BC Treaty Process: Failure of Leadership?

Bill Wilson has published an article claiming the failure of the BC Treaty Process is a failure of among others, leadership. The full story follows...

 

 

 

Trouble is brewing if B.C. treaty process dies

Bill Wilson

The Province

Tuesday, November 22, 2011

Sophie Pierre, chief commissioner of the B.C. Treaty Commission, says the commission process should be shut down but only after she serves a requested one-year extension of her contract. This is so sad for so many reasons, the major being the huge cost of this admitted failure.
I am not speaking just about the billions of dollars already spent on this betrayal of trust and mutual respect, I am speaking about the cost that we will all have to pay if land claims and treaties are not resolved soon in B.C.
The B.C. treaty process was the result of a 150-year struggle by B.C. Indians. It was negotiated and created on the strength of the March 1983 amendment to Canada's then new Constitution, following supportive court cases and a more positive public attitude toward the plight of Indians. The obvious background was the Oka confrontation and the general unrest and militancy among Indians.
Then-Prime Minister Brian Mulroney and Tom Siddon, his able minister of Indian affairs, deserve credit for working with the B.C. Indian leadership of the day to pressure the B.C. government to join the process. Educated and motivated by the First Nations Congress leadership, the B.C. business community applied the final pressure on Bill Vander Zalm's government to change B.C.'s century-old policy of land-claims denial.
It seemed that the needs of all the parties were about to be accommodated. Ottawa needed B.C. to be involved in the land-claims process. The Indians needed a mechanism to resolve their outstanding claims and the business community required certainty of land title and jurisdiction.
Nineteen principles were negotiated as the foundation of this process. A tripartite commission was established to be "The Keeper of the Process."
A level playing field of negotiations with three equal parties was prescribed. Mulroney had insisted upon a $125-million policy, research and development fund to allow the Indians to prepare their claims. He also insisted on a repayable loan portion of 10 per cent. The future seemed bright.
Sadly, a change of leadership among Indians, unprepared provincial involvement and the long domination of the Department of Indian Affairs killed the process in its infancy. Many Indian groups signed letters of intent and borrowed money to begin "the negotiations," but the $125-million fund disappeared and the loan-repayment portion was hiked to 80 per cent.
Indian Affairs created the Federal Treaty Negotiation office and manned it with their senior bureaucrats, who knew how to control Indians. They actually went so far as to train "negotiators," who would become the chief negotiators for native nations. Indian Affairs was bound and determined to sabotage the process and did.
The province shares blame for the failure as they had no idea what they were doing from the start and mimicked the federal government. Both groups have no real mandates or vision. The possibility of creative solutions is restricted by the dictate that Indian aspirations must be forced into the little square boxes of federal and provincial regulations, the same ones that created the huge problems that still get worse in Indian communities.
Indians are not blameless. The First Nations Summit has provided no leadership. Instead they seem enamoured with federal and provincial programs when they are not jetting off to Ottawa, New York, Geneva and, more recently, China.
They have provided no independent political strength and have allowed the B.C. treaty process to wither on the vine by electing commissioners content to simply collect their honorariums.
The B.C. government is pushing interim measures, which is an attempt to placate Indians, who have lined up for quick handouts instead of demanding and achieving aboriginal title and self-government. Much of this has been made worse by the ever-increasing mass of lawyers and consultants who enrich themselves through the process.
Our new premier, Christy Clark, talks about development, particularly of mines on Indian land, as a solution to B.C.'s economic woes. One would think that we have had enough history to realize there are no magic solutions. All too often, election posturing replaces well reasoned strategies about how we can move forward on these issues.
The B.C. treaty process must be made to work. The premier can help by simply dictating to her negotiators an expanded, creative mandate for all parties at the negotiating table. Ottawa should be removed from the process and we must re-commit to the 19 principles.
The alternative is to allow the frustration to build among Indian and non-Indian people in B.C. Already we see new court cases that can tie up development for years and unrest that is flowing from land-title uncertainty.
We have a simple choice: We can settle Indian land claims now or later at 1,000 times the expense.
Every B.C. citizen has a basic stake in the just resolution of aboriginal title and treaty grievances. We do not need another Oka or the continuing feeding frenzy at the trough of Indian suffering.
Hemas Kla-Lee-Lee-Kla, Chief Bill Wilson, a lawyer and chief of the Kwawkgewlth people, helped set up the B.C. treaty commission process.

