A8 - The Terrace Standard, Wednesday, March 29, 2000

Retired justice wants Nisga’a
treaty tested by courts first

THE SENATE should postpone the effective date of the
Nisga’a treaty until court challenges are resolved, says a
former Supreme Court Justice.

Willard Estey told Senators March 23 -it would be
prudent to freeze implenientation of the treaty for up to
five years to allow the courts to settle. questions about its
constitutionality.

Three court challenges, one by. the provincial Liberal
party, one by the Fisheries Survival Coalition and one

by Nass Camp resident Lloyd Brinson are set to be heard

once the treaty is passed into law. ,
“It is our view that everyone, Nisga’a included,. are

better served if.we do. not introduce something which is —

going to be challenged successfully,” Estey said.

.“No one is going to thank us for allowing this to go
down the road, money spent organizing this, that and the
other institution, and the whole thing collapses’ because
of a court order.” ce,

Estey presented a paper in which he says he believes

the Nisga’a will receive virtually all the attributes of an .

independent state and thatthere will be strong grounds
for the country’s high court to find it unconstitutional.
“An independent self-governing nation state will be
created within the boundaries of Canada,” he said.
The self-government granted the Nisga'a is nothing
like the municipal powers towns and cities have, he

said, which are granted — and can be revoked — by the -

provinces,

Nisga’a powers, once created cannat be abolished or
changed without Nisga’a agreement, he noted.

“What is contemplated in the agreement is not a de-
legation of powers, it is a complete abdication of the
powers granted in the Canadian Constitution to Parlia-
ment and the British Columbia legislature,” he said.

Hearings by the Senate committee probing the treaty
wrapped up Thursday. The treaty enabling legislation
passed in B.C. last spring and was passed by the House
of Commons in December.

It needs approval of the Senate before it can be pro-
claimed into law.

The upper chamber this week turns to directly deba-
ting the issues raised and pondering whether to seek any
amendments or a delay of the effective date.

Also urging caution about the creation of a third order
of government was former B.C. Attorney General Alex
MacDonald.

“To kiss power goodbye is not only a mistake for a
-Parliament or legislature to commit, but it is unconstitu-
tional,” he said.

MacDonald was also alarmed that the ireaty gives the
Nisga’a the ability to set up and control its own police
force.

“If you gave an ethnic community of any kind, not

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raunicipal power, but power of this kind, misbehaviour
would creep in to cily hall one time out of 100, but that
is very serious,” he said.

Another witness, law professor Kent McNeil, cast
doubt on. suggestions the treaty might be struck down as
unconstitutional. se ;

“If the Supreme Court were to strike down the self-
government provisions, it would be sabotaging the nego-
tialions,” he said... ; .

“We would be in a situation where these matters
would: have to be litigated in‘the courts over and over
again," he added. “Each First-Nation would have to liti-

gate its rights to self government.”
‘The federal and provincial governments have said

their legal éxperts believe the treaty does not amount to
an amendment of the constitution. .

- Observers on both sides of the issue have found the
Senate’s careful and less partisan dissection of the treaty
refreshing and more productive than the political circus
that. enveloped passage of the treaty in the House of
Commons and in Victoria.

The treaty enabling legislation passed in B.C. last

. Spring and was passed by the House of Commons in De-

cember.
It needs approval of the Senate before it can be pro-
claimed into law.

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Social development and economic security minister
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The $200,000 begins to flow April 1 and is sufficient
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