Certainty and finality

For governments, the quid pro quo for entering into treaties is the assurance that such treaties contain the sum total of all rights which that particular native group would ever claim. To achieve this, all previous treaties in Canada, including the recently concluded treaties in Northern Canada, have contained an extinguishment clause whereby the particular native group “cedes, releases and surrenders” any and all rights not contained within the treaty.

These words have on occasion been the subject of judicial interpretation. They were alluded to by the Supreme Court of Canada, in various contexts, in Delgamuukw. In short, their meaning has been judicially established.

Over the past five years, the native leadership has indicated a strong resistance to accepting an extinguishment clause of this kind in future treaties. The present federal government has acquiesced in that view and it appears that the provincial government has followed suit. Much discussion has taken place between governments and the native leadership to formulate words that would provide certainty and finality without using the word “extinguishment.”

As a consequence, in the Nisga’a agreement the time-honoured words are replaced by another formulation of words wherein only the term “release” is used. The new words may or may not prove to be sufficient to achieve finality. No one can be assured that the new words will be interpreted by a court in the same way as the old ones. In fact, there is likely to be a tendency for a court to attach some significance to the different wording. Moreover, with the concept of “living treaties” in vogue in certain academic circles and beyond, this departure from the well-established term is unsettling. This much is certain—the Nisga’a see the new words more favourably in their interest.

There is, of course, another dimension to this matter of certainty and finality, and that is the danger of building uncertainty into the treaty itself. In many respects this is what has happened with the Nisga’a agreement. The forest industry has recognized this. In a news release dated August 5, 1998, the Council of Forest Industries identified four major areas of uncertainty in the forest sector alone. The council asked:

• Will compensation for expropriation of forest tenures be adequate to maintain economic confidence?
• What effect will the right of aboriginals to decrease or even halt harvesting timber on treaty lands have on the forest industry province-wide, with such rights being contained in many more treaties yet to come?
• How will existing sawmills be affected by the uncertainty of wood supply during the five-year transitional period and beyond?
• Will aboriginal-enforced laws relating to wildlife, fisheries, and environmental protection affect timber harvests outside Nisga’a lands?

Discretionary decision-making in the hands of boards and committees is another means of creating uncertainty. I have counted at least 50 explicit instances in the Nisga’a agreement where there must in future be “consultation,” “agreement,” “discussions,” or “approval” between the Nisga’a government and the provincial or federal governments. Many of these require side agreements that, in turn, will require renegotiation after a term of years. No one can predict what the outcomes of these many sets of negotiations will be. To that extent, therefore, there is a clear element of uncertainty on many key aspects of this treaty.

This intergovernmental interface will turn many a Nisga’a into a bureaucrat, and greatly increase the demands placed on the staff and resources of the provincial government particularly. If there are to be 50 more treaties like this one, I have no hesitation in predicting that at the end of it all the provincial Ministry of Aboriginal Affairs will be one of the largest in government. How ironic, considering that according to the Canadian Constitution the provinces have no explicit legislative jurisdiction over Indians.

Will there be certainty and finality with this treaty-making process? Not very likely.