© The Province 2011

Jobs Agenda Trumps BC Treaty Process

It appears BC First Nations at the treaty table won't be a priority for the BC government unless they fit the jobs agenda. It was reported here that the BC government is cash strapped and is putting a priority on renting short term certainty over long term stability provided by treaties. Today, it is reported here that Premier Clark is now asking the Federal Government to "...support some of the non-treaty deals we intend to make." It is safe to assume the federal government will not be adding funds to its aboriginal affairs budget therefore Premier Clark is asking the federal government to divert funds from other priorities to 10 non-treaty deals by 2015. 

It is also safe to assume that First Nations at the treaty table will need to frame their interests in terms of jobs to get the attention of the Premier. For example, a first nation will be able to get on the Premier's agenda if they can put a mine or gas plant on their territory.

Federal Chief Negotiator Barkwell on Conflict between Yale Treaty and Stó:lō Interests

The Federal Chief Negotiator's response to the a question from Hon. Carolyn Bennett on the conflict between the Yale Treaty and Stó:lō interests.

Federal Chief Negotiator, Jim Barkwell's response...

Thank you. I will try to be brief, but there was a very extensive consultation process and three years of work to address the question the member raises.

    We started in 2008 and involved over 60 first nations that are in the Yale area. We mailed out information to them and offered them an opportunity to meet with us and provide their views. A year later, we provided the final agreement to them so they would have that as detailed information, and we did the same thing.

     As a result of that process, which was a joint one between me—I'm the senior federal representative on this particular file—and the provincial senior representative, we offered to have consultation meetings with those who were interested in providing detailed input to us.

    We had 11 such meetings. As a result of that, we made several adjustments to the actual Yale treaty agreement, in addition to the things that are already built into our treaty model to protect the interests of other first nations, such as the non-derogation clause that Mr. Borbey references.

    We are very careful in terms of land selection. We chose lands that we added to the Yale Indian reserves that were near the reserves and, as much as possible, away from areas where other first nations have interests. We specifically excluded one area known as the Yale beach, which is a public access area that allows fishermen to enter onto the water to exercise their fishing rights. We did that early on.

    As a result of the consultation process and the input we received from Chief Joe Hall, whom you may have met, and other Stó:lo representatives, we made several other adjustments. We reduced the harvesting area—that's where they can hunt, fish, gather plants, and so on—to exclude Harrison Lake, because one first nation indicated an interest in that area. Chief Hope of the Yale agreed with that. We designated one area of new treaty settlement land known as Frozen Lakes as public. In the treaty, that's identified for public access so that other first nations and the public are able to go onto those lands. Some of those lands are culturally significant to first nations.

    The third measure we undertook as a result of the consultation is an access protocol, which is an actual treaty provision we put in to indicate that access may be requested by any individual and that Yale may not unreasonably refuse to grant that access. This was done—and it applies to all people—particularly bearing in mind the interests of the Stó:lo representatives who had given us input. The standard backstop we have is the non-derogation language, which essentially asserts that no impact on other first nations is intended as a result of the treaty provisions. Essentially, if in the future a court determines there has been an adverse effect on a treaty provision, that provision will operate, or will be amended, so that it does not adversely affect that right.

    I will just mention a couple of other things very quickly. The dispute or issue between Yale and some of the Stó:lo groups exists today. It isn't just a treaty-related issue, because it pertains to the Indian reserves themselves and a different view that the Stó:lo have in terms of how those reserves should be handled, even though they are currently held by the crown on behalf of Yale.

    There is a reasonable point to be made that, through this treaty provision that I mentioned, the access protocol provision, the Stó:lo in a post-treaty world will have a higher level of access to some of the lands that are in contention than they do currently under the Indian Act.

    Secondly, Chief Hope has made some public comments. He has indicated that--and I will tell you how he was quoted in some newspaper articles--the process of permitting, which is not currently accepted by the Stó:lo groups, may not “be imposed right away, if at all”. He said, “It may be better to put that aside”. Essentially he is saying that another option would be to have direct talks with families who have traditional fishing sites in the canyon. He is quoted as saying, “I'm hoping between then and now to sit down with [Chief] Joe Hall and others to talk in a reasonable manner and plan things out for Stó:lo people to come up to Yale.” Those are the chief's own remarks about how he is open to having an outside protocol or some other arrangement that would be suitable.

