Jun 2/97: Nisga'a Hereditary Chief challenges treaty

S.I.S.I.S. Bulletin



June 2, 1997

Nisga'a hereditary chief James Robinson and Nisga'a member Frank Barton have filed a lawsuit in BC Supreme Court Kamloops registry, alleging that tribal council leaders exceeded their authority in the negotiation of BC's first "modern day " treaty settlement. The May 6, 1997 petition also seeks a declaration that Nisga'a Tribal Council executives Joseph Gosnell, Harry Nyce and Edmond Wright, "in a manner oppressive" prejudiced the interests of the petitioners.

The Petition charges that a vote held in 1996 to have tribal members endorse the treaty settlement should be struck down due to irregularities over the question, insufficient notice of the vote, and copies of the deal not being available. The proposed deal would see the Nisga'a settle for a mere one eighth of their traditional territory, much of that held in fee simple title, and disputes between the parties to be settled in the notoriously corrupt BC Supreme Court. The tentative agreement, which also includes a settlement package of $200 million, is touted as a model for the approximately 50 negotiations currently in progress within BC - the largest remaining mass of unceded sovereign Indigenous territory in north america.

Former BC Supreme Court Justice Thomas Berger will represent the Tribal Council leadership named in the petition. Berger was a former BC New Democratic Party (NDP) leader who represented the Nisga'a in the landmark Calder case in the Supreme Court of Canada two decades ago.

According to the Vancouver Sun newspaper (May 23, 1997, p. B3) "Berger, 64, a renowned Vancouver aboriginal rights lawyer, and partner Gary Nelson have teamed up to fight the court challenge to BC's historic first native Indian treaty settlement...in an ironic twist the first legal challenge ...has come from within the 5,500-member tribe."

Since stepping down from the bench, Berger has been busy in his lucrative BC practice acting as a kind of "Mr. Fixit" for the NDP government. Commissions of inquiry into the province run Jericho Hills School for the Deaf - Berger recommended a compensation scheme involving "hush money" paid to the sexually abused students - and silencing rampant sexism and racism at BC universities, such as his inquiry into the University of Victoria's Political Science department in 1994, are typical examples. As a privileged member of BC's elite and the NDP patronage mafia, Berger was included in a sweetheart deal involving the provincial hydro utility, a Cayman islands tax shelter, and a scheme "structured to result in significant profits for NDP friends and BC Hydro insiders. Personal gain, conflict of interest and major tax avoidance, all sanctioned by the NDP." (The Sweetheart Deal jolts the NDP - The Province, 2/22/96)

Other NDP "insiders" included Jack Munro, former head of the IWA forest Union, now head of the powerful industry lobby organization the BC Forest Alliance, and Don Rosenbloom, a close personal friend and associate of both Berger and former NDP Premier Mike Harcourt. Rosenbloom was also one of the lead lawyers for the Nisga'a Tribal Council negotiating team.

Berger was further discredited in 1993 when he was fired from an important land claims case involving the Rupert's Land Charter of the Hudson's Bay Company, and "lands that span almost the entire region of Canada." The Ermineskin, Montana, Louis Bull and Samson Bands dismissed Berger because: "Historical facts were incorrect pertaining to the four bands." According to Windspeaker magazine's Dec. 20, 1993 edition: "The chiefs of the Ermineskin and Samson bands were both recognized as chiefs by the Crown before treaties were signed... but the statement of claim makes no mention of that fact... it was a very important fact... in declaring sovereignty... he refused to rewrite the statement of claim the way the bands wanted, Ermineskin executive director of external affairs Jim Minde said. Berger declined comment except to say he has withdrawn from the case." (p. 3)

"Nisga'a negotiating team member Nelson Leeson said Thursday the tribe will gladly answer the challenge in court, but the matter is not a great concern..." (Vancouver Sun, May 23, 1997)

Given the track record of corruption of the BC court system, and the practice of "fixing" aboriginal rights cases, (see Delgamuukw: http://kafka.uvic.ca/~vipirg/SISIS/clark/scchoax.html), Mr. Leeson is probably right.

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