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  • Journalism: The need to expedite final treaties with First Nations

    Owen Stewart
    Nuchatlaht First Nation, BC government make closing arguments in Vancouver courthouse amidst renewed calls on former attorney general David Eby to change course on province’s "dishonourable" approach.
     

    səl̓ílwətaʔɬ (Tsleil-Waututh), xʷməθkwəy̓əm (Musqueam), and Skwxwú7mesh (Squamish) Territories (Vancouver, B.C.) – Supporters rallied outside the B.C. Supreme Courthouse in Vancouver as the Nuchatlaht First Nation returned to court. This marks the beginning of closing arguments in Nuchatlaht’s groundbreaking title case, which has been fraught with hypocritical arguments from the B.C. government’s lawyers.
     
    “IT’S BEEN A LONG BATTLE but it’s for a good reason. These people next to me, this is why we fight,” said Nuchatlaht Tyee Ha’wilth Jordan Michael alongside Nuchatlaht Nation citizens on the steps of the B.C. Supreme Courthouse. “Here we are. We’re not going anywhere.”
    Nuchatlaht are taking British Columbia to court in order to reclaim part of their traditional territory on Nootka Island, and their leaders are working to restore their stewardship of the area after decades of mismanagement. Nuchatlaht and provincial lawyers are set to make closing arguments over the coming weeks. After Nuchatlaht filed their claim in January 2017, the trial began on March 21, 2022, with 40 days of evidence heard by the court before breaking in late May to draft final arguments. Evidence in support of the Nuchatlaht included submissions from some of the leading archaeologists and anthropologists in the country. 
    “We’re here today for solutions. We’re here for recognition. Today we’re here to prove that my Tyee Ha’wilth and our ancestors used every square inch of our territories. And then the province has the nerve to say we abandoned our land,” said Nuchatlaht House Speaker Archie Little. “We’re a very proud people. We’re a very strong people. We know who we are. And we’re going to stand up for what we believe in.”
    Nuchatlaht are anticipating what a favourable ruling would mean to the future of their hahoulthe (territory) and community. Despite years of failed treaty negotiations and distasteful litigation conduct, Nuchatlaht are again calling on leaders in the provincial government to amend their approach to the Title case and support Nuchatlaht’s vision for the future of its territory. 
    “We’re here to prove our inherent rights for land and title. We have proven who we are and where we come from, and we’re not going anywhere,” said Nuchatlaht Councillor Melissa Jack. “We’re fighting not just for ourselves but for everybody.”
    Despite the B.C. government’s distasteful and time-consuming strategy, Nuchatlaht are optimistic about their odds of success and plans to advance critical work for the people and the land. A final decision is expected to be handed down by the B.C. Supreme Court by early 2023. Reclaiming Title to Nootka Island will enable the Nuchatlaht Nation to pursue an ambitious vision for the future of Nuchatlaht people.
    The B.C. government has directed its lawyers to advance multiple arguments against Nuchatlaht that are in contravention of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) and the province’s legislation upholding it. Those arguments include that the Nuchatlaht have no substantial connection to their territory, were too small to hold title, and did not utilize inland resources. The province is also arguing that should the Nuchatlaht lose, they should pay the province’s legal fees. It’s a surprising threat given the government's commitments to reconciliation and own conduct which extended the length of the trial.
    Crown lawyers received direction on Nuchatlaht’s Title Case from former attorney general David Eby, who recently resigned his position to run for leader of the B.C. NDP and become the next premier of British Columbia. Nuchatlaht called on Eby repeatedly before and during the trial to amend directions to Crown lawyers in fighting Nuchatlaht’s case, to be consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and his government’s own commitments. 
    As Eby seeks the role of premier, Nuchatlaht is again calling on him and his government to end its adversarial approach to Nuchatlaht’s Title case, recommit to advancing reconciliation with First Nations in keeping with UNDRIP, and ending the hypocritical approach to his own government’s issued directives and policies. Leadership in this case means supporting Nuchatlaht’s Title and vision for a just, abundant, and sustainable future — one that upholds Nuchatlaht’s management of its own territory for the wellbeing of the people and land.
    For more on the Nuchatlaht’s case see this report by Judith Lavoie.  

    David Broadland
    PREMIER JOHN HORGAN recently claimed he couldn’t resolve the tense and expensive standoff on Pacheedaht traditional territories between old-growth forest defenders and the RCMP. Why? Horgan told reporters, “The critical recommendation that’s in play at Fairy Creek is consulting with the title holders. If we were to arbitrarily put deferrals in place there, that would be a return to the colonialism that we have so graphically been brought back to this week by the discovery in Kamloops.”
    Actually, Horgan’s government had already signed an agreement (download at end of story) with the Pacheedaht in late February in which the economically impoverished First Nation agreed to accept a small annual payment “to accommodate any potential adverse impacts on the Pacheedaht First Nation’s Aboriginal Interests resulting from Operational Plans or Administrative and/or Operational Decisions.” In other words, logging.
    How small? The Pacheedaht accepted the equivalent of glass beads: $242,388 for the first year of the agreement, with no clear indication of what, if any, subsequent payments would be over the agreement’s 3-year term.
    What did the Pacheedaht have to do for that princely sum? For one thing, the band had to continue “consultation” with the Province, and to help the Pacheedaht do that the Province will provide an additional $35,000 per year to build the “capacity” within the community for consultation.
    Perhaps more significantly, the agreement requires the Pacheedaht to provide “assistance.” Such assistance would take two forms.
    First, the band agreed “it will not support or participate in any acts that frustrate, delay, stop or otherwise physically impede or interfere with provincially authorized forest activities.”
    Secondly, it agreed it “will promptly and fully cooperate with and provide its support to British Columbia in seeking to resolve any action that might be taken by a member of First Nation that is inconsistent with this Agreement.”
    The first part of the “assistance” portion of the agreement was aimed squarely at the defence of old-growth forest in TFL 46. The second was intended to stifle any expression of support for that defence from within the Pacheedaht, such as that given by Elder Bill Jones, Victor Peter, Katie George-Jim and Patrick Victor-Jones, all of whom have publicly supported the old-growth defenders.
     