    In that regard, the last point I will make is that we do have funding available through a process called treaty-related measures. We are providing funding to Yale in order to develop some work on the fisheries protocol.

The Gitxsan Treaty Model and the Lawsuit Against it

Gitxsan treaty negotiations have taken a long time and cost a lot of money. However, the Gitxsan treaty negotiations are slow going, in part, because the Gitxsan are trying to create their own unique arrangements with BC and Canada. The concept they are pursuing is the Gitxsan Alternative Governance Model. It is characterized in four parts:

1. Taxes: the Gitxsan are prepared to pay income and sales taxes just as other Canadians.
2. Parallel society and Indian Status: the Gitxsan are not interested in the “parallel society” concept at the heart of (which drives) the standard treaty model.
3. Land and economic development: the Gitxsan are not interested in negotiating for “treaty settlement lands.”
4. Uniqueness: ratification requires explicit recognition that the concept of “Bands” and “Gitxsan” are not identical.

Essentially, Gitxsan negotiators want the Gitxsan to be equal but unique Canadians. The Indian Act is completely removed in exchange for a piece of the wealth generated on Gitxsan traditional territory. The wealth would go to the Gitxsan hereditary chiefs to be re-distributed through traditional practices.

The Gitxsan are not united on the issue. A group representing the status quo under the Indian Act are trying to stop the advancement of the Gitxsan Alternative Governance Model. They claim that the Gitxsan Treaty Negotiators are negotiating away their rights, including Indian Status. They also claim the Indian Act and reserve system is integral part of sustaining Gitxsan culture because the reserve system creates enclaves of Gitxsan speakers. The background information and Statement of Claim is here. In the ruling for Spookw v. Gitxsan Treaty Society, at line 47 the judge states the case "...is not a matter of aboriginal law". Rather, it is a political matter internal to the Gitxsan. 

The plaintiffs take issue with the mandating system. In Spookw v Gitxsan Treaty Society, the judge relates the Gitxsan case to a prior case,  Tsimshian Tribal Council v. British Columbia Treaty Commission. The prior case is cited at line 42. Quoting the prior ruling the judge implies the Gitxsan matter is a political one: 

"The question of for what and how the Tsimshian community should be negotiating is an internal question to be decided collectively by its membership.  It cannot be decided by the BCTC or by the court.  The requirement of securing and advancing a mandate is an open one conducive to debate, persuasion, and resolution through ongoing processes."

The court is likely not going to be intervening in the internal political processes anytime soon. In the meantime, the Gitxsan Treaty Society will be assuming more debt through negotiations and the bands participating in litigation against the Gitxsan Treaty Society will be spending their own money. The winner? Stay tuned for new trial dates in March 2012. In the meantime, follow the money to find the winners!

BC Treaty Commission: Meeting Coordinator or Mediator

Grand Chief Joe Hall representing the Stó:lō Xwexwilmexw Treaty Association published a letter he sent to the Standing Committee on Aboriginal Affairs and  Northern Development (AANO). In the letter, Grand Chief Hall, charges the BC Treaty Commissioners as 'cheerleading' for the Yale Treaty at the expense of Stó:lō fishing rights. The issue has arisen because the land package in the Yale Treaty includes some lands  some Stó:lō people use to access the Fraser River to catch fish. 


Currently, the land is Crown land, accessible by many users not just the Stó:lō. If the Yale owns the land on Effective Date of their treaty, then they have the exclusive right to the land. All others must make arrangements with the Yale to use the land. The Yale Treaty, legally, does not affect the aboriginal rights of other First Nations. However, according to the "facts" published on the Stó:lō website, if Yale owns the land needed to access fishing and culturally significant sites the Stó:lō "will forever lose the ability" to exercise rights and title to lands subject to the Yale Treaty. 


The Yale and Stó:lō will come to resolution on their own or through the courts but neither group will forever lose their rights. The question is: should the BC Treaty Commission be empowered to mediate in disputes like the seemingly intractable ones like the one between the Yale and Stó:lō? Or, can one aboriginal group justifiably infringe on another groups rights?


Full text of the letter follows.



