Proceedings of the Standing Senate Committee on
Issue 4 - Evidence, February 22, 2000
OTTAWA, Tuesday, February 22, 2000.
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-9, to
give effect to the Nisga'a Final Agreement, met this day at 9:05 a.m. to give
consideration to the bill.
Senator Jack Austin, P.C., (Chairman) in the Chair.
The Chairman: Honourable senators, we continue our examination of Bill C-9 to give
effect to the Nisga'a Final Agreement.
This morning our witnesses from the Nisga'a Tribal Council are: Dr. Joseph Gosnell,
President; Mr. Edmond Wright, Secretary Treasurer; Mr. Nelson Leeson, Executive
Chairperson; Mr. Harry Nyce, Senior Resources Negotiator, and Mr. James Aldridge, Legal
Dr. Gosnell, as I am sure you would wish it to be, this is probably the last time you
will have to appear in the legislative process. We welcome you. We know the long years
that you and the Nisga'a Tribal Council have put into the process we are now examining. We
look forward to hearing from you. Please proceed.
Dr. Joseph Gosnell, President, Nisga'a Tribal Council: Honourable senators, we greatly
appreciate the opportunity to appear before the committee this morning. We should like
honourable senators to be absolutely certain of the position of our Tribal Council on the
The Nisga'a Tribal Council welcomes the opportunity to appear before this committee to
discuss the Nisga'a treaty, which is also referred to as the Nisga'a Final Agreement. We
have closely followed the debate in the Senate and are pleased to have the opportunity to
address the concerns raised by senators during second reading of Bill C-9.
The treaty represents the culmination of more than a century of our people's struggle
for a just and honourable settlement of the land question. Throughout this struggle, we
have consistently advanced our claim to aboriginal title and our right to govern ourselves
The agreement before you does not include everything that we wanted. It is a
compromise, but we have always known that compromise is necessary if negotiated agreements
are to be reached. We are proud of the treaty, and we look forward to its early
ratification by Canada.
Many of you are aware of our nation's long journey. It is now 112 years since our
ancestors, together with the chiefs of the Tsimshian Nation travelled to Victoria, only to
be turned away, their requests for treaty negotiations rejected by the provincial
government of the day.
On May 21, 1913, our people lodged a petition with His Majesty's Privy Council in
London, seeking a determination of our rights in and to our ancestral homeland.
Accompanying the petition was a statement that was unanimously adopted at a meeting of the
Nisga'a Nation or tribe of Indians held at Kincolith on January 22, 1913. That statement
included the following:
We are not opposed to the coming of the white people into our territory, provided this
be carried out justly and in accordance with the British principles embodied in the Royal
Proclamation. If therefore, as we expect, the aboriginal rights which we claim should be
established by the decision of His Majesty's Privy Council, we would be prepared to take a
moderate and reasonable position. In that event, while claiming the right to decide for
ourselves the terms upon which we would deal with our territory, we would be willing that
all matters outstanding between the Province and ourselves should be finally adjusted by
some equitable method to be agreed upon which should include representation of the Indian
Tribes upon any Commission which might then be appointed.
Our people have stood by that approach ever since. We have insisted on a treaty in
accordance with the principles set out in the Royal Proclamation of 1763. We have taken a
moderate and reasonable position, as we said we would in 1913, and we have continued to
claim the continuing right to decide for ourselves the terms upon which we will deal with
Unfortunately, our petition was never considered by the Privy Council.
In the same year as our petition was brought, Duncan Campbell Scott became deputy
superintendent general of Indian Affairs. Mr. Scott believed that the correct policy to be
taken by the Government of Canada was the assimilation of our people. He is quoted as
I want to get rid of the Indian problem. Our objective is to continue until there is
not a single Indian in Canada that has not been absorbed into the body politic and there
is no Indian Question and no Indian Department.
Mr. Scott's policies of assimilation were reflected in the administration of the Indian
Act for many years thereafter, with the tragic results of which we are all aware. No doubt
he considered that he was pursuing a policy of equality.
In 1927, your predecessors in Parliament made it an offence to raise money to prosecute
any claim of an Indian tribe or band, including a claim in respect of the land question.
They also banned the so-called potlatch, our traditional feast system. For many years, the
land question, like our culture, was forced underground. Our people were placed on
reserves, our children in residential schools.
Some have said that these measures were all done with good intentions, and perhaps they
were, to the extent that well-intentioned people thought that the eradication of our
cultures, the removal of our land and resources, and the assimilation of our people was
somehow in our best interests. Of course, those initiatives failed. They all denied First
Nations the ability to represent our own interests and to negotiate agreements with a view
to our continuation as peoples. They were designed instead to facilitate our assimilation
The land question did not go away. Despite the Indian Act, the residential schools, the
poverty, and the years of watching our land and resources disappear in order to make other
people wealthy, we were not assimilated, Mr. Chairman. We survived, and today the Nisga'a
Nation stands before you proud of our survival, proud to enter into the new relationship
defined by the Nisga'a treaty.
The modern era in our struggle begins with the birth of the Nisga'a Tribal Council in
1955. It inherited the task of the Nisga'a Land Committee of a generation before.
In 1967, we were faced with the continued refusal of both the federal and provincial
governments to negotiate a settlement of the land question. Accordingly, we commenced the
litigation known as the Calder case after our president of the day, Dr. Frank Calder, now
our president emeritus.
While our case was working its way through the law courts, the federal government,
under the leadership of Prime Minister Pierre Trudeau, introduced the famous white paper
to which reference has been made during the current debate. In the eyes of many, the white
paper embodied a policy not of equality but, once again, of assimilation and denial of our
rights as aboriginal people. That policy was rejected.
Moreover, its fundamental premise that aboriginal rights are nothing more than
"historical might-have-beens," was rejected by the Supreme Court of Canada in
its decision in Calder handed down in 1973. The court ruled that aboriginal title exists
at common law, regardless of any grant or act of recognition by the Crown. Even though the
court divided evenly on the question of whether our aboriginal title had been extinguished
prior to Confederation, the decision led Prime Minister Trudeau to observe that
"maybe you have more rights than we thought you did."
More important, it led to the establishment of the federal government's Comprehensive
Land Claims Policy in 1973. Under that policy, many other aboriginal people have
negotiated and reached land claims agreements or modern treaties.
In 1976, pursuant to that same policy, negotiations between Canada and the Nisga'a
Tribal Council commenced. That was more than 23 years ago. In the early years, the
Government of British Columbia attended only as observers, a fact which made final
In the early 1980s, the Nisga'a participated with other aboriginal groups in persuading
governments to include what is now section 35(1) and (2) in the new constitutional
package. Since 1982, it has been beyond all doubt that aboriginal people in Canada do have
rights in the Constitution Act, 1982. Our aboriginal and treaty rights have been protected
by the supreme law of Canada.
Those provisions were accompanied by another provision, section 37, which required a
first ministers' conference at which there would be discussed the identification and
definition of the rights of aboriginal peoples to be included in the Constitution of
That first ministers' conference, in which the Nisga'a Nation participated as a member
of the Assembly of First Nations, led to the addition, in 1983, of subsections 35(3) and
(4) to the Constitution Act, 1982. Those amendments mean that section 35(1) recognizes and
affirms rights in future land claims agreements in the same way as other treaty rights.
Land claims agreements were finally understood to be modern treaties, and section 35(4)
puts it beyond all doubt that aboriginal and treaty rights are guaranteed equally to male
and female persons.
Since the Calder case, the Supreme Court of Canada has ruled consistently in favour of
the continued existence of aboriginal and treaty rights, in such cases as Sparrow, Sioui,
Gladstone and Delgamuukw. In almost every case, the court has urged that negotiation,
rather than litigation, is the proper means to achieve the reconciliation of these
ancestral rights with the sovereignty of the Crown and the reality of a modern Canada. The
courts have said at all times that the honour of the Crown must be maintained.
We persevered with negotiations, despite endless hours of frustration, reversals and
apparent lack of progress. Many of us have grown old at the negotiating table.
In 1990, the government of British Columbia, under the Social Credit administration of
Premier William Vander Zahm, finally agreed to join the negotiations. It still took six
years of gruelling talks before our efforts resulted in the Agreement in Principle signed
in March 1996, almost four years ago.
An intense public debate about the contents of our agreement has carried on since. The
Agreement in Principle was published, discussed and analyzed. A provincial legislative
committee held public hearings. News stories and editorials were written and broadcast.
Academic articles were published and numerous public meetings were held. Few other
legislative initiatives in recent memory have received the detailed public attention that
surrounded our agreement. As a result of that debate, a number of changes and
clarifications were negotiated and agreed to by the three parties. However, the
fundamental principles of the agreement in principle, including the provisions in respect
of land, resources and self-government, were respected by the parties and are reflected in
a final agreement.
It is worth noting that, in 1996, a provincial election was held after the signing and
the publication of the Agreement in Principle, but the Agreement in Principle was not made
an issue in the election by those who now so vehemently oppose the treaty.
More than a year and a half ago, in July of 1998, we achieved the final agreement and
commenced the long process of ratification. Our people ratified the treaty 15 months ago.
British Columbia ratified the treaty in April of 1999, following the longest legislative
debate on any issue in the history of British Columbia.
On December 13, 1999, the House of Commons passed Bill C-9 with the support of four of
the five parties represented in that house, including almost 82 per cent of the members of
Parliament who voted. It is now the Senate's turn. We hope that our long journey is now
approaching its end and that a new one is about to begin.
Mr. Nelson Leeson, Executive Chairperson, Nisga'a Tribal Council: Honourable senators,
Mr. Chairman, I have worked for over 20 years with the Nisga'a Tribal Council and its
initiatives. I served first as a coordinator for the tribe. I was an elected council
member of the band for eight years, and I served in a capacity as chief for four years in
my community. I have now served for four years as the executive chairman of the Nisga'a
I carry a hereditary name that belongs to the Raven/Frog Tribe. I have a blended family
of nine children, so I am very much interested in seeing this treaty get off the ground.