    Pacheedaht Elder Bill Jones speaking out at the Caycuse blockade (Photo by Michael Lo)
     
    The agreement was signed on February 21, just before Teal Cedar Products Ltd filed an application for injunctive relief with the BC Supreme Court on March 4. On April 1, that application was granted by Justice Frits E. Verhoeven. Enforcement of the injunction has led to over 170 people being arrested during weeks of standoffs between police and old-forest defenders. The cost of that enforcement is unknown but likely in the millions.
    Horgan has claimed that “consultations” with the Pacheedaht are ongoing and so ending the confrontation by removing Teal’s controversial permit to log in the Fairy Creek watershed would amount to a “return to colonialism.”
    Let’s compare dollars with glass beads.
    Over the past three years, according to the ministry of forests, Teal Cedar has removed 976,000 cubic metres of logs from TFL 46, which is mainly on unceded Pacheedaht territories. At an average value of $135 per cubic metre over those years, the logs Teal removed, before they were turned into lumber and other products at Teals’ Surrey mills, had a market value of about $132 million.
    That’s over a three-year period. What will the Pacheedaht—the legal owners of the land from which those forests were removed—get for three years of being quiet?
    The Pacheedaht will receive $277,388 in 2021 and $35,000 each year in 2022 and 2023 as long as they keep “consulting.” There’s nothing in the agreement that says they will get any more than a total of $347,388.
    Compare that with the estimated $132 million worth of logs Teal will tow away to feed its mills in Surrey. For not getting involved in the old-growth controversy and discouraging band members from supporting the blockades, the Pacheedaht will get the equivalent of three-tenths of one-percent of the “fibre” value of the forest Teal removes from their property. Anyone who has visited the Pacheedaht reserve will understand why they had to sign this agreement.
    Here’s the definition of colonialism: “The policy or practice of acquiring full or partial political control over another country, occupying it with settlers, and exploiting it economically.”
    Like all First Nations in BC that have signed a Forest & Range Consultation and Revenue Sharing Agreement with the Province, the Pacheedaht also receive 3 percent of the stumpage collected by the province from logging on their traditional territory. This works out to between one-half of one percent to 1 percent of the value of the logs before they are milled.
    Green Party MLA Adam Olsen, in a widely-circulated opinion piece, wrote: “The agreement with Pacheedaht was signed in February 2021. So instead of negotiating an agreement that provides economic alternatives to logging, provides real choice to the nation, and enables the conservation of the endangered old growth in Pacheedaht traditional territory, the Provincial government negotiated an agreement that almost assured that those ancient trees would be cut. This situation illustrates how deeply disingenuous the government has been as the tension in our forests continues to grow. Rather than offer conservation solutions, the BC NDP are effectively using BC Liberal policy to put Indigenous Nations in the centre of conflicts and use the language of reconciliation to cover for their inaction. Clearly, colonialism is alive and well in Premier Horgan’s government.”
    David Broadland is grateful to the Pacheedaht for allowing public access to the extraordinary forests, beaches and trails on their unceded territories.

    Katherine Palmer Gordon
    BC’s treaty process has taken a quarter-century of effort, with only four final agreements to show for it.
    Originally published in the November 2016 edition of Focus Magazine.
     
    IN RATHER EXCORIATING TONES, Douglas White III (Kwulasultun) states, “The treaty process has become a ludicrous proposition for First Nations in British Columbia.”
    White worked for Snuneymuxw’ First Nation’s treaty team before negotiations stalled in 2001. Elected chief in 2009, in 2010 he was also elected to the First Nations Summit, the political body advocating for First Nations’ interests in the treaty process. In 2013, disillusioned by the continuing lack of progress at the Summit, he stepped down again. Three years later, White is unequivocal in his current view of the treaty process: “It’s dead in the water right now.”
     

    Doug White

    Only four treaties have been concluded since 1992, when the process began. Seven non-binding agreements-in-principle have been reached, but there is little indication they are anywhere close to finality. The remaining 49 negotiations are mired in the gulf between First Nations’ expectations for meaningful treaties and meagre government mandates that are failing to meet them. The parties have significant differences on substantial issues such as fisheries, governance, and fiscal relationships, and in the 24 years to date that the process has been underway, have failed to resolve them.
     Of particular concern is the refusal of governments to recognize constitutionally-protected Aboriginal rights and title. Kathryn Teneese, chief negotiator for the Ktunaxa Nation in southeast BC, says that flies in the face of agreed principles for negotiations set out in the 1991 “BC Claims Task Force Report,” a report approved by all three parties at the start of the process. “If you read the recommendations regarding what should be included in negotiations, they’re very clear about that,” says Teneese. “The Task Force rejected the blanket extinguishment of Aboriginal title recognized in the Constitution and stated plainly that First Nations negotiating treaties should not be required to abandon those fundamental constitutional rights.”
     Despite that, the federal and provincial governments have ever since refused to recognize Aboriginal title in treaty negotiations.
     Both Doug White and Teneese believe that may be the single biggest impediment to progress: “A treaty without recognition of title will never happen on my watch,” confirms Teneese. “Ktunaxa have never, ever given up our title nor implied that we would approve an agreement that would extinguish it.”
     