Standing Committee on Aboriginal Affairs and  Northern Development (AANO)

House of Commons

Ottawa, Ontario

K1AOA6

Dear Standing Committee Members:

Re: BC Treaty Commission (BCTC) comments before the Standing Committee on

Aboriginal Affairs and Northern Development, October 25, 2011

It has come to my attention that Chief Commissioner Sophie Pierre, Commissioner Haldane and Commissioner Haggard appeared before the House Committee on Aboriginal Affairs and Northern Development on October 25th 2011. We have now had the opportunity to review the transcripts of the session and are writing to express our dismay at the presentation made with respect to the Yale Treaty. We are writing this letter because we cannot let the BCTC submissions which contained serious factual errors and misinformation go by unanswered.

We note first that the Chief Commissioner stated that "quick passage [of the Yale Treaty] this Fall would also help in reinstating some of that trust in this whole process." We were appalled to hear this statement to the Committee. BCTC is well aware of the unresolved shared territory dispute that arises because of the Yale Treaty. There are approximately 10,000 Stó:lō in the lower mainland of BC. How is it that the appropriation of their important fishing sites, cemeteries, historic village sites, lands and resources to one small fraction - 150 Yale members - will reinstate trust in the BC Treaty Process? Trust will only be reinstated if the process itself is fair, open and seen to resolve matters. Nothing of the kind is happening with the Yale Treaty.

In response to a question from the Honorable Carolyn Bennett, when she asked how a treaty can go forward when there is a shared territory dispute and both sides aren't in agreement, Chief Commissioner Pierre responded that,

“It’s also our role that when we see problems arising, we bring them to the table's attention. This is what we've been doing all along in terms of overlaps, for everyone, including Yale and Stó:lō, but for all the other tables also.
 The treaty process was set up so that when a first nation determines that n wants to get into a treaty, it negotiates with the other two parties and reaches that treaty. As the keeper of the process we cannot determine that one treaty is better than another treaty, that one treaty should go ahead and not the other. The process needs to be fair to everyone, and those overlapping claims are issues that are not going to be determined by the three parties sitting around negotiating-the feds, the province, and the first nation. Those overlapping claims need to be taken out from that particular venue and shared, with the protocol reached amongst the first nations themselves, and then that agreement brought into the treaty. It’s that particular part that is a very difficult process. We have made arrangements and tried to set the scenario and give the supports to the first nations so that they can do that, either with us mediating or by bringing in people like Justice Lambert-which we did with the Tsawwassen Cowichan-bringing in people who know how to mediate; it’s their livelihood.
 We provide that type of support."

We query how the BCTC assisted Stó:lō with this issue. BCTC arranged one meeting with a facilitator. But when Chief Hope arrived at the meeting and stated that the facilitator could not make suggestions for resolution or in fact act as anything other than a chair of the meeting, the Commission stood by and did nothing. This is not an initiative, it is not assistance and it is not keeping the process. Keeping the process requires intervention not just to bring the parties to the table, but to ensure that once at the table, they actually participate. The passivity of the Commission at the facilitated meeting with Yale shows that the assistance the Commission provides is nothing more than meeting coordination.

In response to a direct question from Linda Duncan, MP the BCTC

"... Specifically, in terms of the Yale treaty and its impact on the Stó:lō people, the first point is that the fishing sites that are contentious are those that were part of the Yale Indian Band when the Indian reserve was formed."

It is deeply troubling to us that the BCTC would provide the Committee with misinformation. The fact is that the fishing sites that are contentious are not all on-reserve. In fact, the majority of the contentious sites are off-reserve. It is unfortunate that the BCTC did not trouble to ascertain the facts before providing the Committee with this inaccurate statement. The facts are that 88 of the 146 relevant fishing sites in the Lower Fraser Canyon and Upper Fraser Valley are off-reserve. Of the contentious sites in the Canyon, 44 of 78 (56%), are off-reserve.

The important fact is that while the dispute does concern some sites on reserve, the majority of the sites are off-reserve. With respect to the sites on-reserve, it is inaccurate to suggest that the fishing sites were 'part of the Yale Indian Band when the Indian reserve was formed'. First, these are not part of one reserve. Second, the fishing sites were not part of the Yale Indian Band when the reserve was formed. In fact, the fishing reserves were specifically established to protect the fishing sites of 'Yale and other Indians'. In 1905, when these reserves were created the federal government took note of the fishers on these sites and Yale had only four (4) sites. It is historically inaccurate to suggest that the reserves were set aside solely for the Yale Band.