We have come to Ottawa many times over the years, and in particular over the course of
the last year. We have met with members of Parliament and senators, with cabinet ministers
and parliamentary interns. We have participated in seminars and news conferences. We have
taken every opportunity to discuss our treaty and to provide any explanations that people
might seek. Many have raised the same questions that were raised during second reading of
Bill C-9 in the Senate. We have done our best to answer these questions and all other
We acknowledge and appreciate the overwhelming support of the Nisga'a treaty from
members of four of the five parties represented in the House of Commons. More importantly,
we believe that the support in the House of Commons from political parties as diverse as
the Liberals, the Bloc Québécois, the New Democratic Party and the Progressive
Conservatives vindicates our view that the Nisga'a treaty is a non-partisan issue, one
that rises above the ordinary back and forth of every day politics. It shows the world
that the people and governments of Canada know how to achieve a fair and reasonable
accommodation with aboriginal people.
We acknowledge the unique and important role that the Senate plays in our parliamentary
system as a place for sober second thought. We appreciate the reasoned and non-adversarial
expression of the remaining concerns that senators have indicated that they wish to be
addressed during committee hearings.
In this light, we note that senators have not repeated many of the erroneous
allegations about the contents of our agreement that unfortunately characterized so many
of the arguments made by the Reform Party and other opponents of the Nisga'a treaty over
the course of the last several years. Senators, we appeared before the House of Commons
committee on November 4, 1999 and refuted all these inaccuracies.
We have tabled a copy of our submission to that committee for your reference. At page 8
of the document we listed the incorrect assertions and described them as comprising the
"make believe treaty". Nevertheless, many of the opponents of our treaty who may
appear before this committee may persist in many of these allegations.
The best way to learn about what the Nisga'a treaty does do, of course, is to read it.
As you know, many senators have already done this. In addition, there are summaries
available from all three parties to the treaty, as well as numerous academic articles
analysing the treaty.
As this committee carries on with its deliberations, it will be necessary for you, as
it was for members of the House of Commons committee, always to consider whether witnesses
and members are describing the actual Nisga'a treaty or the "make believe
treaty". A reasonable test is to ask the person to specify the paragraph or
paragraphs that they are referring to when they make assertions about the treaty's
We also believe that you will find, as we have, that the more informed individuals are
about the real contents of the Nisga'a treaty, the more likely they are to support it.
The purpose of this submission is not to present a detailed description of the contents
of the Nisga'a treaty, nor is it to repeat the refutations set out in our November 4, 1999
submission. We consider it to be more appropriate to focus on the specific matters raised
by honourable senators during the debate.
We have grouped these concerns under a number of headings for ease of reference. The
first heading asks the question: Is the Nisga'a treaty a completely new initiative
concerning which special care must be taken? Although we certainly do not understate the
importance of our treaty in the history of the ongoing relationship between Canada,
British Columbia and First Nations, we also think that it is most accurate to see it as
the next logical step in an evolutionary process that is firmly rooted in Canada's law and
history. It is not a totally new invasion or departure from recent developments. All land
claims agreements since the James Bay and Northern Quebec Agreement of 1976 reflect some
elements of self-government. The basic components of previous self-government agreements,
such as the requirement for an internal constitution, are reflected in the Nisga'a treaty.
The most important difference between the Nisga'a treaty and previous agreements is the
inclusion of all self-government provisions in the land claims agreement itself, and the
resulting constitutional protection.
The second heading poses the question: The Constitution Act, 1982 does not expressly
refer to the inherent right of self-government. Despite various first ministers'
conferences and the Charlottetown Accord, the Constitution Act has not been amended to
include this right expressly. How can constitutional protection be extended to
self-government provisions of a modern treaty or land claims agreement without a
The Nisga'a Nation believes that the right of self-government is an existing aboriginal
right recognized and affirmed by section 35(1) of the Constitution Act, 1982. This view is
shared by First Nations and other aboriginal people and organizations in Canada. It is
shared by the Royal Commission on Aboriginal Peoples and numerous academic experts. Strong
support for the proposition can be found in various recent decisions of the Supreme Court
of Canada, including Sioui, Delgamuukw and a number of lower court decisions.
In order to place the matter beyond doubt, aboriginal people have sought an amendment
to the Constitution, expressly referring to the right of self-government. This was always
proposed together with the clear assertion that the right to self-government is already
protected in the general language of section 35(1). Efforts to reach an agreement on the
wording and contents of an amendment that would apply to all aboriginal peoples in all
provinces and territories failed.
The great challenge in all of those efforts to reach agreement, including the
Charlottetown Accord, was to agree on the enforceability of the right to self-government
in the absence of an agreement between a First Nation, the federal government and the
affected provincial government, setting out the detailed content and application of the
right. The Nisga'a treaty is exactly such an agreement.
In 1983, the Constitution was amended to provide a means of achieving the
identification and definition of rights in section 35(1) which would be through the
negotiation of land claims agreements; that is, treaty rights which include rights in land
claims agreements or that which may be so acquired.
This did not require that the definition of existing aboriginal rights, including the
right of self-government for all aboriginal peoples in Canada, should be resolved first by
a further amendment.
The third heading poses the question: Will the Nisga'a treaty undermine the Canadian
Charter of Rights and Freedoms?
Ever since 1982, the Nisga'a have agreed that our government should be subject to the
Charter. Accordingly, the Nisga'a treaty 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 the
treaty. We are proud of our free and democratic government, and we have included the
Charter of Rights protection for all Nisga'a citizens in our own Nisga'a constitution as
Section 25 of the Charter does not, as some have suggested, weaken this guarantee. Our
treaty right is the right to self-government and the authority to make laws as set out in
the agreement. The agreement states that the Charter applies. Will there be difficult
questions about the detailed application of the Charter to our laws in the future?
Perhaps, but they will be no more difficult than the questions that Canadian courts and
governments face every day in the application of the Charter to laws enacted by federal
and provincial governments.
The fourth heading poses the question: Why are Nisga'a government provisions included
in the treaty, rather than delegated through ordinary legislation?
The Nisga'a treaty represents a culmination of the three parties' efforts to agree on
the content of the Nisga'a Nation's treaty rights, rights that are recognized and affirmed
in section 35 of the Constitution Act, 1982. It is based on the premise that the parties
do not have to agree on the detailed nature and content of a First Nation's pre-treaty
rights in order to agree on the First Nation's treaty rights. It exhaustively sets out the
Nisga'a Nation's section 35 rights, including rights to land, resources and, indeed,
The provisions setting out the Nisga'a government authorities and responsibilities are
not confined to chapter 11 but are included or reflected throughout the entire document.
For example, the powers and responsibilities of Nisga'a government in respect of land are
set out in the lands chapter. Those in respect of fish and wildlife are set out in those
chapters, and so on. Nisga'a government is integral to the land, resources and other
provisions of the treaty.
Among other things, the treaty describes the manner in which the Nisga'a Nation will
make decisions about the assets and rights that Nisga'a people share under the treaty and
will determine how best to ensure the survival, indeed the prosperity, of the Nisga'a
Nation within Canada.
The Nisga'a treaty clearly sets out each subject matter in respect of which the Nisga'a
Nation may make laws and, for each subject matter, it sets out the relationship between
those laws and federal and provincial laws. It achieves a far greater degree of detail
than could ever be achieved by way of litigation. It represents a carefully negotiated and
finely tuned set of rules and principles that balance the current concerns of the Nisga'a
Nation with those of the province and the country as a whole.
When considering the Nisga'a government provisions of the treaty, it is important to
distinguish between a number of related, but distinct, concepts. These include delegation,
constitutional protection and relationship of laws.
Mr. James Aldridge, Legal Counsel, Nisga'a Tribal Council: I have had the privilege of
representing the Nisag'a Tribal Council in respect of land claims since 1980. In respect
of delegation and the inherent right of self-government, this is a question of the source
of self-government powers, not the extent of those powers or the constitutional protection
afforded to those powers.
Delegated power is given or assigned by some other authority. Municipalities exercise
powers delegated by the provincial government. Territories exercise powers delegated by
the federal government. The extent of the powers can be quite substantial or very limited,
but the source of the authority is ultimately the Crown in Parliament or the legislatures.
To say that First Nations have the inherent right of self-government is to say that it
comes from the First Nations themselves and that it is based on their existence as
organized societies in this country for thousands of years. The source of the authority is
their ancestral inheritance and predates the arrival of Crown sovereignty. The inherent
right of self-government is a fundamental part of Canada's constitutional reality.
It is not correct to say that this has never been recognized by Canadian courts. While
the specific issue of whether section 35(1) includes the right of self-government has not
been expressly answered by the Supreme Court of Canada, the courts have often recognized
the historical fact that First Nations were self-governing peoples when Europeans arrived
in North America.
The best elucidation of the significance of British policy and of the principles in the
Royal Proclamation of 1763 is found in Chief Justice Marshall's famous trilogy of United
States Supreme Court decisions in the 1820s and 1830s. He regarded land and sovereignty as
the two vital elements of Indian rights. In working out his theory of Indian sovereignty,
Chief Justice Marshall relied on British colonial practice as it was before America's War
of Independence and, in particular, on the Royal Proclamation. These decisions have been
frequently referred to and adopted by Canadian courts in many cases, including the St.
Catherines Milling, Calder and Sioui.
It was in these decisions that Chief Justice Marshall referred to the concept of
domestic dependent nations. In the last and most important decision of the trilogy,
Worcester v. Georgia, Chief Justice Marshall dealt with Indian self-government and said:
America, separated from Europe by a wide ocean, was inhabited by a distinct people,
divided into separate nations, independent of each other and of the rest of the world,
having institutions of their own, and governing themselves by their own laws. It is
difficult to comprehend the proposition that the inhabitants of either quarter of the
globe could have rightful original claims of dominion over the inhabitants of the other,
or over the lands they occupied, or that the discovery of either by the other should give
the discoverer rights in the country discovered which annulled the preexisting rights of
its ancient possessors...
