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

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.

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.