"I have rights as a Canadian and a Nisga’a which are best protected under the Canadian Constitution, not a constitution passed by a government controlled by family cliques.” – James Robinson (Chief Mountain)"
During the 1990s the Nisga’a final agreement was negotiated between the BC Provincial Government, the Canadian Federal Government and the Nisga’a Tribal Council. This treaty gave rise to the Nisga’a Lisims Government and provided an area of 1,930 square kilometres in British Columbia upon which the new Nisga’a government would have authority.
Motivated by the belief that the Nisga’a Final Agreement was a progressive step forward in aboriginal governance, Jean Chrétien’s Liberals and Glen Clark’s New Democrats ignored the requests of prominent constitutional experts to have the Nisga’a Final Agreement brought before the Supreme Court of Canada to determine its constitutionality.
The Nisga’a Final Agreement legislation was enacted in 2000 establishing a Nisga’a constitution, citizenship, police force, and judiciary. The Nisga’a Lisims government is not a municipality where power has been delegated to it by the province or the federal government. The Nisga’a Lisims government is a quasi-sovereign state residing within Canada, with the ability to pass laws that supersede Canadian law.
Since commencing his constitutional challenge in March of 2000, Chief Mountain has faced an onslaught of various procedural challenges from the lawyers of the defendant BC, Federal and Nisga’a governments. Able to rely on practically unlimited funding from taxpayers, the three Defendant governments are determined to prevent the issues from reaching trial.
The Canadian Constitution Foundation represents Chief Mountain and other Nisga’a people who assent their rights as Canadians.
The Nisga’a Lisims government has the power to determine who can – and cannot – be a Nisga’a, arguably giving the Nisga’a government the ability to choose its electorate. This has been criticized as an opening for corruption. More importantly, it presents a situation where people living on Nisga’a-governed land are denied the right to vote, violating Section 3 of the Charter of Rights and Freedoms.
Persons residing on Nisga’a land, who have been denied the right to vote, are still obligated to pay taxes to the Nisga’a “nation”. This violates the principles of federalism, representative democracy, the rule of law, and democratic accountability; better known as the concept of “no taxation without representation.” Changes to the Nisga’a Final Agreement can only be made with the approval of 70% of Nisga’a citizens in a referendum. This has given the agreement a constitutional status making it practically impossible for Federal and Provincial governments to amend it.
It is because of this immovable barrier to freedom that James Robinson (Chief Mountain), Mercy Thomas and other Nisga’a peoples are attempting to challenge the constitutional legality of the Nisga’a Final Agreement. They are challenging the restrictions placed on their rights as Canadians, protected under the Charter of Rights and Freedoms, by the Nisga’a Final Agreement legislation.
Trial at the BC Supreme Court took place in Vancouver, from Monday October 4 to Friday October 8, 2010 and concluded in early 2011. The decision was not favourable for Chief Mountain.
The decision was appealed to the BC Court of Appeal, and the appeal was heard in September of 2102. On appeal the case was dismissed. The decision was appealed to the Supreme Court of Canada in 2013. The Supreme Court denied the appeal. This case has concluded.
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