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.

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).

 

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.

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.

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, 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.