We are also troubled by the simplistic message conveyed to the Committee when the Chief Commissioner said that,

"The message that we give out to first nations as a commission is that we all have very intricate and challenging overlapping claims on our shared territories, but it is only ourselves who can settle these."

It is unhelpful to say the least to keep repeating that only First Nations can settle shared territory disputes. That can only happen when the shared territory dispute is resolved before BC and Canada give the land package away. Once given, it is impossible for First Nations to resolve the matter as between themselves. We saw that first hand in the Yale situation. Yale had its deal in its back pocket. Once that happened it had no incentive to make any arrangement with Stó:lō. It has only to walk out the clock, deal in hand. The Chief Commissioner's statement that 'it is only ourselves who can settle these matters is not applicable to the Yale Treaty. Chief Hope refused to negotiate. He refused facilitation. First Nations can only resolve it between themselves if both sides are willing to work towards resolution and if they are working towards resolution before the deal is virtually complete.

We also note that Mr. Haggard provided some information to the Committee that is highly Questionable. He stated as follows:

"We just got a call two days ago, actually. There are three or four interests in that area. There's the Stó:lō Tribal Council, there's the Stó:lō Nation, and the Yale, of course. On any given day, they may or may not get along, although they're all related and they're all families. We got a phone call from one of the groups. Yale has always said they'd like to sit down and negotiate access to that disputed territory. Now they've moved off the permit issue. The one other nation is not interested at this point in time, and the third one has now phoned us. So we see an opportunity there. If we can have one success between the two, then we'll move forward, probably, with the other one as well.
 It's not an easy process. It’s like anything else when you have.... It's very emotional in that territory. But is it right to hold up a treaty of the smaller nation because someone else is upset about it? We have never tried to hold up a treaty because of it. We actually allow the treaty process to enable us to find a solution on the disputed territory. If they all know that the treaties are going to move forward, then there's more, eventually, of a willingness to sit down and find that peace between those nations.
 If they think they can hold it up by protesting, we will have protests across the province of British Columbia and we'll never get another treaty."

 First, we object to the fact that he states there are 'three or four" interests in the area. St6:IO Tribal Council, the Stó:lō Xwexwilmexw Treaty Association and Stó:lō Nation have been consistently acting together in this matter - as Stó:lō. While they may have different political organizations, their interests are one and the same - the protection of Stó:lō rights and title against the misappropriation via the Yale Treaty. Second, Yale has never said it would like to 'sit down and negotiate access'. Yale has repeatedly said that it will not negotiate. In fact, it has said that it has developed a permitting process and if Stó:lō want to hear how it will be implemented, Yale will provide that information. But Yale's Chief has consistently said that he will not negotiate an agreement. Further, we note that the wording of the Yale Agreement provides him with the authority to provide access only to those seeking it for 'recreational and non-commercial' purposes. The exercise of Stó:lō food fishing and cultural and spiritual practices are not, by definition, 'recreational'. On this basis, it is disingenuous for Commissioner Haggard to suggest to the Committee that Chief Hope 'has always said' Yale would sit down and negotiate access. Finally, Commissioner Haggard stated that Yale has 'moved off the permit issue'. If so, this is news to us. At our last meeting with Chief Hope he reiterated that he had drafted his permitting law already and was simply waiting for effective date to put it into effect. Finally, we have asked Stó:lō Tribal Council and Stó:lō Nation and none of us called BCTC recently. We also question the statement that 'one other nation is not interested at this point in time'. None of Commissioner Haggard's statements stand up to the facts and we are appalled that such misinformation was deliberately provided to the Committee.

We have also responded to BCTC's recent presentation to the Senate Committee as similar factual errors and other misinformation was submitted by the BCTC.

The BC Treaty Commission is supposed to be neutral and independent. Their submissions to the Committee are anything but neutral. The Commission is acting as Yale's cheerleader despite the obvious unresolved dispute. The Commission would be acting as more of a neutral party if they admitted the difficulties and suggested resolution. Pushing for quick ratification of a treaty with such large outstanding disputes is disrespectful and abusive to the entire process and brings into question the honor of the Crown.

Grand Chief Joe Hall

Treaty Negotiating Team

cc. Chief Commissioner Sophie Pierre, BCTC

Stó:lō Xwexwilmexw Treaty Association

The BC Treaty Commission Needs a New Role

The following letter was sent by In-SHUCK-ch Chief Negotiator to the First Nations Summit in response to a request to fill out a survey regarding the effectiveness of the BC Treaty Commission. It was requested to be made public.




