Chief Louie: Control over land key to sustainable economic development, treaty is one option

Oct 20, 2011, Chief Robert Louie, witness to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, explains First Nations land management to a new committee member. He describes the status quo under the Indian Act, the Land Code regime, and the importance of self-government in stand alone agreements or part of a treaty. Land Management is vital for sustainable economic development.


First, Chief Louie explains the status quo,

"Maybe I can use terms in this sense. Under the Indian Act you have a “delegated authority” opportunity, and “delegated” very simply means that the decision-maker is not the first nation community but the government. It's the Department of Aboriginal Affairs and Northern Development: it's whoever is at the regional director level in the province, whoever is the deputy minister who sits here in Ottawa, or the Indian agents who have sometimes been referred to over the past history."

Second, Chief Louie explains the First Nation Land Code as an incremental step away from the Indian Act, to self-government,

"...about 25% of the Indian Act pertaining to lands is pulled out of the Indian Act, and that jurisdiction now rests with the first nations community, which passes a land code. That's an incremental step because the first nation that passes a land code then has the opportunity to be decision makers. They become lawmakers. It's like the Government of Canada: you pass laws and you have your first, second, and third readings. It has those sorts of powers; it's governmental decision powers."

Third, Chief Louie explains the importance of land management,

"...it is important that first nations economic ventures have sustainability, to look to the future. There have been all kinds of studies done worldwide that prove the point that a first nation needs to have that jurisdiction. The jurisdiction implied in this land management process, the incremental step towards self-government, is a beginning."

 Fourth, Chief Louie explains the next steps needed for First Nations, 

"The next steps beyond this incremental step are what we have at Westbank; that is, authorities over the other areas that we have. Treaty-making includes these other areas. But the most important by far, in my opinion and my experience, is the control over lands and resources."

There is a long wait to sign onto the First Nations Land Management Act. The program is limited to around 10% of First Nation across Canada. The program benefits First Nations with reserve lands in urban areas that can take advantage of their tax exemptions and market pricing of reserve lands. For the majority of non-urban First Nation, the Land Code does little to generate economic activity without the acquisition of additional lands to develop or other economic opportunities to attract investment. For non-urban First Nations or First Nations that cannot resolve the private land issue, the BC Treaty process offers greater opportunity for sustainable economic development. However, the BC Treaty process can be long, arduous and expensive.

First Nation Law Trumps Canadian Law: Politics, Ignorance or Racism?

The politics of BC treaty news is interesting. It's hard to find news that is informative and isn't the site of partisan politics. Take the case of the Vancouver Observer's March 2011 coverage of MP John Weston's suggesting treaties are "un-constitutional". It's written by Daniel Veniez, a self-described centrist with federal liberal ties. The article is a poke at Prime Minister Harper, so the comment section of the article, naturally, is subject to partisan attacks. However, the attacker goes too far and reveals his or her own ignorance or worse - blatant racism. Here is the last two lines of the attack:

"Has Mr. Veniez actually read the treaty?

What about the part where Sliammon law trumps Canadian law. If Veniez supports this measure fully, this opens a very dangerous and slippery slope." [RtHourableSirJohn]

Slippery slope to what? First, under the treaty Sliammon law is Canadian law. Second, the attack is referring to the rules of paramountcy. Under the treaty, Sliammon law is paramount to federal and provincial law (i.e. "trumps") in some matters and in others federal and provincial law is paramount. Why would the attacker think that it's a slippery slope to empower Sliammon to control its own culture, government and other matter internal to Sliammon?

Is it politics, ignorance, or racism? The more I read about BC treaty news, politics, ignorance, and racism are not mutually exclusive or exhaustive categories.

Canada vs Hul’qumi’num Treaty Group: Inter-American Human Rights Commission

“Everything on this earth is connected. Everything is what sustains us. I know where in our territories to go for what we need. It is like knowing what store to go to: hardware, grocery, or pharmacy” Arbid Charlie testimony at the IACHR.

Shortly after the election of the BC Liberal government in 2001 things got worse for the Hul'qumi'num Treaty Group. According to the Centre for Human Rights and Humanitarian Law,

"industrial deforestation and development of land substantially increased. The resulting destruction of the land has inhibited the Hul’qumi’num peoples’ abilities to hunt, fish, gather and practice their spiritual and religious traditions on the land. Private ownership of the land has also increased the risk of trespass allegations against the Hul’qumi’num Treaty Group (HTG)." 

Inter-American Commission on Human Rights (IACHR) documents allege that the BC Treaty Process and Canadian courts are not options for HTG. A Ratcliff & Co. report stated an aboriginal title case is not viable when private property is at issue and the BC Treaty Process has consumed $13 million and 15 years with no progress. As a result, the HTG allege their human rights have been violated and there is no remedy within Canada. On the face of it the IACHR agrees and is willing to hear the case.

