VANCOUVER - The B.C. Court of Appeal has reinstated a constitutional challenge to the historic Nisga'a treaty.
Dissident members of B.C.'s Nisga'a First Nation saw their challenge to the Nisga'a Final Agreement tossed out by the B.C. Supreme Court two years ago because the judge said they hadn't properly prepared their case.
But in a ruling released Tuesday, the B.C. Court of Appeal says dismissing the case was too harsh a penalty for not fully complying with demands to provide more particulars about their challenge.
"Striking a claim (or defence) is a blunt tool, to be used sparingly,'' the three-judge panel said in a unanimous decision.
"In this case, the dismissal order seems a particularly serious sanction because the stated purpose of the request for particulars was only to permit the respondents to apply to strike out the Charter claims, but tardiness in affording information required for the application resulted in a dismissal of the action in its entirety.
"Further, given the length of time that had elapsed since the action commenced, one could not say a further seven-day extension within which to provide the particulars would add appreciably to the time for resolution of the action.''
The appeal court has given the group, which is acting without a lawyer, another two weeks to come up with the information or else the Nisga'a Nation and the B.C. and federal governments can move to have the case dismissed.
Nisga'a hereditary chief Sga'nisim Sim' augit (Chief Mountain), also called James Robinson, and matriarch Nisibilada (Mercy Thomas) filed the challenge in 2000 on behalf of Git Gingoix Tribe members who opposed the treaty and non-Nisga'a residents who they argued were subject to discrimination that violates the Charter of Rights..
The case was dismissed because they did not supply particulars regarding their Nisga'a citizenship and participation in the referendum that ultimately approved the agreement -- an issue related to whether they had standing to speak for non-Nisga'a.
Thomas said she spoke up for them because non-Nisga'a spouses and others not born Nisga'a were being struck off band lists after the treaty was implemented.
"This (Nisga'a) Lisims government is the most discriminatory government that I have ever seen,'' said Thomas, who now lives near Vancouver. "Because I am a matriarch I have the right to oppose what they have done.''
The Nisga'a Lisims government said in a news release the ruling does not address the substance of the treaty but merely makes it possible for the plaintiffs to resume their challenge in B.C. Supreme Court.
"I'm convinced as I was before that as we wind our way through there that it will be dismissed,'' Nelson Leeson, president of the 6,000-member Nisga'a Nation, said in an interview.
"It's up the justice system, I guess, to take a good look at this and come up with something that has some finality to it.''
The Nisga'a Final Agreement, implemented in 2000 after years of negotiation, was the first modern aboriginal treaty in British Columbia.
The settlement negotiated with the federal and B.C. governments gave the northern B.C. First Nation self-government, 2,000 square kilometres of land, $190 million in cash and millions more in grants and program funds to improve Nisga'a communities in the Nass Valley.
But dissidents, backed by the Calgary-based Canadian Constitution Foundation, mounted a challenge to the agreement, arguing it replaces the Nisga'a hereditary model of governance with an unconstitutional third order of government.
The foundation said in a news release Tuesday the treaty created a "semi-independent Nisga'a state whose laws prevail over Canadian law.''
A lawyer familiar with the case said when the issue of standing to represent non-Nisga'a is stripped away, the case looks similar to the unsuccessful court challenge mounted by Gordon Campbell, when he and his B.C. Liberals were in opposition.
Campbell, premier since 2001, has since changed his views on treaty-making.
Leeson said he believes there are only 20 to 30 active opponents of the treaty.
"I see that as their right as people to question things,'' he said. "Hopefully when the decision comes down they can fold up their tents and come and join with us in building a better society, a better community, a better nation for ourselves.''
Leeson said the federal, B.C. and Nisga'a governments bear some blame for the continued opposition. Seven years after its implementation, many people still don't full comprehend it, despite extensive consultation and publicity.
"With all that work we still have people who haven't grasped or understood the treaty,'' Leeson.