The Indian nations had always been considered as distinct, independent political
communities, retaining their original natural rights, as the undisputed possessors of the
soil, from time immemorial, with the single exception of that imposed by irresistible
power, which excluded them from intercourse with any other European potentate than the
first discoverer of the coast of the particular region claimed; and this was a restriction
which those European potentates imposed on themselves as well on the Indians.
The words "treaty" and "nation" are words of our own language,
selected in our own diplomatic and legislative proceedings, by ourselves, having each a
definite and well understood meaning. We have applied them to Indians, as we have applied
them to the other nations of the earth.
According to Mr. Justice Strong, one of the judges of the Supreme Court of Canada in
the St. Catherines Milling case back in 1886 Marshall's decision is a sure guide to
British law and policy. We have set out some other cases in which these passages have been
More recently, however, in the famous decision, R. v. Sioui in 1990, we see the impact
of Chief Justice Marshall's judgments on Canadian law. Mr. Justice Lamer, as he then was,
writing for a unanimous court, cited Chief Justice Marshall and said:
As the Chief Justice of the United States Supreme Court said in 1832 in Worcester v.
State of Georgia, about British policy towards the Indians in the mid-18th century:
Such was the policy of Great Britain towards the Indian nations inhabiting the
territory from which she excluded all other Europeans; such her claims, and such her
practical exposition of the charters she had granted: she considered them as nations
capable of maintaining the relations of peace and war: of governing themselves, under her
protection: and she made treaties with them, the obligation of which she acknowledged.
It is, no doubt, this overwhelming body of jurisprudence that led Professor Patrick
Monahan to state to the House of Commons committee considering this bill:
Based on my review of the Supreme Court of Canada's decisions dealing with aboriginal
rights, it's my conclusion that it is very likely, although it has not yet been
authoritatively decided, that the courts will recognize that self-government is already
protected by subsection 35(1).
On that theory, and if that is correct, then what we have here is merely an attempt to
define by agreement the scope of self-government rights. In other words, we are not
creating a new order of government because, on this argument, the courts have already
implicitly recognized that aboriginal peoples and rights of self-government of aboriginal
peoples have constitutional status. So for that reason, even apart from the existence of
subsection 35(3), which provides for these modern land claim agreements, it seems to me
that what we are doing here is merely defining the scope of a right that already likely
exists under subsection 35(1) of the Constitution Act of 1982.
The Supreme Court of Canada has said that the purpose of section 35 of the Constitution
Act, 1982, is to reconcile the prior presence of aboriginal peoples with the sovereignty
of the Crown. Why should this reconciliation require aboriginal peoples to agree in their
treaties that their only authority originates from the Crown rather than from their prior
presence in Canada?
The next item I will deal with is constitutional protection. The rights in the Nisga'a
treaty will be recognized and affirmed by section 35 of the Constitution Act. This is a
statement, however, Mr. Chairman, about the protection of the rights, not their source or
their content. It is this fact that seems to give rise to some people's concerns. These
concerns are not easy for us to understand.
Constitutional protection does not mean that the treaty provisions cannot be amended.
An amending formula procedure is included in the treaty. Of course, the procedure requires
the consent of the parties, but this should not mean, as has been suggested, that
amendments will be impossible or as difficult as amendments to the Constitution of Canada
have been. If there should prove to be a genuine need for an amendment, why should we not
assume that the Nisga'a Nation would be as willing to recognize the problem as either
Canada or British Columbia would be?
The proposal that the self-government provision should somehow be excised from the
treaty and denied constitutional protection is really a proposal that Canada or British
Columbia should be able to alter the treaty unilaterally without the consent of the
Nisga'a Nation. This would defeat the entire purpose of the agreement. Certainly no one
has suggested that the Nisga'a should have the authority to unilaterally amend the
self-government provisions of the treaty. In any event, it would not be possible to
perform such an excision. The self-government provisions are integral to all of the
chapters of the treaty.
For all of these reasons, during the negotiation process the Nisga'a Tribal Council
consistently maintained that their people would not agree to enter into the treaty unless
it included their rights to self-government, with the same constitutional protection for
them as their existing aboriginal rights have today under section 35, and the same
constitutional protection that the remainder of their treaty rights will have after the
effective date. Agreement on this essential point, Mr. Chairman, was one of the major
elements included in the agreement in principle in 1996. Without this agreement, no
agreement in principle would have been achieved.
Furthermore, it must also be recognized that the Supreme Court of Canada has indicated
that rights protected by section 35 are not absolute. It has ruled that aboriginal and
treaty rights can be infringed if the infringement is justified and consistent with the
honour of the Crown.
Canada and British Columbia have agreed to the detailed content of Nisga'a
self-government. Why should either of them be able to infringe, alter or ignore this
agreement in a way that is not justified or which does violate the honour of the Crown?
The next item deals with the relationship of laws and concurrent jurisdiction. Some
people have raised concerns with the fact that, in a number of areas, Nisga'a laws will
prevail over federal and provincial laws. The issue of the relationship of laws is
separate from the source of the right and separate from its constitutional protection.
Under the Constitution Act, 1867, as we all know, the federal and provincial
governments are each assigned lists of classes of subjects over which they have exclusive
jurisdiction. If a government's law purports to deal with a subject over which it has no
jurisdiction, that law is invalid and will be struck down by the courts. However, because
of the broad nature of the subject matters listed in the Constitution, it is possible to
have valid federal and provincial laws that deal with the same matter. This is called
Under the treaty, Nisga'a government will have no exclusive jurisdiction. This is quite
different from the approach recommended by, for example, the Special Joint Committee on a
Renewed Canada, back in 1992. It is also quite different from that which was included in
the Charlottetown Accord. These are both examples of reports or agreements which did
contemplate areas of exclusive jurisdiction for First Nations governments.
Federal and provincial laws will apply to the Nisga'a Nation, Nisga'a villages, Nisga'a
lands and Nisga'a citizens. Nisga'a laws, however, will also apply to the subjects set out
in the treaty. As Nisga'a jurisdiction is always concurrent with federal or provincial
authority, there will often be areas in which Nisga'a laws and federal or provincial laws
of general application deal with the same subject matter. A key part of the negotiations,
therefore, was determining which government's laws will prevail in respect of each and
every area over which Nisga'a government has authority. These rules establish the
relationship of laws.
Generally, Nisga'a laws are to prevail in respect of matters that are internal to
Nisga'a lands and people, such as decisions about Nisga'a language, culture, lands and
other treaty entitlements. In some cases, Nisga'a laws must comply with provincial
standards in order to be valid. If those standards are met or exceeded then Nisga'a laws
Federal and provincial laws prevail about matters of broader application on Nisga'a
lands, such as peace, order and public safety, construction of buildings, health services
and environmental protection. Of course, there are many more subjects, such as criminal
law, over which the Nisga'a will have no authority at all, therefore, no relationship of
laws issue arises.
Some opponents of the treaty have said that, if there is an inconsistency in laws,
federal or provincial laws should always prevail over Nisga'a laws, even if the Nisga'a
laws deal solely with Nisga'a people, Nisga'a culture, Nisga'a lands, or other purely
internal matters. Why is this dominance so important to these people? Why do they insist
that First Nations should always be subordinate to federal and provincial governments?
If the agreement had provided for exclusive jurisdiction in respect of the internal
matters of the Nisga'a Nation, there would obviously have been no need for Nisga'a laws to
prevail over federal and provincial laws. Federal and provincial laws would simply not
apply to these subject matters.
We agreed to concurrent or shared jurisdiction. In respect of interim matters, this
necessitated the inclusion of rules to prevent Nisga'a laws from being overridden by any
number of federal and provincial laws that are enacted for general application. These
rules also provide the Nisga'a with protection against a future federal or provincial
government which might wish to interfere without justification in these internal matters.
Finally, it has been argued that the treaty is unconstitutional because all laws in
Canada must receive Royal Assent. The Nisga'a treaty contemplates laws that will obviously
not be approved by the Governor General or the Lieutenant Governor. The requirement for
Royal Assent applies only to the enactment of the laws of Canada or the laws of a
province. It applies to the federal or provincial governments because of the
constitutional structure of those governments. The principle has no application to laws of
a first nation exercising the right of self-government.
The Nisga'a Nation recognizes the sovereignty of the Crown. Through the treaty, Canada,
British Columbia and the Nisga'a have achieved a reconciliation between this sovereignty
and the ancient rights of the Nisga'a people.
The fifth question we pose is: Does the Nisga'a treaty create an enclave within Canada?
Some people have suggested that Nisga'a lands will be an enclave. The Oxford dictionary
defines an enclave as "foreign territory surrounded by one's own territory".
However, Nisga'a lands can in no way be described as foreign territory. As stated above,
the treaty makes it absolutely clear that all federal and provincial laws apply to Nisga'a
lands in accordance with the terms of the treaty.
The Nisga'a have always said that one of their fundamental goals is to negotiate their
way into Canada. It is, with respect, simply an error to say that the result of their
efforts has been the creation of foreign territory within our country.
Our sixth heading deals with the question: Does the treaty create a government based on
race? There has been a persistent notion that aboriginal rights are based on race or
ethnicity. This is, with respect, simply not true. Aboriginal rights, including the right
of self-government, flow not from race but from membership in a political community, as
was described in the earlier cases. This principle is discussed at length by the Royal
Commission on Aboriginal Peoples as well as in numerous learned articles and other
It is important to note that the United States Supreme Court long ago rejected any
notion that laws uniquely applicable to Indians are based on race. Indian tribes are
"unique aggregations" possessing attributes of sovereignty over both their
members and their territory. Federal regulation of Indian affairs is not based upon
impermissible classifications; rather, such regulation is rooted in the unique status of
Indians as a separate people with their own political institutions. We have included a
reference to one of the U.S. Supreme Court decisions to that effect. If it is not racial
discrimination for federal governments to legislate in respect of Indians, it is certainly
not racial discrimination for first nations to legislate in respect of themselves. In any
event, though, as explained below, the treaty does not restrict Nisga'a citizenship to
persons of Nisga'a descent.
