Nisga’a government—much more than municipal government

By no stretch of the imagination can the Nisga’a central government, to be established under the Nisga’a treaty, be considered merely municipal-like in nature, as government spokesmen and publications claim. Municipal government is relatively easy to recognize when you see it. First and foremost, it is not an order of government recognized by the Canadian Constitution; only the federal and provincial governments are that.

Municipal governments are established by a provincial legislature delegating certain limited and local powers to a municipal body which it creates. The important point is that whatever powers the legislature delegates to a municipality, it can at any time in the future retrieve. It can even abolish altogether the very municipality it has created. The recent forced amalgamation and consolidation of municipal governments in Toronto is a case in point.

The second hallmark of genuine municipal government is that the powers given to it are local in nature, such as: taxation of real property; zoning and land-use planning; building inspection; regulation of noise, animals, and waste disposal; local road construction and maintenance; local business and trade licences; local policing; and the imposition of penalties for contravening these laws. There are other powers of like kind, but in essence they result in the passage of bylaws relating to local community.

The third feature of municipal government is that all adult residents within a municipality have the right to run for municipal office and, most importantly, vote for their municipal governments.

The form of the Nisga’a central government proposed under the Nisga’a final agreement fails to meet the test of any of the three criteria for a municipal type of government. It fails the first test, because the powers it is given by the province under the treaty are not delegated to it but are, in fact, forever irretrievable because they are contained within a land-claim agreement “constitutionalized” by section 35 of the Constitution Act, 1982. No city or lesser municipality in Canada is given that kind of irrevocable status. The federal minister of Indian and Northern Affairs acknowledges that this is the first time in the history of treaty-making in Canada that this kind of aboriginal self-government is included within a “constitutionalized” land-claim agreement.

It also fails the second test of a municipal type of government, in that the powers to be given to it go far beyond the right to pass bylaws on what are essentially community matters of the kind listed above. It will have the right “to make laws” (the language used in the Canadian Constitution to describe federal and provincial powers) on what are clearly provincial legislative powers and some federal ones. For example, the Nisga’a can make laws on: education (K-12); higher education (including establishing one or more universities); the delivery of health services; child and family services; businesses, trades and professions (except accreditation); their fish, aquatic plants, and wildlife entitlements. The list goes on.

These Nisga’a laws—yet to be passed by a Nisga’a government, yet to be established under a Nisga’a constitution—will supplant federal and provincial laws on the subjects mentioned above if there is any conflict between them.

On certain issues, such as adoption and solemnization of marriage, the laws of the Nisga’a government will extend outside of the Nass Valley to the Nisga’a people wherever they may live in BC. Far from being municipal government, all of these things put Nisga’a central government in a category never before seen in Canada.

Finally, Nisga’a government also fails the third test of municipal government, in that it prevents non-Nisga’a residing on Nisga’a lands from voting in Nisga’a government elections—notwithstanding that such people are subject to Nisga’a laws of general application and are potentially liable to Nisga’a property taxes. For non-Nisga’a merely to have some vaguely defined advisory input to lower-level public bodies has not proven effective where it has been tried elsewhere.

To sum up, the kind of central government that is proposed in the Nisga’a agreement is a far cry from municipal government. Any government ad, radio or TV spot, or spokesperson who says it is, is not being truthful. This is far more than an issue of semantics. It is a fundamental restructuring of how this province is to be governed in the future, brought about without non-Nisga’a consent. What can be done about it?