"Welcome in, but check your rights at the door": The James Bay and Nisga'a agreements in Canada

Canadian Journal of Political Science

Volumn 33, Issue 2, 2000, Pages 211-243

  Rynard, Paul ^a  

^a YORK UNIVERSITY   (Canada)

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EID: 0034390764     PISSN: 00084239     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0008423900000081     Document Type: Article

References (87)

1. I am very much indebted to conversations with Brian Craik, Ken Gilpin, Kent McNeil, Alan Penn, Michael Posluns, Peter Russell and Michelle Sweet. This article is revised from a version presented to the annual meeting of the Canadian Political Science Association, Sherbrooke, 1999.
2. I owe this phrase to Michael Posluns who uses it to distinguish a complex relationship with First Nations from government-imposed "Indian policy."
3. This article does not answer the treaty's critics, but see Hamar Foster, "Honouring the Queen's Flag: A Legal and Historical Perspective on the Nisga'a Treaty," BC Studies 120 (1998/1999), 11-36; 27-33. He argues convincingly that the treaty does not alter the constitution nor create a "race"-based government.
4. This phrasing is from Michael Asch, "Introduction," in Michael Asch, ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference (Vancouver: University of British Columbia Press, 1997), xv.
5. Nisga'a leaders have never claimed to represent any other Aboriginal group. This article's criticisms of parts of the treaty should not be taken as a criticism of the Nisga'a Nation's endorsement of it. That decision was understandable given the strength of the opposition to Aboriginal rights in BC.
6. The NFA is at: http://www.aaf.gov.bc.ca/aaf/treaty/nisgaa/docs/nisga_agreement.html. The James Bay and Northern Quebec Agreement (Quebec: Éditeur officiel du Québec, 1979), is also at: http://www.gcc.ca/Poliucal-Issues/jbnqa/jbnqa_menu.htm.
7. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Vol. 2, Restructuring the Relationship, part 2, chap. 4, in the text encompassing recommendations 2.4.1-41. See also RCAP, Treaty-Making in the Spirit of Co-existence (Ottawa: Minister of Supply and Services, 1995). The RCAP model is hardly flawless, but it is the most elaborate and accessible and would represent a significant break from established policies if implemented. An excellent attempt to go beyond some of the RCAP's limitations is Michael Asch and Norman Zlotkin, "Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations" in Asch, ed., Aboriginal and Treaty Rights, 208-29.
8. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Vol. 2, Restructuring the Relationship, part 2, chap. 4, in the text encompassing recommendations 2.4.1-41. See also RCAP, Treaty-Making in the Spirit of Co-existence (Ottawa: Minister of Supply and Services, 1995). The RCAP model is hardly flawless, but it is the most elaborate and accessible and would represent a significant break from established policies if implemented. An excellent attempt to go beyond some of the RCAP's limitations is Michael Asch and Norman Zlotkin, "Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations" in Asch, ed., Aboriginal and Treaty Rights, 208-29.
9. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Vol. 2, Restructuring the Relationship, part 2, chap. 4, in the text encompassing recommendations 2.4.1-41. See also RCAP, Treaty-Making in the Spirit of Co-existence (Ottawa: Minister of Supply and Services, 1995). The RCAP model is hardly flawless, but it is the most elaborate and accessible and would represent a significant break from established policies if implemented. An excellent attempt to go beyond some of the RCAP's limitations is Michael Asch and Norman Zlotkin, "Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations" in Asch, ed., Aboriginal and Treaty Rights, 208-29.