Mr. Harry Nyce, Senior Resources Negotiator, Nisga'a Tribal Council: Honourable
senators, this is my thirtieth year with the tribal council. I was chief of council for my
community for 14 years. I am also the vice-chair of the Kitimat-Stikine regional district.
I am also the chairman of the finance committee for the regional district.
I will turn to question seven which is: Does the use of the term "Nisga'a
citizen" violate the notion of Canadian citizenship? With the greatest of respect, we
do not understand why anyone would object to the use of the term "citizen" to
refer to the members of the Nisga'a Nation. No doubt, if we had agreed to describe
ourselves merely as members, there would have been little or no objection. However, we
believe that the correct word to describe someone who belongs to a nation is
"citizen". We wish to affirm, not deny, our existence as the Nisga'a Nation, a
nation that is within Canada.
As has been said, even in Canadian law the notion of citizenship is relatively new and
most rights under Canadian law are not confined to Canadian citizens. The word
"citizen" does not have a single fixed meaning in every context in which it is
properly used. The conferral of Nisga'a citizenship does not confer or deny Canadian
The eighth question is: Does the Nisga'a treaty disenfranchise non-Nisga'a individuals
within Nisga'a lands? It is vital not to ignore the fact that the treaty sets out the
Nisga'a Nation's right to self-government. The laws that can be made by the Nisga'a
government, with a very few well-defined exceptions, are laws that deal with Nisga'a
citizens, treaty rights and property.
It must be remembered that Nisga'a government will have no jurisdiction over land
currently owned by non-Nisga'a within the Nass Valley. All of the existing fee simple
properties are expressly excluded from Nisga'a lands. The residents of these private
parcels will continue to have the right to vote for federal, provincial, and regional
governments, as they always have.
Most of all, Nisga'a government jurisdiction is restricted to Nisga'a citizens and
Nisga'a lands. What possible justification is there for requiring the Nisga'a to give
non-Nisga'a people the right to vote for or run for office in a government that will have
virtually no jurisdiction over them and that will primarily be dealing with the rights and
assets of Nisga'a people?
It is important to remember that neither Nisga'a citizenship nor the ability to
participate in Nisga'a government is restricted to participants; that is, persons who meet
the eligibility criteria set out in the treaty. That is to say that, while only
participants have the right to demand Nisga'a citizenship, the Nisga'a government has the
authority to establish citizenship criteria that could include others.
We insist on such powers because of our recognition that there are and will be
residents who are, in every meaningful way, full members of our communities and who should
be included in the democratic functioning of Nisga'a government. However, the criteria for
including others in our nation must be left to our people to establish and not be
determined or imposed on us by Canada or British Columbia. Any future laws that determine
the criteria to be used in granting citizenship to others could not be applied arbitrarily
and would, like all of our laws, be subject to the Charter of Rights and freedoms.
Today, non-Nisga'a residents of the Nass Valley enjoy the same level of representation
on the Nisga'a Valley Health Board and the board of school trustees for School District 92
Nisga'a that is far in excess of their numbers. This participation will continue after the
effective date and, if those bodies are replaced by institutions created by Nisga'a
government, an appropriate means of ensuring their continued participation will be
If the activities of the Nisga'a government or its institutions significantly and
directly affect those residents, we have agreed to devise means to include them in our
decision-making process. Such measures may include consultation, the right to vote, or a
guarantee of representation on a Nisga'a government institution, depending on the nature
of the activity that affects the residents concerned.
The point is that the issue of non-Nisga'a participation in the activities of
government that will rarely affect non-Nisga'a people is not a simple one that can be
solved by slogans about democracy or the automatic inclusion of anyone who might decide to
take up residence in one of our communities. The treaty provides the tools, the
principles, and the flexibility for the Nisga'a to continue to live in harmony with our
The ninth question is: Does the Nisga'a treaty affect aboriginal rights of neighbouring
First Nations? None of the provisions of the agreement interferes with the rights of any
other First Nation. To place the matter beyond doubt, we have agreed to include provisions
to that effect in the treaty. We have tabled a copy of the supplementary submission that
we filed with the House of Commons committee on November 25, 1999. In response to
submissions made by certain of our neighbours, it includes information in respect of the
efforts that we made to resolve the dispute between ourselves and the Gitanyow, and we
have resolved disputes with other First Nation neighbours.
To the best of our knowledge, the federal policy on overlap was not changed in the
context of our negotiations but has remained the same for many years.
We should also indicate that the suggestion to amend Bill C-9 by repeating clauses 33
and 35 in the general provisions chapter in the bill is unacceptable to us. Those sections
have the force of law in any event. The proposal to add them to the bill in order to
include the provisions that are the most fundamental demonstrates a basic misunderstanding
of the relationship between Bill C-9 and the Nisga'a Final Agreement.
Bill C-9 includes provisions that, in the view of federal legislative counsel, must be
included to make them effective. If the test were how fundamental a provision is, then the
bill would need to include such matters as our rights to hunting, fishing,
self-government, and so on.
We remain ready to negotiate with our neighbours, and we wish them well in achieving
their own treaty at the earliest possible date.
Question ten asks whether the federal and provincial governments will be paying a
significant portion of transfer costs to Nisga'a government, possibly in perpetuity. The
Nisga'a treaty establishes the basic fiscal structure under which the Nisga'a government
will function. A fiscal financing agreement will be negotiated every five years -- and in
that regard I would quote the fiscal relations chapter; paragraph 3 at page 212 which
...to enable the provision of agreed-upon public programs and services to Nisga'a
citizens and, where applicable, non-Nisga'a occupants of Nisga'a lands, at levels
reasonably comparable to those generally prevailing in northwest British Columbia.
The system of transfer payments is very similar to the system under which provinces,
territories and municipalities receive funds for the provision of public services such as
education and health.
The treaty obligates us to maintain systems of financial accountability, comparable to
standards generally accepted for governments in Canada. These systems include auditing
requirements and will reflect the requirements of the treaty, the Nisga'a institutions,
the Nisga'a financial administration law and the Fiscal Financing and Own Source Revenue
Question 11 queries whether the treaty will create an exclusive Nisga'a commercial
The Nisga'a treaty sets out clear entitlements and allocations for fish and wildlife.
The approach is one of sharing. For example, the treaty provides a formula under which our
share of each species of the Nass salmon return to Canada will be determined. That share
will be vary depending upon the abundance of the resource. In low run years, we may even
harvest less than our current harvest for domestic purposes. Contrary to what has been
said, the treaty does not guarantee 26 per cent of the salmon. The formula is based on an
allocation of each species of salmon, not on a percentage of the total of all species.
We will have the right to sell Nass salmon, in accordance with various federal and
provincial laws referred to in the treaty. However, there could never be a situation in
which the Nisga'a commercially harvest a species of Nass salmon at the same time as
commercial and recreational fishermen are prevented from harvesting that species.
The federal government continues to have jurisdiction in respect of fisheries and the
role of the minister in expressly acknowledged in that treaty.
Mr. Edmond Wright, Secretary-Treasure, Nisga'a Tribal Council: I will be presenting the
last part of our presentation. I have been involved as a politician with the Nisga'a
Tribal Council since 1972. Before that, I was the band administrator from 1970 until a
couple of years ago when I had to take a full-time leave to participate at the negotiation
table with the Nisga'a Tribal Council. I have been before committees such as this going
back to 1980 so, as our president stated, many of us are getting old doing this these
I will deal with question 12 which is: Is the Nisga'a treaty is overly generous to the
There has been little discussion of what we have contributed to this agreement. You
must remember that the Nisga'a lands that we will own under the treaty are but a small
part of our traditional territory.
We commissioned a Price Waterhouse study of the present value of the resources that
have been removed from our traditional territory. These resources were taken without
compensation to the Nisga'a. The amount was in excess of $2 billion. Mr. Chairman, for
your information, it runs from a $2 billion to $4 billion figure, but we are quoting the
A number of our people voted against the treaty because they believed that it should
have included much more land, resources, compensation and jurisdiction. Many were
reluctant to give up the current tax exemptions provided under the Indian Act. However,
the majority of us, over 70 per cent of those voting, comprising more than 60 per cent of
eligible voters, voted to accept the package. The vote in favour was not because it gave
us everything we wanted, but because the majority of us decided that the treaty is an
We continue to believe that governments simply do not have enough money to truly
compensate the Nisga'a Nation for what has already been taken from us.
Question 13 addresses whether the Nisga'a treaty is a blueprint or template for other
treaties in British Columbia and across Canada.
We know that at one point former British Columbia premier Glen Clark, whose support of
the Nisga'a treaty has been as steadfast as that of the Prime Minister, referred to the
Nisga'a treaty as a template. We believe that he was referring not to the detailed content
of the agreement but rather to the model that it establishes for resolving differences
through negotiation and compromise rather than litigation.
Others have now started to use this term as well as the term "blueprint". The
proposition seems to be that the Nisga'a treaty will be applied mechanically to all of the
other negotiations currently underway in British Columbia and elsewhere in Canada. With
due respect, this suggestion is really without any basis in reality.
Mr. Chairman, the Nisga'a Tribal Council has publicly and repeatedly stated that we
have neither the desire nor the mandate to negotiate on behalf of anyone other than the
Nisga'a Nation. The template argument is based on the assumption that other First Nations
will simply embrace the Nisga'a approach, regardless of their circumstances, desires and
priorities. That is not at all likely.
Moreover, even if the federal government and provincial governments in British Columbia
and elsewhere were to expressly instruct their negotiators to go forth and replicate the
Nisga'a Final Agreement elsewhere, this would be an impossible task. The unique
circumstances of the Nisga'a make certain arrangements possible with respect to, for
example, land and fisheries, that would not be possible in urban and/or inland areas.
