Burnt Church troubles only just beginning

[By Graham Fraser]
The Toronto Star
Sunday, October 8, 2000

IN OCTOBER, 1969, Jean Chrétien visited the Nass Valley in the remote northwest corner of British Columbia and told the Nisga'a Tribal Council that Canada's native people had a right to a future as full citizens of this country, and to be treated as any other citizen.

Then, significantly, he went on.

``They have the equally important right to remain what they are - Indian people with a proud heritage that promises a proud future,'' he said. ``And they have the basic and fundamental right to be masters of their own future, to manage what is theirs, to be responsible for what is theirs, to profit from what is theirs.''

As Tom Molloy points out in his fascinating book The World is Our Witness: The Historic Journey of the Nisga'a into Canada (Fifth House Ltd., A. Fitzhenry & Whiteside Co.), his audience had every reason to be confused. Only a few months before, Chrétien had introduced a White Paper intended to terminate the distinctive status of Indians and their relationship to the crown.

And shortly before, in Vancouver, Pierre Elliott Trudeau had said: ``We can't recognize aboriginal rights because no society can be built on historical `might have beens.' ''

The three decades since have transformed the landscape of aboriginal rights because Trudeau was forced to change his mind.

Most of the writings about Canada's relationships with aboriginal peoples tend to be focused on the flash points, crises and confrontations, from Long Sault to Oka, from Batoche to Burnt Church, from abuse at residential schools to suicide on reserves.

Molloy's book is a rarity: a story of negotiations and reconciliation.

Beginning in 1996, Molloy was the chief federal negotiator of the Nisga'a treaty, and tells the story of how those negotiations finally resulted in the ratification and proclamation of the Nisga'a Treaty Bill last April 13.

From his particular vantage point, he saw how difficult it was to get the unwieldy, fragmented parts of the federal government co-ordinated enough to agree on a highly complex text.

Then he watched as the nature of the treaty was distorted for partisan purposes and unfairly denounced as race-based governance.

``Aboriginal self-government is not based on race,'' he quoted University of Toronto law professor Patrick Macklem as writing.

``It is based on domestic and international legal recognition that aboriginal nations were self-governing societies prior to European contact and that their law-making authority has not been extinguished by the emergence of Canada as a nation-state.''

Former B.C. Supreme Court Judge Thomas Berger has described the elaboration of the meaning of Canada's native peoples' place in North America as ``the second discovery of North America,'' and Molloy - who also negotiated the Nunavut land settlement - is one of the key navigators in that voyage of exploration.

When I talked to him recently, Molloy had just come back from a visit to New Aiyansh in the Nisga'a territory and sounded delighted.

``There's a vibrancy; people are proud,'' he said, pointing out that since the April treaty had been signed, their role in the commercial fishery had generated income, the road had been paved, and a stream of foreign visitors had been coming to see the nature of their accomplishment.

Unfortunately, Burnt Church fits the more traditional pattern of anger, distrust and violence.

A year ago, in the Donald Marshall decision, the Supreme Court recognized the validity of the Mi'kmaq Treaties of 1760-61 - allowing East Coast natives to earn moderate livelihood from year-round fishing and hunting.

Then, two months later, issued a clarification saying ``the Court did not hold that the Mi'kmaq treaty right cannot be regulated or that the Mi'kmaq are guaranteed an open season in the fisheries.''

The conflict between Marshall I and Marshall II has been playing itself out in Miramichi Bay.

As Professor Phillip M. Saunders of Dalhousie Law School pointed out in a forthcoming article to be published in the Dalhousie Law Journal, Marshall II ``has left a muddled situation for the immediate future, with all sides in the dispute having a decision of the Supreme Court to which they can point in support of mutually contradictory positions on important elements of the management regime that now needs to be negotiated.''

And the conditions for negotiations are not good.

Trust has been broken, and the wounds of Burnt Church will take a long time to heal.

The tensions will not be eased by the election campaign - the anger that Atlantic fishermen feel is palpable, and the Liberals desperately want to win back the 19 seats they lost.

It took three decades for the Nisga'a to move from Chrétien's recognition of their rights to Royal Assent to the Nisga'a Treaty bill.

It may take that long to resolve the conflict in Burnt Church.

Graham Fraser is a national affairs writer. He can be reached at graham.fraser@sympatico.ca