    Kathryn Teneese 

    It’s a position shared by many, if not most, First Nations. There is no way to move forward, says White, until governments are prepared to back down.
    On June 7 of this year, the federal and provincial governments and the First Nations Summit released a report entitled the “Multilateral Engagement Process to Improve and Expedite Treaty Negotiations in British Columbia.” The report proposes seven actions to advance progress on modern treaty-making, including consideration of substantial changes to government mandates. Does this finally spell the change that First Nations are looking for?
    White doesn’t believe it for a moment: “It isn’t going to make the slightest bit of difference,” he says scathingly. He’s read the report: “There is nothing new here that we haven’t seen before and which hasn’t already failed. For goodness’ sake,” he exclaims, “talk about ‘expediting’ the treaty process was already old back in 2010 when I joined the Summit, with nothing to show for it. It’s foolish to pretend it was meaningful back then. Clearly, it still isn’t.”
     On its face, the new report does come across as a tired rehash of old ideas. Most of the proposals echo recommendations made in a 2002 report by the same parties’ similarly-entitled “Improving the Treaty Process,” which included improving mandating processes (e.g. enabling negotiators more leeway to accept proposals at their local negotiating tables); using incremental agreements to make faster progress; and addressing the rapidly-mounting debt faced by First Nations in negotiations (estimated at about $500 million, which means that some First Nations could owe more than their eventual capital transfer). The recommendations gained little traction and the report was shelved.
     Similar recommendations were made again in 2011 in yet another report on expediting the process commissioned by then-Minister of Aboriginal and Northern Affairs Jim Duncan and undertaken by consultant Jim Lornie. Lornie called on governments to re-evaluate their mandates, including the way in which Aboriginal rights are recognized and expressed in treaties. Yet again, nothing happened. Why should anyone expect anything different this time around?
     Provincial Minister of Aboriginal Relations John Rustad responds: “Because things are different now. All of the parties are more engaged. I think we have a real opportunity here.” When Rustad is asked whether that means his government is willing to make substantial changes to treaty mandates, however, he passes the buck: “I understand the federal government is looking at these issues, and they do need to be addressed, but we aren’t ready to discuss that together yet.” When will they be ready? “We haven’t set a timeline to discuss it.”
     No federal government representatives were available for comment prior to deadline, despite several interview requests. But Cheryl Casimer, a current Summit representative, says she is confident the federal government is prepared to step up to the plate. “Ottawa proposed undertaking the report in the first place,” says Casimer, “and federal officials have been more than willing throughout to discuss all the issues.”
     Despite Rustad’s talk of engagement and “real opportunity,” Casimer isn’t anywhere near as sure about BC’s commitment. It’s a significant concern: “I think we need a strong champion at the provincial level, or this won’t work. To be honest, I don’t think we have one.”
     Certainly, Premier Christy Clark has not been a robust advocate of the treaty process. Instead, Clark’s government appears to prefer negotiating agreements outside the treaty process, such as forestry tenures and pipeline benefit agreements.
     “That’s all very well,” observes Casimer, “but these are short-term agreements and they’re not constitutionally protected. They aren’t treaties and they aren’t going to last. I’ve got this sense,” she adds, “that the provincial government is simply continuing an agenda of ‘look what we can do without treaties’ and there isn’t any real commitment to this.”
    Like Casimer, Kathryn Teneese has serious concerns about the provincial government: “My impression is that Canada is genuinely interested in looking at ways to address the issues substantially. They seem to be talking the real talk for the first time. I’m not getting that feeling or messaging from BC at all.”
    Teneese also thinks that the provincial government has a different agenda: “In recent times BC tends to want to find the ‘easy’ button instead of dealing with resolving the hard issues, like reconciliation of Aboriginal title. It’s fundamental to achieve that in a meaningful way to reach treaties, but every time you hear from Rustad and Clark, it’s all about these piddling little short-term resource agreements they have with First Nations. They aren’t reflective in the slightest of what we are trying to achieve in constitutionally-protected treaties.”
    After two decades of struggling to make progress, Teneese is angry. “I’ve met with Rustad and he goes on about how frustrated he is that after all these years there is no progress, and I think, how dare he say that? He has no idea, or maybe he’s just chosen not to listen to us about what it will take to move us forward. Mostly it seems to be about tweaking the status quo.”
     Despite all that, says Teneese, Ktunaxa are committed to staying the treaty course. Being in the process has helped Ktunaxa build stability and capacity, and establish predictability in its approach to various issues at the table. “We have an excellent track record now that shows we’re in a position to move into a different and better relationship with governments. We’re going to keep working towards that goal. Perhaps I’m naïve, but I truly hope the new report signals that the governments are willing to do the same and that there’s light at the end of the tunnel.”
    “It’s fundamental, however,” repeats Teneese firmly, “that our rights are recognized in order for us to reach a meaningful government-to-government relationship. We just have to look back at why we started the treaty process. We wanted to resolve the issues without extinguishing our Aboriginal title.”
    “That is still the imperative that keeps us here and which must be achieved,” she concludes. “I can’t accept the approach to co-existence with First Nations that has ruled the day for the last 150 years, denying the existence of our Aboriginal title and rights. It’s unfinished business. It can’t stay this way.”

    Katherine Palmer Gordon is a former BC Chief Treaty Negotiator. She is currently working on New Zealand’s final treaties with First Nations there.

    Briony Penn
    Reflections on the Great Bear Rainforest Agreement cannot leave out Chief Qwatsinas.
     