10. See especially, Grand Council of the Crees (Eeyou Astchee), Never without Consent: James Bay Crees' Stand against Forcible Inclusion into an Independent Québec (Toronto: ECW Press, 1998); Alan Penn, "The James Bay and Northern Quebec Agreement: Natural Resources, Public Lands, and the Implementation of a Native Land Claim Settlement," research report prepared for the RCAP, Octo
11. See especially, Grand Council of the Crees (Eeyou Astchee), Never without Consent: James Bay Crees' Stand against Forcible Inclusion into an Independent Québec (Toronto: ECW Press, 1998); Alan Penn, "The James Bay and Northern Quebec Agreement: Natural Resources, Public Lands, and the Implementation of a Native Land Claim Settlement," research report prepared for the RCAP, Octo
12. The Nisga'as lost because the deciding seventh judge ruled against them on a technicality, but all of the judges agreed that Aboriginal title was a real common law right, and three of them concluded that the Nisga'a title was still valid. See Tom Berger, A Long and Terrible Shadow: White Values, Native Rights in the Americas, 1492-1992 (Vancouver: Douglas and McIntyre, 1991), 140-51.
13. Murray Angus, "Comprehensive Claims: One Step Forward, Two Steps Back," in Diane Engelstad and John Bird, eds., Nation to Nation: Aboriginal Sovereignty and the Future of Canada (Concord: Anansi Press, 1992), 69.
14. There is a useful chronology of events in McKee, Treaty Talks, 101-06.
15. I. E. LaRusic, A. Penn and S. Bouchard, Negotiating a Way of Life (Ottawa: Department of Indian Affairs and Northern Development, 1979).
16. See Grand Council of the Crees (of Quebec), Sovereign Injustice: Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Québec (Nemaska: Eeyou Astchee, 1995), 252-54. At one point there was a threatened cut-off of the Crees' negotiating funds and the most drastic provisions, such as the extinguishment of Aboriginal title, were said to be nonnegotiable. Even without an agreement, extinguishment was possible through legislation without Cree consent at the time. The JBA was also negotiated without the benefit of modern precedents and under pressures of tight deadlines.
17. JBA 2.1, 2.2 (I use the following referencing system: for the JBA the designation 24.6.2, for example, refers to section 24, provision 6, "subprovision" 2. For the NFA, 8.89(b), for example, means chapter 8, paragraph 89, point b).
18. Treaty rights owe their existence to a peoples' "Aboriginally," a fact which ought to cloud the meaning of surrendering Aboriginal title (see RCAP, Treaty-Making).
19. It is misleading to say that the Yukon agreements, for example, retain Aboriginal title: see provision 2.5 of Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (Ottawa: Minister of Supply and Services, 1993). A useful guide to the Yukon provisions can be found in Michael Jackson, "A New Covenant Chain: An Alternative Model to Extinguishment for Land Claims Agreements," research report prepared for the RCAP, October 1995, on the CD-ROM, RCAP, "For Seven Generations." The treaty on which the territory of Nunavut is based applies the formula and key terms of the JBA and the nineteenth-century treaties (see 2.7.1 of Indian and Northern Affairs Canada, Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada [Ottawa: Indian and Northern Affairs Canada, 1993]).
20. It is misleading to say that the Yukon agreements, for example, retain Aboriginal title: see provision 2.5 of Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (Ottawa: Minister of Supply and Services, 1993). A useful guide to the Yukon provisions can be found in Michael Jackson, "A New Covenant Chain: An Alternative Model to Extinguishment for Land Claims Agreements," research report prepared for the RCAP, October 1995, on the CD-ROM, RCAP, "For Seven Generations." The treaty on which the territory of Nunavut is based applies the formula and key terms of the JBA and the nineteenth-century treaties (see 2.7.1 of Indian and Northern Affairs Canada, Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada [Ottawa: Indian and Northern Affairs Canada, 1993]).
21. It is misleading to say that the Yukon agreements, for example, retain Aboriginal title: see provision 2.5 of Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (Ottawa: Minister of Supply and Services, 1993). A useful guide to the Yukon provisions can be found in Michael Jackson, "A New Covenant Chain: An Alternative Model to Extinguishment for Land Claims Agreements," research report prepared for the RCAP, October 1995, on the CD-ROM, RCAP, "For Seven Generations." The treaty on which the territory of Nunavut is based applies the formula and key terms of the JBA and the nineteenth-century treaties (see 2.7.1 of Indian and Northern Affairs Canada, Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada [Ottawa: Indian and Northern Affairs Canada, 1993]).
