Less Than Meets the Eye?

Last week, the BC Court of Appeal issued what seems to me an important decision upholding the constitutionality of a treaty between the Nisga’a Nation, British Columbia, and Canada, and legislation implementing the treaty. The appellants in Sga’nism Sim’augit (Chief Mountain) v. Canada (Attorney General), 2013 BCCA 49, argued that the treaty and the legislation effected an irrevocable delegation of legislative powers to the Nisga’a government, effectively creating a third order of government, contrary to the constitution, which recognizes only two, Canada and the provinces.

As the Court describes it,

the Treaty has four basic components: first, a grant of 2,000 km² of land in fee simple to the Nisga’a Nation in substitution for Aboriginal title; second, the definition of hunting, fishing and trapping rights in Nisga’a lands extending beyond the land granted in fee simple; third, financial compensation to the Nisga’a Nation in consideration of the settlement of their historic claims; and fourth, the establishment of a Nisga’a government, with legislative powers in respect of defined subject matters, in accordance with a Nisga’a Constitution. (Par. 13)

And the treaty provides that the legislation enacted by the Nisga’a in some specified areas will prevail over inconsistent federal and provincial legislation. In other areas, it’s the other way around.

By its own terms, the treaty confirms and confers rights that come within the scope of s. 35 of the Constitution Act, 1982, and which thus enjoy constitutional protection. The appellants argued that this made the treaty and the legislation implementing it irrevocable, and the delegation of powers from Parliament and the BC legislature to the Nisga’a government permanent. That, they said, was a violation of the constitutional principles limiting delegation, pursuant to which a delegation of legislative power must be revocable, and the delegate must remain subordinate to the delegating legislative body. It also set up an legislative body not contemplated by the constitution, to which Parliament and the legislature have abdicated some of their legislative powers, in contravention of another constitutional principle.

The Court rejected these claims, holding that the treaty did not have the far-reaching effect ascribed to it by the appellants. Its grants of power could always be revoked, despite s. 35 of the Constitution Act, 1982, because the rights that it protects can be limited or infringed, so long as the infringement is justified (in a manner very similar to the justification of infringements of Charter rights under s. 1 of the Charter):

 In the result, government retains the right to pass legislation or take action that infringes the s. 35 rights recognized by the Treaty.  If government were to do so, the Nisga’a Government would be entitled to challenge the validity of the legislation or government action.  In the face of that challenge, government would be required to justify the infringement of the Treaty right …  If government were successful, the infringement would be upheld.  … [N]othing in the Treaty prevents matters from unfolding in this way. (Par. 78)

For the same reason, says the Court, the abdication argument must fail. Since Parliament and the legislature can infringe the treaty, provided the infringement is justified, they can in theory legislate over the matters on which the treaty purports to make Nisga’a law supreme. In addition,

the model of government established by the Treaty recognizes concurrent jurisdiction supplemented with prevailing-law rules.  This model necessarily contemplates the possibility of conflicts or inconsistencies between Nisga’a laws and federal or provincial law.  The Treaty defines what occurs in the event of conflict or inconsistency, balancing Nisga’a, federal and provincial interests.  The Treaty does not confer exclusive law-making powers on the Nisga’a Government.   (Par. 86)

(The appellants also made a number of other arguments, but they were long shots, and the Court made rather short work of them.)

This decision seems somewhat similar to the fixed election date case, Conacher v. Canada (Prime Minister), 2010 FCA 131, in which the Federal Court and the Federal Court of Appeal held that the impugned provisions were, in effect, meaningless, in order to avoid holding that they were unconstitutional. Yet there is also a difference, in that the Court acknowledges that the treaty has at least some effect: it entrenches the delegation of legislative power to the Nisga’a in all cases where an infringement on that delegation cannot be justified.

So I don’t think that, even on the Court’s approach, it is fair to say that the delegation of legislative power in no way removes the Nisga’a government from the position of subordination to Parliament and the provincial legislature. And, of course, this approach seems rather disingenuous. Surely, the point of the treaty is to make sure that there will be no infringements of the rights that it confirms. The Court says there is less to the treaty than meets the eye, but makes itself guilty of Nelsonian blindness in order to come to that conclusion.

It seems to me that the better way to proceed would have been to engage with the difficult issue of whether the limits on delegation and abdication apply to delegations of legislative powers to First Nations. There were some arguments to the effect that First Nations have an inherent right to self-government that was enough to justify the treaty, but the Court chose not to answer them, thinking that this was not necessary and, therefore, not prudent. It tried to choose the safe solution, but in my view, it is at best an inelegant, and at worst a seriously flawed one.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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