    WITH AN ASSIGNMENT TO SUM UP the Great Bear Rainforest Agreement in 1500 words, I thought of Steinbeck’s quote. “It is advisable to look from the tide pool to the stars and then back to the tide pool again.” He was talking about the meaning of life but figuring out the Great Bear Rainforest Agreement is about as baffling and existential. The metaphor is also a good one to establish my limited credentials.
    The tide pools of the Great Bear Rainforest (GBR) are where I spent my time over the last two decades—far away from the stars. The galaxy of globe-trotting gals shaking hands with the industry strong arms and regalia-clad chiefs are the ones to sum up the insider story. I had the plodding role of a naturalist, pointing out names of sea stars.
    But when you’re pottering around in the tide pool, you do get to see who paddles by—film crews, politicians, people with brief- cases, young people on surf boards, paddleboards, sailboats, rowboats—joining what Haisla elder Cecil Paul called the “magic canoe.” You catch bits of their conversations, but, even better, you are out there with the locals who are in charge of food-collecting and decision-making on the coast. So this is what I gleaned.
    The ink might be dry on the final Great Bear Rainforest Order but don’t think it’s over. And don’t think this agreement spans two decades; it spans two centuries of indigenous challenges for sovereignty.
    There are some pretty interesting stories about the shimmering constellation of negotiators, but the most important stories are out in the shimmering bioluminescence of the plankton. The inhabitants of the 6.4 million hectares have such biological and cultural richness that it isn’t surprising that so many waded into this intertidal fray. And like the intertidal zone, the negotiations have been a complex ecosystem with every kind of relationship forged—from symbiosis to opportunism and downright predation.
    Everyone has some role, if not two, and they are usually paradoxical.
    Few will disagree that the formal agreement is unprecedented in our colonial history, and was achieved by dogged perseverance. This will be a textbook case study that scholars Chief Qwatsinas will muse over and point to for the skilful mapping, the detailed (and baffling to most) classification of forest types and stages, and the delineation of oral history that dictated with western precision where industrial logging could continue over a numerical 15 percent of the land base. The remaining 85 percent of the land, some of it scalped already, is being mapped with multiple colours into reserves for old growth, spirit bears, cedar, salmon, rivers, future old growth and cultural features.
    For all the efforts to map this agreement into existence, it is the resurgence of Indigenous sovereignty and natural law that is shaping it.
    Just before Ed Moody, Chief Qwatsinas, of the Nuxalk First Nation (Bella Coola) died in 2010, he wrote a declaration called The Phoney Great Bear Rainforest Deal in which he set out his objections to a process that he felt compromised cultural and ecological integrity. At his memorial it was said that he continued “fighting to his death for the integrity of our traditional laws and the security of the Nuxalk territories.” His testimony is an important part of the story.
    At the time, his declaration raised important questions about land use planning processes, power brokering, First Nations sovereignty, and the application of natural laws. Qwatsinas was part of the original grass roots resistance to logging back in the 1990s. He blockaded and campaigned relentlessly with his trademark humour for the protection of Nuxalk territory.
    The chief ’s lecture tours took him not just all around the province, but the world, starting in 1995. He worked to persuade CEOs of German paper companies to stop buying pulp from the logging companies and human rights organizations in Switzerland to take an interest in indigenous culture.
    In 1997 he was arrested for contempt of court for blockading Western Forest Products and Interfor for “relentlessly clearcutting our rainforests” at Kimsquit and Itsa.
    Much of the early groundwork for the market campaign was laid by Qwatsinas, bolstered by the swelling contingent of environmental groups and activists from both urban and First Nation communities. They were clearly having an impact on global markets when large contracts for Great Bear pulp and paper started to be cancelled. Moody’s words rallied many around him: “There should be more support for the forests, and the life in and around it. The animal life, marine life, and bird life; the environment and its integrity. Then, there is support needed for sovereign First Nations who believe in saving these things.”
    What happened next could be characterized as a transformational moment, when barnacle becomes limpet, with shifting positions. An abridged account of this time was penned by some of the lead negotiators: Art Sterritt, Gitga’at First Nation member, who, until his retirement this September, led the alliance of Wuikinuxv, Heiltsuk, Kitasoo/ Xaixais, Nuxalk, Gitga’at, Metlakatla, Old Massett, Skidegate, and Council of the Haida Nation, under the banner of the Coastal First Nations; Merran Smith, the face of one of the three environmental groups (Greenpeace, ForestEthics and Sierra Club of BC) under the banner of Rainforest Solutions Project (RSP); and Patrick Armstrong, the industry guy who was around the longest representing logging companies under the banner of Coast Forest Conservation Initiative (CFCI).
    Dallas Smith, who headed up the six Kwakwaka’wakw First Nations alliance, the Nanwakolas Council, was another key figure.
    Making a long story short, RSP (enviros) joined CFCI (industry) and became the Joint Solutions Project (JSP)—making for an alphabet soup of acronyms and personalities—with a promise to come to an agreement.
    The meat of the agreement was: No logging in 100 valleys in return for no bad press.
    Meanwhile the First Nations, with their increasing legal standing in the courts, bypassed the old land use table and went directly to government. The bargaining chip of the enviro groups with First Nations negotiators was a commitment to kickstart a conservation economy that could leverage government. With a big infusion of new money from conservation funders, the fund was targeted to the health and well-being of coastal First Nations. It will take many books to capture all that went on over the next 15 years but it is tide- pool politics like never witnessed in BC before.
    For some, like Chief Qwatsinas, however, the backroom deals presented a problem: As he put it, “When they are bound to such processes, First Nations cannot badmouth logging practices, timber markets, logging companies, or the official agreements. The process on the table is a legal contract with an official gag order. The First Nations who are caught up in these processes have essentially relinquished their sovereignty and historical status as a First Nation. They become bound by legal and contractual routes whereby they try to get as much as possible, financially and economically. What they possessed becomes a social and economic bargaining chip, part of a ‘business’ arrangement. The ancestral and historical connections to their Lands and Rights are lost and a new definition or term must be adopted.”
    Chief Qwatsinas’ declaration in 2009 came out of his frustrations as the clear cutting continued in his territory. In 2006, The Strategic Land Use Planning Agreements, which had codified how each nation was going to work with the provincial government to develop a Land and Resource Protocol, were landmark documents. The first conservancies off-limit to industrial logging were established. Companies agreed to an additional 50 percent off-limit area and were asked to follow the principles of Ecosystem-based Management (EBM).
    Out in the tide pools, you witness where “the spirit of the agreement” wasn’t quite met. Chief Qwatsinas was not alone in his dissatisfaction with the process, though few expressed it so bluntly. The complexity of the deals struck behind closed doors made it virtually impossible to raise anything but questions. Environmental organizations around the province that felt sidelined were having similar frustrations, many believing the GBR process was muddying the waters for their issues. You only have to look around BC to see that it has experienced two decades of relentless industrial development.
    Quoting Qwatsinas again: “These sorts of tradeoffs and deals are also used on the environmental community, for example in the case of the so-called Great Bear Rainforest Agreement. These are parallel tactics to those used historically against the First Nations...I think industry and government do not like to have this kind of thing exposed because of their desire to profit from developing Indian lands.”
    Since Chief Qwatsinas’ death, though, there have been continued transformations. According to natural laws, this is to be expected. The sheer beauty and power of this coast has kept disparate people talking against all odds. The unlikely allies, united over their love of this place, have ultimately strengthened us and shifted world views. First Nation sovereignty has enabled coastal nations to take on oil and gas industries, government to govern- ment. From these communities, those of us on the settler side learn to recognize and deal with the deep psychological damage of internal conflicts, fanned by more powerful sources.
    The next part of the story is not etched in stone as illustrated by this recent Heiltsuk statement: “This announcement does not signal the end of our work. Our people have been here for tens of thousands of years, practising our laws and customs that outline our relationship to our territory and our responsibility to steward it...it is important to recognize that the burden of implementation and monitoring for the Order will fall disproportionately on the Indigenous peoples— like Heiltsuk—who live on the front lines, and whose lives and livelihoods depend on the integrity of our lands and waters.”
    How will we support the implementation and monitoring? How will a conservation economy support the First Nations communities? Will we provide similar commitments for the marine environment? Will agreements like this be replicated around the province or are we somewhere new now?
    Natural laws have kicked in, in more ways than we know. When the GBR exercise began, there was an assumption of climate stability. That is no longer the case. We have an opportunity as a province to shift our governance closer to natural laws. It means giving up things. When poor communities give up certain old-style financial opportunities for uncertain conservation opportunities, we need to sit up and pay attention.
    In the final days of the agreement, the Nuxalk surprised everyone with a major addition to the plan—the inclusion of over 100,000 hectares of the Kimsquit that Chief Qwatsinas died defending. That is the news.
    Briony Penn has been working in and writing about the Great Bear Rainforest for 25 years.

