Treaty
– Advancing Reconciliation
Ravi de Costa
Research Fellow
Institute for Social
Research
Swinburne University
rdecosta@swin.edu.au
1. Why might the
British Columbia process be worth considering?
This paper will try to
explain what relevance the British Columbia treaty process might have for
indigenous and non-indigenous people in Australia thinking about the value of
treaties. The majority of the paper outlines the BC process and analyses its
current malaise, concluding with some insights tailored for the Australian
situation.
There are some striking
differences between Australia and Canada, not least of which is that in Canada,
indigenous rights are protected by the Constitution: section 35 of the 1982 Constitution
Act protects ‘Aboriginal and treaty rights’, including those treaties to be
concluded in the future.
Moreover, Canada has a
long history of making treaties where Australia has none. Agreement-making
between the Crown and First Nations began in the 17th century and
are ongoing: recently, the creation of the new territory of Nunavut in 1999 was
a partial settlement of the Inuit claim against Canada, and the conclusion of
the Nisga’a Final Agreement in 2000 show a different attitude presides in the
Canadian political firmament to that in Australia on this question. Though it
is frequently overstated, Canadians have a long-standing commitment to
negotiating difference that has much to do with the political and cultural
presence of the Quebecois.
However, there are many
obvious comparisons. Both countries have a Federal system of government –
although it must be pointed out that constitutional authority over indigenous
peoples is distributed differently: in Australia the power to legislate over
matters pertaining to indigenous peoples is held concurrently by the States and
the Commonwealth; in Canada, section 91(24) of the British North America Act
(the original Canadian constitution) reserves that power for the Federal
government. In practice, negotiations in Canada have tended to involve the
Provinces and Territories to a significant extent.
Both are common law
countries where recent case law has proved highly significant in the
development of indigenous rights. Indeed, jurisprudence in such crucial
judgments as Mabo and Delgamuuk’w shows the complementarity of
the Australian and Canadian jurisdictions and the strength of the bond between
them.
Critically, both
countries are historically dependent on commodities and resources. Just as
Australia has been economically dependent on iron ore, wool and coal, Canadians
rely on minerals and agricultural products for both employment and export
dollars. Forestry products are particularly important: British Columbia employs
nearly 100,000 directly in forestry industries; out of a workforce of 1.9
million, another 200,000 work in activities dependent upon forestry. Also, the
forestry sector in BC accounts for approximately CAN$16B in export revenue,
which is half of the total of all exports from the Province, and nearly 5% of
total exports from the whole of Canada.
This means that resources
and particularly forestry have a strategic position in any negotiations, but
also means that the economy as a whole is highly susceptible to poor outcomes
in that sector.
Finally, the demographic
patterns of the two countries are highly similar, with both exhibiting
urbanisation of about 80% and showing particular geographic concentrations: in
Australia along the coasts, particularly the southern and eastern coasts, and
in Canada, along the southern border with the United States. The consequence of
this in Canada is that negotiations over indigenous claims have been able to
move relatively swiftly in areas where there is a low non-indigenous population
and where subscription to the land base is not that intensive.
Though I noted above the
long history of Canadian treaties, BC is not really part of the treaty-making
history (though there are a few small exceptions – the Douglas treaties
negotiated on Vancouver Island in the 1850s; and the ‘Barricade’ treaties
around Prince George in the early 20th century). The so-called
‘numbered’ treaties signed by Canada between 1871-1921 stopped at the Rocky
Mountains. From the earliest days of the colony until the 1980s, the Province
of BC acted as though the land it occupied was terra nullius.
Only in the late 1980s
was it that the Province accepted that indigenous entitlements meant that
negotiations were essential. Examining the attempts to reach treaties in BC
through the 1990s may then be highly instructive for the Australian debate.
2. How did the BC
process originate?
As I have said, it was
not until the late 1980s that BC accepted the need for negotiations. Why did
they do it? The simple answer is that indigenous peoples in BC forced the
Province to the table (I will generally refer to indigenous people in BC as
Natives; I reserve the term First Nations for those Native groups who are
participating in the treaty process).
Native people have always
asserted their rights, especially over depredations on their land. In 1887 a
delegation of Nisga’a chiefs from northern BC paddled canoes to the capital
Victoria, a distance of over 1000km. Premier William Smithe rebuffed their
entreaties, telling them that they could not enjoy rights as they were ‘little
better than wild beasts of the field’.
A steady accumulation of
grievances in the first decades of the 20th century led the Canadian
government to change the Indian Act, the colonial legislation
administering indigenous affairs. However, the government did not respond
honourably to the claims, but placed a ban on land claims activity – including
such activities as hiring a lawyer – that was to remain in place from 1927-1951.