22. Indian and Northern Affairs Canada, "Building a New Relationship with First Nations in British Columbia," unpublished, Ottawa, 1991.
23. On the other hand the treaty does provide for amendment if all parties agree.
24. "Release": "a gift, discharge, or renunciation of a right of action; also a common law conveyance of a larger estate" (John Burke, Jowitt's Dictionary of English Law, Vol. 2 [2nd ed.; London: Sweet and Maxwell, 1977], 1531).
25. NFA 2.26 (emphasis added). See also 2.27 and 2.31.
26. The creation of treaty rights out of Aboriginal rights is a gain insofar as treaty rights are relatively precise and more easily justiciable. But it is possible to have treaty rights which are based upon, rather than replacing, Aboriginal rights. In this latter view treaties are practical agreements about the meaning and content of rights, but do not forever abolish the original source of the rights. See Asch and Zlotkin, "Affirming Aboriginal Title."
27. See Union of British Columbia Indian Chiefs, "Certainty: Canada's Struggle to Extinguish Aboriginal Title," January 1999 (http://www.ubcic.ca/certainty.htm). If the inequities were removed from the negotiation process certainty clauses would be far less problematic.
28. Delgamuukw v. British Columbia [1998] 1 Canadian Native Law Reporter 14 (SCC). My reading is dependent on Kent McNeil, Defining Aboriginal Title in the 90s: Has the Supreme Court Finally Got It Right? (Toronto: Robarts Centre for Canadian Studies, 1998). The Delgamuukw ruling has probably strengthened the Aboriginal side in negotiations, but it also created problems for the Nisga'a negotiators because the Court's restrictions on what Aboriginal title holders can do with their land cast a shadow of uncertainty over the content and security of Nisga'a title as defined by the Court. In this sense the common law definition of Aboriginal title did not meet the needs of either side in the negotiations.
29. Delgamuukw v. British Columbia [1998] 1 Canadian Native Law Reporter 14 (SCC). My reading is dependent on Kent McNeil, Defining Aboriginal Title in the 90s: Has the Supreme Court Finally Got It Right? (Toronto: Robarts Centre for Canadian Studies, 1998). The Delgamuukw ruling has probably strengthened the Aboriginal side in negotiations, but it also created problems for the Nisga'a negotiators because the Court's restrictions on what Aboriginal title holders can do with their land cast a shadow of uncertainty over the content and security of Nisga'a title as defined by the Court. In this sense the common law definition of Aboriginal title did not meet the needs of either side in the negotiations.
30. NFA 2.25. The federal ratification legislation reiterates that Nisga'a Aboriginal title is changed to fee simple title on Nisga'a lands and is released elsewhere, just as it is clear that some Nisga'a common law rights are being released (paragraph 7 of the legislation, which reproduces 2.24 and 2.25 of agreement, also confirms that the new treaty rights are "an express derogation from the common law"); see Canada, House of Commons, An Act to Give Effect to the Nisga'a Final Agreement, Bill C-9, December 13, 1999 (www.parl.gc.ca/cgi-bin/36/pb_gob.pl?e). Ratification legislation makes the agreement binding on third parties and allows for the appropriation of funds. Given the Orwellian way treaty texts try simultaneously to recognize and extinguish rights, however, the fact that the NFA ties Nisga'a land rights to precontact inherent rights, by claiming a continuation of rights, might prove important in litigation or negotiation. The NFA preamble also states that the Nisga'a people have lived in the Nass area since time immemorial.
