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NEWS RELEASE · 6th March 2013
Tim Howard
Modern Treaties Upheld as Constitutional Case - Comment on Chief Mountain v. Canada 2013 BCCA 49

The British Columbia Court of Appeal’s recent decision in Chief Mountain v. Canada has upheld the constitutionality of the Nisga’a Final Agreement (the “Nisga’a Treaty”).

The Court concluded that Canada and the provinces can delegate aspects of their constitutional powers to a First Nation through treaty as long as the governments maintain oversight over how those powers are used.

According to the Court, the governments’ oversight powers can be exercised through their ability to justifiably infringe treaty rights.

The decision is a victory for all First Nations involved in the treaty process, but is likely to raise further questions. The Court’s reasoning is based, in part, on the assumption that both Canada and the provinces can infringe treaty rights.

This assumption runs contrary to the clear limits to provincial powers to infringe treaty rights, as confirmed in the Supreme Court of Canada’s landmark 2006 decision R. v. Morris.

What it is about

The Nisga’a Treaty exhaustively defines all Nisga’a section 35 rights and the power to pass and enforce the Nisga’a constitution and Nisga’a laws. These treaty rights are protected by section 35 of the constitution.

Chief Mountain argued that the Nisga’a Treaty is illegal because it establishes a Nisga’a government and Nisga’a law-making powers that conflict with the constitution.

Because all law-making powers are divided between the federal and provincial governments under the constitution, Chief Mountain argued, there is no constitutional space for a separate level of Nisga’a government with its own law-making powers. And the federal and provincial governments cannot give away their powers to the Nisga’a government through the Nisga’a Treaty.

What the Court said

The Court rejected Chief Mountain’s arguments. The Court concluded that Canada and British Columbia can delegate elements of their law-making powers to the Nisga’a, so long as those powers remain under the oversight and control of Parliament and the provincial legislature.

Importantly, the Court concluded that Nisga’a treaty rights can be justifiably infringed by both Canada and the province.

This ensures ongoing federal and provincial oversight over the exercise of law-making powers they have delegated through treaty.

Having concluded that the federal and provincial governments can delegate law-making powers, the Court decided it was unnecessary to go further and decide whether the Nisga’a also have a separate Aboriginal right to self-government.

Why it matters

The decision puts to rest, in British Columbia at least, the long-standing objection that modern-day treaties illegally establish a “third order of government” that offends the constitution.

However, the decision risks confusion on a key point of settled law. R. v. Morris confirms that treaty rights are protected from infringement by provinces because they fall under the federal government’s exclusive constitutional jurisdiction.

The Court of Appeal did not consider R. v. Morris in its decision and therefore offers no guidance on how its reasoning can be reconciled with this principle.

If the case makes its way to the Supreme Court, there will likely need to be further consideration of how the Court of Appeal’s reasoning can be reconciled with existing case law protecting treaty rights from infringement by provinces.

Tim Howard is Affiliate Counsel with First Peoples Law. He practices Aboriginal and environmental law in B.C., the Yukon and Saskatchewan.

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Wake up Kitselas and Kitsumkalum!
Comment by Band Member on 6th March 2013
After the Government Croonies, Corporations and certain band members get rich from these shameful treaties by selling off most of the land (for pennies), we can still be overruled by the same government we are under now! So we will be worse off than we are with the Indian Act. This is a recent ruling, do you really think they will respect our little self - government and our little constitution? JUSTIFIABLY INFRINGE are the words to watch for here. They will never honor anything and these so called "nation to nation" (which they aren't) treaties are nothing but trickery and a waste of money. By saying yes to the AIP we only go into debt more, and the treaty negotiators get rich and wasteful spending treaty teams get to go shopping!