The Gitxsan Treaty Model and the Lawsuit Against it

Gitxsan treaty negotiations have taken a long time and cost a lot of money. However, the Gitxsan treaty negotiations are slow going, in part, because the Gitxsan are trying to create their own unique arrangements with BC and Canada. The concept they are pursuing is the Gitxsan Alternative Governance Model. It is characterized in four parts:

1. Taxes: the Gitxsan are prepared to pay income and sales taxes just as other Canadians.
2. Parallel society and Indian Status: the Gitxsan are not interested in the “parallel society” concept at the heart of (which drives) the standard treaty model.
3. Land and economic development: the Gitxsan are not interested in negotiating for “treaty settlement lands.”
4. Uniqueness: ratification requires explicit recognition that the concept of “Bands” and “Gitxsan” are not identical.

Essentially, Gitxsan negotiators want the Gitxsan to be equal but unique Canadians. The Indian Act is completely removed in exchange for a piece of the wealth generated on Gitxsan traditional territory. The wealth would go to the Gitxsan hereditary chiefs to be re-distributed through traditional practices.

The Gitxsan are not united on the issue. A group representing the status quo under the Indian Act are trying to stop the advancement of the Gitxsan Alternative Governance Model. They claim that the Gitxsan Treaty Negotiators are negotiating away their rights, including Indian Status. They also claim the Indian Act and reserve system is integral part of sustaining Gitxsan culture because the reserve system creates enclaves of Gitxsan speakers. The background information and Statement of Claim is here. In the ruling for Spookw v. Gitxsan Treaty Society, at line 47 the judge states the case "...is not a matter of aboriginal law". Rather, it is a political matter internal to the Gitxsan. 

The plaintiffs take issue with the mandating system. In Spookw v Gitxsan Treaty Society, the judge relates the Gitxsan case to a prior case,  Tsimshian Tribal Council v. British Columbia Treaty Commission. The prior case is cited at line 42. Quoting the prior ruling the judge implies the Gitxsan matter is a political one: 

"The question of for what and how the Tsimshian community should be negotiating is an internal question to be decided collectively by its membership.  It cannot be decided by the BCTC or by the court.  The requirement of securing and advancing a mandate is an open one conducive to debate, persuasion, and resolution through ongoing processes."

The court is likely not going to be intervening in the internal political processes anytime soon. In the meantime, the Gitxsan Treaty Society will be assuming more debt through negotiations and the bands participating in litigation against the Gitxsan Treaty Society will be spending their own money. The winner? Stay tuned for new trial dates in March 2012. In the meantime, follow the money to find the winners!

Canada vs Hul’qumi’num Treaty Group: Inter-American Human Rights Commission

“Everything on this earth is connected. Everything is what sustains us. I know where in our territories to go for what we need. It is like knowing what store to go to: hardware, grocery, or pharmacy” Arbid Charlie testimony at the IACHR.

Shortly after the election of the BC Liberal government in 2001 things got worse for the Hul'qumi'num Treaty Group. According to the Centre for Human Rights and Humanitarian Law,

"industrial deforestation and development of land substantially increased. The resulting destruction of the land has inhibited the Hul’qumi’num peoples’ abilities to hunt, fish, gather and practice their spiritual and religious traditions on the land. Private ownership of the land has also increased the risk of trespass allegations against the Hul’qumi’num Treaty Group (HTG)." 

Inter-American Commission on Human Rights (IACHR) documents allege that the BC Treaty Process and Canadian courts are not options for HTG. A Ratcliff & Co. report stated an aboriginal title case is not viable when private property is at issue and the BC Treaty Process has consumed $13 million and 15 years with no progress. As a result, the HTG allege their human rights have been violated and there is no remedy within Canada. On the face of it the IACHR agrees and is willing to hear the case.

The allegations, which if proven contravene Canada's international legal obligations, are:

1. Canada has not set boundaries, demarcated, or recorded the title deed to the ancestral lands of the HTG
2. Canada has granted licenses, permits, and concessions within HTGs ancestral lands without prior consultation; 
3. Canada has not provided restitution for the ancestral lands the HTG lost involuntarily and that were transferred by BC to private third parties; and, 
4. this has resulted in the destruction of the environment, natural resources, and of the sacred sites used by the alleged victims.

Canada and the HTG presented their cases and await the Commissions ruling. The outcome is not enforceable in Canadian courts, but will cause international pressure.

The Campbell Case Part 2: Nisga’a treaty suit dismissed

The 12-year-old Nisga'a land-claims treaty has been upheld by the Supreme Court of B.C. and a long-running challenge to the deal dismissed.


The suit, claiming the Nisga'a treaty was unconstitutional as it established a third tier of government, was abandoned by Campbell after the Liberals formed government in 2001, but Nisga'a hereditary chief James Robinson resurrected it and attempted to have the historic April 1999 treaty declared invalid.

Justice Smith said that the arguments made by Robinson, a.k.a. Sga'nisim Sim'augit, or Chief Mountain, repeated the claims made by the opposition Liberals, which were found wanting in 2000 by B.C. Supreme Court Justice Paul Williamson.

Justice Smith declared the treaty valid and constitutional.

Read the full story here.