     
     

    Katherine Palmer Gordon
    Is the Supreme Court of Canada’s declaration of Aboriginal title the death knell for proposed resource projects in BC?
    First published in the September 2014 edition of Focus Magazine
     
    TRIBAL CHAIRMAN of the Tsilqhot’in National Government Chief Joe Alphonse, 46, was sitting in the Supreme Court of Canada on June 26 this year when it declared that the Tsilqhot’in Nation holds Aboriginal title to more than 1750 square kilometres of what is now former provincial Crown lands. “This decision will be remembered as a turning point in the history of Canada and its relationship with First Nations,” reflected Alphonse.
    Some corporate commentators were appalled—to the point of hysteria. Businessman Gwyn Morgan, writing in the Globe and Mail, described the recognition of Aboriginal title as “a recipe for investment-killing litigation” and that the decision amounts to “economic poison” for Canada, ushering in a new era of economically-devastating business uncertainty. 
    Others responded more optimistically. The BC Business Council refused an interview, but shortly after the decision was announced, Vice-President of Communications Tom Syer blogged: “Do not panic. The sky is not falling. The decision will have significant implications [but the] desired path forward is through engagement, dialogue and respectful negotiation.” 
    First Nations, of course, greeted the momentous decision with jubilation, and a strengthened resolve not to allow their hard-won rights and title to be trampled on any longer by government and industry. Several groups had previously launched lawsuits challenging Enbridge Inc’s Northern Gateway Pipeline and Kinder Morgan’s Trans Mountain proposal. Immediately after the decision, another nine First Nations followed suit. Two weeks later, on July 10, the Gitxsan First Nations served eviction notices on resource-based companies operating in their North Coast territory. 
    “This is the end,” says Joe Alphonse emphatically, “of denying First Nations’ rights and title. It’s the start of a new way for everyone.”
     
    A changed economic landscape
    Is the resource-based economy of BC dead in the water? No, says Alphonse, it isn’t. He believes the Tsilqhot’in decision could in fact be very good for the provincial economy. But the economic landscape has changed permanently, and that can’t be ignored. 
    Alphonse says that the case will, without question, help First Nations hold the wall against environmentally-devastating projects like pipelines and mines that threaten their lands and waters. In other words, companies like Enbridge, Kinder Morgan, Taseko Mining Group, and Imperial Metals just got a serious wake-up call. So did a provincial government that has been actively promoting LNG and mining mega-projects in BC.
    Says Alphonse, “People should understand that First Nations aren’t going to tolerate having these kinds of projects shoved down their throats any more. Some development proposals will always be unacceptable. They were unacceptable before the court case, they still are, and now the Tsilqhot’in title case has provided a legal club for First Nations to use to stop them.” Hence the flood of lawsuits against the Northern Gateway and Trans Mountain pipeline proposals that immediately followed the decision, along with the eviction notice served by the Neskonlith on Imperial Metals Inc after the Mount Polley dam breach.
    On the other hand, Alphonse says: “First Nations will support development that is beneficial to them, so long as it’s the right kind of development. So it should also be understood that Aboriginal title is simply a legal club we can now use to ensure we benefit from development when it’s on our lands, to ensure that we’re included in planning, in revenue-sharing, and in employment opportunities.”
    Alphonse also notes that it is up to governments and industries to put to rest any panic-stricken hype about economic uncertainty by dealing promptly, respectfully, and honourably with their First Nations counterparts. “It’s in their hands. The only thing that will perpetuate economic uncertainty now is if governments and industry simply say ‘it’s business as usual,’ and nothing changes.” 
     
    Tsilqhot’in Nation v. British Columbia, 214 SCC 44
    Alphonse was just 14 years old in 1982, the year Aboriginal rights were enshrined in section 35 of Canada’s new constitution. Barely a year later, the provincial government granted a logging licence to Carrier Lumber Ltd over the area claimed in the court case, but failed to take into account the Aboriginal rights of the Tsilqhot’in. Their objections fell on deaf ears. 
    Faced with little other choice, they headed to court with their title claim. Both the provincial and federal governments opposed it, vigourously, for the next three decades. But on June 26 this year, they lost—resoundingly. 
    Anyone who thinks this case isn’t an outstanding victory for the Tsilqhot’in—and First Nations all over the province—hasn’t read it. The 40-page unanimous decision is compelling, straightforward, and crystal-clear. 
    For the first time ever, the Supreme Court declared the continued existence of Aboriginal title over a specific area of Crown land. It also put beyond debate that a First Nation holding proven Aboriginal title has the exclusive right to decide how the land is used and to benefit from it. If Aboriginal title is established and the consent of the First Nation hasn’t been obtained to a project on their lands, the project may have to be cancelled.
    That’s not without constraint. It’s a collective right, and the land must be managed for the benefit of future generations. As well, while governments have to respect title, they can infringe it to further a “compelling and substantive” governmental objective, such as the development of agriculture, forestry, mining, hydroelectric power, general economic development, the building of infrastructure, and protection of the environment.  
    That may seem a catch-all that would allow government to pretty much do as it wishes. But the Court also set out exacting standards that must be met in justifying any incursion on Aboriginal title. The infringement must be necessary; it can’t prevent future generations from controlling and benefiting from the land; and the benefits of the objective must outweigh any other adverse effects on Aboriginal title. 
    These considerations can’t be determined solely by government, as they have in the past. The First Nation’s views must be given equal weight. In other words, it’s no longer a one-way street in which government makes all the decisions. Governments can avoid having to justify a proposed infringement, the Court pointed out bluntly, by simply obtaining the consent of the First Nation holding title in the first place. 
    While the provincial government can continue to regulate Aboriginal title lands, it has a very limited scope of authority. Regulating pest control would be fine, for example, said the Court; but issuing timber licences to a third party without justification or consultation, as it had done in this case, clearly would not. 
     
    Title here, there and everywhere
    “Proving Aboriginal title is no longer a political pipedream,” observes Victoria-based lawyer Drew Mildon. “That’s huge for First Nations across the country. Their negotiating position on any project proposals became much, much stronger overnight.” 
    Mildon, who was a legal adviser to the Tsilqhot’in on the court case, believes the case sets the stage for other First Nations across the province to bring their own successful title claims: “When you scratch the surface of British Columbia, there is existing title all over the province.” 
    Merle Alexander, a Vancouver-based Aboriginal rights lawyer, agrees with Mildon. “We’re looking at this for a number of clients, many of whom have territory that would be crossed by various proposed pipelines. It seems very likely that many of them will be able to prove title along those pipeline corridors.”
    Alexander also says that while the list of potentially justifiable infringements seems broad, it is still a significant hurdle to jump for proponents because of the criteria imposed upon it by the Supreme Court. He is particularly taken with the Court’s suggestion that the Crown avoid the risks of unjustifiably infringing Aboriginal title or having to cancel unauthorized projects by simply obtaining consent from First Nations in the first place. 
    “To date governments have taken a very narrow, self-interested approach to the issue. That’s demonstrated by their fairly consistent track record of losing court cases,” says Alexander. “This now encourages governments to be more forward-thinking and obtain consent as a starting point for all future projects on any lands where Aboriginal title is asserted. That’s also a safer bet from a strategic point of view: It minimizes the risk of litigation that the government probably won’t win, or that they’d have to cancel a project when the First Nation successfully sues for title.”
     
