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  • Unfinished business


    Katherine Palmer Gordon
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    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.”

     

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    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.”

     

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    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.

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