The Gitxsan Treaty Model and the Lawsuit Against it

Gitxsan treaty negotiations have taken a long time and cost a lot of money. However, the Gitxsan treaty negotiations are slow going, in part, because the Gitxsan are trying to create their own unique arrangements with BC and Canada. The concept they are pursuing is the Gitxsan Alternative Governance Model. It is characterized in four parts:

1. Taxes: the Gitxsan are prepared to pay income and sales taxes just as other Canadians.
2. Parallel society and Indian Status: the Gitxsan are not interested in the “parallel society” concept at the heart of (which drives) the standard treaty model.
3. Land and economic development: the Gitxsan are not interested in negotiating for “treaty settlement lands.”
4. Uniqueness: ratification requires explicit recognition that the concept of “Bands” and “Gitxsan” are not identical.

Essentially, Gitxsan negotiators want the Gitxsan to be equal but unique Canadians. The Indian Act is completely removed in exchange for a piece of the wealth generated on Gitxsan traditional territory. The wealth would go to the Gitxsan hereditary chiefs to be re-distributed through traditional practices.

The Gitxsan are not united on the issue. A group representing the status quo under the Indian Act are trying to stop the advancement of the Gitxsan Alternative Governance Model. They claim that the Gitxsan Treaty Negotiators are negotiating away their rights, including Indian Status. They also claim the Indian Act and reserve system is integral part of sustaining Gitxsan culture because the reserve system creates enclaves of Gitxsan speakers. The background information and Statement of Claim is here. In the ruling for Spookw v. Gitxsan Treaty Society, at line 47 the judge states the case "...is not a matter of aboriginal law". Rather, it is a political matter internal to the Gitxsan. 

The plaintiffs take issue with the mandating system. In Spookw v Gitxsan Treaty Society, the judge relates the Gitxsan case to a prior case,  Tsimshian Tribal Council v. British Columbia Treaty Commission. The prior case is cited at line 42. Quoting the prior ruling the judge implies the Gitxsan matter is a political one: 

"The question of for what and how the Tsimshian community should be negotiating is an internal question to be decided collectively by its membership.  It cannot be decided by the BCTC or by the court.  The requirement of securing and advancing a mandate is an open one conducive to debate, persuasion, and resolution through ongoing processes."

The court is likely not going to be intervening in the internal political processes anytime soon. In the meantime, the Gitxsan Treaty Society will be assuming more debt through negotiations and the bands participating in litigation against the Gitxsan Treaty Society will be spending their own money. The winner? Stay tuned for new trial dates in March 2012. In the meantime, follow the money to find the winners!

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.