After 1951, two decades
of Native organisation and lobbying led to the White Paper of 1969, ‘A Just
Society’. Again, the Canadian government thought that Native claims could be
dealt with without true negotiation, the White Paper framing the benefits of
‘full’ Canadian citizenship as an enlightened assimilation. It was roundly
rejected by Native people across Canada.
Meanwhile, the Nisga’a
Tribal Council pursued their land claim in court: in 1973 the Calder
judgment recognised that the Nisga’a held aboriginal title before settlers
came, though the judges split over the question of the continuing existence of
their title. In their obiter dicta, the judges decided that Aboriginal
title did not depend upon the 1763 Royal Proclamation, but on proof of
occupation since ‘time immemorial’; extinguishment by the Crown must be ‘clear
and plain’.
The Federal government
response (unlike here) was not to legislate these newly recognised common law
rights into the narrowest confines possible, but to set up a process for
negotiation – the Comprehensive Claims process. These are bipartite
negotiations between the Federal government and particular indigenous claimant
groups. The assumption of the Federal government was that these negotiations
would extinguish indigenous rights.
Premier Okalik spoke
optimistically of one outcome of that process, the creation of Nunavut in 1999;
Don Nicholls was somewhat less generous about the outcome of the James Bay and
Northern Quebec Agreement in 1975, which saw his people repeatedly returning to
court to have provisions of the Agreement honoured.
Though this was Federal
policy, and the section 91 powers notwithstanding, the involvement of the
Provinces was always going to be very important: south of the 60th
parallel, the bulk of Crown lands are controlled by the Provinces – in BC it is
nearly 95% of the provincial land mass. Crown lands (including leases and
licences) are really only those that can be subject to claim because an abiding
assumption of treaty-making in Canada is that the granting of fee-simple
extinguishes aboriginal title, though this has not been fully tested. Yet in
BC, the Social Credit party (akin to the National party in Australia)
steadfastly refused to negotiate. They argued that the act of confederation had
automatically extinguished all remnant title, or alternatively, that section
91(24) meant that they had no obligation to be involved.
There was growing
dissatisfaction amongst BC Natives with both the pace of the comprehensive
claims policy and the nature of the agreements being reached – the Federal
government for some years had a ‘one at a time’ policy, meaning a static and
increasingly fractious queue formed. The response of Natives was to take direct
action across the province.
First, this took place on
reserves, where the focus of protests was on the lamentable state of services
in Native communities. By the 1980s, however, protest began to be aimed at the
resources industries, particularly forestry. Logging roads and train lines were
blocked by Native activists; some groups cut logs ‘illegally’; others sought
and won injunctions against development on their traditional territories.
One case in the BC Court
of Appeal, known as Martin et al, was particularly significant: in
granting an injunction against the loggers who wished to clear fell the
territory on Vancouver Island, Justice Seaton said he could not see how any
title or rights could survive such an act. While the claim was determined, no
such activity could take place. Moreover, the Justice stated that it was the
public’s expectation that such a claim would be negotiated. By the late 1980s
the effect on the forestry industry was massive. David Mitchell – executive in
a logging company and a BC cabinet minister – was quoted as saying, ‘It is no
longer certain who controls the forests in BC.’ The unchecked exploitation of
natural resources in the Province without regard to Native wishes was at an
end.
I point this out to
dispel any idea of an awakening sensitivity to the moral and historical claims
of BC Natives. Only one person I spoke to during the course of my research saw
anything other than conflict as the basis for the treaty process that was to
begin in the 1990s. Mike Harcourt, Premier of BC from 1992-1996, suggested that
it was more to do with an enlightened shift of values across the Province. If
that is true, it was a forced enlightenment to be sure: the government of BC
was forced to negotiate by the tactics of Native people who severely disrupted
the resource economy of the province through litigation and direct action.
Whether Australia can approach a treaty process from some other way remains to
be seen; the example of British Columbia is not encouraging for those that
believe Australian treaties will be the natural dividend of the extensive
social investment in reconciliation.
3. The BC process and
key institutions.
The SoCred provincial
government created a Task Force in 1990 to advise it on how to respond to the
impasse of confrontation. Completed in June 1991, the Task Force Report is
unique, I believe, in such reports in that the government accepted its
recommendations in their entirety and they did so within a matter of days. Key
recommendations of that report were:
Ø For a negotiated tripartite process (that is
Canada, BC and individual indigenous groups);
Ø To create a Treaty Commission that would act as
‘keeper of the process’;
Ø That all issues of importance to the parties
should be discussed;
Ø And that while treaties were being negotiated,
interim measures should be reached quickly to deliver justice to Native people
and to protect their traditional territories from ongoing exploitation.
In 1992 the provincial
government changed and the incoming New Democratic government created the BC
Treaty Commission and quickly legislated to enable it to draw on public funds.