31. See John Olthuis and H. W. R. Townshend, "Is Canada's Thumb on the Scales? An Analysis of Canada's Comprehensive and Specific Claims Policies and Suggested Alternatives," research report prepared for the RCAP, November 1995, on the CD-ROM, RCAP, "For Seven Generations." Since governments and courts do not question the validity of underlying crown title and sovereignty, the government side in negotiations already has its central claims recognized. This results in little pressure to negotiate, whereas the Aboriginal party faces an ongoing denial of rights so long as there is no treaty. The Nisga'a bargaining position was also weakened by the fragility of support for a treaty process, particularly given the hostility of the opposition parties in BC, from which the next provincial government might be formed.
32. 2, on which BC retains subsurface rights. Also, outside Nisga'a lands are several small Nisga'a commercial tenures which are owned by the province, NFA 3.90.
33. 2 (Neil Sterritt, "The Nisga'a Treaty: Competing Claims Ignored!" BC Studies 120 [1998/1999], 73-98). However, in downplaying the significance of overlaps Sterritt's calculation is too low.
34. The current Nisga'a population is roughly equivalent to the Cree population east of James Bay in 1975, at about 5,000-6,000, although many Nisga'as do not live in the Nass valley.
35. Intensive logging of the forests along the Nass River has been ongoing since the 1950s, and probably over $2 billion worth of timber has been removed. In addition, alongside commercial fishing, an estimated 68 million grams of gold and 2,268 million grams of silver have been taken from Nisga'a lands (Nisga'a Tribal Council, "Nisga'a: People of the Mighty River" [New Aiyanish, BC: 1992]). The NFA clearly stipulates that none of this wealth can be recovered as damages for past violations of Aboriginal title (NFA 2.30). Moreover, according to the Supreme Court's definition of Aboriginal title, the Nisga'a Nation owns its lands and resources, even without a treaty, subject to proof of occupation at the time British sovereignty was asserted. Yet cost estimates always claim that the Nisga'as are being "given" millions in lands and resources. Taken together, the lands and resources gained by BC, and the resources already exploited, mean that the NFA is an enormous saving for BC and Canada. In the case of the JBA, the province and federal government gained access to tax revenues from what is now about $5 billion worth of electricity and $1.2 billion worth of logging annually. Finally, all settlements result in large sums of federal money flowing into local economies.
36. Most of the treaty's critics are caught in a contradiction when they argue that the Nisga'a Nation will have too much land and will be too reliant on fiscal transfers: the only plausible ways of reducing financial dependence are to increase the amount of traditional territory retained by treaty, or through shared resource ownership and royalty arrangements (which the NFA does not contain). Compare Gordon Gibson, "Comments on the Draft Nisga'a Treaty," BC Studies 120 (1998/1999), 55-72.
37. JBA 24.6.2. This priority is applicable to the provincial government, not merely to the advisory committee, see JBA 24.6.1.
38. JBA s. 24, esp. 24.4.30.
39. JBA 22.2.2.
40. JBA 24.11.1. The preamble to the federal legislation giving effect to the JBA states that: "AND WHEREAS the Agreement provides . . . [for] the establishment in the Territory of regional and local governments to ensure the full and active participation of the Crees and Inuit in the administration of the Territory . . . [and for] the establishment of laws, regulations and procedures to manage and protect the environment in the Territory" (James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, chap. 32, Carswell Consolidated Native Law Statutes [1994], 279).
41. NFA 9.1-3, 10-11 and sch. A.
42. NFA 9.3.
43. NFA 9.6 and 9.60-64.
44. NFA 9.21, 46, 37-40.
45. NFA 10.8.f, 10.3-5.
46. NFA 10.3, 11. An interesting and progressive clause is 10.18: "No Party should relax its environmental standards in the Nass Area for the purpose of providing an encouragement to the establishment, acquisition, expansion, or retention of an investment." But it is not clear if this clause is enforceable given its lack of elaboration of criteria or procedures.
