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<A HREF="http://www.zolatimes.com/V2.43/pageone.html">Laissez Faire City Times
- Volume 2 Issue 43</A>
The Laissez Faire City Times
December 21, 1998 - Volume 2, Issue 43
Editor & Chief: Emile Zola
-----
The Nisga'a: Native Lands Under Political Siege
by Peter Topolewski
As far as the Nisga'a Indians of British Columbia are concerned, they
are as old as their land. And ownership, to the degree that such a thing
exists in their cosmology, has been theirs by virtue of their origins on
it.
When Europeans arrived to "settle" the land, so began the long and murky
transfer of its possession away from Indians and to the British empire.
>From the moment these two worlds collided they have remained
fundamentally apart, speaking a different tongue in a different sphere
of existence. The British sought to legitimize their claims by invoking
rights and laws before a people whose entire existence comes forth from
their relationship with the land. These two groups did not have a common
language of values or concepts, so there was nothing to translate. Since
their first meeting, the relationship has been about fencing native
cosmology and values inside a Western legal view of the world.
For the Nisga'a, efforts to reclaim a portion of their traditional land
are, after many years of negotiating, finally coming to a head in the
form of a treaty. The champion of the treaty is BC's premier, Glen
Clark. And although the breadth of power granted to the Nisga'a is
unprecedented and the treaty is loaded with many unanswered questions of
law, jurisdiction, and cost. Clark plans, with an almost fatalistic
determinism, to see it implemented, warts and all, a treaty for a
treaty's sake. Debate has deteriorated to parties on each side of the
provincial legislature accusing the other of turning the treaty into a
political issue. It has become that, with all the usual staged events,
obfuscation, and name calling.
Clark is hoping to ride the idea of a treaty to victory in the next
election. But he's been short and misleading on the details of the
Nisga'a deal, and is now seemingly forcing what he calls a "flawed"
treaty on the people of BC. By doing so he's also jeopardizing the
Nisga'a's long, hard work to rectify a history of injustices against
them.
When the British made way to establish de facto rule over the natives in
what became Canada, the legal ownership of the land did not, by
Britain's own law, become the Crown's until the natives were
compensated, however inadequately. In most of Canada final compensation
took form in treaties. While today several treaties and the levels of
compensation are in dispute, at the time the legality of Britain's claim
on the land was settled with the signatures on the treaties. This,
however, was not the case in British Columbia.
Outside of the Douglas treaties that cover a small area on the southern
tip of Vancouver Island, none were signed with the natives of British
Columbia. As a result 1,634 of the 2,323 reserves across Canada are
located in BC. For the last one hundred years native groups -- whose
cultures are, according to University of Victoria anthropologist Richard
Ingliss, more diverse than those of Western Europe -- have been given a
reserve system to replace the land taken by the government and
distributed to the citizens and governments of BC and Canada. These
Indian reserves were at once compensation to the Indians and the tools
by which they were to be civilized. The government's concept of
"civilization", typically 19th century, required recreating the Indians
in the image of Western man. The recreation consisted of an 84-year
policy of seizing Indian children from their parents and sending them to
far off schools where they were forbidden to speak their own languages.
It called for denying Indians the right to vote in provincial elections
until 1949, and in federal elections until 1970. It meant that until
1951it was a crime for three or more Indians to meet and talk about land
claims, or to hire a lawyer regarding land claims.
The reserve system soon gained a reputation as one of the world's most
effective "non-violent" means of containing a people and suppressing
their actions -- though non-violent seems a wholly inappropriate
adjective. Life expectancy among Indians is 12 years lower than that of
other Canadians. The suicide rate is about 50 percent higher, the
alcoholism rate is about 50 percent higher, and the infant mortality
rate is 100 percent higher than the rest of Canada's. The native Indian
population in BC is one half what it was upon the arrival of the
Europeans. There can be no doubt why South African officials visited
Canada when planning the establishment of their own apartheid system.
