Supreme Court Dismisses Case Challenging Nisga’a Agreement

Aboriginal Law | Division of Powers | Land Claims & Treaty Land Entitlement

The Supreme Court recently rejected the opportunity to hear a case by members of the Nisga’a Nation who wanted to challenge the Nisga’a Final Agreement and Settlement Legislation. As a result, the B.C. Court of Appeal’s decision in Sga’nisim Sim’augit (Chief Mountain) v Canada (Attorney General), 2013 BCCA 49 will stand.

The House of Sga’nisim, who are members of the Nisga’a Nation, challenged the constitutional validity of the Nisga’a Final Agreement and the Settlement Legislation. The Nisga’a Final Agreement is a comprehensive land claims agreement between the Nisga’a Nation, the Province of British Columbia and Canada. It addresses all aspects of the continuing relationship between the three parties and recognizes the Nisga’a Nation’s right to self-government and grants the authority to make certain laws. The Final Agreement is a Treaty within the meaning of ss. 25 and 35 of the Constitution Act, 1982 and has been in effect since May 11, 2000.

The House of Sga’nisim argued that the Treaty and Settlement Legislation wrongly granted legislative and self-government powers to the Nisga’a Nation that are inconsistent with the distribution of legislative power between the federal and provincial governments as laid out in ss. 91 and 92 of the Constitution Act, 1867. According to the appellants, this improperly created a “third order of government.” Further, the House of Sga’nisim argued that any purported delegation of powers from the federal and provincial governments to the Nisga’a Nation was invalid on a number of grounds, primarily due to an improper abdication of legislative power.

The Supreme Court of Canada maintained the decision of the Court of Appeal, which upheld the constitutional validity of the Treaty. In relying on the reasons of the Trial Judge, the Court of Appeal rejected the arguments of the House of Sga’nisim and concluded that the Treaty does not displace federal or provincial jurisdiction. According to the Court of Appeal, the model of government provided for in the Treaty recognizes concurrent jurisdiction supplemented with prevailing laws. Not only does the Treaty recognize and affirm the application of federal and provincial laws to the Nisga’a, it is also subject to justifiable infringement by Parliament or the Legislature. Like all other rights under s.35 of the Constitution Act, 1982, the rights under the Treaty are not absolute and can be infringed  so long as they can be justified under the test established in Sparrow and Badger.

The Court also rejected the other arguments of the House of Sga’nisim that:

  • the Treaty and Settlement Legislation engage and breach the rule against inter-delegation of legislative powers;
  •  delegation of powers is invalid because the source of each delegated power is not specified;
  •  the Treaty seeks to oust the authority and role of the Crown to require any laws proclaimed in force in Canada to require the assent of the Queen’s representative;
  •  the powers of the Nisga’a Nation to make laws in respect of taxation are inconsistent with ss.53, 54 and 90 and the exclusive allocation of taxing authority under ss. 91 and 92 of the Construction Act, 1867; and
  • that the Treaty unconstitutionally confers powers over the administration of justice on the Nisga’a Government inconsistent with the Constitution Act, 1867.

The decision of the BC Court of Appeal, which now stands, provides important insights into how the Courts will interpret modern Land Claims Agreements in the future, including their relationship with federal and provincial laws and the potential for rights under these Agreements to be infringed by Parliament or the Legislatures.

By Gillian Paul