Obiter Dicta Issue 4 - October 14, 2014 | Page 9

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