Monday, March 30, 2015

State of Treaty Negotiations - Dead in the Water!

The BC Treaty Commission is back in the news for the first time in a very long time because the BC cabinet would not approve George Abbott as Chief Commissioner even though he was the one suggested for the job by the province.   With the BCTC in the media because of this event there has been commentary about the state of Treaty negotiations in BC but very little of that has been well informed about the reality of what is going on in Treaty negotiations.

Ts'Kw'aylacw Negotiating Team in 1999
The BCTC was created as a tripartite "Keeper of the Process" as part of the 1991 BC Claims Taskforce Report.   The purpose of the Treaty Commission was to make sure each of the parties would take the negotiations seriously.   By 2000 it was clear to everyone that the BCTC was toothless and could do nothing other than mildly scold the parties if someone was not taking the process seriously.   Ultimately the BCTC is little more than giving the negotiations a veneer of non-partisan respectability but can do nothing to make the Feds or the Province seriously negotiate.    The BCTC oversees a Treaty process that has been fundamentally flawed from the start.

Old church on the Leon Creek reserve
Negotiations in the BC Treaty process started in 1993.  After 22 years there have only been four final agreements representing a total of eight Indian Act Bands.    Why have there been so few settlements and why have those taken so long?

The primary reason Treaty negotiations are stalled in BC is because there is a fundamental disagreement between the Crowns and First Nations on Aboriginal title and rights.

First Nations assert their ownership over much of the province and come to the negotiations from the perspective that they would not have to surrender their ownership of the land.    First Nations assumed that by being accepted in the negotiations that this was a tacit recognition by the Crown that there are Aboriginal title and rights held by the First Nation.

Pavilion Lake in the winter
The previous comprehensive claims process required the First Nation to prove what lands they had aboriginal rights to.    It was a costly research process and many First Nations were insulted they had to prove they existed.

The two Crowns come from the perspective that any Aboriginal title or rights not specifically recognized by the courts de facto do not exist and that the Treaty negotiations would replace any possible Aboriginal title and rights with new Treaty rights but since there were not court recognized ownership, any Treaty rights would be an improvement.    The Crown has acted as if the First Nations came with nothing to the table and were mere supplicants seeking government largess.

This fundamental difference has lead to the very different assumptions about how the negotiations would go.   First Nations assumed that each settlement would be unique and based on the title and rights of each First Nation.   The negotiators from the Crown have approached the negotiations with a one size fits all model in which an Indian is worth X in cash and land and that all settlements would be broadly the same in value.

The Chilcotin - no need for Treaty negotiations here
This difference in assumptions means that what First Nations expect is dramatically more than what the Crown is willing to agree to at the table.   For a typical First Nation in BC the scale of the land settlement most likely on offer is only about 10% of what the First Nation is willing to accept.  

Some people on the First Nation side see the approach of the Crowns to the negotiations as settlement through exhaustion - if the talks drag on long enough eventually the First Nations will have to settle for the position of the Crowns.   Certainly that seems to be core to the Federal government negotiation position and has been so for the last 22 years.  

Cynical people would point to the fact that negotiating is cheaper than settling for the Federal government, so why rush to a settlement?

Few First Nations in the BC Treaty Process see the current negotiations as a path towards a settlement.

So why have only two First Nations left the BC Treaty Process if it is not something most First Nations see as a path to a settlement?   Money.    First Nations in BC have few revenue sources that allow them to decide what they will do and how.    The BC Treaty Process comes with loans and grants for the negotiations.   This money can be used to do a lot of the important capacity building work that needs to be done by First Nation governments.  It is also the only money that allows First Nations to do the research needed to know their land better.

Christy Clark was right in saying there have to be fundamental changes to the BC Treaty process.  The charade that are the current negotiations have to come to an end because of the Tsilhqot'in decision.

In June 2014 the Supreme Court of Canada released their decision on Tsilhqot’in Nation v. British Columbia.  With that one decision the courts affirmed that Xeni Gwet'in had ownership of a lot more land than anything that would be possible within the Treaty process.  Not only does Aboriginal Title exist, it exists as First Nations have always said, over a large amount of the land.

The current template that the Crowns are using for the negotiations are no longer viable because First Nations could get control again over a lot more land through the courts.  Not only is the court route more likely to offer a much better settlement, it also faster and much cheaper than the current Treaty negotiations.

It has been almost ten months since the Tsilhqot'in decision which should have marked an end to the BC Treaty process and finally forced the Federal and Provincial Crowns to come to the table with a process to recognize Aboriginal Title in BC.

From 1995 to 2002 I worked as a Treaty negotiator for the Ts'Kw'aylcw First Nation.   The First Nation chose to leave the process when it was clear that the governments would only agree to a tiny amount of the land being returned to First Nation control.

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