conflict of laws
Tuesday, October 14, 2014 9
A New Middle Ground?
Conflicts of Laws Under First Nations Self-Government
Agreements
T
rob hamilton › contributor
he er a of First Nations selfgovernment agreements began
in 1975 with the signing of the
James Bay and Northern Quebec
agreement. The next agreement was
not signed until 1993. Since then, close
to two dozen more have been signed
and several more are under negotiation.
These agreements recognize a broad
range of regulatory, administrative, and
legislative powers in areas ranging from
taxation, to resource management, to
education.
Given the broad range of legislative powers recognized under the agreements, there is a need to determine what would happen in the event that First
Nations laws conflict with federal and/or provincial
laws.
The agreements themselves, many of which run
five hundred pages or more, identify quite exhaustively which laws will prevail in the event of conflict.
For example, the Sioux Valley Dakota agreement recognizes Sioux Valley jurisdiction to legislate in respect
of the surveying of lands in their territory. Further, it
states that if a Sioux Valley Nation law regarding surveys “is inconsistent with any applicable federal or
provincial law, then the Sioux Valley Dakota Nation
Law prevails to the extent of the inconsistency.” The
primacy of Sioux Valley Dakota Nation Law extends
to a number of other areas, including citizenship,
health, and family law. In respect of legislation pertaining to the establishment and functioning of an
indigenous court, Sioux Valley laws take precedence
in determining the qualifications of advocates, rules,
and procedures of the court, and the application of
Sioux Valley Dakota law.
First Nations law prevails over federal and prov i ncia l law i n
quite a remarkable number of
i n st a nce s. T he
Ni sga’a a n nu a l
fishing plan prevails over federal and provincial laws of general application, while
Nisga’a laws concerning the functioning of the Nisga’a
Lisms Government hold an advantaged position. The
Champagne and Aishihik agreement provides that all
provincial laws of general application are inoperative
if the First Nation has already legislated on the same
matter.
On the other hand, federal, and sometimes provincial, law may take precedence in the event of conflict. The Sioux Valley Dakota have jurisdiction to
legislate in respect of agriculture, though federal and
ê Photo credit: Miguelb.
provincial laws prevail to the extent of any conflict.
Similarly, the Nisga’a agreement states that federal
and/or provincial law will be given precedence wherever a Nisga’a law has an incidental effect on an area
beyond the jurisdiction recognized in the agreement.
Though the Nisga’a agreement recognizes Nisga’a control of Crown land in the territory delineated in the
agreement, Canada retains the authority to carry out
activities related to national defence pu