There are between 5,000 and 6,000 Nisga'a. Some other First Nations have fewer than
1,000 people, and some have fewer than 100. Obviously arrangements will be very different
depending on the size of the population, the nature of the traditional territory and its
resources, the priorities of each first nation, the proximity of urban areas, third party
alienation, and so on.
In recognition of these obvious facts, the federal government has stated that the
Nisga'a Final Agreement is not a template. It is no doubt true that both First Nations and
federal or provincial governments may try to replicate those aspects of the Nisga'a treaty
that are attractive to them in the context of those negotiations.
However, it is equally true that, if the parties at other negotiating tables chose to
adopt or adapt certain aspects of the Nisga'a Final Agreement, it will be because they
consider that it makes sense to do so, not because the Nisga'a approach has predetermined
the outcome of those talks.
We refer honourable senators to the comments made by the Right Honourable Pierre
Elliott Trudeau at the commencement of the first ministers' conference on March 15 and 16,
1983 -- the conference that resulted in the inclusion of subsection 35(3) in the
Constitution of Canada. He said that aboriginal government is at the heart of the effort
to improve aboriginal conditions and to strengthen our relationships. He then said:
...It seems likely, and not inappropriate to me, given the known diversities which
prevail across the country, that we will come up with different solutions for different
communities in different places, once we have begun seriously to discuss their preferences
in a pragmatic way.
For aboriginal government involves issues that have to be seen and discussed in
practical terms. They cannot be resolved merely through generalities or endless discussion
on legal and political doctrine. If we are to progress in our search for constitutional
formulations and practical means, we shall all have to be much more open-minded and more
articulate than we have been in earlier discussions. We have to bring out clearly what it
is we seek to achieve on behalf of the different groups of aboriginal peoples living in
different parts of Canada.
We shall have to put aside notions or perceptions that have surfaced in the past: that
we can have systems of aboriginal government functioning somehow in parallel with, or
separate from, other governments within our federation. Our system of government is based
on interdependence and cooperation among the several orders of government, each with its
responsibilities, powers and functions flowing from provisions of the Constitution,
whether in the form of exclusive or concurrent powers.
Aboriginal government, in whatever form or model, will have to fit into that system. It
should fit smoothly, comfortably and effectively. The complexity of jurisdictional issues
is at once obvious and formidable. It can only be addressed through careful negotiations,
based on full and frank expression of aims and needs and a determination to get a set of
intergovernmental relationships that will work well for the benefit of all concerned.
We believe that these words are as true now as they were 17 years ago. They describe
the task in which we have engaged, and they describe the accomplishments which we believe
have been achieved in the Nisga'a treaty before you today.
Turning to question 14: Is the process flawed, in that Parliament can only approve or
reject the treaty rather than being able to propose amendments? Canada entered into
numbered treaties by enacting orders in council. Parliament was not directly involved.
Since the James Bay and Northern Quebec Agreement, Canada has chosen to enact or ratify
land claims agreements by way of legislation. First Nations are told to negotiate with
officials, representatives of the executive, but not directly with Parliament. Parliament
is then asked to either approve or reject the resulting agreement. This approach was not
chosen by First Nations, but we have abided by the rules with which we were presented.
No doubt members of Parliament, including senators, feel somewhat frustrated that their
role is restricted to approval or rejection of an agreement that two of the three parties
have already ratified, and to which no amendments are now possible. Perhaps there are
arguments in favour of somehow involving Parliament in treaty negotiations at the outset.
Any process that takes less time, cost and effort than we have had to endure would be an
improvement. However, it would be completely unfair and unacceptable to the Nisga'a Nation
to move the goalposts now. Any amendments to our treaty at this late date would, of
necessity, constitute a rejection of the treaty. It is difficult to contemplate the
consequences of such a rejection, both for the Nisga'a Nation and for the treaty process
as a whole.
In conclusion, many individuals and organizations who oppose the Nisga'a treaty fail to
recognize that the package was negotiated and agreed to as a whole; that each party
compromised on some objectives and succeeded on others. We appreciate that this was
specifically acknowledged during the debate on second reading in the Senate. No one should
think that, at this point, it is possible to go through the agreement, accepting the
compromises we have made at the table, while at the same time rejecting our achievements
at that same table.
We have bargained with the federal and provincial governments peacefully and in good
faith. We have relied on the honour of the Crown to carry our agreement to fruition.
Canadians should realize that the Nisga'a Final Agreement is a balanced and sensible
reconciliation of issues that have frustrated and have divided British Columbians for more
than a century. The treaty should be celebrated as proof that people of good faith can
resolve their differences without confrontation or litigation.
The Nisga'a Nation has waited long enough. We ask for the committee's support in
ensuring that the Nisga'a treaty is ratified as soon as possible. We can then go forward
together, better equipped to face the challenges to come in the new century.
The Chairman: Thank you for the work you have undertaken to specifically address the
questions which senators have raised during the second reading debate. I believe that will
be particularly helpful to the process of examining this legislation.
Senator St. Germain: I should like to welcome the president and the delegation to our
committee. As you know, Mr. Gosnell, I attended the AIP signing and the signing of the
final agreement. Attendance was fairly sparse as far as politicians were concerned,
although I recognize that it is a long way to travel. Only those of us from British
Columbia know the distance. My interest in my province and my interest in all the peoples
of British Columbia was definitely the driving factor that caused me to attend both these
historic events in the northwest part of our province. I was proud to be there and I am
still proud to be part of this process with you here.
However, as you know, I do represent all British Colombians, some of whom have raised
certain questions. During my participation in the debate on second reading, I tried to
answer the questions asked by British Colombians so they would have some comfort as we go
forward, not only with your agreement but in settling other agreements in the province. We
must bring the certainty that the province requires for various reasons, but particularly
so that our aboriginal peoples can regain their dignity and pride. Many never lost their
pride, but it was certainly trampled on. We would also like to see economic well-being for
all British Colombians.
I will not ask many questions this morning because I think you have addressed most of
I have spoken to Mr. Aldridge on numerous occasions.
One matter that does really concerns me -- and I have pondered over this question -- is
how we can be assured that the rank and file of the Nisga'a Nation will benefit fairly. I
would certainly never put into question your integrity or your leadership. However, this
is virtually cast in stone in many ways, and future generations and future leaderships, as
in any other society, could possibly corrupt the system.
The system of transfer payments, as you point out on page 23 of your statement, is
similar to the system by which the provinces and municipalities receive funds for services
such as education. It has been said that this arrangement is like an arrangement between a
province and a municipality. However, there is a difference. A municipality has delegated
authority, and that delegation can be withdrawn if there are improprieties in the
administration of the municipality.
You refer to the Canadian government system. We all know that the moment a majority
government is elected, for five years you have virtually no checks and balances. We have
seen provinces practically brought to their knees because of poor fiscal and monetary
management within the province. How can we guarantee that 50, 60, 70 years from now -- Mr.
Gosnell may still be around because you are growing old in this job but you are doing well
-- the lowest on the totem poll in the Nisga'a Nation will be looked after properly?
Mr. Gosnell: Mr. Chairman, it is important for the committee to recognize the views of
those individuals who made the statement that I quoted. This is the lead-in paragraph to
the 1913 petition. Please bear in mind that at the outset, not all members of the Nisga'a
nation held parcels of land. Certain Nisga'a had no land whatsoever. The senior people at
that time came together and agreed that all of the land of the Nisga'a Nation would be put
into one common bowl, as we refer to it today, in the event, honourable senators, that
some day we would come to an agreement with the Governments of British Columbia and Canada
and that all members of the Nisga'a Nation would benefit.
What sort of accountability have we put in place? The Indian Act as you know will no
longer exist between the Nisga'a Nation and the Government of Canada. In short, a vacuum
will be created. What have we placed in that area? In addition to the Nisga'a treaty, our
nation voted on the document called: "The Constitution of the Nisga'a Nation."
In this document, we have put in place the accountability of those people who will
follow in our footsteps. Whether it had to do with the morality of our leadership,
accountably, or the financial aspects of the treaty. Everything is now contained in this
document. If deemed necessary, our people will have the ability to remove politicians from
office. We could not do that before. In our own tribal system you could never do that. We
have moved away from that system. Our people now accept the democratic process that we
have been practising for the past 43 years.
Senator Tkachuk: Can you tell us how to do that?
Senator St. Germain: My last question relates to the subject of overlap. I realize that
we have arrived at the point we are at, and some of us may possibly put in question the
ability of senators to make an amendment. You addressed that issue towards the end of your
presentation here today.
We have 49 or 50 more agreements to reach in the Province of British Columbia. I
realize that they are not your concern, but they must be of concern to all of us because
of the fact that, if we only have one settlement in the province, we have only achieved a
small portion of the objective of settling all claims with our aboriginal peoples. We have
not really established the certainty that we are seeking if we do not have agreements with
these other people.
I have been told in meetings with you and your council, Mr. Aldridge, that you have
made every effort to try to negotiate.
I am told is that these people are not seeking the same type of agreement as you have
achieved. That goes to the subject of your template argument. The government, being as it
is, regardless of who is in power, seems to take a certain direction and often becomes
focused on one type of settlement.
It has inhibited the possibility of the Gitanyow, in particular, of arriving at an
agreement. I know there is the argument out there that there are just so few of them that,
perhaps, we need not give them the consideration they are seeking. If they are a
recognized band, we have the responsibility to treat them the same as any other band,
whether there are 3,000 or 1,000 people in the band.
My major concern is that we have not resolved this situation in British Columbia. After
we hear from the Gitanyow and the Gitxsan, we may want certain members, probably Mr.
Gosnell or Mr. Aldridge, to appear before us again on that subject. I believe that is the
You have heard me say, and I said it in the Senate, that originally there was a
document published that there would be no treaties signed if an overlap existed. The
argument is that this is the provincial view, as opposed to the federal view as put out by
Tom Molloy. I am not trying to put sticks in your spokes, but I think this must be dealt
with by us. If we end up in a confrontational situation in the Province of British
Columbia as a result of settling with some people, thereby having a negative impact on
others, we will create another problem. I hope we can avoid that.