Throughout BC's dismal history of expropriation and abuse, attempts at
reform and repayment have been made, although whether out of guilt or as
simply another means to keep them neutered, disorganized, and drunk
we'll never know. For the federal and provincial governments' assistance
programs, while certainly lavish and costly to taxpayers, served to make
native Indians more dependent upon their conquerors. Between special
government programs and tax exemptions, native Indians annually receive
more than $8 billion from the federal and provincial governments. Work
is not a necessity, and with unemployment among natives 50 percent
higher than anywhere else in Canada it is, for many, obviously not an
option.
While the government money and services are available to all Indians, no
matter the group or the rank within the group, it has not seduced all
Indians into stupor, and indeed it has failed to universalize relations
between Indian groups and the federal and provincial governments. While
some native Indian groups in BC are seeking compensation for their
expropriated lands through the courts, others entered into treaty
negotiations to come to an agreed upon settlement. One such group was
the Nisga'a.
Located in the Nass Valley over 400 miles straight north of Vancouver,
the Nisga'a's traditional lands are closer to Alaska than BC's
metropolitan areas. For the last 100 years the Nisga'a have for the most
part cherished their seclusion. And on and off for the last 100 years
they have been negotiating with government to preserve that seclusion
and to legally secure a portion of their traditional lands for
themselves. In 1894 Nisga'a representatives paddled nearly 1000 miles in
the Pacific Ocean to oppose before the provincial legislature a road
being built to their villages that were, until then, accessible only by
water. Their protests were disregarded, the road constructed. In 1976,
the Nisga'a entered into treaty talks with the federal government to
negotiate a land settlement, which is essentially an agreement to give
some of the expropriated land back to the Nisga'a's. The BC's provincial
government joined in the negotiations in 1990.
In March 1996 the federal and provincial governments reached an
agreement in principle with the Nisga'a natives. In August 1998 the
treaty was signed, and the details released to the public. The Nisga'a
people have voted on the treaty and have approved it. What remains is
its passage through the federal House of Commons, and BC's provincial
legislature. The key elements of the final agreed treaty are:
付he Nisga'a will be given 1930 square kilometers of Crown land. They
will have timber rights, mineral rights, and water rights over this
land.
付he Nisga'a will receive $190 million over 15 years, plus $10 million
for a fisheries trust, $10.4 million for implementation activities,
approximately $16.1 million over five years for new fiscal support, and
$30 million for infrastructure and training development.
付he Nisga'a will forgo their sales tax exemption after eight years, and
their income tax exemption after 12 years.
付he Nisga'a will have a central government and four village
governments, similar to local government structures. They can make laws
governing such things as culture and language, public works, traffic and
transportation, land use, and solemnization of marriages. The Nisga'a
will continue to provide health, child welfare, and education services
under existing arrangements, but may also choose to make laws in these
areas.
付he Nisga'a can provide full policing services on Nisga'a Land, and can
establish a court that will have jurisdiction over Nisga'a laws on
Nisga'a Lands.
付he Nisga'a Government will continue to receive fiscal transfers from
Canada and BC to enable them to provide government services at levels
reasonably comparable to those available in the Northwest region of BC.
With the details of the final agreement in view, it is important to note
that while the past injustices done to the Nisga'a are not, and during
the negotiations have never been, denied or overlooked, the negotiations
were begun to resolve land claims. Strictly speaking, a land claim
resolution would involve the Nisga'a outlining their traditional lands,
and government giving a negotiated portion of that claim back to them,
plus cash in lieu of the rest (or portion thereof) remaining in the
hands of the government. Of course, included in this theoretical process
would be a series of transition mechanisms and cash payments to
compensate the Nisga'a for the government benefits and programs they
would have to forgo. The scope of the final agreement and the powers g
ranted in it to the Nisga'a are a testament to the Nisga'a's patience
and their commitment to the treaty process. British Columbians also like
to think that it is a reflection of an overall belief that some
compensation be given for past injustices.
That a final agreement has been signed is not to say that the Nisga'a
treaty will be ratified, and if ratified, then with the approval of the
non-native people of British Columbia. The fight over the Nisga'a treaty
is not a clear yes versus no argument. It is a complicated war of wills,
hopes, morals, and politics, one which is perhaps best introduced by
saying that while a majority of British Columbians support signing a
treaty, they do not support this Nisga'a treaty.
