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
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