The allegations, which if proven contravene Canada's international legal obligations, are:

1. Canada has not set boundaries, demarcated, or recorded the title deed to the ancestral lands of the HTG
2. Canada has granted licenses, permits, and concessions within HTGs ancestral lands without prior consultation; 
3. Canada has not provided restitution for the ancestral lands the HTG lost involuntarily and that were transferred by BC to private third parties; and, 
4. this has resulted in the destruction of the environment, natural resources, and of the sacred sites used by the alleged victims.

Canada and the HTG presented their cases and await the Commissions ruling. The outcome is not enforceable in Canadian courts, but will cause international pressure.

Hul'qumi'num Treaty Group and Canada Square of in Human Rights Commission

Two more stories here and here shine light on the Hul'qumi'num Treaty Group's quest to protect its land interests. On Friday, the parties each presented their case.

The Treaty Group's concerns are with logging practices on lands encumbered with its aboriginal title. The group wants a say in the management of harvesting or compensation. Canada argues the Treaty Group has access to Canadian courts or the treaty process to advance its interests, therefore, the OAS court should not be hearing the case. Canada takes this position because, procedurally, the OAS court cannot hear a case until all other legal options are exhausted. The OAS court agreed to hear the case because the Treaty Group's lawyer convinced the court that due to BC Treaty Process policy, the available options are not really options at all because private lands are not subject to treaty negotiations. In addition, a condition of being in treaty negotiations means is that the Treaty Group must not go to a Canadian court - a conundrum for many First Nations.

Even if all remedies in Canada are exhausted the OAS court decisions are not binding. The decision may be available in March 2012.

UVIC Anthropologist Predicts Dramatic Change to BC Treaty Process

TV coverage of a story posted here yesterday, puts more pressure on the private land issue facing several First Nations in BC Treaty Process. UVIC's Brian Thom predicts the outcome of the case before the OAS Human Rights commission could cause dramatic change to the BC Treaty Process.

However, the outcome of the case is not enforceable. It is predicted here that the case maybe the catalyst for change but it will take coordinated action to cause meaningful change. This is because Canada's lawyer says "Canada does not agree with these allegations...Canada takes issue to all aspects of the petition." See the rest of the story here and here.

Is the Harper Government the Problem?

Minister Polak and Chief Commissioner Sophie Pierre, point to the Harper Government for wasting time and money:

Mary Polak, B.C.'s minister of aboriginal relations, said Ottawa's long delay in moving the Tla'amin treaty forward is one of the holdups recently criticized by the B.C. Treaty Commission. Chief Commissioner Sophie Pierre said earlier this month that if federal negotiators aren't given enough authority to reach agreements... governments should consider winding up a process that is nearly 20 years along with more than a billion dollars spent on negotiations alone [full story here].

Can Minister Duncan turn it around, or is the Harper Government committed to wasting time and money? Is Minister Polak deflecting to shield her government from part of the blame?

BC Treaty Process: New Beginning or End of Times?

With all the recent news about killing or reviving the treaty process it makes you wonder what the Mayans might think. Are we at the end of times? Today, Oct 28, 2011 is the end of the Mayan Calendar leading some to prophesize the end of our world. However, others claim "..this date is important as an evolutionary leap in the global consciousness, not as an omen of the end of life on earth."

Is the sun setting or rising on the BC Treaty Process?

The Mayan Calendar tracks long cycles of planetary movement. The alignment of celestial bodies could explain phenomena on earth. However, we don't need to look up to answer the question regarding the waxing or waning of the treaty process. The answer depends on the alignment of interests between BC, Canada, and the First Nation party to negotiations. As reported here, no fish is a problem but one or two tables can close deals. Can BC and Canada produce results before public pressure eclipses hope for treaties?

If the sun rises tomorrow we'll know we're on our way to a new global consciousness, we should plan accordingly. Send Ministers Duncan and Polak an email and tell them to get on with treaty making and Happy Halloween!

Hon, Mary Polak, MLA mary.polak.mla@leg.bc.ca  
Hon, John Duncan, MP john.duncan@parl.gc.ca


Happy Halloween, from BC Treaty News.

Treaty negotiations aren't slow, they're stopped without fish on the table

Recent headlines call on BC and Canada to speed up negotiations or shut ‘em down. However, nothing is going to happen without fish on the table.