Mr. Gosnell: I will try to respond to that and then perhaps Mr. Wright can add his
You are quite right that there is a policy of Canada, and I believe of British
Columbia, that must be followed prior to the settlement of any outstanding claims.
However, Canada indicated that it would be satisfied if the parties utilized their best
efforts to arrive at an agreement with respect to the overlap situation.
The document that we provided to the standing committee with respect to the issue you
have raised, clearly indicates to the committees, and members of both the House of Commons
and the Senate, that we have used our best efforts. That is well documented. I was very
pleased to hear that things have now stablized in that our neighbours, the Gitanyow
hereditary chiefs, have an offer from the Governments of Canada and British Columbia.
However, please also bear in mind that the Government of British Columbia indicated, under
the premiership of Mike Harcourt, that only 5 per cent of the land would be allowed to
aboriginal people under treaties. The rules were already set. We were not involved in
In addition, a cost-sharing formula was entered into by the Governments of British
Columbia and Canada with respect to cash transfers that would be made to aboriginal
peoples through treaties. Again, we were not party to the formulation of that agreement.
Once again, the rules were set before we even entered the negotiation room.
We have indicated that we are still prepared to negotiate with our neighbours. However,
there is a big difference today. We have a treaty, but the Gitanyow are still at the
negotiation stage. When the playing field has been levelled and the hereditary chiefs have
a treaty as we do, I would be very willing to bring our nation to the negotiation table to
see whether we can resolve those outstanding differences. I certainly do not want our
people to come to the negotiating table when we have a treaty and the other party has
none, because we would surely be at a major disadvantage.
Senator St. Germain: In the event that members of the make the committee request, after
presentations by the Gitanyow and the Gitxsan, would you be prepared to appear before us
Mr. Gosnell: We would be more than willing.
Mr. Wright: With regard to what guarantees we put in place to ensure that the rank and
file are protected in the future, our Constitution is one. It is very difficult to amend,
therefore, the democratic part of it is there. Financial accountability is another
guarantee. When some people turn 60, they will get an amount of money from the capital
transfer. We are setting up a settlement trust and we have made rules for that trust to
ensure that many generations in the future will benefit from it.
With regard to the Gitanyow, after they made their representation on November 16 to the
House of Commons committee, we responded to some of the issues they brought forward
through an additional paper submitted to the House of Commons committee on November 24.
That paper clearly indicates our attempts to resolve the problem.
One of the problems is that in our nation our negotiators are elected, and many of our
elected people are hereditary chiefs. The Gitanyow negotiators are appointed, as are their
hereditary chiefs. We do not know what land claim requests they have made, but we have
heard rumours that they want 100 per cent say on all the issues within their claimed area.
We have a problem with their claimed area. Their claimed area stems from recent history
and not from aboriginal rights, which we believe go back thousands of years. The Gitanyow
established their presence in the valley at the time that traplines were being set up in
British Columbia. We have records of that, and that is why we have problems with what they
state. Our people have always shared salmon and fishing spots with them, and suddenly they
claimed to be owners of the land. As far as we are concerned, they are not.
We do not know what model the Gitanyow propose for their treaty -- whether it is a
democratically elected group -- so we do have some problems in that area. We have
continued to tell the Gitanyow that we are willing to discuss the problems with them and
try to resolve the issues. On some occasions with some of the negotiators we have come to
agreements, but those agreements have been overridden on their side by others involved in
We believe that the mediation process that was proposed by Canada and which we accepted
is still in place, but we need to finalize that process. I believe the Gitanyow received
an offer, although I do not know what is happening in that regard. We heard from the media
that the offer was totally rejected. I am not sure whether that position is continuing,
but we encouraged the Governments of Canada and British Columbia to make them an offer so
that we would have something real to talk about in the mediation process.
Senator St. Germain: Mr. Aldridge, do you have a recall provision in the Constitution?
Mr. Aldridge: There is no recall provision as such. It is a British Columbia tradition,
but there is no recall provision built into the Constitution. There are a number of
systems of personal accountability, including conflict-of-interest rules, misbehaviour in
office, things of that sort, that can lead to the removal of someone from office.
Gathering together a petition and having a recall vote is not included.
Senator St. Germain: There is a removal process, not a recall process.
Mr. Aldridge: That is correct.
The Chairman: On the subject of the overlap question, and to target information which
you provided on November 25, 1999, in the House of Commons, there is a reference to
paragraph 33 of the general provisions chapter. Would you explain how that paragraph
operates with respect to overlap?
Mr. Aldridge: Paragraph 33 of the general provisions of the Nisga'a treaty, at page 22
of the English text, is the categorical statement which, in the view of the council,
provides all of the assurances that any of the Nisga'a Nation's First Nations neighbours
might need. It notes that nothing in the agreement affects, recognizes, or provides any
rights under section 35 of the Constitution Act for any aboriginal people other than the
From our point of view, that statement is categorical and clear. I should say
parenthetically that the general provisions prevail over the rest of the treaty. In other
words, these are the sections that tell you how to read the entire document.
However, because there is some concern about the actual implementation of that clause
-- concern I should say not on the Nisga'a side, but by governments and others --
paragraphs 34 and 35 were added. Basically, paragraph 34 says to the court that, if some
other aboriginal people do have a right and that is adversely affected by the Nisga'a
treaty, then the provision of the Nisga'a treaty must be read down so as to not affect
that right. If the provision cannot be read down, or reading down leaves it totally
without effect, then the Nisga'a, Canada and British Columbia would attempt to come up
with a replacement. In other words, the aboriginal right, if established, would always
prevail over the Nisga'a treaty right.
Paragraph 35 speaks to the future. It is a complete reversal from the provision in the
AIP. The agreement in principle said that Canada and British Columbia must not negotiate a
treaty with anyone else that would adversely affect the Nisga'a. That was one of the
things that the Gitanyow were quite concerned about. The Nisga'a agreed to reverse that to
paragraph 35 of general provisions. It says that if Canada or British Columbia does enter
into a treaty or land claims with someone else, and it adversely affects the Nisga'a
treaty right, then it will be up to Canada and British Columbia to make the Nisga'a whole
-- in other words to come back to the table and negotiate an adequate remedy or
Mr. Chairman, the point we wish to emphasize is that the combined effect of paragraphs
33, 34, and 35, in our view, provides more than ample legal protection to First Nation
neighbours of the Nisga'a.
The Chairman: Mr. Gosnell, you will recall the November 25 document submitted by the
tribal council regarding facts about the Nisga'a-Gitanyow dispute. Is that still your
Mr. Gosnell: Yes, Mr. Chairman, that is still our position.
The Chairman: Thank you. With your permission, I will circulate it to members of the
Mr. Gosnell: We have no problem with that. Please do.
Senator Tkachuk: The statement you presented this morning was extremely well done. It
certainly explained many of the concerns expressed by those of us who spoke in the chamber
during second reading. I would congratulate you.
I want to ask some specific questions on the settlement itself, and then a couple of
questions on how the Nisga'a government will finance itself and how you will administer
How many acres of land in total will be governed under the treaty?
Mr. Aldridge: For clarification, senator, are you referring to the size of Nisga'a
land, which is 2,000 square kilometres, or 200,000 hectares?
Senator Tkachuk: Can you give that to me in acres?
Mr. Aldridge: We do not have that. It was a new age, we were forced to negotiate in
Senator Tkachuk: Is that the land negotiated in addition to the land you held, or is
that the total amount now held by the Nisga'a Nation?
Mr. Aldridge: The existing reserves were in the neighbourhood of 65 square kilometres.
Nisga'a land, which are the lands to be held in an estate in fee simple by the Nisga'a
Nation, is 2,000 square kilometres -- a substantial increase. The total traditional
territory is in the neighbourhood of 24,000 square kilometres, of which Nisga'a land is a
I am giving a longer answer than the question might have suggested because, while much
of the Nisga'a jurisdiction is restricted to the estate in fee simple, there are also
certain Nisga'a government authorities that extend beyond that 2,000 square kilometres.
For example, Nisga'a government has the authority to make laws in regards to hunting and
fishing that takes place through the much larger area, closer to the traditional
territory. Therefore, depending upon the subject matter, the geographic extent of the
Nisga'a government's jurisdiction varies. However, the simple answer is 2,000 square
Senator Tkachuk: You are saying that, once you get off the 2,000 square kilometres
which is Nisga'a land under the treaty, there is land that is owned by others. Is it Crown
land owned by the provincial government, or is it private land over which your authority
Mr. Aldridge: Within the 2,000 square kilometres, there are a number of fee simple
parcels that are today held by non-Nisga'a people. Those fee simple parcels are not
included within Nisga'a land. We sometimes call them "donut holes". Those
estates remain intact, and Nisga'a jurisdiction does not extend over the them.
Outside of the 2,000 kilometres, the vast bulk of the land is provincial Crown land.
The provincial government per se, would make decisions about the land.
I alluded to Nisga'a authority, not in respect of the land, but Nisga'a authority in
respect of the Nisga'a harvesting of fisheries or wildlife resources on that land in
accordance with the treaty.
Senator Tkachuk: You would grant a hunting licence, for example.
Mr. Aldridge: If a Nisga'a citizen wished to hunt a moose under the Nisga'a wildlife
entitlement, he or she would obtain a Nisga'a hunting licence from the Nisga'a government
that would establish the terms and conditions under which that person could hunt. I hasten
to add, the broad terms and conditions that the minister under the approval of the
wildlife plan would have already established.
However, it is up to the Nisga'a to administer it. The Nisga'a could specify in a
hunting licence that a person can hunt only one moose in a certain area at a certain time,
and that the person must report what is caught, and where and when it was caught for
monitoring purposes. This would also help ensure that the Nisga'a would stay within the
The law-making authority over the Nisga'a harvesting is such that it will ensure that
the treaty rights are properly exercised, and properly monitored and enforced, as well.
That is a responsibility that the Nisga'a have. I wish to emphasize it does not extend to
harvesting by others.
