Monday, July 7, 2014

The Tsilhqot'in Decision Fixes One of the Major Flaws in the BC Treaty Process

With the declaration of the Tsilhqot'in aboriginal title by the Supreme Court of Canada there is finally a chance to fix a fundamental flaw of the BC Treaty process.  For the first time the First Nations have some real clout to come the negotiating table with because of aboriginal title.   For the first time the governments have a real incentive to try and come to agreements with the First Nations.

In the early 1990s a new Treaty making approach was started in BC based on the Claims Taskforce Report.  Out of this came the BC Treaty Process.   Core to it was that First Nations would not have to prove what aboriginal title and rights they had to be able to negotiate and they would not have to formally extinguish these title and rights.   The previous Federal comprehensive claims process required First Nations to spend a lot of time and money to prove they had aboriginal rights before they could negotiate a Treaty and the First Nation would have to agree to extinguish all their rights and title.

Fraser river near Fountain
The new BC Treaty Process sounded really good because it would speed up the process of settling Treaties, save First Nations money, and do away with extinguishment.   The First Nations assumed the feds and province would accept at face value the aboriginal title and rights of the First Nation.   This is not what happened, instead the governments acted as if the First Nations had no aboriginal rights worth anything in the modern world.   The effect of this was for the First Nations to have a very weak negotiating position.   I wrote an article in 2000 for Policy Options that outlined the problems with the BC Treaty process.

My experience was that the government negotiators took the traditional territory maps with a grain of salt and effectively approached the negotiations as if the First Nation had nothing it was bringing to the table.   The government negotiation approach was more like a one way deal in which the government was being magnanimous by offering much at all.

What I also saw was that the governments treated all First Nations at the negotiation table as they were all the same.    There was one model of Treaty available and a per capita formula for the value of land and money available in the settlement.   The process was in my opinion flawed and I could not in good conscience continue working as a negotiator for First Nations in the Treaty process because I did not think a fair settlement was possible.

Not surprisingly, in close to 20 years of negotiations there have only been four Treaties settled.   What First Nations are expected to accept in a Treaty settlement is no where close to what most aboriginal people think is fair.  The process has not been fast and because of that has left many First Nations deeply in debt to the federal government.
Ts'kw'aylcw negotiating team in 1999

Now that the Tsilhqot'in have a declaration of aboriginal title and the Supreme Court of Canada defined the relative strength of aboriginal title, there is something of real value to come to the table with.   The decision also makes it clear aboriginal title is something that most BC First Nations will be able to prove over large areas of land.

Up until now First Nations have been little more than a nuisance to the government when dealing with the land, but once large areas of BC are declared to be aboriginal title the world will fundamentally change for the province.  There will need to be a close partnership between First Nations and the provincial government to manage the land base of BC.   Ideally the province should be seeking Treaty settlements ASAP to try and create certainty on the land.

The BC government is still very dependent on revenues that come from natural resources, if large parts of best Crown Lands in BC are declared aboriginal title the revenues from those lands will flow to the First Nations and not the province.  When the natural resource revenues are no longer available the province will have to raise income taxes to compensate.  The province needs Treaty settlements to ensure a smooth transition in natural resources and a chance for the province to shift away from dependency on natural resource revenues.

The scope and scale of aboriginal title that would seem to be realistic for many BC First Nations means that they could very likely better off not settling a Treaty all.   The governments will have to radically rethink their mandate in the Treaty negotiations and come to the table with a lot more to interest First Nations in settling.

I remember in December 1997 thinking that the Delgamuukw decision would change the Treaty process because the Supreme Court of Canada said aboriginal title still existed and provided a clear test to prove it.  The court said the answer was to negotiate.   But nothing changed on the government side because First Nations still did not have anything real on the ground to bring to the table.  16 an half years later the Tsilhqot'in decision finally changed that.   This decision should finally mean the governments will be serious about negotiating with First Nations.
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