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

Mediation: Applying the Lessons from Specific Claims Process to BC Treaty Process

A specific claim is a claim made by first nations against the federal government relating to the non-fulfilment of an historic treaty or the mismanagement of first nations land or other assets. For years the specific claims process has been backlogged. According to Justice Department testimony to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development in early October, significant progress is being made in relieving the backlog in the specific claims process. The solution includes the principles found in the BC Treaty process and adds mediation.

In response to the Senate Standing Committee Report, in June 2007, the Prime Minister announced “Justice at Last: Specific Claims Action Plan” aimed at reforming the specific claims process. The action plan was built on four independent pillars:

• impartiality and fairness, 
• faster processing, 
• greater transparency, 
• and better access to mediation. 

All four pillars have been implemented, and the success of the process reform even now is clearly evident. 

 

Implementing the four pillars have yielded significant results: an independent adjudicative body has been established; the backlog of claims and assessment phase of the process will have been addressed in a few weeks; 68 claims, valued at more than $1 billion, have been resolved through negotiated agreements, and 247 claims are currently in negotiation.

The Senate Committee on Aboriginal Peoples studied the problem and issued a report, entitled Negotiation or Confrontation: It's Canada's Choice. The conclusion cited that the specific claims process was defective and that first nations perceived a conflict of interest given that the government both judges and compensates claims made against it.

Sounds familiar to complaints related to the BC Treaty Process. The Independent Effectiveness Review of the BC Treaty Process published Nov 18, 2003 by Deloitte & Touche LLP concluded that the BC Treaty Commission performed well, given its mandate. However, the BC Treaty Commission has no powers! Maybe its time to add the fourth pillar to the BC Treaty Process - access to mediation.

Treaties are good for remote communities

"Canadians have to start looking at our remote communities differently...Our collective economic wellbeing and our international competitiveness could well depend upon the public policies adopted today that leverage the economic possibilities of many of these communities and their potential to contribute to our nation's wealth" Perrin Beatty, President and Chief Executive Officer of the Canadian Chamber of Commerce.

Strategic investment in remote communities is good for Canada. What's good for remote communities ought to be good for First Nation communities, too. In her testimony to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, BC Treaty Commission's Chief Commissioner, Sophie Pierre made the case for a shift from a social agenda to an economic agenda for First Nation communities in BC.

She quotes a study by Canadian Chamber of Commerce that calls for strategic investment in Canadian remote communities. However, investment is not enough, she says. The Chief Commissioner calls on the federal government to re-commit to the BC Treaty process. Treaties provide the tools First Nation communities need for sustainable economic development. A re-commitment to the treaty process is a commitment to move from a social agenda to an economic agenda.

The Chief Commission says that for too long, the federal government has pushed its social agenda by holding First Nations by both hands. Treaties will untie First Nations from the federal social agenda. She says the federal government and First Nations need to let go of each other.  When a non-First Nation community prospers, First Nations under the federal social agenda don't always share in the wealth generated. In fact, a rising tide can drown those on the economic margins. A shift to an economic agenda will enable First Nations to prosper too. When a First Nation community prospers, the whole region prospers.

The issue is most critical in BC because of the uncertainty on the land. Chief Commissioner thinks it's crazy to not commit to pursuing the $15 billion that concluding treaties will bring to BC. In times of global economic uncertainty we should be doing all we can to make Canada more attractive to investment. Treaties have a known return.

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.