47. NFA 10.6.
48. JBA 24.3.6, 28.12.4.
49. Firstly, there must be a harvesting agreement negotiated separate from the NFA (and therefore, significantly, lacking any constitutional standing); secondly, there cannot be a Nisga'a commercial fishery in a year in which the non-Nisga'a commercial fishery is closed; thirdly, all sales of Nisga'a fish will be regulated by federal and provincial laws of general application; and fourthly, the Nisga'a allocation for the commercial fishery will be about 9 per cent. From NFA chap. 8 and the BC Aboriginal Affairs fisheries fact sheets.
50. NFA 8.69-73, 90, 22, 59.
51. Another example, NFA 10.7, states that under certain conditions the Nisga'a Nation may be entitled to nominate a member of a board or panel set up to assess a project, unless that board or panel has decision-making powers. The lack of Nisga'a authority in the Nass Wildlife Area should be contrasted to the RCAP's recommendation, 2.4.14, that a second land category outside the core lands should be subject to shared Aboriginal and crown legislative authority.
52. See Posluns, Voices from the Odeyak, especially his discussion, at 179-218, of Cree Regional Authority v. Robinson [1991] 4, Canadian Native Law Reporter, 84-106.
53. Updates and background on the ongoing forestry litigation are at http: //www.gcc.ca. See also Grand Council of the Crees, with the Forestry Working Group, "Crees and Trees: A Position Paper on the State of the Forests In Eeyou Astchee" (Nemaska, Eeyou Astchee, Quebec, 1996).
54. Brian Craik, representing the Grand Council of the Crees (Eeyou Istchee), to the House of Commons Standing Committee on the Environment and Sustainable Development, Evidence, March 11, 1998 at 1535-1700; 1610. And see Penn, "James Bay Agreement."
55. Recall discussions of NFA 2.23-2.27, in section 3 of this article, and of the Nass Wildlife Area in section 4, Nisga'a Aboriginal title is converted to fee simple title in the core Nisga'a lands, while it is effectively released elsewhere.
56. See Asch and Zlotkin, "Affirming Aboriginal Title"; RCAP, Report, Vol. 2, recommendation 2.4.1; RCAP, Treaty-Making; and Ovide Mercredi/Assembly of First Nations, " Extinguishing Extinguishment: Bringing an Era to an End" (Vancouver: Assembly of First Nations, 1995).
57. See Asch and Zlotkin, "Affirming Aboriginal Title"; RCAP, Report, Vol. 2, recommendation 2.4.1; RCAP, Treaty-Making; and Ovide Mercredi/Assembly of First Nations, " Extinguishing Extinguishment: Bringing an Era to an End" (Vancouver: Assembly of First Nations, 1995).
58. See Asch and Zlotkin, "Affirming Aboriginal Title"; RCAP, Report, Vol. 2, recommendation 2.4.1; RCAP, Treaty-Making; and Ovide Mercredi/Assembly of First Nations, " Extinguishing Extinguishment: Bringing an Era to an End" (Vancouver: Assembly of First Nations, 1995).
59. "Background Paper, Achieving Certainty in Comprehensive Land Claims Settlements," unpublished submission to the Hamilton fact finder, 1993, "prepared by officials of the Department of Indian Affairs and Northern Development and the Department of Justice." Government policies ignore the fact that an Aboriginal veto over development projects on Aboriginal lands is a straightforward device which could help rather than hinder the goal of certainty.
60. Grand Council of the Crees, Presentation to the Royal Commission on Aboriginal Peoples, Montreal, Quebec, November 18, 1993, 900-02, on the CD-ROM, RCAP, "For Seven Generations" (under public meetings). See also, Union of British Columbia Indian Chiefs, "Certainty: Canada's Struggle to Extinguish Aboriginal Title": the impact of certainty provisions "is to capture and tame aboriginal title and rights, and then place them in a cage constructed of words and legal provisions. . . . Canada's strive for certainty reflects a desire that Indigenous Peoples assimilate into Canada, that we sever our connection to the Land." In recommendation 2.4.1 the RCAP report notes that Aboriginal title is a constitutional right which ought to be protected by the crown.