Nov. 10, 2011

To: The First Nations Summit

From In-SHUCK-ch Nation

Subject: BCTC Effectiveness Survey

Howard Grant/Nancy Morgan/Gwaans:

The BC Treaty Commission will only ever be as effective as the Principals allow. The onus is therefore on the Principals to live up to the agreement they made in September of 1992. It is the process and not the keeper of the process that needs fixing. The fix requires agreement among the Principals, and is outside of the scope, so we respectfully decline your request for us to participate in the BCTC Effectiveness Survey. Instead, we offer our own comprehensive assessment.

Canada’s system is perennially slow. To use In-SHUCK-ch Nation as the example, we have been waiting for Canada to arm its negotiator with a mandate so that our table can re-engage following withdrawal of one of our “bands”. This isn’t the first time we’ve had to wait for Canada. British Columbia and In-SHUCK-ch Nation signed our Agreement in Principle months before Canada had authority to countersign. As a consequence of this, the table had to wait to fully engage in stage 5 negotiations. This not only cost us time, but (borrowed) money because we had to maintain our staff. There are too many layers in the federal system that must be streamlined if treaties are expected to proceed at a reasonable pace. Also, there is a built-in schizophrenia because the federal minister serves a fiduciary role on behalf of “Indians” managed by AANDC while having direct responsibility on behalf of Canada for treaties. The answer might be in creating a cabinet post directly responsible for treaty negotiations. This would transform over time to the federal agency responsible for relations with Treaty First Nations as more First Nations ratify treaties. BCTC is not designed to respond to such matters because they are outside of its quite narrow mandate. It’s a matter that would need attention of the federal Principal, perhaps upon recommendation from the FNS executive.

I perceive an inherent flaw in the approach because a single survey to all First Nations participating in the process will be skewed because issues are quite different for those of us in stage 4, or Stage 5, or those at the Common Table. Consideration, therefore, should be given to reviewing the treaty process that reflects this disparity. As a general note, if First Nations leaders wait for the comfort of consensus before risking any action, then this will only be reflected in the glacial pace of negotiations. Our leaderships’ primary focus is quite rightly on the bread and butter issues represented by programs and services. This is reflected in the FNS agenda opening up to accommodate these matters and it distracts from treaties.

Canada will not conclude Final Agreements without a Fish chapter, and they will not negotiate Fish while the Cohen Commission is ongoing. This is clearly an impediment to progress in treaty negotiations that cannot be addressed by the BCTC as keeper of the process – because the commission is not empowered to play a more direct role or to act as intermediary in any way. 

My guess is that the lead tables would view the BCTC as effectively managing within its mandate. By comparison, those stuck without movement in Stage 4 would disagree. First Nations, such as In-SHUCK-ch who have asked the Commission to play a direct role in facilitating our internal relations would say that the commission has delivered. As regards the 6-stage process itself, the BCTC should consider streamlining. For example, Stages 4 and 5 might be combined. This would require the Parties to get serious sooner, and to face mandate issues earlier. This would also save punting of the harder mandate issues from 4 to 5 and the resulting waste of time when the Parties move into stage 5. Also, Incremental treaties, while giving appearances of progress, simply distract from the real objective which must be to complete treaties.

We all (including Canada and British Columbia) bought into a process in 1992 because aboriginal title blankets BC. For a very few First Nations, their reality has transformed undefined aboriginal rights to well defined treaty rights. When we were obliged to draw lines on maps it brought into sharp focus the fact of overlaps among First Nations. Litigation could never resolve the broader questions of title and the need for contemporary ownership of lands, resources and even more importantly, jurisdiction over them. Treaties were the only viable option open to Canada (who took our jurisdiction) BC (who took our land) and to First Nations (who disagree with the “taking”). This has not changed in the interim. What has changed is the urgency. The urgency has decreased among all of the Principals.

In addition to the points raised above we recommend that:

1.      The Principals should empower the Commission to play a direct and active role in assisting the Parties in resolving (mandate) issues when the Parties reach impasse and request the commission’s assistance.

