The Nisga’a Agreement is Constitutional Amendment by Stealth
Contact:
Suzanne Walters, Director of Communications
The Fraser Institute, (604) 714-4582 Email: suzannew@fraserinstitute.caRelease Date: 28 January 1999
VANCOUVER, BC>>> The draft Nisga’a Treaty will entrench a new and untried order of government founded on collective property and collective choice. It is an experiment that should not be irretrievably enshrined in the Constitution of Canada and passed without greater public debate and consent, says respected constitutional commentator, Gordon Gibson, in a new paper, Comments on the Draft Nisga’a Treaty, released today by The Fraser Institute.
"In the area of citizenship and governance more than any other we see the Treaty for what it is—an elitist accommodation that is great for the native and non-native leadership, but bad for Canadians, including Indians," states Mr. Gibson.
The agreement is fundamentally flawed because it contravenes the basic principles of successful democracies. By its very nature Canada is an open society where political rights are based on residence, but the Nisga’a Treaty establishes a closed society where political rights are based on ethnicity. Ironically, this kind of discrimination, which had been a burden imposed on the native community in the past, is now seen as its defining value.
Furthermore, the agreement endangers democratic accountability by concentrating tremendous economic and political power in the hands of the Nisga’a government rather than ensuring it is dispersed and balanced throughout the citizenry. "An unusual amount of power is concentrated in a very small government. No amount of theoretical checks and balances are likely to withstand such a concentration of power in the long run, as long as the major financial resources are provided by the outside world, rather than by taxation of the people governed," argues Gibson.
Although private property and individual choice have been proven as the surest guarantee of freedom, increasing productivity, and a higher standard of living, the Treaty allows only limited flexibility for the creation of private title to lands, and instead vests tremendous economic power in the hands of the Nisga’a government rather than with individual Nisga’a.
As other commentators have also suggested, the Nisga’a government as contemplated is far superior to any municipality, however large. Not only will it have many more powers, but it will hold them in a sovereign and paramount status, protected by the Canadian Constitution.
Mr. Gibson argues, "What the Nisga’a Treaty asks Canadians to do is to provide for major external support to bless and indeed impose on the Nisga’a people a newly constitutionalized structure of governance inconsistent with the lessons of democratic and economic history, to subsidize it, and to build in financial and other incentives for Nisga’a individuals to remain within that system, in a remote area otherwise incapable of supporting the population to currently required economic and social standards."
Leaving aside the essential problems of citizenry and governance the paper suggests that the land and cash settlements of the Treaty should stand as negotiated, with the exception of fish and the extended wildlife area.
With respect to salmon, property rights in that resource should be assigned to the Nisga’a as part of an overall privatization of salmon rights in the Nass river system similar to what has been accomplished in some other BC fisheries. In regards to the extended wildlife area, harvesting entitlements should be left undisturbed but management should remain solely with the provincial government as the Treaty only sets out a vague scheme of co-management.
Nisga’a lands should become a municipality with the application of the usual municipal grants. Non-municipal services can be managed through a service-by-service agreement with the provincial government. To increase citizens’ control, direct payment should be made of some major portion of funds otherwise payable to the bands or the tribal council with respect to service to Indians. The Nisga’a government could then tax back those funds for agreed governmental functions. The same principle would apply to at least a major fraction of the $190 million capital fund provided for under the treaty.
In summary, "governments have consistently and cynically sought to minimize the importance of the principles being established, the quantum of resources being transferred, and the complexities of future intergovernmental relations being mandated by the agreement, in order to slide it past the public," concludes Gibson, "This is constitutional amendment by stealth."
Established in 1974, The Fraser Institute is an independent public policy organization based in Vancouver.
For further information, or for a copy of Comments on the Draft Nisga’a Treaty, contact:
Suzanne Walters, Director of Communications,
The Fraser Institute, (604) 714-4582,
Email suzannew@fraserinstitute.ca
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