61. Penn, "The James Bay Agreement."
62. This approach to Aboriginal rights is also in the NFA's references to the lack of priority for the Nisga'a rights to fish and wildlife. See 8.2, 8.24, 8.25, 8.89(c) and 9.6.
63. Critical here is McNeils' analysis of how the Delgamuukw decision gives provinces constitutionally gratuitous powers to infringe Aboriginal title on the basis of a public interest argument (Defining Aboriginal Title). Also, in light of this element of Delgamuukw, the Nisga'a acceptance of the compromise of the NFA is understandable, since it is not clear that Delgamuukw will seriously undermine provincial powers in practice. That all Canadians would benefit from an affirmation of Aboriginal title is mentioned briefly in Asch and Zlotkin, "Affirming Aboriginal Title"(225).
64. Critical here is McNeils' analysis of how the Delgamuukw decision gives provinces constitutionally gratuitous powers to infringe Aboriginal title on the basis of a public interest argument (Defining Aboriginal Title). Also, in light of this element of Delgamuukw, the Nisga'a acceptance of the compromise of the NFA is understandable, since it is not clear that Delgamuukw will seriously undermine provincial powers in practice. That all Canadians would benefit from an affirmation of Aboriginal title is mentioned briefly in Asch and Zlotkin, "Affirming Aboriginal Title"(225).
65. Definitions of Aboriginal title are in ibid., 214-16; and RCAP, Treaty-Making, chap. 1. For its meaning in Canadian law, see McNeil, Defining Aboriginal Title, 8-13.
66. Definitions of Aboriginal title are in ibid., 214-16; and RCAP, Treaty-Making, chap. 1. For its meaning in Canadian law, see McNeil, Defining Aboriginal Title, 8-13.
67. Asch and Zlotkin argue that Aboriginal title is more like the British concept of crown underlying title than like fee simple title ("Affirming Aboriginal Title," 226).
68. As quoted by Berger, A Long and Terrible Shadow, 143 (emphasis added). Trutch's position is still influential within the Reform party and the BC Liberal party.
69. For example, the Nunavut land claims agreement has only one page on governance, stating that the separate political accord anticipated in the agreement will not be constitutionally protected (see 4.1.3 of Indian and Northern Affairs Canada, Agreement of the Nunavut Settlement Area). The powers exercised by the Nunavut legislature are delegated and so are probably not constitutionally protected. A similar approach was taken in the Yukon agreements. There is, though, ambiguity about the status of these self-government agreements because it is conceivable that the courts might deem them to be constitutionally protected in spite of government intentions (see Peter W. Hogg and Mary Ellen Turpel, "Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues," in RCAP, Aboriginal Self-Government: Legal and Constitutional Issues [Ottawa: Minister of Supply and Services, 1995], 412).
70. NFA 2.23.
71. R. v. Sparrow, [1990] 1 Supreme Court Reports. The Court's decision in R. v. Badger, [1996] 2 Canadian Native Law Reporter 77 (SCC) will be central to assessing the possibility of infringements of section 35 rights of Aboriginal governance; see especially para. 85.
72. R. v. Sparrow, [1990] 1 Supreme Court Reports. The Court's decision in R. v. Badger, [1996] 2 Canadian Native Law Reporter 77 (SCC) will be central to assessing the possibility of infringements of section 35 rights of Aboriginal governance; see especially para. 85.
73. The NFA goes well beyond the JBA in other areas too, including administration of justice and the creation of a Nisga'a court.
74. See the various bi-annual reports of the Cree-Naskapi commission, at http://ppp.atreide.net/cnc/. And compare NFA chap. 15.
75. NFA 15.3. Nisga'a citizens give up their status-Indian-related tax exemptions, a major concession. The criteria for Nisga'a government funding does not address the damage caused by over a century of socially destructive "Indian policies," while it does consider the "prevailing fiscal policies of Canada and British Columbia" (NFA 15.9[1]). Especially troubling is 15.5 which asserts that the treaty does not "create or imply" funding obligations.