Continuity was maintained and political bipartisanship became the norm. Three
‘principals’ emerged in the process: BC, Canada and the First Nations Summit
(FNS).
Ø The government of BC was represented by its Treaty
Negotiations Office, formerly in the Department of Aboriginal Affairs but now
part of Attorney-General’s department – perhaps an indication of the
increasingly legal flavour of treaties;
Ø The Federal government also has a Treaty
Negotiations Office, a branch of the Department of Indian Affairs and Northern
Development.
Ø Finally, the FNS is a peak body comprising all the
leaderships of those indigenous groups choosing to participate in the BC
process.
Together, the three
principals appoint Commissioners to the Treaty Commission, set the parameters
of certain features of treaty-making such as on interim measures, and attempt
to resolve problems with the process as a whole. The principals do not
negotiate the substance of agreements: that happens on treaty ‘tables’, which
comprise BC and Canada as well as individual First Nations, such as the
Snuneymuxw First Nation or the Nuu-chah-nulth Tribal Council. The participation
of individual First Nations in the process was voluntary but thresholds would
have to be met (see stage 1 and 2 below).
However, the lack of
explicit guidelines for the participation of First Nations has led to a number
of disputes over the legitimacy of those negotiating treaties as well as
raising the possibility that agreements will finalise ‘post-treaty’ boundaries
on lands that are disputed. Another issue is the distinction between treaty
negotiations as political or legal: there is no obligation that the indigenous
people negotiating treaties that will invariably include discussions about land
or resource rights, are actually the holders of the legal title relevant to
such discussions. The only modern agreement reached in BC (through the
Comprehensive Claims process not the BC process), the Nisga’a Final Agreement
(NFA) clearly suffered from this problem. I return to these issues below.
The role of the BC Treaty
Commission (BCTC) is to act as facilitator for negotiations, with a
Commissioner acting as the Chair for all table meetings. The BCTC also has the
task of declaring individual treaty tables ‘ready’: that is, that the three
parties to negotiations each have a clear mandate to be at the table (see stage
2 below). Furthermore, the BCTC undertakes research on the process, preparing
reports for the principals on challenges to treaty-making (for a wealth of
information on this process visit the BCTC website: www.bctreaty.net).
However, by far the most
important task of the BCTC is to distribute funding to First Nations for the
purposes of preparing their negotiations. An early agreement of the principals
was that funding to First Nations would be 80% through loans, with 20% in the
form of grants. Though this was contrary to existing practices, it was defended
as a way for First Nations negotiators to show accountability for funds. Loans
are repayable seven years after each table reaches an Agreement-in-Principle
(see stage 4 below) or 12 years after the first loan if talks break down. As I
explain, it is a decision that many First Nations now regret.
There are six stages to a
negotiated agreement in BC:
1.
Filing a Statement
of Intent (SOI): the onus is on First Nations to give a rough indication of
territory and a sense of who they are and how they are organised.
2.
Preparing for
negotiations and assessing ‘table readiness’: here all parties must demonstrate
their mandate, their capacity to negotiate and ratify agreements; what measures
for public observation and consultation there are. Once this is done, the BCTC
declares that table ‘ready’ to begin talks.
3.
Framework Agreement
negotiations: initial negotiations to set an agenda for talks. For example,
what structure would the table have: would there be side-tables on wildlife or
taxation issues? Also, what is the range of issues that the parties would like to
discuss? A completed Framework Agreement requires ratification by the First
Nation community.
4.
Agreement-in-Principle
(AIP) negotiations: the first substantive negotiations. The aim of which is to
create draft chapters on each of the areas of discussion. Requires ratification
by the First Nation community as well as passing through the BC legislature.
5.
Negotiation of the
Final Agreement: working out the precise text that is to receive constitutional
protection; also a process of legal review undertaken at this point. Requires
ratification as before, including passage through Provincial and Federal
legislatures.
6.
Implementation:
transfer of lands, resources, cash and authority, as stipulated in the Final
Agreement.
The BC process is unusual
in the distinct and formal role that ‘third-parties’ have been accorded. At the
top of a pyramid of consultation is the Treaty Negotiation Advisory Committee
(TNAC), comprising 31 resource industry, labour, social and environmental
organisations, which work with Canada and BC to identify the interests on which
province-wide negotiating mandates are based. Regional Advisory Committees
(RACs) are similar bodies of representatives from key economic and social
sectors that support clusters of negotiations in particular regions and
localities. There are 18 RACs in the province.
A special role has been
given to local governments through the creation of Treaty Advisory Committees
(TACs) in 17 regions of British Columbia. Usually this means that several local
governments work together as the boundaries of First Nations’ traditional
territories rarely coincide with those of local government. A single member of
each TAC sits on the province’s negotiating team as an ex-officio member.