    Governments need to do a complete rethink
    In a radio interview shortly after the decision was announced, Union of BC Indian Chiefs President Stewart Phillip commented drily: “There’s been a deafening silence from Ottawa and Victoria. They weren’t expecting this.”
    “The federal government and British Columbia have gone very quiet,” agrees Joe Alphonse. “We’ve been contacted by some senior government staff, but I’m waiting to hear from the Prime Minister and the Premier. Stephen Harper and Christy Clark should be leading the way at this momentous time.” 
    Unfortunately, they don’t seem to be. The only statement that’s been made by the federal government was a short press release on June 26 by Aboriginal Affairs Minister Bernard Valcourt saying that the government is reviewing the decision to determine next steps. 
    MP Jean Crowder, the federal NDP critic on Aboriginal Affairs, thinks that’s unfortunate. Crowder sees the decision as an opportunity for governments to move forward by recognizing Aboriginal title and developing protocols for dealing with resource projects, so that everyone is clear on their roles and responsibilities. “That has the potential to provide the certainty anyone considering resource development is looking for. Up until now, it’s been managed on a court case by court case basis and that’s made it difficult for business to do any kind of planning.” If the decision is seen as an opportunity to manage the development process better, says Crowder, “that gives us a way of moving forward.” 
    As for the provincial government, on July 21, BC Premier Christy Clark told a Pacific Northwest Economic Region LNG conference: “To me, the decision gives us a little more certainty and that’s going to be good for the economy. We’re still working through the details and how it might change the way we do things.” 
    But the provincial government, added the Premier, has already been doing a good job on the Aboriginal relations file: “Since the Delgamuukw [Aboriginal rights] decision came out the government has learned how to deal fairly and honourably with First Nations and to change the way we do things, and that’s been really good for the economy.”
    BC NDP Aboriginal relations critic Scott Fraser thinks more is needed: “It’s time for the government to recognize that Aboriginal rights and title exist, and to acknowledge it respectfully and openly. That’s what will bring certainty to industry and to government. Continuing to force litigation will only lead to confrontation. It’s far better to get out of the court system to reconcile jurisdictional issues and that needs to be through recognition of title.”
    Merle Alexander agrees. He also points to the number of Aboriginal rights court cases that the provincial government has faced over the last decade and the fact that BC has a track record of losing them: “So the Courts are consistently finding in fact that BC is failing in its duties towards First Nations. That suggests that the Province hasn’t been dealing fairly and honourably with First Nations.” 
    There could be positive implications for the economy, he says, but only if the government and industry are willing to embrace the new legal reality facing them. “If the Premier’s saying it’s just business as usual, that they’re doing everything right already, that’s not going to be good for the economy. That’s just going to mean more litigation.” 
    Merv Child is a Victoria-based lawyer and executive director of Nanwakolas Council, which works with seven First Nations on northern Vancouver Island to support them in land use planning and decision-making. Like Alexander, Child is sceptical; he says that despite what the Premier says, the Clark government hasn’t been particularly open to positive solutions in dealing with Aboriginal issues. 
    “We keep hearing that there’s no money to do anything, for example, but I think that the government needs to think longer-term about the positive financial consequences of working with First Nations.” He agrees with Alexander that the status quo isn’t good enough anymore: “There needs to be a complete re-think of the relationship. If that happens, then there is some real promise for the future.”
     
    Taseko in denial?
    Lawyer Robin Junger is head of the Aboriginal Law group at McMillan LLP, which acts for the Taseko Mining Group. Junger is typical of legal commentators advising resource-based industry; he is adamant that the Tsilqhot’in case is not a “game-changer” that will undermine resource projects, nor does it represent “a fundamental advance” for the law of Aboriginal title.
    Junger’s opinion may help explain Taseko’s position on the case. Taseko is attempting to develop its proposed New Prosperity gold-copper mine near Teztan Biny (Fish Lake), a sacred place in the heart of Tsilqhot’in territory. The proposed mine has been much-reviled by First Nations and environmental groups, and has failed federal environmental assessment twice. Taseko continues to push the proposal, however, and takes this rather surprising position on its website: “The ruling confirms that Taseko’s New Prosperity [mine] is located in an area where Aboriginal title does not exist.” 
    Merle Alexander laughs when he reads the statement. Words like “deluded” and “deranged” pepper his response when asked if Taseko is correct in its interpretation of the case. Both Mildon and Alexander agree that the case can’t possibly be interpreted as meaning that title doesn’t exist elsewhere in the territory. 
    Alexander points out: “The Tsilhqot’in intentionally and strategically chose to claim a targeted portion of the traditional territory. If challenged, it is highly likely the Tsilqhot’in would succeed in a title claim to the New Prosperity site. The proposal has also been rejected twice because of the potential effect on Aboriginal interests being too great to justify the project as being in the public interest. That’s not about to change.”
    Drew Mildon concurs: “It seems a surprising conclusion. The Tsilhqot’in only requested a declaration of title for the areas where it was proven. New Prosperity was rejected twice because of a host of significant adverse impacts, aside from the title issue, and it is ridiculous to suggest that the ruling in any way changes that.” 
     
    Northern Gateway? Not likely
    Enbridge may be equally deluded in thinking its Northern Gateway project can still advance in the face of this decision. 
    The company’s Communications Manager Ivan Giesbrecht emailed: “This important decision affirms existing principles surrounding First Nations title in Canada. Resolving these issues provides greater clarity to complex matters and creates opportunities for respectful relations. We have more work to do and are committed to building on progress in the months ahead.”
    However, Stewart Phillip’s view, typical of most First Nations affected by the proposed pipeline, suggests Giesbrecht is overly-optimistic: “The Northern Gateway Pipeline cannot proceed without the consent of every First Nation whose territory the pipeline would cross, and we know that will never happen.” No less than eight First nations have already taken legal action, and, according to West Coast Environmental Law, over 100 First Nations have banned the Enbridge project and other tar sands infrastructure from their territories and watersheds through various declarations.
    Merle Alexander points out that if Enbridge insists on attempting to push forward with the pipeline, it will be, almost without question, the next legal Aboriginal title confrontation that industry and governments face. “And they’re going to lose. It is absolutely impossible for them to achieve consent or prove that the pipeline wouldn’t irreconcilably interfere with the enjoyment by future generations of the land it crosses.”
    Jean Crowder agrees: “I think Enbridge won’t be able to overcome the challenges it is facing now.” Scott Fraser also shares that view: “Projects like Northern Gateway have been almost universally opposed by First Nations. Without First Nation consent, both governments should be saying ‘No’ as well.” That, adds Fraser, “is going to be true of every major infrastructure project in this province unless governments engage in a real partnership approach with First Nations.”
     
