Beyond Rights: The Nisga'a Final Agreement and the Challenges of Modern Treaty Relationships by Carole Blackburn (review)

Reviewed by: Beyond Rights: The Nisga'a Final Agreement and the Challenges of Modern Treaty Relationships by Carole Blackburn Russel Lawrence Barsh (bio) Beyond Rights: The Nisga'a Final Agreement and the Challenges of Modern Treaty Relationships by Carole Blackburn University of British Columbia Press, 2021 the extensive revision and "patriation" of the Canadian constitution forty years ago was an opportunity for Indigenous Peoples to flex their political muscles at home and abroad. From marches in Ottawa to an outspoken "embassy" in London, Indigenous Peoples demanded the recognition of inherent aboriginal rights and full implementation of treaties in accordance with their original spirit and intent as founding documents of the legitimacy of the Crown in Canada. As a result, both aboriginal and treaty rights were broadly entrenched in the Constitution Act, 1982. The new constitution also recognized the possibility of new treaties settling territorial disputes with First Nations. In the United States, Congress not only extinguished the president's authority to make treaties with Indian tribes 150 years ago, but also asserted power to break treaties already made. In Canada, additional treaties with Indigenous Peoples are not only possible, but once made, they are constitutionalized. There was great public interest (and concern) in this opportunity a generation ago. Few modern treaties have actually been negotiated and approved in Canada, however, making Carole Blackburn's narrative of the Nisga'a Final Agreement (2000) especially important. The author had opportunities to observe the negotiations and the process of implementation and enjoyed access to many of the participants on the Nisga'a side of the table. I approached this book from the perspective of an advocate for Indigenous Peoples seeking lessons that can be learned from the Nisga'a. In the 1980s to 1990s, I participated in diplomacy on behalf of the Mi'kmaq Grand Council and helped organize tripartite "treaty clarification" discussions as a senior advisor to the Treaty Commissioner in Saskatchewan. I wrote [End Page 101] analyses on land-claims negotiations in the Americas for United Nations agencies and a volume of case studies, published by the International Labour Office, with my Pikani (Blackfoot) colleague Krisma Bastien. It is no secret that the promise of using modern treaties to resolve land claims in Canada has foundered, with few final agreements, and much of the caseload trapped somewhere in the pipeline. What can other Canadian First Nations learn from the Nisga'a experience about "getting to Yes," to borrow a cliché from the business world. Blackburn appropriately underscores that modern treaties (indeed all Indigenous political reconciliations with the state) are two-way streets that require confidence building and pragmatic baby steps and must be part of ongoing and unending relationships. Agreements are necessarily imperfect; but they may do a great deal of good if they result in some degree of formal recognition of Indigenous identity and genuine power-sharing with other state actors. Good agreements will lead eventually, in principle, to the goodwill to replace them with even better agreements. But acknowledging this reality, we are compelled to conclude that the entire Canadian project of modern treatymaking is doomed to fail. Since there is no detailed definition of "aboriginal and treaty rights" in the Constitution Act, 1982, negotiations with each First Nation begin effectively at zero, and leave the balance of negotiating power with the federal and provincial authorities. If one First Nation succeeds in achieving a deal, it raises or lowers the bar for others; while those with earlier agreements may feel cheated if any subsequent agreements are more generous. At the same time, state negotiators who regard agreements as an irrevocable erosion of state power have little incentive to make progress, leading to endless delay. Federal and provincial technocrats have no doubt also realized that scores of different jurisdictional and power-sharing agreements across the country is unmanageable and must be avoided, except perhaps in relatively unpopulated, Indigenous-majority regions of Canada where only a fraction of First Nations live. First Nations may have gained some modest leverage from S.C. 2021, c. 14, adopting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a source of law. Henceforth, the Supreme Court of...

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