Dear Sir:
Self government is a constitutionally protected aboriginal right, the BC Supreme Court decided in 2000, contrary to the opinion of Glenn Martin’s guest column (“Aboriginal self government is a way of life”) in your March 23, 2011 issue.
Justice Williamson concluded that “although the right of aboriginal people to govern themselves was diminished, it was not extinguished.” Further, these rights may be defined (given content) in a treaty.
In ruling the Nisga’a treaty and legislation are constitutionally valid, Justice Williamson reinforces the validity of the BC treaty process. The decision says the treaty puts content to undefined aboriginal rights, a valid thing for treaties to do.
The BC Liberal Party had challenged the Nisga’a Final Agreement in the BC Supreme Court arguing the treaty violates the constitution by setting up a Nisga’a government with sweeping powers that are legally reserved for the federal and provincial governments.
The court was asked to decide whether the Nisga’a treaty created a new order of government so as to require an amendment of Canada’s constitution. Sections 91 and 92 of the British North America Act, it was argued, divide all law-making power between the federal and provincial governments.
The court rejected that argument, saying that the Preamble of the Constitution Act, 1867 imports a number of unwritten constitutional principles and powers into the Canadian constitution. One of those principles is the recognition by British imperial policy during colonial times of “a continued form, albeit diminished, of aboriginal self government.”
The court went on to say that sections 91 and 92 of the British North America Act distributed all of – but no more than – the powers which until then had belonged to the colonies.
The aboriginal right to self government was one of the underlying values of the constitution that remained outside of the powers that were distributed to Parliament and the provincial legislatures in 1867, the court said in its ruling.
The legal challenges continue and the issue may ultimately be decided by the Supreme Court of Canada.
Until a higher court decides otherwise, which seems unlikely, aboriginal self government, including the limited right to paramountcy, is the law.
Brian Mitchell,
BC Treaty Commission,
Vancouver, BC