GLOBE AND MAIL
GREG JOYCE Canadian Press VANCOUVER The first modern-day aboriginal treaty in British Columbia's history was hard won by the Nisga'a through decades of political protest and arduous slogging in the courts.
The contentious treaty and the Nisga'a Lisims Government it created in 2000 could be in jeopardy -- but because of a challenge from within.
Two band members say the treaty, which provides limited powers of self-government and rights not found in the Indian Act, is destroying traditional hereditary governance and culture. They want it declared unconstitutional.
"Through the treaty process, we lost our native rights," said James Robinson, a hereditary chief known as Chief Mountain in the eagle house. All Nisga'a traditionally belong to one of four houses: eagle, wolf, raven or killer whale.
"Our whole hereditary system is being dismantled right now. Our culture is the hereditary system." Mr. Robinson and fellow plaintiff Mercy Thomas have launched the challenge, but they have a willing partner in the Calgary-based Canadian Constitution Foundation, which is paying their legal fees.
The foundation's website says it was founded in 2002 to explain to Canadians "the role of the Constitution in their daily lives, to teach them how to recognize infringements and abuse of the Constitution in the world around them and to help them defend its principles from improper decisions or actions of governments, regulators, tribunals or special-interest groups." The foundation, which believes the Constitution recognizes just two levels of government -- federal and provincial -- has a board of directors comprised of some prominent conservatives.
Its board includes Ezra Levant, publisher of the Western Standard magazine, and William Johnston, a family physician in Vancouver and president of Canadian Physicians for Life.
Foundation executive director John Carpay, a former Alberta director of the Canadian Taxpayers Federation, says the Nisga'a dissidents claim the treaty "violates their constitutional rights as Canadians.
It does so by creating a third order of government that is not accountable to Ottawa or Victoria.
"The Nisga'a treaty is in conflict with the traditional Nisga'a culture, which the plaintiffs want to see preserved, and they feel this treaty doesn't preserve it." Mr. Carpay says the foundation is paying "the bulk" of the legal costs for the treaty challenge. It gets its money from charitable foundations and private donations.
In an interview from his home in Prince Rupert, Mr. Robinson said the cultural upheaval he has felt from the treaty outweighs the constitutional arguments.
The president of the Nisga'a Nation, however, scoffed at Mr. Robinson's suggestion that the treaty is destroying the traditional hereditary system.
Nelson Leeson said the system, which follows a matriarchal line and puts all the Nisga'a into one of the four houses, was outlawed long ago by non-native governments in favour of elections supervised by Indian Affairs.
The challenge, which will be heard in B.C. Supreme Court, also faces a long and winding legal road. Last year in B.C. Supreme Court, the challenge was thrown out with a ruling that the plaintiffs had not properly prepared their case.
But only last month, a three-member B.C. Court of Appeal panel reinstated the challenge by referring the case back to another appeal court panel. That court will decide whether the 2005 lower court decision was correct.
The Nisga'a battle goes back two centuries to 1793, the nation's first recorded contact with Europeans, when British naval Captain George Vancouver sailed into their territory to map the northwest coast.
Through the years, federal and B.C. governments paid scant attention to B.C.'s natives. But the treaty finally gave the Nisga'a ownership of about 2,000 square kilometres in the remote Nass Valley. It is also worth $190-million in cash and millions more in grants and program funds in Nass Valley improvements.
Mr. Robinson and Mr. Thomas said they are not opposed to treaties in general -- just this particular deal.
"There is a legal side to this and a cultural side," Mr. Thomas said. "We represent the cultural side. It's taken away our identity as a people." Mr. Robinson bristled at the suggestion that he and Mr. Thomas are being used by the foundation.
"Who's using whom?" he asked. "Where are the Chief Mountain people going to get $700,000 to fight for our rights?" But Mr. Leeson said that if the Nisga'a can battle the provincial and federal governments for a century, they can handle this too.
The Nisga'a negotiated a treaty they believed was "fair and just and honourable and that will benefit us all," he said.
Mr. Leeson rejected another claim by Mr. Robinson that the Nisga'a Lisims Government is autocratic, although he acknowledged that for some Nisga'a, the treaty might be startling.
"It's different for a lot of our people because they were used to band elections, where a guy from Indian Affairs would come in and run the election." After living under the Indian Act for more than a century, it might be hard for some people to have a democracy in which people "don't have to vote for friends, cousins, and relatives," he said.