Nisga’a treaty suit dismissed

A LAWSUIT challenging the Nisga’a treaty and which dates back 11 years has been dismissed by the BC Supreme Court.

  • Oct. 24, 2011 6:00 p.m.

A LAWSUIT challenging the Nisga’a treaty and which dates back 11 years has been dismissed by the BC Supreme Court.

In a ruling released Oct. 19, Madame Justice Lynn Smith found no substance to claims that the treaty, which became effective in 2000, created a third order of government and was subsequently unconstitutional.

The suit was originally filed by a group of Nisga’a, some of whom came from Gingolx, one of four Nisga’a villages in the Nass Valley and located at the mouth of the Nass River.

Residents there were not happy with the land base that was negotiated in the treaty because that section of the Nass Valley did not become part of the core lands now being governed by the Nisga’a’ under the treaty and which are located closer to the centre of the valley. Those who filed the suit – which included James Robinson, also known as Chief Mountain, and Mercy Thomas – also said the treaty removed Canadian citizenship rights from Nisga’a people.

“It hurts our people by taking away our ancestral lands and human rights,” said Robinson in a statement made in May 2010. “It hurts all Canadians by undermining the Canadian constitution. I vow to fight for my people’s rights to be Canadian citizens and to be protected by the Charter of Rights. Those rights have been taken away illegally by the Nisga’a treaty.”

The suit claimed, among other items, that the Nisga’a treaty created a semi-independent state with laws trumping Canadian law in 14 legal areas.

One of those areas, argued the plaintiffs, was the creation of a Nisga’a court as provided for in the final treaty. They said the treaty provisions relating to the creation of a Nisga’a court would be over and above the Canadian constitution.

But Madame Justice Smith rejected that claim, saying there was no foundation to indicate such a court would be established. “There is not yet a Nisga’a court, and indeed it is possible that there may never be one,” the justice wrote in her decision.

“Further, there is no evidence of the passage of Nisga’a laws purporting to confer jurisdiction upon such a court,” the justice continued in calling the argument of the plaintiffs as “hypothetical.”

Nisga’a Lisims Government president Mitchell Stevens said he was pleased with the decision of the court.

“This really confirms what we have said all along about the constitutional validity of the Nisga’a Final Agreement,” he said.

“As a fledging government, we knew there would be challenges,” he said.

Stevens said he hoped the government would now be able to start working on its job of providing a sound economic base for the Nisga’a nation.

Stevens said it was a bit too early yet to discuss ways to reach out to those who filed the suit.

And although some of the plaintiffs do not live in the Nass Valley, Stevens struck a conciliatory tone, pointing out they are Nisga’a citizens.

“And they have a right to their opinion,” he said.

“We’re still the same people,” Stevens continued.

Robinson, Thomas and the other plaintiffs had been essentially relying on the same arguments made by Gordon Campbell in a 1998 suit filed before he was elected premier in 2001.

That suit was dismissed in 2000 only to have elements of it be taken up by Robinson, Thomas and the other plaintiffs in their 2000 filing of the same year.

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