As local government
exists under legislation at the pleasure of the province, many First Nations,
historically reticent about the involvement of the Province anyway, see this as
quite objectionable: in the Lower Mainland area around Vancouver, there are
five treaty tables and one TAC, the Lower Mainland TAC. On all but one table
progress toward an agreement has been negligible, yet the TAC is a
well-organised body committed to the process and with resources to do both
policy development and participate in negotiations. The example begs the
question whether in some instances treaty-making meets non-indigenous needs
better then those of First Nations.
4. Issues at the
tables.
As I noted above, a
central recommendation of the Task Force report was that there be no limits on
the substance of treaty talks: the parties would be free to introduce any
issues that were of concern to them. Discussions range from talks about
municipal services such as signage and garbage disposal right through to the
constitutional status of the final agreement. However, several key areas have
emerged:
Ø Interim measures: what happens before treaties are
finalised? The Nisga’a negotiated from 1976 until 1998 – the NFA was finally
constitutionally protected in April 2000. The length of their campaign points
to the unwisdom of leaving the issue of justice until an agreement is reached.
Ø Compensation: First Nations want compensation,
particularly for lands but also for the accumulation of social and cultural
damage caused by colonisation. They see this as a matter of historical
reconciliation as well as giving them the basis for economic
self-determination.
Ø Land quantum: this refers to the ‘package’ with
which BC and Canada will settle individual First Nations’ claims. For example,
the Nisga’a received approximately 2000 square kilometres and CAN$190M. On
other lands, the Nisga’a retain interests but not full control. So far in the
process, BC and Canada have made seven offers of such packages to particular
First Nations at stage 4: none have been accepted, several have been seen as
deeply insulting. A number of First Nations have prepared their own offers to
present to government.
Ø Self-government: new political authorities are
almost certainly going to be an outcome of treaties as the current arrangement
of ‘bands’ authorised under the Indian Act is universally criticised.
However, what are to be the powers of the new authorities created by treaties?
Which courts will oversee their legislation? Will there be democratic
representation in accordance with the Canadian Charter of Human Rights?
Ø Fiscal relations: governments see an important
outcome of treaties as the removal of the tax-exempt status of those Natives
living on reserves, and the ending of zones selling tax-free tobacco and other
activities. But also, how will general social services be funded on First
Nations’ territories?
Ø Resource management: what will be the level of
involvement and control First Nations have over environmental management and
development? What categories of land will there be? Will First Nations get to
manage or co-manage resources on some categories of lands?
Ø Certainty: what is to be the status at law of this
agreement? Can it be revisited and under what circumstances?
5. Obstacles to
agreement.
I have mentioned that one
major agreement has been concluded in BC in recent years. The Nisga’a Final
Agreement, referred to several times already at this conference, was finalised
in 2000 after nearly 25 years of negotiations. That agreement, however, was not
reached through the BC treaty process, but was an outcome of the Federal
Comprehensive Claims policy.
Nisga’a leaders hailed
the agreement as the end of colonialism for their people but it was contested
bitterly by many throughout the province once the substance of the negotiations
became public in February 1996. The resources sector attacked it as ruinous for
the economy; the BC Liberals attempted to have the BC Supreme Court rule the
Final Agreement unconstitutional; the BC government was only able to pass the
enacting legislation by force of numbers and by closing the debate; the Gitksan
and Wetsuweten Nations, whose territories adjoins that of the Nisga’a, attacked
the Nisga’a’s settlement for dealing with lands that the Gitksan and Wetsuweten
claimed as theirs; many Natives, including Nisga’a community-members saw it as
a sell-out of indigenous rights. Clearly the non-partisan acceptance of the
need for treaties so widely proclaimed at the beginning of the 1990s had
vanished. Everyone looked worriedly at the Nisga’a Final Agreement for signs
that it might become a precedent or template for the BC process.
The status quo in BC is
that after nearly nine full years of the treaty process there are no treaties.
It was never thought that it would be a speedy process, though Prime Minister
Brian Mulroney said in 1992 that he thought everything would be wrapped up by
2000. Lack of any agreements, however, is causing alarm. Moreover, the fact
that of 40 tables in the process, none is even in Stage 5 suggests some
significant problems are being experienced. The reality at tables is much
worse.
A major problem for
treaties is the obligation of ‘swallowing the whole pill’ at once: rather than
signing off on sections of an agreement that work and implementing them while
difficult issues continue to be discussed, the process obliges all parties to
reach an agreement on everything at each stage. This is an immense technical
undertaking in which huge resources are required and consequently huge costs
incurred. The Province is quite stretched as there are few negotiators on its
team. The consequence is that there are very few negotiating days on each
table: 1 day of negotiations every 6 weeks was a common figure quoted to me in
1999-2000. In this situation, turnover of government personnel at tables is
common, causing a loss of table ‘memory’.