    The Province and LNG
    Despite the Supreme Court ruling, Taseko, as we know, continues to push for approval of the New Prosperity mine. There is also no sign that Enbridge or Kinder Morgan are backing off their pipeline projects. Given the glacial pace at which the federal government does anything—it took four years for it to review and update half-a-dozen of its treaty mandates, announced in late July—holding out any hope that it will act in the short-term seems fruitless.
    On the Province’s side, Aboriginal Relations Minister John Rustad will only say that his government needs time to review the ruling thoroughly. However, he adds: “We’re not going to tell First Nations what we’re doing. We’re going to sit down with them and work with them to decide what the response should look like.” 
    He points out that in the last ten years the provincial government has successfully negotiated hundreds of shared decision-making agreements with First Nations on everything from treaty to revenue-sharing to conservation management: “I think the strengths we’ve developed in taking that shared decision-making approach will be very helpful in our discussions with First Nations on this issue.” 
    As evidence of that, on August 6, the provincial government announced that it has agreed with the Taku River Tlingit First Nation to protect over one million hectares of Crown land around Atlin from hydro-electric development and commercial logging.
    Of course, the Taku River Tlingit have also been very successful in Court defending their Aboriginal rights. In other parts of the province, Rustad’s words are less encouraging. Asked if the government is prepared to cancel exploration permits provided to pipeline project proponents such as Enbridge, if and when title is proven along the pipeline corridor by other First Nations, Rustad remained non-committal: “We have statutory requirements and processes to follow and we need to follow them.” 
    A successful Aboriginal title lawsuit will trump any such statutory requirements, naturally. Unfortunately, it sounds like that may be what is required. 
    In the meantime, the provincial government has also not slowed down for a moment in promoting its LNG strategy. How will it respond to continued First Nations opposition to LNG proposals? 
    Rustad professes to be “confused” by the question. “I haven’t heard any solid opposition to LNG,” he says. “There may be some local issues we will be working through—concerns about environmental impacts— but we’ve been having very positive discussions and I believe we will work through that.”
    Setting aside for a moment the fact that it doesn’t get more local than an LNG pipeline running through your back yard, or that having land declared as Aboriginal title land will likely focus such “local” issues as environmental concerns in an entirely new way, Rustad may be under a serious misapprehension that LNG faces no serious First Nations opposition.
    Chief Terry Teegee of the Carrier Sekani Tribal Council has stated repeatedly and unequivocally that the Province doesn’t have a social licence to promote LNG: “They haven’t addressed the cumulative effects of these pipelines in our territories.” Fort Nelson Chief Sharlene Gale has stated that the price her First Nation is being asked to pay to fulfill BC’s LNG strategy is too high. The Wet’suwet’en hereditary chiefs have unanimously rejected the Pacific Trails Partnership LNG proposal, and the Unist’ot’en Camp remains firmly in place in its path. 
    “There is no sweeping endorsement of LNG by First Nations, and the reason is obvious,” Stewart Phillip told Focus earlier this year. “The impacts of fracking are one of the ugliest footprints of oil and gas to witness.” 
    In the face of such stated distaste for LNG, and with Aboriginal title now in their back pockets, the likelihood of First Nations simply accepting new LNG proposals without demur seems highly unlikely, despite Rustad’s optimism.
     
    “The only route to go”
    There is a very simple formula for industry to follow if they want to keep working in Aboriginal territory, says Joe Alphonse: “Work with us, not against us.” 
    At the wrong end of the working-together spectrum is the Taseko Mining Group. The company has failed spectacularly to handle matters with the Tsilqhot’in an effective manner: “I can’t say anything good about Taseko,” says Alphonse. “They keep trying to push that mine forward but they don’t want to include us or work with us. They just see us a hindrance. But I can guarantee that a title case there will be successful. There have been a lot of archaeological finds there. It’s a sacred place.” 
    But Alphonse says Taseko stands in stark contrast to several companies that have worked closely and successfully with the Tsilqhot’in since well before the Supreme Court decision came down. All of them have been ahead of the game in seeing the value in working with the First Nation and ensuring the Tsilqhot’in share the revenues and benefits of their developments, to their mutual advantage. “It’s a win-win situation for both sides that way. Everyone gets what they need and want out of a project.”
    Working together will also be a good strategy for First Nations to take amongst themselves, believes Merv Child. Child speculates that the Tsilqhot’in decision may be a good impetus to encourage First Nations to resolve overlapping Aboriginal title claims to their mutual advantage: “The rights that go with Aboriginal title are very powerful,” he observes. “If First Nations can collaborate to demonstrate their respective occupation and use of various areas, that will allow them to leverage the Tsilqhot’in decision in discussions with industry and government to their greatest benefit.” 
    But for now, the focus is on more immediate matters, and the game-changing decision itself. “We did the impossible,” says Joe Alphonse. “We won title when governments never thought we could. Now we hope that those governments will take it seriously and that will lead to a better future for all First Nations in this country.” Indeed, some would argue it will lead to a better and more environmentally-sound economic future for all Canadians.
    The onus, repeats Alphonse, is for federal and provincial government and industry leaders to start dealing with First Nations in terms of economic development in an honourable way. “That’s where certainty lies. That’s good for everyone,” he says. “It’s the only route to go.”
    Katherine Palmer Gordon is the author of six books of non-fiction, including several BC Bestsellers and a Haig-Brown prize-winner. Her most recent book is We Are Born with the Songs Inside Us: Lives and Stories of First Nations People in British Columbia (Harbour Publishing). She has 20 years experience working with First Nations on land claims and inter-governmental relations.

