Amaa hiihlukw.
Madam Chair, members of the committee, I will begin by expressing our appreciation to the committee for inviting us here to speak with you on the subject of the Nisga'a treaty. With me are two fellow officers, Secretary-Treasurer Corinne McKay and CEO Collier Azak, and Ms. Marg Rosling, one of the members of our general counsel. Our chairperson, Brian Tait, sends his regrets.
First, modern treaties are different. As most of you are no doubt aware, the modern treaty process, also known as the comprehensive land claims process, commenced in 1973 as a direct result of a decision of the Supreme Court of Canada in the Nisga'a case known as Calder v. Attorney-General of British Columbia. The federal government of the day, under the leadership of the first Prime Minister Trudeau and Jean Chrétien, then minister of Indian and northern affairs, agreed that it was preferable to negotiate a “just and equitable settlement of the land question”, as it was referred to by the Nisga'a Nation, than to continue to go to court over our differences. Shortly afterwards, in 1975, as our friend and your vice-chair Romeo Saganash knows so well, the James Bay and Northern Quebec Agreement was entered into, thereby becoming the first of the modern treaties.
Nisga'a negotiations began in 1976, but the road was not easy, largely because of the ongoing refusal of the provincial government to participate. The Nisga'a people and our leaders persevered. We participated in the constitutional process of the 1980s. We played an important role. We not only persuaded the Government of Canada and the provinces to include subsection 35(1) of the Constitution Act of 1982, which recognizes and affirms aboriginal and treaty rights, but we also successfully participated in obtaining subsection 35(3) a few years later, ensuring that the rights in land claims agreements are treaty rights.
Our comprehensive land claims table thereby became a constitutional negotiating table, as we negotiated the constitutional relationship to exist between the Nisga'a Nation and the crown. British Columbia finally joined our negotiations in 1990. An agreement in principle was reached in 1996, and the Nisga'a Final Agreement was completed in 1998. The Nisga'a treaty was the first treaty with indigenous people in Canada, and perhaps in the world, to fully set out and constitutionally protect our right to self-government and authority to make laws. This was controversial at the time, and led to a lengthy ratification process. Our people ratified the treaty in November 1998. The provincial legislature and Parliament each passed settlement legislation in 1999 and 2000, respectively.
Our treaty came into force on May 11, 2000. That was a historic day for the Nisga'a people. It marked the end of a 113-year journey and the first steps to a new direction. On that day, the Indian Act ceased to apply to us, and for the first time the Nisga'a Nation had the recognized legal and constitutional authority to conduct its own affairs. The Nisga'a treaty ended the uncertainty with respect to land ownership as well as hunting, fishing, and other rights throughout our traditional territory. It opened the door to joint economic initiatives in the development of our natural resources. Like other modern treaties, our treaty benefits all Canadians.
As the committee knows, there is a variety of different arrangements with indigenous peoples in different parts of Canada. Unfortunately, this has led to many people in offices in government failing to bear these important distinctions in mind.
For example, modern treaties are very different from specific claims agreements. Comprehensive land claims agreements deal with most or all of the entire range of rights and relationships between the crown and indigenous people. Specific claims, on the other hand, address particular breaches of past treaty or other obligations in restrictive matters such as Indian reserve creation or law. Comprehensive land claims agreements receive constitutional protection; specific agreements do not.
Similarly, there are first nations such as our friends from Westbank and Sechelt who have entered into self-government agreements that have eliminated most or all of the Indian Act from their governing arrangement but that do not deal with a great range of subject matter that makes up the content of modern treaties. Moreover, like specific claims agreements, those self-government agreements, while of vital importance to their parties, are not given constitutional recognition and affirmation under section 35 of the Constitution Act.
While we fully respect and acknowledge the efforts that all of those nations and other groups have taken to pursue their aspirations, members of the committee must not make the mistake of treating us all alike.
There have also been legal developments as a result of the Supreme Court of Canada rulings that, even where an indigenous people have not entered into a treaty or proven its aboriginal rights, the crown has a duty to consult with them about potential infringement or adverse effects on their asserted rights. Unfortunately, in our experience, government officials are now treating these asserted rights as being equivalent to the defined treaty rights that our people established only after years of struggle and compromise. I repeat, modern treaties, such as the Nisga'a treaty are unique in their content and constitutional character.
Unlike asserted rights or rights set out in specific claims or stand-alone self-government agreements, they have three essential aspects. One, they are solemn contracts, enforceable between the parties. Two, they are given the statutory force of law and are thereby enforceable against everyone and must inform officials' administration of other laws. Three, they are a list of constitutionally protected rights defining the relationship at the highest level known to law. For these reasons, modern treaties such as the Nisga'a treaty must be considered on their own without confusing or lumping them together with asserted rights, specific claims agreements, or a self-government agreement that has been negotiated without a comprehensive land claim agreement.
Implementation remains a challenge. Even though it has been more than 17 years since the effective date of the Nisga'a treaty, we continue to face ongoing challenges with its implementation. Too often, it has seemed as though as soon as the ink is dry on a modern treaty, all government officials forget about their solemn obligations and move on to other things.
This shared frustration led to a meeting in 2003 of all indigenous modern treaty signatories. We agreed to work together as the Land Claims Agreements Coalition in order to try to persuade the federal government to adopt a new modern treaty implementation policy based on four fundamental principles.
One, there should be a recognition that the crown in right of Canada, not the Department of Indian Affairs and Northern Development, is party to our land claims agreement and associated self-government agreement. Two, there must be a federal commitment to achieve the broad objectives of the land claims agreements and self-government agreements within the context of the new relationship, as opposed to mere technical compliance. Three, implementation must be handled by appropriate senior-level federal officials representing the entire Canadian government. Four, there must be an independent implementation and review body separate from the Department of Indian and Northern Affairs. This could be the Auditor General's department.
Thank you.