The 1998 Agreement between the Nisga'a people of Northern BC, the federal government, and the government of BC, is a treaty protected under s. 35 of the Canadian Constitution. Existing s. 35 jurisprudence allows treaties to be infringed by government so long as the government can justify the infringement under the Sparrow test. In the one significant court case dealing with the Nisga'a Agreement, it was assumed that this jurisprudence applied. In this paper, the author argues that the Sparrow test ought not to be applied in the context of modem treaties such as the Nisga'a Agreement. Modem treaties, negotiated between equal parties in the light of Charter protection, should not be interpreted according to the special rules that have been developed for interpreting pre-Charter agreements. In order to achieve the reconciliation purpose of treaty making, modern treaties should be respected and courts should intervene as little as possible. On the express wording of the Nisga'a Agreement, the parties intended it to be a full and final settlement. The courts should give effect to that intention.
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Jessica Bowering, "Certainty and Finality in the Nisga'a Agreement" (2002) 11 Dal J Leg Stud 1.