KAMLOOPS, B.C. (CP) - The process by which the proposed Nisga'a land-claims settlement was negotiated is flawed so the historic deal should be scrapped, a lawyer argued Tuesday. The proposed treaty agreement is to be formally signed by the Nisga'a Tribal Council and the provincial and federal governments next week. It must then be ratified by the 6,000 members of the Nisga'a First Nation, the B.C. legislature and the Commons.
All four bands within the Nisga'a nation have not approved, however, and in particular, the Kincolith band opposes the deal, David Bilkey said in B.C. Supreme Court.
Kincolith hereditary chiefs Frank Barton and James Robinson want an injunction preventing the three sides from signing the agreement next week. "The agreement-in-principle does not represent the interests of the Kincolith band," said Bilkey. The chiefs also maintain the tribal council exceeded its mandate in negotiating the treaty.
The agreement gives the Nisga'a about 2,000 square kilometres of land in northwestern B.C. outright, plus about $311 million, including $190 million in cash. There are also extensive mineral, timber and fishery rights. Last years landmark Supreme Court of Canada Delgamuukw decision allows the Nisga'a to lay claim to a much larger area - 15,000 square kilometres - than laid out in the proposed treaty, Bilkey said.
There was also insufficient notice given to Nisga'a members in February 1996 of a meeting where the agreement-in-principle was to be ratified, Bilkey said. Council sent out the notice less than 10 days before the meeting. In the past, council had given notice of special assembly meetings at least three months in advance.
Because some Nisga'a members had to travel from Vancouver, Prince Rupert and the Queen Charlotte Islands, "a vast majority of Nisga'a members were not able to attend the meeting," Bilkey said. [S.I.S.I.S. note: The hereditary chiefs' submissions reveal that only 556 of 5,000 Nisga'a people voted on the agreement that formed the basis for the treaty. This was noted in a Globe & Mail article July, 28, 1998, page A3: "Dissident Nisga'a go to court...". The hereditary chiefs also said many who voted were confused about what was being voted on. The Gitanyow Indian Band was also in court Monday seeking approval to proceed with its court case against the deal.]
In addition, of those who attended the meeting, only 512 voted in favor while 31 were opposed. "These numbers produced a quorum of far less than the 50 per cent needed," Bilkey said.
In May 1997, Kincolith band council passed a resolution stating its plans to negotiate as an independent band, separate from the Nisga'a council. The Kincolith council was opposed to the treaty and said members concerns weren't being addressed. Bilkey noted a written proclamation by the hereditary chiefs in April stating the Nisga'a's Tribal Council no longer represented the Kincolith on the land claim issues.
Thomas Berger, a former B.C. Supreme Court judge, was to present the Nisga'a council side Wednesday. He said Tuesday the issues are political, not legal, and shouldn't be settled in court.
Gitanyow hereditary chiefs have called for an "11th-hour mediation" to deal with claims that the Nisga'a treaty will destroy their way of life. The chiefs gathered in front of the B.C. Supreme Court in Vancouver to denounce Ottawa and Victoria for bargaining in bad faith.
They claim that the Nisga'a agreement will grant lands overlapping 84 per cent of Gitanyow territory, threatening prime Gitanyow fishing and hunting sites. And "the Gitksan will have to get involved, very definitely, because we're affected just as much as the Gitanyow," said Neil Sterritt, former Gitksan chief and negotiator. He said the treaty "sets a very bad precedent. It should never have happened. The Nisga'a are entitled to a treaty, but not on other people's land."
Gitanyow's chief negotiator Glen Williams said he was hoping for mediation with the federal and provincial governments prior to the formal signing of the Nisga'a deal next week. "We as the Gitanyow are happy the Nisga'a are going to sign their final agreement," said spokeswoman Debbie Good. "Our problem is with the governments because if it wasn't for the governments, we wouldn't have an overlap issue."
The band unveiled a map and a book containing documents they say prove their claim that their lands are being taken away by the treaty. There are about 2,000 Gitanyow, 600 living on-reserve, who are culturally Gitksan people. They claim about 16,800 square kilometres of territory in the mid-Nass River valley.
Sterritt is one of the authors of the book Tribal Boundaries of the Nass Watershed, released this week. It traces the tribal territory through oral histories and government archives, showing that the Nisga'a deal envelops 5,000 square kilometres each of Gitanyow and Gitksan traditional land, he says.
Provincial aboriginal affairs spokesman Peter Smith said disputes on overlapping land claims should be resolved by the native parties.