2.      BCTC should institute a policy to suspend funding to First Nations that are not making progress.

3.      Commissioner vacancies should be filled before the retirement of the outgoing Commissioner.

The 2003 BCTC review conclusion was that “the stakeholders interviewed were tempted to measure the success of the Commission against their perception of the success or failure of the treaty process overall, despite the fact that the Commission actually has little direct control over the outcomes at the treaty tables.” This speaks volumes as to the structural failure, we noted above.  The commission was not designed to produce treaties, but rather to fund and manage a process on behalf of the Principals. If it’s to be truly effective, the commission must be retooled. The time has come to reconsider its role. We trust that its full utility might be realized by support for such a retooling from the Principals.

Respectfully,

(original signed and mailed)

Eppa (Gerard Peters)

Chief Negotiator

In-SHUCK-ch Nation

www.inshuckch.com

(604) 970-7891

cc: In-SHUCK-ch Nation Interim Government

Wave of Treaties Coming through the BC Treaty Process?

When questioned about the lack of progress in the B.C. treaty process, Mr. Patrick Borby, Senior Assistant Deputy Minister for Aboriginal Affairs and Northern Development, says

"Yes, everybody had envisaged that we would be further along in the B.C. treaty process than where we are right now...There are good prospects for further treaties to move forward. The vast majority of the other negotiations are at the agreement-in-principle stage, and some of them are at the very advanced agreement-in-principle stage. So we think there's kind of a wave making its way through the system, and we're hopeful that we'll be able to have a lot of progress over the next two years."

One has to admire the optimism of this statement made before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development. However, as reported here the Cohen Commission may well make a ripple out the wave Mr. Borby foresees.

What's the Problem with Treaties: The Top 5 Problems from the Federal Government Perspective

The Top 5 Problems slowing down treaty negotiations, from the Federal Government Perspective:

1. Land and cash negotiations: The amount of the land and capital transfer must be in proportion to other settlements; and, the process of selecting lands to be transferred must protect the interests of other First Nations. 
2. Relative size of BC First Nations: for small First Nations the work of treaty negotiations can be a very large amount of work (e.g. Tsawwassen First Nation has 400 Citizens).
3. Financial self-sufficiency: taxation agreements and own-source revenue contributions to self-government are contentious for some First Nations.
4. Certainty model: may be viewed as 'extinguishement' by another name by First Nations and viewed as taking on too much risk by BC.
5. Elections: new governments take time to get up to speed or may not agree with past directions taken.

Source: Testimony to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development by Mr. Patrick Borbey (Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Indian Affairs and Northern Development).

 

Wet'suwet'en Supports HTG at Inter-American Human Rights Commission

Wet'suwet'en representatives feel the BC Treaty Process isn't working for them. They claim the federal government is not serious about resolving aboriginal title issues. The Wet'suwet'en also feel that Canadian courts are not an alternative. Therefore, they have applied to support the Hul'qumi'num Treaty Group at the Inter-American Human Rights Commission. They hope to bring international pressure on the Canadian government to get serious about their concerns as pipelines and mines are being proposed through their territory. This story first appeared yesterday in regional news here.

Minister Duncan Optimistic, BC Treaty Process Salvageable

Minister Duncan says BC Treaty process is worth the time, effort, and money. A view that might make Premier Christy Clark rethink her statement this morning and get behind NDP Leader Adrian Dix in supporting the In-SHUCK-ch Nation treaty negotiations.

Duncan says he understands the frustration coming from the BC Premier and industry leaders. “I’m well aware of all of those statements … and it’s a recognition of reality. The process is a slow process,”

Duncan says he takes responsibility. “I will wear it if there’s issues that are obvious that we should be addressing that we’re not and I’m prepared to try and make changes.”

Both the federal and B.C. governments have stressed the importance of boosting Canada’s resource sector in the face of a possible global recession.

“We recognize that not having certainty is an impediment to economic development and to the well-being of first nations and society in general,” Duncan said. The minister said he agrees with Chief BC Treaty Commissioner Sophie Pierre that 12 to 16 treaties could be completed by 2015 if changes are made.

“We could probably do that, and I would consider that great progress, and so that’s something that we’ll try and do,” Duncan said. “And just looking over the next 12 months I think we can contribute to an order of magnitude that would get us there.” This bodes well for the In-SHUCK-ch Nation, close to a final agreement and the Ktunaxa, close to the end of stage 4 of negotiations. 


