BC Treaty Commission Annual Report 2004

[$289 million for Talks]

Excerpts from the BC Treaty Commission Annual Report for 2004

". . . the new relationship being sought is beginning to take shape for some First Nations."

"Of key importance is the need for interim measures as an early form of mutual recognition pending the completion of treaties."

February 24, 2005

The Treaty Commission allocates negotiation support funding so that First Nations can prepare for and carry out negotiations on a more even footing with the governments of Canada and BC. For every $100 of negotiation support funding, $80 is a loan from Canada, $12 is contribution from Canada and $8 is a contribution from BC.

Since opening its doors in May 1993, the Treaty Commission has allocated approximately $289 million in negotiation support funding to more than 50 First Nations — $231 million in the form of loans and $58 million in the form of contributions.

At the treaty table, four First Nations are negotiating to conclude treaties over the next several months with the governments of Canada and BC. Some of the First Nations in advanced negotiations are negotiating together on governance issues, financial arrangements and taxation.

The land, cash and authority that will be transferred to First Nations through treaties are far from handouts or giveaways, as some people have suggested. These transfers come after a long history of marginalization for First Nations and should be regarded as acknowledgement and compensation, inadequate as they may be, for all that aboriginal people have endured and lost.

http://www.ainc-inac.gc.ca/bc/ftno/bctc04/toc_e.html

Soowahlie Chief Doug Kelly , recently elected to the First Nations Summit executive, says the governments of Canada and BC want to cut a simple, straightforward real estate deal whereby First Nations surrender all of their title and rights for land and cash.

“In order to maintain confidence in the system, we have to produce results. When you are investing the kinds of funds that are being invested, there has to be some measurable progress and we haven’t had it to date. The only way we are going to achieve measurable progress in this treaty negotiation process is when Canada and BC throw out this failing notion this is simply a real estate deal.

“That’s not what we envisioned (when the treaty process was established)…Rather than a simple, straightforward real estate transaction, what we are talking about is sharing. How are we going to identify opportunities by which we share resources, revenue, power, land and all of the challenges associated with planning and managing resources and land?

“When you talk about sharing agreements, and you mean constitutionally protected sharing agreements called treaties, that gives you certainty…over how decisions will be made about future developments… it gives you certainty about how benefits will be shared …and it’s free of litigation.

“It’s absolutely critical that we support those tables that are in agreement-in-principle negotiations today. Because whether we like it or not, the BC government and the federal government treat those greements in principle as models for future treaty agreements. That’s the cold hard reality. So the more support that we can offer those four or five tables that are in the midst of AiP negotiations right now, the more we can support them with reaching agreements on policy that will carry forward, the better for us.

“We need to be able to support one another to make certain that, yes, the deals need to be acceptable by those First Nations at that particular table but they also need to be acceptable to the tables that are following right behind them.

“It’s not fair that Canada and British Columbia are saying these will be odels for future agreements. And we know they will be. So, we have to work together. We have to advance proposals that make sense for everyone that is following. We have to support them.”

Tsawwassen First Nation Chief Kim Baird has said a treaty is “not utopia with a bow on it.

“It’s a toolbox, with some resources and money and jurisdiction to help us rebuild our community. It’s going to take a treaty to give us the best set of tools to move beyond our current socio-economic conditions.

“I’ve also found that now that we are in more advanced discussions of treaty negotiations, there’s a great deal of increased credibility; people view my community a little bit differently than they did a year ago. That’s a positive benefit.

“I don’t think we can get improved community conditions under the Indian Act . I don’t think we can necessarily get it through litigating these issues. I think that negotiation is a practical way of advancing our interests as a community without losing our identity or without giving up anything.”

Lheidli T’enneh Band Chief Barry Seymour has said there are several reasons why his community has selected to negotiate a treaty. “First and foremost, we feel that it will clearly define our relationship with other governments. Secondly, it will provide us the tools to achieve our goals and objectives for our community members, now and into the future.”

Lheidli T’enneh and the city of Prince George signed in 2002 a memorandum of understanding and communication to establish a new relationship where their mutual interests are given full expression and consideration.

Sliammon Indian Band Chief Maynard Harry has said, “A treaty is one tool among other tools for developing a community.”

“Lots of opportunity has come via the treaty table. So the treaty table has been very instrumental in having the voice of the Sliammon people heard.”

But Chief Harry also recognizes there are other tools available to the Sliammon people, for example, economic development and building relationships with local and regional governments.

Sliammon has formalized its relationship with both the corporation of the district of Powell River and the region’s largest employer Norske Canada through protocol agreements that commit the parties to work together for mutual benefit.

Maa-nulth First Nations Chief Negotiator George Watts advises First Nations to “destroy the myth that treaty is going to be the be all and end all. It isn’t…it is part of the answer. And it’s a big part because it leads to a lot larger land base and it leads to governance…but there are a lot of other things that have to happen along with treaty and I would say that one of the biggest things is the education of our people.