The problem is even more
frustrating for First Nations, who see their loans pile up while their
achievements are nil. While litigation is certainly expensive, negotiating
treaties in BC has turned out not to be cheap. The presence of large liabilities
on the books of small First Nation community organisations has greatly impaired
the access of many to commercial credit. Meanwhile, their communities
experience ongoing privations and social dysfunction. Many First Nations are
deprioritising treaty negotiations and concentrating on basic community
development, while others have formally abandoned the treaty process
altogether. There is a lot of talk in BC about ‘incrementalism’ now – this
would provide for phased implementation of agreements, such as the land
component being fast-tracked while the thorny issues of governance or
compensation are left for another day.
Aside from the problems
of process, there are a number of issues over which the governments and First
Nations appear to be in ‘two solitudes’. Unfortunately, these appear to be
stumbling blocks at many tables and core issues in the process of treaty-making
as a whole.
On interim measures there
has been a total lack of substance from the Province. While there have been 70
interim measures reached (at least half in the last three years) there is
little or no sense of land protection in them. The BCTC identified only one
measure as being the protection of lands from resource development while
negotiations were underway. Most of the measures are for modelling of economic
activities that may take place after treaties have been reached, such as
aquaculture or forest management. These are not sums that provide any sense of
social justice but rather are aimed at keeping First Nations in negotiations.
Meanwhile, development activities continue on First Nations’ traditional
territories. As the Chief Treaty Commissioner of BC informed me in 1999,
Right now First Nations are largely saying, and I think quite legitimately that, ‘it’s just not on that we continue sitting negotiating at treaty tables accumulating huge amounts of debt when the very assets, the very resources that we’re talking about are rolling by our offices on logging trucks’.
On compensation there is
a rigid set of contrary positions. The governments refuse to acknowledge
compensation in treaty negotiations. BC has been coy about this, saying that
they see the cash components of treaty packages as providing the basis of
economic development, not as reparation for past injustices, though First
Nations can see treaty settlement packages how they want. The Federal government says that its
response to the Royal Commission on Aboriginal Peoples called ‘Gathering
strength’ (especially the healing fund for victims of the Residential schools)
exhausts its responsibilities for past injustice. The FNS has recently passed a
motion that no Final Agreements will be reached that do not deal explicitly
with compensation. These positions look increasingly fixed. Moreover, it is
difficult to see how agreements might be reached in urban areas without massive
cash compensation because of the lack of unalienated Crown land.
The challenge of
self-government is immense and reproduces national tensions. The Liberal
government of Canada has just introduced governance legislation into the House
of Commons; the national peak body for Natives, the Assembly of First Nations
totally opposes the bill, saying that any governance initiatives must come from
Natives themselves. In BC, the debate has boiled down in the last 12 months to
one primary issue: should First Nations’ governing authorities have a delegated
or municipal status akin to that of local government (though the exact
relationship is not quite clear), or should it be of a completely different
order. The recently-elected Liberal government in the Province is committed to
the former (see discussion of the referendum below) while First Nations are
determined to achieve the latter. This debate is taking place in a context of
non-Indigenous fear, where the spectre of Native governments running roughshod
over the rights of non-Natives is frequently invoked.
On the issue of land
quantum, I noted that of the seven offers made by the two senior governments to
First Nations, none has been accepted. The experience of the Lheidli T’enneh
Band near Prince George is indicative. They identify their traditional
territory as 4.6 million hectares; the governments’ offer in mid-2000 was for
2900 ha, of which nearly 700 ha was reserve lands they already held. The Band
felt that an amount of 280,000 ha, or 6% of traditional territory was
appropriate to their needs. In rejecting the offer as an insult and an act of
bad faith, the Chief of Lheidli T’enneh pointed out that had his people reached
a treaty 100 years before (their lands adjoin those over the Alberta border
which are part of Treaty 8) they would have been entitled to 14,000 ha.
First Nations suspect a
formulaic approach is being taken by governments, with a figure of about
$60,000 per person seeming to be an underlying figure for the development of a
total land and cash offer. The Lheidli T’enneh are currently in a Freedom of
Information action to procure documents showing how the senior governments
arrived at their offer.
An issue which has
steadily emerged in recent years is the possibility that discussions at tables
may be creating a future legal minefield. One clear goal of treaty discussions
is to make rights clear, or to ‘define the undefined’. Yet there is no
guarantee that the representatives of First Nations at tables are actually the
holders of the legal rights of particular communities, or entitled to speak for
those people. In 1999, the BCTC issued a confidential report that raises ‘the
spectre of negotiations being carried out with a First Nation that is not coterminous
with the nation that holds title to a particular territory’. This could spell
disaster at a number of tables, with doubts cast over the validity of framework
or interim agreements and great uncertainty about the status of debts already
incurred. The report remains confidential and the issue is far from resolved.