Momentum for concluding treaty negotiations in BC ground to a halt when the Federal Treaty Negotiating Office (FTNO) declared here that “...negotiation of fisheries components at treaty tables that involve salmon be deferred, pending the potential adoption of new policy approaches informed by the findings and recommendations of the Cohen Inquiry.”  The deadline for the Cohen Commission final report was extended until June 30, 2012. Depending on how fast “new policy approaches” are formulated, Final Agreement negotiations on fish may not even begin until 2013. There is some hope, though.

Yale, Sliammon, and In-SHUCK-ch tables were granted exemptions from the deferral. Sechelt First Nation doesn’t appear to be negotiating. Yale ratified its treaty and is awaiting settlement legislation. Sliammon negotiations are over, leaving the In-SHUCK-ch and Yekooche tables as the only viable contenders to reach a final agreement. If BC and Canada can deliver on In-SHUCK-ch economic issues reported here, then there is hope the In-SHUCK-ch treaty in the near future.

Tsawwassen First Nation Final Agreement: Word Cloud

Word Cloud analysis of the Tsawwassen First Nation Final Agreement (the 270 most frequently used words of 56,833 words on 212 pages)

AAND Departmental Briefing on Treaty Process

Audio broadcast of department report available here. Summary will be posted here when transcripts are published.

BC Treaty Commission: Report to Senate Committee

Watch Chief Commissioner Sophie Pierre's presentation to the Senate Committee on Aboriginal People here. Total video is 1:15 minutes. Informative but question period can make one wonder what planet the Senate lives on! A summary of the issues will be posted here when transcripts are published.

Key message: shift focus from social agenda to economic agenda.

Interesting question raised worth mentioning here. Do bilateral agreements between First Nations and BC like Strategic Engagement Agreements and Incremental Treaty Agreements help or hinder the pace of treaty negotiations?

Reader Driven Stories?

If there is something that is missed or if you have a story you think should be posted here, please send it to treatynews@gmail.com 

BC Treaty Process, Private Land and the Standards of International Justice

The Hul'qumi'num Treaty Group is the Cowichan Tribes, Lake Cowichan, Halalt, Penelakut, Lyackson and Stz'uminus. They are taking BC Treaty Process policy to a human rights court at international law. The move is unprecedented because, normally, a legal issue must rise up through the courts of country where the problem is located. However, the issue is aboriginal title, an issue Canadian courts say must be resolved through negotiations. The Treaty Group alleges the BC Treaty Process is too constrained to protect their rights and wants the court to say so.

The issue was first reported here. It turns around the 8300 km² E&N Railway Grant in 1884.  About 2700 km² of the land is also the traditional territory of the Hul'qumi'num Treaty Group. Through the BC Treaty process, private lands are not on the table during treaty negotiations. Over 80% of the Groups land is in private hands. Due to the rigid policy, they argue, there is little to negotiate. The Group will have its day in court.

It was reported here that “in agreeing to hear the complaint, the Inter-American Commission ruled that the available mechanisms to resolve this dispute in Canada, whether through negotiation or the BC treaty process, are too onerous and too constrained in their protection of human rights to live up to the standards of international justice.” However, no matter the outcome, the decision cannot be enforced - legally. So what’s the point?

If a judgement favours the Treaty Group, it will be political ammunition to budge the policy determining what’s on the negotiating table or not. The issue of private land is a major obstacle for some negotiating tables, while for some like the In-SHUCK-ch table; private land is almost a non-issue. The trial starts tomorrow.

The Campbell Case Part 2: Nisga’a treaty suit dismissed

The 12-year-old Nisga'a land-claims treaty has been upheld by the Supreme Court of B.C. and a long-running challenge to the deal dismissed.


The suit, claiming the Nisga'a treaty was unconstitutional as it established a third tier of government, was abandoned by Campbell after the Liberals formed government in 2001, but Nisga'a hereditary chief James Robinson resurrected it and attempted to have the historic April 1999 treaty declared invalid.

Justice Smith said that the arguments made by Robinson, a.k.a. Sga'nisim Sim'augit, or Chief Mountain, repeated the claims made by the opposition Liberals, which were found wanting in 2000 by B.C. Supreme Court Justice Paul Williamson.

Justice Smith declared the treaty valid and constitutional.

Read the full story here.

What's in this Blog?

Word Cloud analysis of BC Treaty News Blog to date.

Interim Treaty Investment Authority?

Author and policy entrepreneur, Gordon Gibson with the Gitxsan Treaty Society says the process will take time to conclude treaties but has a solution for the meantime,

That solution could be the creation of an Interim Treaty Investment Authority (ITIA), initially funded by say $1 billion. The purpose of the authority would be to grant loans — not gifts — to first nations for approved projects. For approval, a project would have to be demonstrably feasible to a third-party, independent board of business people.

Gibson says more money for investment and jobs is the solution. It begs this question: wouldn't that $1 billion help close a lot of Final Agreements now? The whole story behind the ITIA is here.