“Develop your constitution and then everybody will have ownership of it. They will know exactly what their government is going to look like. They will know who is eligible to vote…all of those questions will be answered.

“At the end of the day, it’s not the document, it’s whether or not the community changes.”
Robert Morales, Hul’qumi’num chief negotiator , said the major reason the Hul’qumi’num Treaty Group has engaged in the treaty process is a resolution of the land question.

“What the elders are saying is that their ideal resolution would be that Hul’qumi’num would get 100 per cent of the land back. But because in this territory, there are so many small and large private landholders, that is not likely going to happen. And that’s been a difficult message to give to the elders.

“So, a new relationship then I think is one that we have been saying, ‘Well, if Hul’qumi’num doesn’t get back a large part of their original territory, that we ought to be part of the decision-making process in the territory.’

“Co-management is really about joint decision-making — participation in the actual decisions. We’ve broken the concept of co-management into two categories: one is co-management and the other is cooperative management.

“What we’ve heard from the federal government is, ‘Well, you can’t fetter the discretion of the minister.’ And we recognize that, in Canada, we are part of a federal state…we’re not advocating for sovereignty and separation. We recognize that we still are going to be part of Canada; we’re still going to be part of BC. But, there is the notion that just because the minister retains ultimate authority, doesn’t mean that everyone underneath the minister also has ultimate authority. So, let’s create opportunities for the Hul’qumi’num to be able to participate in a very active way, including the decision-making.

“The sea and the resources of the sea have always been an important part of the culture. And that was, of course, the rationale — used by the early administration, (Governor James) Douglas and others — for having such small reserves…that you would be able to harvest from the ocean.

“What we are pushing for is that Hul’qumi’num ought to have recognition of ownership of foreshore and seabeds.

“I believe there has to be sufficient land and resources to sustain an economy; in effect jumpstart an economy after the treaty is concluded.

In terms of a tool, I am sure that the treaty will provide jurisdictional opportunities and with jurisdiction, of course, will come further opportunities to create that kind of a vibrant economy.

“So, we see building a new relationship as involving the Hul’qumi’num people.”

Hupacasath First Nation Chief Judith Sayers , speaking at the Treaty Commission conference, said, “A treaty was intended to provide us with lands, resources and money to ensure our future.

“I remember one time sitting at the treaty table and hearing the provincial negotiator say to me, ‘We’re not here to meet your needs, we’re just here to give you a start.’ And I was really shocked because I thought that’s what we were there to do: to maintain a way of life, to provide a future for our children.

“Economic independence; two words, but they mean so much. We don’t want to rely on transfers from the government. We want to be able to use the lands and resources as we always did to make our own way.”

Elmer Derrick, chief negotiator, Gitxsan Hereditary Chiefs says, “The Crown forced Indian reserves on the Gitxsan and corralled people into small tracts of land where they became totally dependent on someone else for their wherewithal.

“The Crown conquered the Gitxsan by legislation and denied them access to their own resources by public policy that has shifted resource rights from local people to foreign corporations.

“The will to fight back has never gone away. The battlefield was leveled in 1982. The Constitution Act, 1982 recognizes and affirms aboriginal and treaty rights. The Gitxsan played an instrumental role in getting that particular milestone.

“In 1984 the Gitxsan continued on the journey to correcting the imbalance in the relationship with the Crown by launching the Delgamuukw court case. The case went through three levels of the Queen’s own court until the final word came down from the Supreme Court of Canada in December 1997.

“The final decision on Delgamuukw can be summarized as such: the Gitxsan have never ceded Gitxsan title to the Crown; the Gitxsan can be very Gitxsan within Canada and do not have to be Indians; the Gitxsan can decide to what uses their lands may be put; Gitxsan title has an inescapable economic component; and the pre-existence of the Gitxsan has to be reconciled with Crown title.

“The Gitxsan have continued on with the journey by engaging in reconciliation and treaty talks. The Crown continues to stall mostly because of ignorance.

“The learned justices in the Queen’s own higher courts have charted a reasonable course that will enable the Gitxsan’s pre-existence to be reconciled with Crown title. The path is clear and the hurdles are small.

“The Gitxsan have declared that they are willing to negotiate a new relationship that is not as burdensome on either party. The Gitxsan have stated that the courts do not suggest that Gitxsan title nor rights have to be forfeited to the Crown.”

Derrick says the Gitxsan are close to an understanding with the BC government on a new relationship, particularly on forest issues, which are a major concern. He is also confident the Gitxsan will be able to come to an understanding on the allocation, management, protection and enhancement of salmon.

“We have no interest in enlarging reserves. What we do want is to co-manage our territories, and the resources within those territories, for the benefit of the Gitxsan and for the Crown, too.”

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