Thursday, May 26, 2011

Yale Treaty

The Fed and Province seem to be going ahead with the Yale Treaty even though the issue of overlapping aboriginal title and rights with the Sto:lo has not been resolved.   This is not the first time this has happened.   The Nisga'a gained control over most of the traditional territory of the Gitanyow.   Tsawwassen got exclusive marine harvesting rights in areas always used by the Senocten communities on the Saanich peninsula.

This core reason for the problem goes back 20 years to the Report of the BC Claims Task Force.   It comes about for several reasons from recommendations in the report:

  • The Feds and Province will accept almost anyone as a legitimate First Nation to negotiate with - this is an outcome of recommendation #7
  • No First Nation has to prove any historical connection to any of the territory they outline in their statement of intent - this comes from recommendation #1
  • First Nations are to resolve any issues of overlapping interests among themselves - this comes from recommendation #8

Who Gets to be a First Nation at the Table
When the report came out in 1991 the expectation was that there would be about 30 different negotiations in the province.   Roughly one for each different tribe with some specific single Indian Act bands.  The intent was to allow for First Nations to negotiate on the basis of their traditional governance structures and not be bound by the Indian Act model.   This is not what happened.

Most negotiations are being done with individual Indian Act bands.   The Treaty process seems to be headed to entrench the constructs of the Indian Act and not see a return to the traditional structures of First Nations.   A number of the Tribal Councils that entered the process as a single unit have since broken apart into smaller negotiating units.

The scope of the powers that come with the Treaty require a certain degree of size and capacity to implement them.   I worked for sometime negotiating for a First Nation of about 500 members.   They recognized they did not have the capacity to take on all the powers being offered and asked for a phase in over 20 years, BC and Canada flatly refused to do that in 2000.

No Need to Prove Historical Connection to the Land
First Nations long had a problem with the former process used by the Federal government because it required a long and detailed process of proving their existence.   The offer to politically recognize the First Nations without a lengthy proof was seen as a huge step forward.   Turns out this is not the case.

One aspect of this is that any line drawn on a map was taken as legitimate boundaries of their traditional territory.   I have seen some maps that only cover areas a First Nation could realistically claim aboriginal title to.  I have seen others that I can honestly say are stunning in their audacity.  The lack of needing to prove the traditional territory has created huge amounts of overlapping areas between First Nations.   Someone should have decided what a traditional territory meant and what sort of use would prove it as such.

While the political recognition sounded great, the nasty secret is that neither BC nor Canada will legally recognize any aboriginal title and rights.   First Nations are expected to negotiate as if they have no existing rights and are expected to effectively surrender them.   Past use and governance structures of First Nations should mean that some Treaty settlements should be much richer than others.  If the negotiations were based on the amount and form of aboriginal title and rights First Nations had when they came to the table, some should be in much stronger positions than others.   The reality is that the BC Treaty process has no negotiation and is a one size fits all per capita model.

As much as it feels like going backwards, First Nations in BC would be best served now by going to court and proving aboriginal title and getting court recognition of their aboriginal rights.   First Nations need this power at the table to ensure that BC and Canada will actually negotiate with them.   They also need this to allow them to choose a different route if they want to.

Resolving Overlaps
Canada and BC rely on the First Nation they are negotiating with to deal with the interests of other First Nations.   They will not talk to the other First Nations impacted and simply wash their hands of any responsibility.   They have never required a First Nation they are negotiating with to prove they have signed agreements with their neighbours resolving the issues.

If Canada and BC had required the Nisga'a to get consent from the Gitnayow, or for Yale to get consent from the Sto:lo, the problems that are happening would not be an issue at all.

A Flawed Process
The BC Treaty process sounded great 20 years ago, but the flaws in the process are large enough to be very prejudicial to the First Nations of BC.

Canada as a the distinct nation we know today gets its first start with the Royal Proclamation of 1763.   The start of our legal history with respect to lands begins with the proclamation.  At its core there is a recognition that First Nations have rights to the land and must give their consent before the land can be disposed of by the Crown.   The BC Treaty process is more of a new social program than an actual negotiation about the land.

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