Perhaps the most
intractable conceptual difficulty is over the ‘certainty’ of final agreements
to be reached through the process. A rich vocabulary has evolved within treaty
drafts to express certainty, with overtly extinguishing phrases like ‘cede,
release and surrender’ giving way to softer language like ‘modify and release’.
What is being made certain? Is it the case that indigenous rights are being
made certain through their explicit definition and protection? Or do treaties
serve as an indemnification against the future assertion of indigenous rights?
While agreements will
have section 35 protection, recent jurisprudence in the Delgamuuk’w
judgment defines aboriginal title as subject to ‘national interest’
infringement. The issue of infringement of treaty rights has yet to be tested
and it may be that ‘certainty’ cannot be negotiated but must be further
litigated.
6. The future for
treaties in British Columbia.
As I have suggested, the
status quo in BC is bleak. There are no agreements and none on the immediate
horizon. The total costs incurred continue to grow: CAN$180M has been disbursed
to First Nations ($150M as loans) for the purpose of negotiating agreements
that seem remote; total government expenditure on treaty negotiations has not
been adequately calculated but in direct and indirect costs it must be
significant. The ‘third-parties’ have committed significant funds and created
research and lobbying structures as well.
There is much talk about
the ‘incrementalist’ approach to agreement-making I described above. Also,
there is some discussion beginning on the value of working out ‘templates’ or
even Framework agreements for the whole province or regions, so that individual
tables’ workload could be reduced and the process expedited. The idea of
regional or province-wide solutions, however, cuts across the
‘nation-to-nation’ quality that many First Nations have seen as a crucial
aspect of treaty-making. It is far from certain that this will be resolved in
the near future: political differences amongst First Nations have so far been
contained by the minimal and sporadic role played by the Native peak body, the
First Nations Summit. Moving down the ‘template’ path may highlight these
differences once more.
There is also the growing
disaffection of many Native groups for existing negotiated processes. The
Canadian Supreme Court’s Delgamuuk’w judgement of 1997 has significantly
expanded the nature of aboriginal title in Canadian law, yet in the view of all
the peak indigenous groups in Canada, neither the BC process nor the
Comprehensive Claims process has responded adequately to this massive shift.
Many First Nations are actively reconsidering litigation as an option; others,
believing that the burden of proof of title has shifted away from Natives onto
governments, are simply exercising their rights on their traditional
territories.
Without doubt, the
biggest single threat to the treaty process in BC has been the change of
government in the province in May 2001. The NDP had held government from 1992
and had been consistent backers of treaty-making; the opposition BC Liberals (a
completely separate organisation to the national Liberal party, which holds
government under PM Jean Chretien) were supportive in-principle, but highly
critical of the practice of treaty-making which they described as ‘shadowy and
unobserved’. Last year the BC Liberals annihilated the NDP, winning 77 out of
79 seats in the provincial legislature.
A long-standing
commitment of the Liberals in opposition was to ‘relegitimise’ the process
through a referendum – a commitment first made soon after the substance of the
Nisga’a negotiations became public. As I also mentioned, the Liberals tried to
have that Agreement declared unconstitutional by the BC Supreme Court – they
argued that it changed the constitution without being a formal amendment which
would need public ratification through a referendum, not simply passage through
the BC and Federal legislatures. Though their legal argument was unsuccessful,
their politics were clear.
Immediately upon taking
government, Premier Gordon Campbell referred the referendum issue to the BC
Select Standing Committee on Aboriginal Affairs. This committee was solely
comprised of Liberals after the two NDP members of the legislature declined to
participate in what they felt had become a fait accompli.
After holding hearings
throughout the province, the Committee proposed two broad measures: a process
of reconciliation; and a referendum containing up to 16 questions that would
determine the provincial government’s mandate for being in the treaty process.
The referendum questions were a mix of features that were either already an
accepted part of the process, those that were meaningless or immeasurable, and
those that may simply end the process through First Nations’ withdrawal.
The government did not
respond to the suggestion for a process of reconciliation but set about
implementing what had always been its intention, to hold the referendum. This
was a voluntary mail-in ballot that took place from early April until May 15
when polling closed. The questions had been cut down to just eight, and were as
follows:
Do you agree that the Provincial Government should adopt the following principles
to guide its participation in treaty negotiations?
1. Private property should not be expropriated for treaty
settlements.
2. The terms and conditions of leases and licences should
be respected; fair compensation for unavoidable disruption of commercial
interests should be ensured.
3. Hunting, fishing and recreational opportunities on
Crown land should be ensured for all British Columbians.
4. Parks and protected areas should be maintained for the
use and benefit of all British Columbians.