In-SHUCK-ch Chief Negotiator: It's the economy!

During a BC Finance Committee hearing the BC Treaty Commission question surfaces: "Has there been a sufficient return on investment in the BC treaty process given the time and money spent? Has it been worth it?" Eppa (Gerard Peters) In-SHUCK-ch Chief Negotiator goes on the record saying:

"I have to tell you that from the chair I occupy at the treaty negotiations, it has not been."

For In-SHUCK-ch Chief Negotiator, it's the failure to address economic issues that is the main cause for concern. For In-SHUCK-ch, participation "...in the economy has been our intention from the time we started talking about these things in the early to mid-1980s." Economic issues are paramount because the goal for In-SHUCK-ch is to "...ultimately pay our own way in contemporary society." For the whole story see the Hansard transcripts of the hearing at 11:40 here. In-SHUCK-ch is considered one of the lead tables, very close to reaching a Final Agreement.

Minister Duncan: Pace of Negotiations Not Good

Pace of negotiations not good say Duncan, chiefs

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Busy October for BC Treaty News

The BC Treaty Commission released its 19th Annual Report here and this press release. The Annual Report asks the fundemental questions:

"Has there been a sufficient return on investment in the BC treaty process given the time and money spent? Has it been worth it?

The report and press release generated the following headlines:

Head of BC Treaty Commission suggests shutting it down

Treaty Commission Sees Lack of Urgency in Negotiations

Tough talk on pathetic treaty process

Speed up treaty process or shut it down, commission chief says

Treaty commission calls for political will

Commission Calls for Recommitment to Treaty Process

 

Tla'amin Final Agreement Moves to Ratification

The Tla'amin Final Agreement contains provisions for self-government, financial and land transfers. The land component will consist of approximately 8,322 hectares of treaty lands that include surface and sub-surface resources, and comprised of 1,917 hectares of former Indian Reserves and 6,405 hectares of former Provincial Crown lands.

The Tla'amin Nation will receive a capital transfer of approximately $29.7 million (all figures in 2010 $) over 10 years, less outstanding negotiations loans. In addition, Tla'amin will receive economic development funding of approximately $6.9 million, and a Fishing Vessel Fund of $250,000. B.C. and Canada will each provide $331,292 annually in resource revenue sharing for 50 years. All resource sharing payments will be indexed to inflation.

Tla'amin will also receive $550,000 from Canada prior to the date the Final Agreement comes into effect to establish its government. The Fiscal Financing Agreement provides for one-time and ongoing funding, including: one-time federal funding of $4.6 million; on-going federal funding of approximately $8.0 million per year for the first five years; and on-going provincial funding of approximately $446,000 per year for the first five years.

Standing Committee on Aboriginal Affairs and Northern Development: Departmental Briefing on Treaty Process

Meeting No. 9        
Thursday, October 27, 2011
11:00 a.m. to 1:00 p.m.
Room 362, East Block
(613-996-4345)

Departmental Briefing on Treaty Process

Witnesses

Patrick Borbey, Senior Assistant Deputy Minister
Treaties and Aboriginal Government

Perry Billingsley, Director General
Policy Development and Coordination, Treaties and Aboriginal Government

Stephen Gagnon, Director General
Implementation Branch

Jim Barkwell, Associate Director General
Negotiations - West

Standing Committee on Aboriginal Affairs: BC Treaty Commission Briefing

Posted on Tue, Oct 25, 2011, 3:59 pm by Alpheus

Members in attendance

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Conservative: Chris Warkentin (Chair), LaVar Payne, Rob Clarke, Randy Hoback, Kyle Seeback, Ray Boughen, David Wilks
NDP: Dennis Bevington, Jonathan Genest-Jourdain, Linda Duncan, John Rafferty
Liberal: Carolyn Bennett

Committee in brief

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The Standing Committee on Aboriginal Affairs and Northern Development met on Tuesday with commissioners and counsel from the British Columbia Treaty Commission (BCTC). Witnesses spoke to the committee about the 19-year treaty negotiations process. They emphasized that the process needed to be expedited by way of involving government negotiators that have the mandate and capacity to close the deal and move forward, and added that the conclusion of negotiations would unlock the economic potential of First Nations areas.
Questions from members at the committee pertained to the trust by First Nations for the federal negotiations process after a lengthy process, the stages of the negotiations, the differences between B.C.’s bilateral negotiations process and the tripartite negotiations, the economic benefits of concluding the negotiations, the clashes resulting from treaty overlap and ways to deal with this.

Source: http://www.ipolitics.ca/2011/10/25/bring-deal-making-powers-to-treaty-negotiation-table/

Welcome

This blog follows the BC Treaty Process.