Nisga'a Final Agreement Bill -
[Cached Version]
Published on: 10/22/1998
Last Visited: 1/11/2002
When this case eventually went to trial, Mr. Justice Williamson of the B.C. Supreme Court had to determine whether there was a duty of the governments to negotiate in good faith a treaty with the Gitanyow.
The position of the Government of Canada as explained inMr.Justice Williamson's decision is hard to believe.He wrote:
While there is a moral obligation -
- so Canada argued -
- there is no legal obligation to negotiate in good faith.
...
Fortunately, Mr. Justice Williamson did not buy the government's argument, stating at paragraph 53 of his judgment:
I conclude that the duty to negotiate in good faith, founded upon the fiduciary relationship between aboriginal people and the Crown, applies equally to the Crown in Right of Canada and the Crown in Right of British Columbia.
He went on to define the duty at paragraph 74, stating:
In general terms, that duty must include at least the absence of any appearance of "sharp dealings", disclosure of relevant factors, and negotiation "without oblique motive".
Honourable senators should know that the Crown is appealing this decision, unfortunately.
When one aboriginal nation must use the courts to define the duty to negotiate owed by the federal government in relation to land claims, we are in a sorry state.That is why I believe that all outstanding land ownership issues must be settled before a settlement offer is concluded.
...
Justice Williamson of the Supreme Court of British Columbia, to the effect that he will not deal with the case commenced by the B.C. Liberal Party, to test the constitutionality of the bill, until the bill is passed?In other words, as far as the judge is concerned, the proposed legislation raises moot questions.He wants an actual piece of legislation before him.
What the honourable senator is proposing is an amendment which is designed, effectively, to wreck the bill, to destroy the process of treaty negotiations in the province of British Columbia, to arm those who have no intention of ever seeing section 35 aboriginal rights in the area of self-government ever established, and who do not want section 35 constitutional protection but rather delegated power, power that can be pulled up and down or pulled away at any time.It is entirely contrary to the spirit of the legislation and the public policy requirements in aboriginal affairs with the Province of British Columbia.