The people of BC are quite anxious to resolve the provincial land claims
issues that have in the past led to armed standoffs and economic
uncertainty over land use and development. The stumbling block is not
the Nisga'a people, who have negotiated in good faith and have agreed to
forgo claim to 92 percent of their traditional land. The problems lie in
the details of the treaty. And so it has come to Premier Glen Clark, the
outspoken salesman of the treaty, to hype the treaty in all the right
ways. (Compared to Clark, the third signatory -- the federal government
- seems to view the entire exercise as just another in the long list of
bureaucratic duties assigned from Ottawa. Debate there has been rather
quiet.) And Glen Clark cites three reasons for needing to sign the
Nisga'a treaty, and native treaties in general.
The moral reason, with which most British Columbians agree, finds the
current social and economic status of natives unacceptable and
intolerable. "To see the statistics and the human tragedy," says Premier
Clark, "one can't help believe the moral character to this treaty."
The legal reason, as Premier Clark summarizes it, concerns the role that
the Supreme Court of Canada could play in land claims settlements if
treaties do not resolve the problems. Canada and British Columbia are,
according to an English king whose name slipped Premier Clark's mind,
obligated to compensate people for expropriated land. The decision from
the 1998 Delgamuukw case heard in the Supreme Court stated that natives
have a legal claim to the land in Canada. Premier Clark has interpreted
the Supreme Court's ruling as a threat to governments, to settle the
disputes or let the courts do it for you. In light of this Clark has
been selling the Nisga'a treaty as the much less expensive alternative
to a court settlement, though in his rhetoric he has confused the
distinction between what a land claim and a compensation package might
entail.
Clark's third and final reason for supporting the treaty is the economic
one. The uncertainty of land ownership is, his government claims,
affecting foreign investment in the province. It is interesting that
days after the province's first ever Business Summit, at which over 800
business people gathered to complain about BC's high taxes, red tape,
and restrictive labor laws, Minister of Finance Joy McPhail stated that
uncertainty about land claims is holding up hundreds of millions of
dollars in foreign investment in BC. Furthermore, she claimed that when
questioned about their reluctance to invest in BC, Europeans do not
point to red tape, taxes, or high government debt, they point to the
land claims disputes. With what is the fairly typical nonchalance of som
eone who views government as industry, the Minister noted that she looks
forward to the Nisga'a treaty and others like it kick starting the
economies of the province's more depressed areas.
After looking at Clark's three claims of the Nisga'a treaty, one can see
that it is opposed exactly because it fails to live up to his own
criteria. But Clark's relationship to the treaty has always been
suspect, to say the least. When he first became premier, the province's
economic outlook was fairly rosy and he anxiously moved to put the
brakes on the province's role in the negotiations. Some political
commentators have noted that it was not until he dropped to 11 percent
support in the polls that he had any passion for the treaty.
There is no mistaking why he latched onto the Nisga'a treaty and why he
is willing to ride it to victory or defeat. First, debating the Nisga'a
treaty will help British Columbians forget about the reeling provincial
economy. As the economy worsened, Clark involved his government more
directly in the negotiation process. To fit into his shrinking timetable
he pushed for a self-imposed deadline with a Nisga'a group who, since
they'd been negotiating for over 20 years, it could safely be said was
committed to the process. Yet Clark pushed so strongly for a quick
resolution he compromised the federal government's position on one of
the final details and cost them another $70 million.
Second, by signing any treaty with natives he has claimed the moral high
ground. Although the Nisga'a are greatly offended when he does so, he
calls it "Glen Clark's Treaty". Any opposition to the treaty, no matter
the basis, can be colored as opposition to the very idea of a treaty. By
staking his claim Clark has set up the leader of the opposition party,
Liberal leader Gordon Campbell. Facing a troublesome but well
intentioned treaty, Campbell was forced to address the flaws in the
treaty and let Clark can call him intolerant at best and racist at
worst; or Campbell could vote for the treaty and allow the leader of the
more right-wing Reform Party, Bill Vander Zalm, to carry the torch.