5. Province-wide standards of resource management and
environmental protection should continue to apply.
6. Aboriginal self-government should have the
characteristics of local government, with powers delegated from Canada and
British Columbia.
7. Treaties should include mechanisms for harmonizing
land use planning between Aboriginal governments and neighbouring local governments.
8.
The existing tax
exemptions for Aboriginal people should be phased out.
Much of the vacuousness
that had come from the Committee recommendations was winnowed out, but
considerable vagueness remained. What, for example, constitutes ‘respect’ for
existing leases and licences, or ‘fair’ disruption of them? Which ‘recreational
opportunities’ should be retained?
Several questions endorse
current practices, such as the issue of private property (though it may be
difficult to resolve treaties in urban areas without some access to
expropriation of privately held lands, either that or massive cash payouts),
and compensation for disruption of extant non-indigenous interests.
However, in my opinion
one question threatens the viability of a negotiated process in BC, that is
questions 6 on the character of self-government.
The volatility of the
issue of self-government is difficult to overstate. For the bulk of indigenous
commentators on this issue, the right of indigenous communities to govern their
own affairs derives from their ongoing sovereignty, and should not be seen as
granted in any way from colonial authorities. This is the
philosophical/symbolic issue: most First Nations see as obnoxious any equation
between the forms of authority they hold and those powers held by local
governments existing under provincial legislation. As a practical matter, First
Nations are highly unlikely to accept any form of delegated authority, as it
leaves them open to constrictions of that authority. This is especially the
case where scrutiny by the Province of indigenous self-government arrangements
is a strong possibility.
The potential disaster of
this referendum is that, because it is being held under the terms of the BC
Referendum Act (1996), its outcome will be binding on the government which
initiates it. That is to say, if any of the eight questions receives a positive
vote of more than 50% of validly cast ballots, it will oblige the BC government
to go to the table with that position: the questions are not indicative but
legally binding. This means the government’s assertion that this is not a
referendum on minority rights disingenuous: treaties are negotiated statements
of the content and character of Native rights; limiting the legal scope of one
party’s position as will happen through this vote, does restrict the parameters
of any new definitions of Native rights.
There was considerable
opposition to this referendum: not one First Nation endorsed it. Indeed, the
FNS created a ‘war council’ to oppose it. The Treaty Commission repeatedly
questioned the value of the whole exercise, and doubted how it could be a
constructive contribution to solving the challenges of treaty-making. Numerous
civic groups campaigned against, with innovative and colourful strategies to
register ensure maximum disruption of the ballot and maximum confusion over its
outcome.
Of 2.1 million ballots
distributed by Elections BC, about 760,000 valid votes were returned. The
results will be released next week but from what I have said, it will be clear
that some monstrous results are possible.
For example, if 380,001
people vote yes to question 6 of the referendum, it would mean that the BC
government was obliged to negotiate treaties that created Native
self-governments as delegated or municipal entities only. Little over one in
six voters could hamstring the negotiations in this way. Many, if not all First
Nations, are likely to walk away from the process under these circumstances.
Moreover, they would have
a potential new option to litigate open to them. Recent jurisprudence in Canada
has developed the concept of ‘good faith’ negotiations between governments and
Natives, the Supreme Court stating in the Luuxhon judgement that
although governments are not obliged to negotiate, once they commence
negotiations they are obliged to do so in good faith. It is doubtful whether a
retrospective move of the goalposts such as I have outlined could possibly
constitute good faith negotiating.
Perhaps the voters of BC
will have thought through these issues and have considered the proposals to be
too dangerous for a process that has created significant public expectations
and absorbed significant public funds. Perhaps my analysis is somewhat
alarmist.
However, this invites the
question of why the government would expose itself to such a possibility? In
1999, while they were still in Opposition, I outlined the Liberals’ referendum
plans to the Chief Commissioner of BC. This is what he said to me at the time:
We’d be reminding them of the commitments that they’ve made and the substantial investment that each of the parties has made over the past seven years to negotiations, and we’d encourage them to uphold their commitments and to make this treaty negotiation process work … Canada and British Columbia’s institutions and legitimate processes for giving effect to (treaty commitments) are well articulated in the constitution and the traditions of the federal and provincial bodies … You don’t need to count hands amongst the democratic majority to determine what the rights of a numerical minority are. That just seems mischievous.
The consequence of this
referendum – whatever its result – is definitely the creation of mischief: many
months, if not years, are going to be spent working out and probably litigating
what the government’s new positions can or should be at treaty tables. Already
a full year has been wasted, with BC effectively freezing debate at tables on
many issues since it took office last year. Another example of the Liberals’
vandalism of the process is their recent decision to cut provincial funds for
the ‘third-party’ consultative bodies I introduced earlier. In light of their
criticism of the process throughout the 1990s as ‘shadowy and unobserved’, this
seems like sabotage.
