader of the Gitksan-Wet'suwet'en peoples from\line 1981-87 and led =
them in the precedent-setting Delgamuukw case that was\line eventully =
decided in December 1997 by the Supreme Court of Canada. He was a\line =
treaty negotiator for the Gitksan, co-author of the book, Tribal =
Boundaries\line in the Nass Watershed.\line \line ----------\pard =
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SOVEREIGNTY IS THE ANSWER - CANADA IS THE PROBLEM\line \line "The =
traditional leadership, along with ordinary Indigenous People, have\line =
been usurped by neocolonial leaderships that are working with the =
settler\line governments to bring this aberration of settlement to a =
final conclusion.\line The thinking seems to be that if we consent to =
such an agreement it cannot\line be seen as genocidal." Saul Terry, =
Union of BC Indian Chiefs\line \line \pard =
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{\field{\*\fldinst ADVANCE \\d 4}{\fldrslt }}}{\plain \ul\cf1 =
http://kafka.uvic.ca/~vipirg/SISIS/Clark/BCgovt.html\line \line \par
}}
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