76. NFA 2.10, and see note 35, above. The fee simple status of Nisga'a lands, discussed in section 4 of this article, is also an aspect of the attempt to end federal responsibilities. But this type of devolution might be good if it is in response to First Nations' wishes and if it is a transfer of genuine powers to First Nations governments and not to provinces. The full implications of the NFA on this question are beyond the scope of this article.
77. The environmental provisions rely on a strong federal presence - albeit a presence which has not, in practice, been visible let alone strong (Penn "The James Bay Agreement," and Posluns Voices from the Odeyak).
78. The environmental provisions rely on a strong federal presence - albeit a presence which has not, in practice, been visible let alone strong (Penn "The James Bay Agreement," and Posluns Voices from the Odeyak).
79. "The most insidious and perilous assault on Indian special status is concentrated on the institutional assimilation of Indians, that is, the progressive incorporation of Indians into the political, legal, social and economic institutional framework of Canadian society. The ultimate goal is the elimination of all institutional arrangements that set Indians apart from Canadians" (Menno Boldt, Surviving as Indians: The Challenge of Self-Government [Toronto: University of Toronto Press, 1993], 79). Penn points out that the JBA accords with some parts of the assimilationalist 1969 white paper on Indian policy ("The James Bay Agreement").
80. "Under the treaty, the Nisga'a people will join Canada and British Columbia as free citizens - full and equal participants in the social, economic, and political life of this province, of this country." From "Chief Gosnell's Historic Speech to the British Columbia Legislature," December 2, 1998, at from http://www.ntc.bc.ca/gosnell4.html.
81. See Peter Russell, "Aboriginal Nationalism - Prospects for Decolonization," Pacifica Review 8 ( 1996), 57-67, esp. 62.
82. The JBA may also have more substantial promises of economic development assistance, although these promises have been largely ignored (JBA s.28).
83. Patrick Macklem, "First Nations Self-Government and the Borders of the Canadian Legal Imagination," McGill Law Journal 36 (1991), 382-456, esp. 391-95.
84. Ibid., 453. See also Joyce A. Green, "Towards a Detente with History: Confronting Canada's Colonial Legacy," International Journal of Canadian Studies 12 (1995), 85-105: "Canada has always sought to extinguish indigenous particularity and to incorporate it within the state" (99). But it is also true that the NFA's movement towards a third order of government is significant in light of Macklem's 1991 argument that the law had yet to be used to protect Aboriginal jurisdiction from the legislative authority of federal and provincial governments ("First Nations Self-Government," 444-51).
85. Ibid., 453. See also Joyce A. Green, "Towards a Detente with History: Confronting Canada's Colonial Legacy," International Journal of Canadian Studies 12 (1995), 85-105: "Canada has always sought to extinguish indigenous particularity and to incorporate it within the state" (99). But it is also true that the NFA's movement towards a third order of government is significant in light of Macklem's 1991 argument that the law had yet to be used to protect Aboriginal jurisdiction from the legislative authority of federal and provincial governments ("First Nations Self-Government," 444-51).
86. Ibid., 453. See also Joyce A. Green, "Towards a Detente with History: Confronting Canada's Colonial Legacy," International Journal of Canadian Studies 12 (1995), 85-105: "Canada has always sought to extinguish indigenous particularity and to incorporate it within the state" (99). But it is also true that the NFA's movement towards a third order of government is significant in light of Macklem's 1991 argument that the law had yet to be used to protect Aboriginal jurisdiction from the legislative authority of federal and provincial governments ("First Nations Self-Government," 444-51).
87. The RCAP links the reform of treaty-making and renewal processes to the issues of adequate land base and fair reconciliation throughout its report, and in the conclusion to RCAP, Report, Vol. 2, chap. 6, 1015-24.