Senator Tkachuk: In respect of moose hunting, I understand the provincial government
sets the number of kills that can be made within a certain season and the number of
licences that will be issued. They do that with a lottery. How does that work in practical
terms? Are you involved in that lottery, or do you simply suggest that 1,000 moose, 20 per
cent of which belong to the Nisga'a, can be killed in a season? Do you make that decision?
Mr. Aldridge: The latter description is the closest. In this particular area of British
Columbia, there is not yet what is called limited entry hunting with the lotteries. They
do that in other parts of British Columbia but not in the Nass area. On an annual basis,
the provincial government will determine the total allowable harvests of moose within the
territory as defined in the treaty, which contains a guaranteed allocation of that number
to the Nisga'a. The provincial government decides the conservation limits. It decides what
harvest is possible in order to sustain the population of the moose, and determines a
number for the harvestable quantity. The treaty sets out a sliding scale of how many the
Nisga'a will be alloted, essentially 52 per cent for their harvest.
However, it is slightly more complicated than that as this just gives us the number of
moose we can harvest, it does not mention methods, times and locations of the harvest.
These methods, times and locations will be set out in a wildlife management plan that will
be initially proposed by the Nisga'a and subsequently taken to a joint wildlife committee
for review. Recommendations will be provided to the minister who retains the ultimate
authority to approve or disapprove the wildlife plan. The plan will reflect what the
minister deems is necessary to integrate the Nisga'a harvest with the harvest by others in
the same area.
The degree of specificity may not go as far as the Nisga'a may feel is necessary for
the distribution of that percentage of moose among their people, the monitoring and stock
enhancement of moose, and the conservation practices that the Nisga'a might deem
appropriate to achieve. Bear in mind that the incentives are with the Nisga'a to try to
bolster the population.
Senator Tkachuk: Turning to the area of the financing of your government, apart from
what you will receive from the federal government in transfer payments for the health and
education of your people, will you have the right to impose property taxes on individual
citizens who own property? How will your government finance the things governments
normally must provide? For example, how will you finance the provision of sewer, water,
and electrical services?
Mr. Wright: The land is 492,270 acres or 769 square miles -- a lot smaller than the
Douglas ranch in British Columbia.
We will be entering into fiscal financing agreements with the Governments of Canada --
which will be assuming the majority of the financing -- and British Columbia. Some of the
budget areas are continuations of budgets that are now approved for bands across Canada.
They relate to education, public works, health and so on. We will be entering into that
particular agreement which will be renegotiated every five years. It will include
agreed-upon programs and services. As you are aware, programs and services that are
occasionally taken off the books present us with a dilemma.
Certainly, over the first five years, we are very restricted in our ability to make as
much money as possible from the forest resources. We have a five-year transition period
during which the present licensees on Nisga'a lands will continue to harvest. They will
pay a stumpage fee. It is revenue from this fee, after the second year, that will be
counted as our contribution towards the running of the government.
We will also be developing the marketing of our fishery resources. We are not allowed
to set up a fish processing plant near Prince Rupert, but we will be able to market in the
fresh fish market area. That revenue will be used for the enhancement of the salmon.
Revenue not required for salmon enhancement will be used towards the running of the
fishery program. Revenues from any other area of resource development will be contributed
We will be able, in the future, to tax our own people. We are not able to tax the
people Mr. Aldridge described as our neighbours who have a square mile or a quarter
section because they still come under the provincial system and pay taxes to the
Kitimat-Stikine regional district.
My colleague Mr. Nyce, vice-chair of the Kitimat-Stikine regional board, stated that
there are numerous people and tax revenues are substantial even though individual amounts
are minimal. That has to do with the isolation of our area. Our village owns a couple of
fee simple properties adjacent to our Indian reserve, and our tribal council owns a few
parcels of land, thus, we are aware of the taxation rates for the area. Because of the
underdevelopment in the area, the taxes levied against these properties are very low.
Therefore, creating large revenues from land taxes, in the immediate future, will not be
possible for us. These revenues will barely cover the operation and maintenance of water,
sewer and roads. However, we will look forward to developments in the future.
Senator Tkachuk: Did you say it was 492,000 acres?
Mr. Wright: Yes.
Senator Tkachuk: A farmer in Saskatchewan can easily own 10,000 acres, thus, 50 people
may easily own the equivalent of 492,000 acres.
Senator Andreychuk: I have some concerns that Parliament is not brought into the
process early enough. However, I strongly believe in negotiated settlements for aboriginal
land claims. The question is not that the Nisga'a should have done something more and
earlier. In fact, I received information quite some years ago about the process of
negotiation. It was my only knowledge of this deal.
My point -- and I hope our committee will take this up -- is that governments should be
obliged, as they are negotiating, to apprise Parliament of the process and the
implications so that we are prepared when a treaty is presented to us. If we have any
comments or opinions, we would be able to feed them to government representatives in the
negotiations. That is a failing which is becoming self-evident, both in our international
treaties and in our internal treaties.
The presentation points out that it would be difficult to amend this agreement. That is
precisely what we know, that it is difficult if not impossible for Parliament to amend.
Yet a parliamentary role must be included by the federal government at an earlier stage. I
will go no further on that point.
I would welcome a better understanding on a question which has been raised with me by
citizens of British Columbia as well as others. Presently, the Nisga'a have health boards
and school boards. Are those school boards and health boards physically situated on
Nisga'a lands, or are they simply in the Nass Valley region?
Mr. Wright: The school district covers areas outside of Nisga'a land boundaries. As far
as the physical structures, there is an elementary school in Gingolx, the village at the
mouth of the river. There is an elementary school in Lakalzap and in Gitwinksihlkw and an
elementary-secondary in Gitlaxt'aamiks (New Aiyansh.) Those are run by a provincial school
board, the only provincial school board in Canada which has 92 per cent aboriginal people
in the school district. It started in the 1970s and it continues.
We have five members on the board, one from each of the four villages and one seat for
what we call the "unorganized" area. That covers the people who live on the fee
simple lands adjacent to New Aiyansh. They get 20 per cent of the vote but they represent
5 or 6 per cent of the population.
Senator Andreychuk: Are the schools are physically located on Nisga'a land?
Mr. Wright: Yes, they are.
Senator Andreychuk: Are there some non-Nisga students attending those schools?
Mr. Wright: Yes.
Senator Andreychuk: There is nothing in this agreement to preclude the province from
setting up schools and districts adjacent to Nisga'a land that anyone could attend. Is
that correct? I perceive a responsibility of the Nisga'a to have school boards and health
districts for the Nisga'a people within their own land. If you can work co-operatively
with non-Nisga'a to use those resources, obviously that would be more efficient, but it
does not preclude services supplied by the provincial government to non-Nisga'a. Those
could be set up anywhere. It may mean that people must drive further or enter into
different arrangements, but it does not preclude their rights to go elsewhere. Am I
correct or not?
Mr. Aldridge: You are absolutely correct. I am not sure if you have this
misapprehension or not, so please indulge me for a moment. Today, both the school board
and the health board are provincially registered societies under provincial laws of
general application. There is no intention to change that on the effective date. Those two
provincially incorporated bodies or provincially regulated bodies will carry on
The Nisga'a, you will recall, in negotiating the treaty, had to negotiate a treaty for
all time. Because of the possibility that, at some time in the future, the Nisga'a might
wish to move to a school board or a health board organized under their own laws, they have
negotiated that ability. That does not mean it will happen on the effective date or in the
foreseeable future. If they do, however -- you are quite right -- the treaty expressly
provides for negotiations to take advantage of obvious economies to include non-Nisga'a
people through some kind of a reciprocal arrangement with the province, failing which the
province would most certainly have the ability to establish whatever other facilities are
required under its law at that time.
Senator Andreychuk: That was not my fear. Any arrangement will depend on goodwill and
cooperation. My point was about rights in the future, rights for the Nisga'a and rights
for non-Nisga'a. I want to be sure that the province has a responsibility to provide
health services and education facilities for non-Nisga'a, wherever they are in the
province, that those are not in any way affected by this.
Mr. Aldridge: That is correct.
Senator Andreychuk: I was speaking in a legal sense. They may be affected in a
practical sense by cooperation.
Mr. Aldridge: You are absolutely correct.
Senator Andreychuk: I will not ask my next question in legal terms, but I will put it
to the experts later. You seem to say that citizenship does not derive from the existing
structures in Canada, that it seems to be drawn from elsewhere. You go into American law
and other areas. Can you explain why you do that?
Mr. Aldridge: The reason for the references to American law is solely because those
statements have been embraced by Canadian courts. The Marshall decisions have been
embraced by Canadian courts as an accurate statement of British law. That is the reason.
As far as citizenship is concerned, though, the point is not that this is something to
do with American law or anything of the sort. To the Nisga'a, the correct word to describe
a member of a nation is "citizen." It is simply the correct word. I have had the
privilege of representing the Nisga'a on this issue, so I say this to honourable senators
who I know have been concerned about this issue: This is not an oversight or something
that was never addressed at the table. It was addressed a great deal at the table.
To the Nisga'a, to deny the use of the word "citizens" to describe
themselves, is tantamount to a denial of their existence as a nation, as a nation within
Canada. The Nisga'a have referred to themselves as a nation since time immemorial and in
the earliest documentation that we have of the Nisga'a land question. To say that they are
citizens of the Nisga'a Nation is to say nothing more than that. They are proud of that
affiliation. However, I wish to emphasize that it was never any part of my instructions at
the table to suggest in any way, shape or form that the use of this term should undermine
or call into question Canadian citizenship.
I believe it was Senator Kinsella, during second reading debate, who pointed out that
the notion of Canadian citizenship is a relatively recent one. It is one that is used to
express that attachment that we all have to Canada as a nation state in the international
community. There is nothing about the term "Nisga'a citizen" which calls that
into question or purports to be on the same level.