Clark is hoping those two will split the center-right vote enough for
him to win re-election. Which is precisely how he won the last time
around.
Campbell had little choice but to take Clark's bait. Today he opposes
the treaty, not treaties in general, largely because he feels the power
given to the Nisga'a government alters the constitution. According to
BC's own laws, legislated by Clark's own NDP, any changes to the
constitution must be approved by the people of British Columbia in a
referendum. Clark denies that the Nisga'a treaty is a change to the
constitution and refuses to bring the treaty to a referendum. Campbell
is challenging the treaty in court, but the case likely won't be heard
until some time in January 1999. In the meantime the treaty was
introduced in a rare fall sitting of the provincial legislature, one
which was called specifically to ratify the treaty. Premier Clark was up
to his old theatrics.
He flew the Nisga'a to Victoria, put them up in hotels, and on the day
the treaty was introduced invited them to perform their ceremonial
dances through the front doors of the legislature. Then he closed the
public gallery to everyone except the Nisga'a guests, leaving Gordon
Campbell on the legislature floor to publicly oppose the treaty before a
crowd of Nisga'a in full traditional dress. Hardly a choice photo-op.
While Clark continues to wrap himself in beads and feathers - which
includes a $5 million ad campaign and treaty educational video for
elementary schools -- he feels safe to rebut opposition to the treaty
from under his moral barricade. Where details of the treaty have been
criticized, he has largely resorted to accusing critics of "stirring up
fear" and "appealing to the worst in human nature". But what he has been
touting as its selling points have been revealed in the details of the
treaty to be false.
First, there is the constitutionality. Clark's government claims that
the Nisga'a government will be like a municipal government. However,
there has never been a government like this anywhere in Canada. The
Nisga'a government is ethnically based. If a municipal government were
ethnically based it would be illegal. Non-Nisga'a peoples on Nisga'a
land will be subject to Nisga'a laws but will not have the right to vote
in Nisga'a elections or run for office, thereby solidifying in a binding
treaty government without representation. Furthermore, the Nisga'a
government powers will far surpass those of a municipality. It will have
the power to make law in at least 16 federal and provincial
jurisdictions, including land use, education, family services, health
delivery, business laws, culture, and citizenship. Where there is
conflict between jurisdictions in these matters, the Nisga'a law will
prevail, and might not even be subject to the Charter of Rights and
Freedoms. Unlike municipal powers, the Nisga'a powers can never be
reduced by the province.
When questioned about the constitutionality of the Nisga'a government,
Clark and his ministers don't take the issue too seriously. Practically
speaking, Clark told a public forum in November, the government is
municipal, while in reality the Nisga'a government will be protected by
the constitution. Ian Waddel, the Minister of Small Business calls the
Nisga'a government "municipal plus", adding that the plus is nothing
"except for what?" -- some minor details. Since the deal is done, "What
alternative is there?" he asks. Go with it and quit complaining about
the municipal plus.
In December Glen Clark added that if parts of the treaty are proven to
be unconstitutional, those parts can be altered after the treaty is
ratified. This is not only dumbfounding - since he insists that no
details can be altered before the treaty is ratified - it also
contradicts his second selling point, which is its finality. Clark
continually states that the Nisga'a have exchanged their legal right to
make a claim in court for treaty rights. The treaty they have signed is
binding and this finality will restore certainty to the BC investment
environment. Yet as he says this, forestry companies who have forest
tenure on Nisga'a land are completely in the dark about what will happen
to their wood supply and how, if at all, they will be compensated should
that be expropriated from them. Forestry companies all over the province
are wondering how they will be affected by treaties coming in the
future. Additionally, and perhaps much more far reaching, is the fact
that there are over 50 instances in the Nisga'a treaty that explicitly
call for future consultation, agreement, discussions, or approval
between the Nisga'a government and the provincial or federal
governments. Further negotiation will be required for such things as
jurisdiction of law, government funding, land use, and wildlife
conservation.
