VANCOUVER: Assisted in their litigation by the Canadian Constitution Foundation (CCF), Nisga’a “Chief Mountain” and Mercy Thomas will be at the British Columbia Court of Appeal next week for a five day hearing of their appeal of the October 19, 2011, decision of the BC Supreme Court, which declined to set aside the self-government provisions of the Nisga’a Treaty.
The 2011 BC Supreme Court decision dismissed the claim that the Nisga’a Treaty set up a third order of government, giving the Nisga’a lawmaking and self-government powers that do not comply with the Canadian Constitution. Appealing this lower court decision presents an opportunity for the BC Court of Appeal to deal with the main constitutional issues of this case on the merits. On the basis of precedent, Justice Lynn Smith of the BC Supreme Court followed the 2000 judgment of the BC Supreme Court in the Campbell case. In that case, former BC Premier Gordon Campbell and two former Attorneys General challenged the Nisga’a Treaty’s approach to aboriginal government as a “recipe for chaos”.
The Nisga’a Final Agreement legislation, enacted in 2000, established a Nisga’a constitution, citizenship, etc. 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.
CCF Executive Director Chris Schafer said, “The fact that the Nisga’a Treaty and legislation is seen as a model for other aboriginal groups currently negotiating treaties with various levels of government is truly scary, given the unconstitutional third order of government it creates where equality, democratic and mobility rights of Canadians can be denied on the basis of of one’s ancestry”.
The appeal will be heard at the BC Court of Appeal in the main courthouse at 800 Smithe Street in Vancouver. It commences at 10 a.m. P.S.T. on September 24, 2012 and contines to (and including) September 28th.