Minister Duncan agrees with the BC Treaty Commission on several points. “We agree with the treaty commission and others that some of those tables should probably just be shut down and we should focus on the ones that are making progress,” he said

“We have to bring a sense of urgency so you’re not actually finding me disagreeing with Sophie on all this. I’m quite supportive of what her direction is.” See the full story here.

The outstanding question is, does the Prime Minister agree or is Premier Christy Clark's pessimism warranted?

BC Premier Clark is Cash Strapped, renting certainty for short term gain

Premier Clark proclaims treaty making is not working therefore pragmatic solutions for economic development will be the focus for her government. However, Clark's pragmatic solutions appear to be more about her government fiscal problems than good policy. In fact, the tripartite review, here, of the treaty process published in 2002 states,

the central recommendation in the BCTC Review was that First Nations, Canada and British Columbia shift their emphasis in treaty making to building treaties incrementally over time so that when a final treaty is signed, the new relationships necessary for success will largely be in place.

Incremental steps were always part of the solution - independent studies consistently conclude that treaty making is vital for long term economic prosperity. The impetus for short term economic development is self-serving for the Premier and her cash strapped government.

Treaty making is more than a tool for economic development. See the Top 5 reasons why First Nation want treaties here. Treaty making is about solving First Nations governance problems as much as it is about economic development. Both are means, the goal was to close the socioeconomic gaps between First Nation and non-First Nations in BC in a culturally appropriate manner.

For some clearly treaty is not the right path, for others, it is, like all aboriginal policy in Canada, there are few solutions that work across the board. Treaties, Strategic Engagement Agreements, and Incremental Treaty Agreements are all tools. Let's hope the federal and provincial government's have not lost focus on the goal.

NDP Leader Supports In-SHUCK-ch Treaty Negotiations

This story is an article that will appear in the upcoming Ucwalmicw Newsletter, submitted by Eppa (Gerard Peters), In-SHUCK-ch Chief Negotiator.

Our Meeting with Adrian Dix (the next premier?)

Adrian Dix, Eppa (Gerard Peters), and Scott Fraser.

We met recently with NDP leader Adrian Dix.  We explained that In-SHUCK-ch supported the Campbell Liberals in the last general election because of the contrary position the NDP had on IPP developments.  We always saw these potential power projects as a critical part of our economic strategy ever since we entered the BC treaty.  The Christy Clark government is considering changes to the Clean Energy Act that might take this opportunity away.  

We explained that in late 2009, BC’s negotiator agreed to our request for (IPP) water reservations on certain creeks in the Skatin and Samahquam territories.  What followed was hard lobbying from the Independent Power Producers. Cloudworks Energy (who had applications for water some of these creeks) lobbied the Liberals and the water reservations were taken off the table.  All of this occurred during closing negotiations.

Run of River Power Project

With water reservations denied to us, In-SHUCK-ch responded by placing IPP lands on the table.  We said that we wanted to have these transferred to us upon ratification (by us) of treaty.  The remaining treaty lands would transfer on Effective Date of treaty.  BC (and Canada) agreed.  This meant that we could now negotiate with IPP proponents as owners of the land upon which the IPPs would be built.  

Christy Clark now has her eye on the next general election.   She can’t afford to upset the average voter by raising their hydro bills to pay down the escalating hydro costs.  In this scenario, independent power producers are expendable and the value of our agreement is at risk

When we began organizing in the 1980s, it was always for quite straightforward reasons.  We needed to own lands.  We needed to have a measure of control over our territories.  We needed to confirm our rights.  But more than that, we needed to assume our authorities and jurisdictions.  Taken all together, we’d begin the process that would lead us ultimately to reduce our dependency on governments and we would begin to pay our own way.

Our rationale is quite simple.  We can’t wait for the handful of AANDC (formerly INAC) and CMHC houses each fiscal year if we want to catch up to our housing needs.  The answer lies in our own ability to develop a sustainable economy that would allow us to accelerate our community development.  

In-SHUCK-ch Territory Map

After years of raising our pressing need for what I’ve called ‘catch up’ at the treaty table, AANDC has agreed to provide $10 million.  It might sound like a lot, but it’s over 5 (and now 6) years.  The bands (including Douglas) have created a capital projects list that is now being reviewed by AANDC.

Clearly the answer is not in the status quo Indian Act relationship with Canada.  Neither is it in treaty.  Rather, the answer is in maximizing the return from these as we begin a process that will give us the ability to wean ourselves from dependency until finally we can afford to pay our own way.