Third on Clark's list of selling points is his claim that the treaty
will bring people together and will end the Nisga'a dependency on
government money. Well, besides establishing forms of government based
on race, the treaty also calls for ongoing government; that is, taxpayer
funding for the Nisga'a government. There are 5,000 Nisga'a in BC, and
only 2,500 living in the Nass Valley. There is no way a population that
size could ever financially support several layers of government, a
police force, a health care system, and an educational system on its
own. Therefore, the Nisga'a government will receive transfer payments of
at least $32 million a year, and even after 15 years Canadian taxpayers
will be expected to pick up at least 75 percent of the Nisga'a gove
rnments' expenses. Glen Clark doesn't talk about the ongoing costs of
running the Nisga'a government, he talks about how British Columbians
will soon begin to recover the cost of the treaty through the taxes
Nisga'a Indians have agreed to pay. However, while the Nisga'a will
eventually pay sales and income tax, the Nisga'a government, which with
its several layers will include almost all the Nisga'a people, will not
ever pay sales, fuel, or goods and service taxes. Nor will it pay taxes
on oil and gas income, mining income, or royalties on timber, minerals,
or water. The treaty is still unclear whether Nisga'a businesses will
have to pay income taxes.
Glen Clark's final major selling point of the treaty is that it is what
he calls a "template" for the other treaties he hopes to sign around the
province. Besides greatly offending most of the other native groups in
the province, he has frightened many people with this characterization
of the Nisga'a treaty. Although there are currently no other native
groups in the late stages of treaty negotiation, the precedent the
Nisga'a treaty sets makes for a volatile future. The final result could
be 50 or 60 native governments based on race and funded by the people of
British Columbia. They would live in what Clark himself called "gated
communities" which would exist largely outside of the province's
jurisdiction. They would control over 25 percent of the wildlife in the
province and over than 30 times more land than their populations
represent. With land ownership in question the futures of the forestry,
fishing, and mining industries are anything but certain. Finally,
keeping in mind that the 2500 Nisga'a in the Nass will have a
government, four village governments, liaisons between them, and police,
health, justice, and education boards and systems to staff, it is safe
to say that most of the Indians in the Nass will be employed by their
newly founded government. Another 50 treaties with unrestricted federal
and provincial support of native experiments in bureaucratic government
is bound to make the Ministry of Aboriginal Affairs a mega-bureaucracy.
Filing and paperwork can become an exercise unto eternity.
However it began, the Nisga'a treaty is no longer their own. It is Glen
Clark's treaty. And if he drops his political motives he can have no
reason to ratify it. It does not fulfill his moral reason, for surely
the Nisga'a will not be any less dependent on the government than they
are now. And it does not fulfill the legal obligations, since those will
continue to be negotiated for many years, perhaps forever. And it does
not fulfill his financial reason: by calling this a template for other
treaties he has introduced more, not less, instability to the political
and economic landscape in BC.
Glen Clark's treaty is bad for BC. No one knows if it is good for the
Nisga'a. But as Clark says, it's too late to turn back. The outcome is
due early in 1999. The future of native Indians and the province of BC
are in the balance.
-30-
from The Laissez Faire City Times, Vol 2, No 43, Dec. 21, 1998
------------------------------------------------------------------------
The Laissez Faire City Times is a private newspaper. Although it is
published by a corporation domiciled within the sovereign domain of
Laissez Faire City, it is not an "official organ" of the city or its
founding trust. Just as the New York Times is unaffiliated with the city
of New York, the City Times is only one of what may be several news
publications located in, or domiciled at, Laissez Faire City proper. For
information about LFC, please contact [EMAIL PROTECTED]
------------------------------------------------------------------------
Published by
Laissez Faire City Netcasting Group, Inc.
Copyright 1998 - Trademark Registered with LFC Public Registrar
All Rights Reserved
-----
Aloha, He'Ping,
Om, Shalom, Salaam.
Em Hotep, Peace Be,
Omnia Bona Bonis,
All My Relations.
Adieu, Adios, Aloha.
Amen.
Roads End
Kris
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