Honourable senators have asked whether this constitutes dual citizenship. I say, with
respect, one must be cautious about that line of thought. For many years I practised
immigration law. I represented many people who were dual citizens of, for example, the
United Kingdom and Canada or, more recently, citizens of the United States of America and
Canada. Dual citizenship at international law is recognized by other countries.
We are not discussing that here. We are discussing an aboriginal person belonging, to
use Chief Justice Marshall's words, "to a unique aggregation or political
community." There is nothing wrong with the word "members" but rotary clubs
have members; law societies have members; Parliament has members; nations have citizens.
That is the assertion of nationhood, and the assertion of belonging to a political
community which does not undermine the attachment to Canadian citizenship whatsoever but
is rather a different notion.
Senator Andreychuk: You refer to "Canadian citizenship" and I do, with
respect, disagree with Senator Kinsella when he says it is a recent notion. You must be
careful when you are stating what you mean by "Canadian citizenship" is the
recent notion, because it is not a recent notion, in my opinion. When you say
"Canadian citizenship", you can define what rights and responsibilities flow
from it. The other day, we were given the Nisga'a word for "citizenship".
Therefore, I can only conclude that the Nisga'a had a word that encompassed their rights
to belong to this aggregation of people that formed a nation. Out of that would have
flowed rights and responsibilities. Can we document what those were, to give us an idea of
what they might have been?
Mr. Gosnell: It is important for the committee and all honourable senators who are not
present to recognize very clearly that every citizen of our nation today belongs to one of
the four major crests that we hold. There is no Nisga'a today that is born who does not
belong to one of these four groupings of clans. Everyone fits into our structure. There is
no individual standing off to one side who has nowhere to go. You belong. You are born
into a lineage. You are born into our nation. It is inherent that when a person is born,
he or she is automatically a citizen of the Nisga'a Nation.
Senator Grafstein: I wish to thank the panel for their presentation. We in the Senate
tried to adopt a different approach from that taken in the other place, namely, to get at
the issues and to try to deal with them in a non-partisan way as much as possible. You
have responded with the same degree of care as we did in trying to raise these delicate
issues. While some of my concerns were not satisfied, at least they will cause me to think
anew. If that is the process here, that is important.
I now wish to return to my key concern, namely, the question of citizenship. You must
forgive me because I do not yet fully understand the difference between the two, that is,
Canadian citizenship and Nisga'a citizenship. I have read the agreements, the treaty and
the Constitution. For example, on page 161 of the Nisga'a government chapter, it states
that, "...provide that every Nisga'a participant who is a Canadian citizen or a
permanent resident of Canada is entitled to be a Nisga'a citizen."
Under the Nisga'a Constitution, you set out criteria. Dr. Gosnell has indicated that
birthright is the key criterion -- at least, I assume it is the key criterion.
Mr. Gosnell: Yes, it is.
Senator Grafstein: A person who is a Canadian citizen or a permanent resident of Canada
is entitled to be a Nisga'a citizen. If you are a Nisga'a citizen, are you entitled to
vote in a federal election?
Mr. Gosnell: As a Canadian citizen, yes.
Senator Grafstein: There is a duality here. Wearing one hat, namely, that of a Canadian
citizen, you can vote in a federal election, but you are excluded from voting in a
provincial election; is that correct?
Mr. Gosnell: No. We also have the right, most recently granted, to vote in provincial
Senator Grafstein: There was a whole miserable history about this.
Mr. Gosnell: That is right.
Senator Grafstein: We will deal with this question of citizenship later. At the end of
the day, a Nisga'a citizen is entitled to vote federally and provincially, and has the
right to deal with the votes, whatever their nature, within the Nisga'a structures of
government. There are several of them on and off the reservation.
Mr. Gosnell: You should not use the word "reservation" because it will no
Senator Grafstein: I will withdraw it, then. I accept that. I want to be careful here.
I meant to say "on or off the Nisga'a lands."
Mr. Wright: It is important to note that wherever you live, in whatever municipality or
province, I do not get to vote in your municipality; you do. It is a very similar process.
I get to vote in both a provincial and a federal election. I also get to vote in my own
area for my government, which is for a Nisga'a government. You can vote in whatever
municipality in which you live, as does everyone else. That is the similarity. When you
are saying "dual", it is not dual. My residency gives me the ability to vote. If
you look at the eligibility and enrolment chapter of the final agreement, you will find
the criteria that refers to participants. It expands on what our president stated. The
eligibility criteria is found at the top of page 241, and it includes those of
"Nisga'a ancestry, descendant of an individual described as an ancestor, an adopted
individual." We then have other aboriginal people who have married into our nation
and have been adopted in our feast system. That is why we expanded beyond our matrimonial
system. That took several conventions of our people; otherwise we would have stopped at
paragraph (c). The people who have married into our nation over the past 30 or 40 years
have children and grandchildren. They wanted to be considered, so we included them. Once
you become a participant you can automatically become a citizen, provided you are a
Canadian citizen and you are resident in Canada. That is important to note. It is very
similar to the municipal ability to vote.
Senator Grafstein: I had read that. There seems to be an ambivalence within the treaty
itself and in your Constitution, but it is a positive ambivalence, not a negative one. I
think it was you, Dr. Gosnell, who said that you had to move away from tribal systems to
more democratic processes. We are having to deal with a hybrid situation here. That is to
say, it is not what we have traditionally understood to be provincial, territorial, or
federal. We must wrap our minds around that, and sometimes we must move slowly to
There appears to be a desire -- not an automatic right -- to allow non-Nisga'a citizens
to vote in Nisga'a institutions, "if they directly or significantly affect
them." First, what does that mean? Second, why would you not have established, as you
have suggested here, an automatic principle of minority rights within the Nisga'a
institution? You have suggested it here. You are almost there, but you have not gone all
the way. The debate centred around whether or not it is a number. That is to say, is it a
limited number or a free vote? There is an ambivalence there.
To conclude my analysis of this -- and all of this is by way of positive recognition
that you are trying to grapple with the central issue of votes -- if you look at the
number of people, and my numbers may not be correct, there are roughly 200 people on the
Nisga'a lands who are not resident. Is that correct?
Mr. Wright: There are fewer than 100.
Senator Grafstein: That even makes my case better.
Mr. Wright: Fewer than 100 live on their own parcels of land adjacent to us, but quite
a number of people, probably the other 100, live in our communities as education
professionals, health professionals, and so on. They live in our villages.
Senator Grafstein: Why would you not have gone the next step? I know Dr. Gosnell has
been grappling with this. The next step would be to provide something that we consider to
be important in the so-called "European" style of governance, and that is to
establish or entrench minority rights within the institutions. This is not a dangerous
problem for the Nisga'a because they have an overwhelming majority. They have control of
the lands. There is no danger that they can be usurped by the minority. The minority
cannot overrun the majority. Why would you not have gone that last step?
Mr. Gosnell: With respect to providing citizenship to people other than the members of
our nation, as Mr. Wright indicated, that decision was not made by the negotiating team or
the general executive board of the Nisga'a Nation. That decision was made at large by our
grassroots people. These are the everyday people on the street. They come together and
make a decision or give us instructions as to what they would like to see done. In the
end, we only carry out the instructions provided to us by our grassroots people. What we
have in the document today is precisely the instructions that were given to us.
I believe there are provisions in the treaty that could possibly enable what you have
mentioned to happen. However, it is not for me to say whether it will or will not happen.
I would have to leave that for future legislators in our government to ponder and no doubt
come to some sort of a decision.
Senator St. Germain: I have a short supplementary question. You said you voted in the
federal and provincial elections. You obviously voted in the regional district elections
as well, did you not?
Mr. Leeson: That is right.
Senator St. Germain: Everyone was treated as equals in that process. Is that correct?
Mr. Leeson: Yes.
Mr. Gosnell: That is correct.
Senator St. Germain: To go back to what Senator Grafstein asked, you have a few
minorities who do not have the same authority and voting rights as they did traditionally.
Mr. Gosnell: It is important to recognize, senators, that today we do not have the
right to vote in municipal elections. Terrace is our closest municipality. We do not have
a right to vote there, or Prince Rupert or Kitimat or elsewhere. Certainly we do maintain
the right to vote, federally and provincially, in the electoral districts of which we are
a part today.
Senator St. Germain: I cannot vote in Prince Rupert either.
Mr. Gosnell: Is it your view, senator, that we should have the ability, living in the
Nass Valley, to vote in municipal elections in Terrace and Prince Rupert?
Senator St. Germain: I never said that. That is not the question I am asking, Mr.
Gosnell. I am not allowed to vote in Prince Rupert either. I do not know how that relates
to the question I am posing. My question relates to what Senator Grafstein asked. You have
a minority group that is basically being denied their right to vote. He was asking why,
during your negotiations, you did not grant that minority the right to vote. Is that
correct, Senator Grafstein?
Senator Grafstein: I do not want to be unfair to the witness. That is a fair reading of
the document, and they have the power to do that if they choose. It is not as if the power
is not there. Having heard the witness, I understand his hesitancy here. He, in effect, is
an armed negotiator. He is armed to bring instructions, in effect. You are 80 per cent
there. Now I understand why, even if he chose, he could not go all the way.
The Chairman: I will give Mr. Gosnell the opportunity to respond to your observation,
and then the meeting must conclude.
Mr. Gosnell: Briefly, as we indicated in our presentation, honourable senators, our
government of the future will deal primarily with the internal activities of our nation.
We will not have the ability to reach into the fee simple areas that will be adjacent to
or immediately within our core area. We do not have that authority. We only have the
authority to deal very specifically with internal matters that are relative to the Nisga'a
Senator St. Germain: We are running short of time which is sad since I had one more
The Chairman: The Nisga'a Tribal Council will come back, and we will allow a sufficient
time for all senators' questions. I think, Mr. Gosnell, a good time for that would be
toward the end of our evidentiary period. I know you will audit the various questions that
senators are asking so that you can respond to them.
I thank you for your presentation this morning. I echo on behalf of all senators our
appreciation for the way in which you have addressed the questions we have asked up until