    Katherine Palmer Gordon
    The BC treaty process turns 20 this month. Will it make it to 21?
    Originally published in the September 2012 edition of Focus Magazine
     
    SOMETIMES IT SEEMS THAT FOR EVERY STEP FORWARD in the BC treaty process, we take two steps back,” says Chief Treaty Commissioner Sophie Pierre, the frustration loud and clear in her voice. 
    At its inception 20 years ago, there was optimism that the treaty process would be complete by now. It’s not even remotely close. Only two treaties have been completed, the Tsawwassen and Maa-nulth agreements. 
    Three other final agreements have been signed, but that’s not as good as it sounds. The Lheidli T’enneh rejected theirs in 2007. A second vote is planned, but the outcome is uncertain. The Yale’s 2010 final agreement is on hold pending resolution of objections from their Sto:lo neighbours, who have overlapping claims to the Yale First Nation’s traditional territory and believe the Yale’s agreement infringes upon their rights. The Tla’amin approved their agreement this summer, but had to face down a court challenge to do it.
    Of the remaining 56 negotiations, only K’omoks First Nation has an agreement-in-principle, and there is little to suggest that any other deals are close to fruition. At 18 tables, absolutely nothing is happening.
    Last September, on the nineteenth anniversary of the process, Pierre openly questioned whether nearly two decades of effort and a tab of one billion dollars have been worthwhile, given the glaring lack of results. She also expressed her belief that unless significant progress was made within twelve months, the treaty process would be in grave jeopardy. 
    She was not alone in her views. In 2011, consultant James Lornie undertook a review of the treaty process for the Minister of Aboriginal Affairs and Northern Development. Lornie echoed Pierre’s call for urgent action: “My view is that if little has changed [by the 20th anniversary of the process in September 2012], the process as a whole will be at serious risk of failure.” 
    Among numerous barriers to progress Lornie identified were immensely bureaucratic and painfully slow decision-making structures within the federal government system, and inflexible federal government mandates. Lornie also emphasized the need for action to relieve the overwhelming debt burden to the government that BC First Nations have accumulated to fund their negotiations—$450 million to date and counting. 
    But if the federal government is planning to act on the Lornie report, there’s little sign of it. “There’s been no discussion on how to use the recommendations in the report, even though the other two parties and the Commission keep raising it,” says Pierre. The offline chatter is that, like every other damning report on the process that has been produced over the last decade—and there are many—the Lornie report will be quietly shelved. “Yes, I think if they had their druthers, the federal government would prefer that this report simply gets buried like all the others and doesn’t see daylight again,” agrees Pierre sadly. 
    The impenetrable federal bureaucracy hasn’t been the only thing getting in the way of reaching agreements. Back in 1992, First Nations were riding high on the crest of a wave of powerful court cases supporting aboriginal rights and title. But most of them were also starting from zero in pulling together their negotiating positions, let alone sorting out conflicts between themselves over shared or overlapping territorial claims, like the one that has the Yale stymied. 
    There has also been an almost insurmountable gap in expectations as to what treaties will deliver. Among other things, First Nations want recognition of their aboriginal rights and title and full compensation for the many losses they have suffered. But governments have been reluctant to even discuss these matters, let alone agree to them. The recalibration of the provincial and federal government systems to contemplate a whole new world of sharing lands, resource revenues, and governance authorities with First Nations was also akin to turning a ship at sea: it took an inordinate amount of time to slow down and change direction to start working with First Nations rather than continue century-old habits of either ignoring them or actively working against them. 
    That’s still a work in progress: witness the federal government’s lack of reaction to the recommendations in the Lornie report. Its aggressive support for the proposed Northern Gateway Pipeline also suggests that it has little sincere interest in reconciling Aboriginal title, at least to the lands in the pipeline’s path. The provincial government also continues to permit development activities on traditional lands despite First Nations’ opposition, forcing them into court action they can ill afford. That consumes enormous energy, and treaty negotiations are often left on the sidelines in the meantime. 
    Another factor at play has been negative public reaction to the process. In many instances, especially in the early days, First Nations faced vitriolic public opposition to their negotiating positions, often sufficient to sway nervous politicians into backing off from potential deals.
    To say it’s discouraging seems an understatement. But Lornie also said that he firmly believes significant progress can still be made. “I am optimistic that if the issues are addressed,” Lornie wrote in his report, “that will restore faith in the process and the consequential acceleration of conclusion of mutually satisfactory treaty agreements.” Pierre emphatically agrees: “We must recognize the potential that’s there.” 
    That potential is huge. Quite apart from the social and cultural benefits, it is estimated that the settlement of treaties could result in net financial benefits to BC of more than $7 billion. There is also more to show for the efforts of the last 20 years than just a handful of agreements. First Nations have benefited from two decades of research into their history, rights and title. They have also started building human resource and governance capacity and, with the help of the Treaty Commission, started working out some of their shared territory claims. 
    Outside the process, a significant number of economic deals and land transfers have been inked with the provincial government over the last few years, helping to resolve some of the issues around development activities on traditional lands and building goodwill. Last but not least, British Columbians have become more supportive, with public opinion rising to a 75 percent approval rating for treaties in early 2012, up from 65 percent in 2001.
    In the meantime, however, the clock is ticking, apparently in an empty room. “Last year I asked if we can start finalizing agreements now,” says Pierre. “A year later, I’m still asking that question, and I still don’t have a firm answer.” 
    Is the process going to fail? The costs of that scenario go beyond wasted dollars and effort; the dreams of First Nations people to see justice in their lifetimes is also at stake. Pierre is anxious, but believes the momentum can and will shift. 
    Certainly if New Zealand’s treaty experience is anything to go by, it is too soon to give up yet. The treaty settlement process started there in 1975. As in BC, there was a very steep learning curve for everyone involved. There was also great reluctance on the part of Maori claimants to be the first to sign an agreement. What if you settled for too little? Negotiating groups were extremely distrustful of government, and nervous of setting unpopular precedents for those following in their footsteps.
    It took more than 20 years to get past that initial distrust and fear of compromise. The first comprehensive agreement wasn’t signed until 1997. But the number of deals snowballed rapidly afterwards, and the rate of progress has continued to accelerate as comfort levels have risen around the impact of treaties and the financial and social benefits have started to show.
    It isn’t unreasonable to surmise that First Nations have simply invested too much in the process to give up just yet. The alternatives aren’t necessarily attractive. The cost of turning to the courts to decide these issues is prohibitive, with no guarantee of a favourable outcome. Resorting to protest action is understandably tempting, but also unlikely to achieve any mutually satisfactory resolution of the issues at stake.
    New Zealand’s success hasn’t just been a product of time but of real political commitment by the government there to conclude agreements. In the absence of the same level of commitment from both the federal and provincial governments here, how long the patience of First Nations with taking one step forwards and two steps back will continue to last is anyone’s guess.
    Katherine Gordon is a former New Zealand land claim negotiator and Chief Treaty Negotiator for BC, and a writer based on Gabriola Island. She worked closely with Jim Lornie on producing the Lornie Report.

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