Appendix A: Analysis of Self-government
Aspects of the Nisga'a Final Agreement

The Nisga’a Agreement purports to give a lengthy list of legislative powers to a Nisga’a central government yet to be established under a Nisga’a constitution.

Whereas up to now federal and provincial law has been in full force and effect in the 1,930 square kilometres that will be transferred to the Nisga’a, after the transfer many provincial and some federal laws may be replaced or overridden by Nisga’a laws in that area and over the people therein whether, in some cases, they be Nisga’a or non Nisga’a. This represents a significant diminishment of the exercise in that part of the province of the legislative powers of the Legislature of British Columbia given to it by the Constitution of Canada.

The same can be said of those Nisga’a laws which will have paramount effect on the vast area adjacent to Nisga’a lands (i.e., Nisga’a laws in relation to wildlife entitlements). Moreover, to provide, as the Agreement does, that Nisga’a laws rather than provincial laws apply, in certain respects, to Nisga’a people outside the territory, with their consent, is a further restriction on the exercise of the legislative powers of the Legislature of British Columbia over those people.

To be specific, the Nisga’a Agreement would make Nisga’a laws constitutionally paramount on at least 17 subject matters and give the Nisga’a government shared legislative jurisdiction over another 16 subject matters. (See Appendix B.) There is an even more troubling aspect of this matter of giving paramountcy to Nisga’a laws over provincial laws which is contained in section 13 of the General Provisions of the Agreement. That section provides that the terms of the Agreement prevail over both federal and provincial laws, if there is a conflict, in virtually all aspects relating to Nisga’a.

When this diminishment of provincial legislative power is coupled with the effect of these provisions being “constitutionalized” under section 35 of the Constitution Act, 1982, and therefore virtually unable to be undone in future, then, in my view, the consequence is that this constitutes a de facto amendment to the Constitution of Canada because it permanently diminishes the powers of the BC legislature.

Furthermore, when these kind of legislative powers are extended to 50 or more other “First Nations,” one can see the cumulative effect this would have on the diminishment of provincial legislative powers.

If this proported transfer of paramount law-making power from the province to the Nisga’a constitutes a de facto amendment to the Constitution of Canada, as I suggest it does, what flows from that? The answer is that section 52(1) of the Constitution Act, 1982, makes it clear that such provisions are of no force and effect. To rectify the matter, this de facto amendment could be perfected and be given constitutional validity only by invoking the appropriate amending formula of the Constitution referred to above.

Some will argue that the “inherent right” to native self-government is implicit in the words “aboriginal rights” as they appear in s.35 of the Constitution Act, 1982, and that this renders this transfer of legislative authority valid. This is a popular view among certain proponents of the native cause in the academic community but there is no juridical support for this. Even the Supreme Court of Canada in Delgamuukw, with its expansive view of aboriginal rights and title, pulled back on any finding on the inherent right issue.

I would ask these proponents that if, as they say, the inherent right is already in the Constitution, why did the federal-provincial-aboriginal leadership and their officials hold four constitutional conferences in the 1980s unsuccessfully attempting to get agreement in putting the concept into the Constitution? And why was it a part of the Charlottetown Accord if it was already in the Constitution?

Section 8 of the General Provisions of the Agreement states that the Agreement does not alter the Constitution of Canada, including the division of powers between Canada and British Columbia. While such a statement may be interesting in showing the intention of the Parties, it is not in any way determinative of the issue. It is for a court of competent jurisdiction to consider the issue of constitutionality. The Parties cannot wish it away.

On a related issue, section 9 of the General Provisions states that the Canadian Charter of Rights and Freedoms applies to Nisga’a government. It is highly debatable whether such a clause has any force or effect. Section 32 of the Charter itself sets out to whom the Charter applies. It applies to Parliament and the provincial legislatures in respect of all matters within their authority. Can it be said that Nisga’a government is under federal or provincial authority?

I want to stress that my view that certain sections of the self-government provisions of the Agreement are constitutionally invalid is based on the combination of the transfer of legislative power to Nisga’a government with Nisga’a paramountcy with the “constitutionalization” of those rights by section 35 of the Constitution Act, 1982, brought about because they are rights contained in a land claim agreement.

Of all of the modern land claim agreements, only British Columbia has allowed itself to fall into this constitutional difficulty. That is because in all of the agreements negotiated in recent times, self-government has been negotiated outside land claim agreements and therefore those separate self-government agreements are not “locked in” to the Constitution by s.35 of the Constitution Act, 1982. The other two land claim agreements are those in Northern Quebec—the James Bay and Northern Quebec Agreement with the Cree and Inuit of northern Quebec (1975), and the Northeastern Quebec Agreement with the Naskapi Indian Band (1978). In both of those, there is a measure of self-government extended, but it is largely administrative in nature with Quebec law firmly overseeing the native self-government established. There is no wholesale transfer of legislative power here. The Quebec government has its hand firmly on the self-government tiller.

In summary it is my view that:

1. The transfer of legislative jurisdiction to Nisga’a government which is to be paramount over provincial legislation, coupled with the effect of s.35 of the Constitution Act, 1982, is to diminish the legislative power of the Legislature of British Columbia and therefore amount to a de facto amendment to the Constitution of Canada. It amounts to an irretrievable delegation of legislative power in that, at some later date, the Legislature or government of British Columbia, acting alone, cannot retrieve its own constitutional power.

2. Because the provisions in question did not come about through a formal amendment to the Constitution, by virtue of s.52(1) of the Constitution Act, 1982, those provisions are likely of no force or effect.

3. The above deficiency can be rectified by invoking the appropriate section of the amending formula of the Constitution of Canada and thereby formalizing the amendment. If this were to be done, present legislation in British Columbia would require a province-wide referendum.

4. The statement contained in the Agreement that it does not alter the Constitution of Canada or the division of powers is of little effect.

5. It is highly questionable whether the Canadian Charter of Rights and Freedoms applies to laws to be made and actions to be taken by the Nisga’a government.