On August 22, 2013, the Supreme Court of Canada dismissed the House of Sga’nisim’s application for leave to appeal the B.C. Court of Appeal’s decision in Sga’nisim Sim’augit (Chief Mountain) v. Canada (Attorney General),2013 BCCA 49 (Chief Mountain). The Court of Appeal, confirming the ruling of the lower court (2011 BCSC 1394), upheld the constitutional validity of the Nisga’a Final Agreement.

Background

The Nisga’a Final Agreement (the Treaty) is a comprehensive treaty and land claims agreement between the Nisga’a Nation, the province of British Columbia and Canada concluded in 1998, and in force since May 11, 2000. The Treaty recognizes the Nisga’a Nation’s right to self-government and grants the Nisga’a legislative powers such as the right to enact taxes, establish courts and appoint judges. The Treaty is recognized as a treaty within the meaning of ss. 25 and 35 of the Constitution Act, 1982.

The House of Sga’nisim (members of the Nisga’a Nation) challenged the validity of the Treaty and the settlement legislation that gave it force of law on the basis of restrictions imposed by the Constitution Act, 1867 on the delegation of power by a provincial or federal government to another governing body. The Constitution requires that law-making powers granted to other bodies must remain subject to the final discretion of Parliament or provincial legislature. In addition, restrictions also exist on the inter-delegation of powers between different levels of government as well as in specific areas of authority such as taxation and the appointment of judges.

Ruling

The Court of Appeal held that the Treaty established concurrent jurisdiction of the Nisga’a Government, and did not abdicate the exclusive law-making authority of Canada and British Columbia. The Court noted the Treaty expressly provides that it does not alter the Constitution of Canada, the distribution of powers between Canada and British Columbia and ss. 25 and 35 of the Constitution Act, 1982. Moreover, the rights granted under the Treaty, although protected by s. 35 of the Constitution Act, 1982, are not absolute, and can be infringed, subject to justification under the test established by the Supreme Court of Canada in Sparrow and Badger.

The Court also rejected the House of Sga’nisim’s other arguments: (i) the rule against inter-delegation applies to the delegation of exclusive powers between Parliament or a provincial legislature and does not apply to other law-making bodies such as the Nisga’a Government; (ii) the authority to impose tax may be delegated to other bodies under the condition that such intent is made clear and unambiguous; there was no need to consider the issue of appointment of judges as the Nisga’a Nation had not yet exercised this right; (iii) it was not necessary for the federal and provincial Crowns to specify the source of each of the powers delegated to the Nisga’a Government; and (iv) although the Court acknowledged the constitutional requirement of Royal Assent, it was not applicable to the Nisga’a Government, which is not vested with plenary legislative power.

In coming to its conclusion, the Court of Appeal not only relied on the reasons of the trial judge, but also relied in part on a previous decision of the B.C. Supreme Court issued in July, 2000 (Campbell v. AG BC/AG Canada & Nisga'a Nation, 2000 BCSC 1123) quashing a similar challenge to the constitutional validity of the Treaty.