The Nisga’a Final Agreement: Negotiating Federalism

The Nisga’a Nation, federal government and provincial government of British Columbia completed negotiation of the Nisga’a Final Agreement on 4 August 1998. Although the parties incorporated the language of nationhood, new relationships, and intergovernmental agreement, to many it remains unclear whether the Nisga’a Final Agreement creates a third order of Canadian government. This article wades into the debate on the third order and asks whether the treaty text supports a federal relationship. While it is clear that the type of federal relationship described by the Nisga’a Final Agreement is different from that of the provincial and federal governments, the treaty’s use of federalism’s foundational legal and political institutions supports understanding it as federal. Moreover, its reading as a federal document can find sufficient support in the jurisprudence on Aboriginal rights and Canadian constitutional law.