What's the Problem with Treaties: The Top 5 Reasons First Nations Want Treaties

Earlier this week, the Top 5 reasons First Nations object to treaties was published here. Today, the Top 5 reasons First Nations want treaties is the topic.

Top 5 Reasons First Nations want treaties:

1. Decision making authority (Self-government)
2. Cultural protection (defined and protected rights)
3. Economic development (land ownership)
4. Accountability (administrative, financial and political)
5. Coexistence (interdependence)

The method used is the same as before, read it here. Feel free to make the case for alternatives.

Squamish Nation Buys Land

There is an alternative to the treaty process for a First Nation to acquire new land. The cash strapped provincial government is a willing seller, Squamish Nation is a willing buyer. Squamish First Nation is purchasing 467 hectares (1,154 acres) of Crown land in the Squamish area from the Province for $16.27 million. You can see the parcels of land here.

Squamish Nation wants to convert the purchased lands to reserve lands. The conversion would bring in the Indian Act, but is unlikely to happen, any time soon.

According the Assembly of First Nations, "there is no statutory authority under the Indian Act or any other federal legislation to set aside land as a reserve. The act of adding land to existing reserves or creating a new reserve is an exercise of the Royal Prerogative through an Order in Council (OIC)." In practice, converting provincial land to federal land follows the Additions to Reserves and New Reserves Policy. According to a recent review of the policy, Squamish Nation will face difficulties having their purchased lands converted to a reserve in the near future.

Here are a few problems with the ATR policy:

• municipal tax loss compensation, 
• the economic rationale, 
• competing/ overlapping claims, and 
• compatibility with municipal by-laws and related enforcement.

The biggest challenge Squamish Nation will face, however, is the:

• Fiscal restraint affecting the amount of urban and non-contiguous land added to reserve across the country.

Without converting the purchased lands into reserve lands, Squamish Nation will face challenges incorporating its purchased lands into its land management regime. See the full policy evaluation here.

Local Governments Fill the Treaty Gap

On November 1, 2011 Kitselas First Nation and Terrace signed a Joint Venture Agreement and a Revenue Sharing Agreement. The Joint Venture Agreement enables the two parties to develop and market an Industrial Park and other commercial lands, together. The Revenue Sharing Agreement divides the benefits from the development and marketing of the joint venture lands.

Objectives of the Agreements are to:

• optimize return on investment;
• foster the development of the regional economy;
• attract new business investment to the Terrace area;
• generate tax revenues; and
• address the Parties needs for industrial lands.

BC Municipalities and First Nations are reaching their own agreements. They are filling the Treaty Gap.

Lawyers Without Borders Supports the Hul'qumi'num Treaty Group Human Rights Case

LWBC acknowledges the merits hearing of the Hul’qumi’num Treaty Group by the inter-american commission on human rights

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.

What's the Problem with Treaties: The Harper Government Commitment?

It's difficult to say how much a single Cabinet Minister can influence the Harper Government, since the Prime Minister, in practice, is primus inter pares or 'first among equals'. It is even more difficult to say if Minister Duncan supports First Nations, let alone treaties. It is reported here that the Chief Commissioner of the BC Treaty Commission has called on the federal government to re-commit to the BC Treaty process, but was the Harper Government ever committed?

Before John Duncan was appointed Minister of Indian Affairs and Northern Development Canada, his track record with First Nations in BC was less than collegial. It is reported here that Duncan,

"...has established a record of words and deeds over the last thirty years, as a forester and parliamentarian, that amount to a crusade against Indigenous peoples—stoking flames of racial bigotry, attacking constitutionally-protected aboriginal rights, and advocating for their assimilation and permanent status as impoverished, second-class citizens in Canada." 

Many questions remain. Is Minister Duncan responsible for re-committing the federal government to the BC Treaty Process; or is it the Prime Minister calling the shots. Is the call to shut down the BC Treaty Process music to the Ministers' ears; or, is the Harper Government ready to re-commit?

Growing international pressure, and the Cohen inquiry don't leave much opportunity for the federal government to commit or re-commit to the BC Treaty process. Look for advances at the In-SHUCK-ch negotiating table for signs of life in the BC Treaty process.

Metro Vancouver Disbands Lower Mainland Treaty Advisory Committee

In a move to save over $300,000, Metro Vancouver cuts funding to the Lower Mainland Treaty Advisory Committee, citing a failure to see progress at the negotiating table. Observers say First Nations are "opting to instead pursue land development and business opportunities on their reserve lands." See full story here.

In related news, the same committee, recommended to take away on-reserve residents right to vote in municipal election, citing representation without taxation, here.

What's the Problem with Treaties: The Top 5 Reasons First Nations Object to Treaties

Top 5 Reasons First Nations Object to Treaties

1. Not enough land (and/or cash).
2. No compensation for past injustices.
3. Not enough annual fiscal financing to cover start-up and operating costs.
4. Doesn't believe provincial government should be party to negotiations.
5. Don't want lands transferred from federal jurisdiction to provincial jurisdiction.

Top 5 list was generated after reviewing several First Nation complaints and positions. Other notable issues relate to incentives for economic development (i.e. the OSR issue), governance (e.g. Gitxsan alternative model), and of course some groups just don't accept Canada or BC on principle. Please feel free to make a case for a new list.

Treaties continue to be a vital tool for the protection of First Nations’ land, rights, culture and identity.

The Pacific Business and Law Institute must be predicting a federal re-commitment to the BC Treaty Process because it is organizing a two day conference on treaty making in BC, with a focus on post-Effective Date challenges. See the agenda here.

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.