It is then naïve to
simply put this down to ‘mischief-making’. Another explanation sees the
referendum as a calculating and devious response to change the political and
social climate in which the claims of indigenous peoples in BC are heard. In a
way entirely reminiscent of John Howard’s tolerance of Hansonism as ‘free
speech’ that lead to a flourishing of division and cultural conflict in
Australia, the BC Liberals will have counted on the disruptive possibilities of
a neo-populist referendum on the rights of indigenous people. Not only must
they have considered possible outcomes such as the one I suggested to you, they
also must have conjured with the likelihood that the referendum would see an
‘us versus them’ mentality given free rein. The presence of ‘white pride’
groups urging positive votes in the referendum has been widely reported.
An even more troubling
analysis is that the resort to a referendum reveals the provincial government’s
fundamental lack of both capacity and will to conclude agreements that are
reached through a fair and honourable process. Realising that it cannot
conclude agreements at tables that satisfy First Nations and also the often
fundamentally opposed resources sector and their rural dependents, as well as
assuaging the bulk of British Columbians who want social moderation but fiscal
conservatism, it has adopted the strategy of sowing salt into the fields. The
referendum is not simply mischievous, it is astonishing in its cynicism.
7. Questions for Australia
This process will provide
food for thought for people considering treaties in Australia. Some obvious
questions include:
Ø Who treats?
Fred Chaney spoke of ATSIC as the ‘primary voice’ for indigenous people in this country; I believe this on the matter of treaties that indigenous people are yet to confirm this. As Tim Rowse pointed out in his concluding recommendation, the difficulties for ATSIC in obtaining such a mandate will be considerable.
From experience with BC I
would make the following remarks: first, in BC both government and
conservatives have been remarkably reluctant to exploit the political
differences amongst Native people; Australians cannot be confident that such a
maturity would prevail here. Moreover, the BC process was mostly insulated from
problems that could arise from the facts of indigenous diversity. Where it was
not, such as not ensuring that territorial ‘overlaps’ between First Nations are
sorted out, significant problems remain. Indigenous people here will have to
work out whether treaties are to build on or in some way use native title: if
that happens, who treats will be strongly correlated with the holders of title.
Regarding the
non-indigenous side, the question of who treats will be determined by the level
at which indigenous people wish to negotiate. An agreement (whether a framework
or something more substantial) that is to have constitutional protection must
have cultivated Commonwealth support through the negotiation process. The
involvement of the States will be no less important: no constitutional
amendment is likely where a majority of the States vigorously oppose it. A
treaty or agreement about specific issues, such as the provision of services,
might only involve the States or even just local governments. In BC, the
comprehensive nature of the negotiations has meant that every organised
interest plays a role in negotiations; but this has clearly been an obstacle to
progress and is regarded by First Nations as a distortion of the
‘nation-to-nation’ character that negotiations should take.
Ø
What should a treaty
contain?
Should agreements involve
discussions about the existing legal rights of indigenous people, or is the
uncertainty over what these are an impediment to agreements?
At a meeting in Melbourne run by ATSIC in February 2002, there was great
reluctance amongst Kooris there that native title would be the basis of the
treaty process; that would surely not be the case in other communities but it
points to a challenge to be faced here.
In BC, theoretically
anything can be discussed and negotiated. However, in practice this is not the
case. As I have said, issues like compensation, private property, and joint
environmental and resource management over the whole of traditional
territories, are simply not on the table from the government point of view. The
whole question of land quantum is something most First Nations feel is not
being negotiated either, with the prevailing view that the governments are
simply using a formula to determine their offers. The referendum result is
likely to mean that further issues become non- negotiable.
It is difficult though to see how a process without a substantive basis on
providing social justice and the protection of indigenous rights would be
significantly different from the reconciliation process.
Ø
Would framework
agreements work?
This is an idea with growing support in Australia it seems. Patrick Dodson proposed it in his Lingiari lecture of 1999, ‘Until the chains are broken’, and suggested it could ‘set out a path’ to resolving unfinished business, harnessing the energy of the reconciliation movement. He saw such an agreement as taking the form of an Act of Parliament that obliged government to both put the issues on the table and deal with them. It would be a framework in which Aboriginal peoples could fill in the details. This is the sense in which many at this conference have spoken of a framework agreement.
There is no precedent for this in BC. What ‘framework’ there is simply
describes the process by which negotiations should take place. Governments have
created ‘mandates’ to justify their participation in negotiations while keeping
the content open, at least in theory. First Nations have specific things they
wish to achieve in negotiations; the idea that there should be some necessary
outcomes at every table is not supported by First Nations.
First Nations did, however, agree to some co-operation when they created the First Nations Summit – what I described as one of the three ‘principals’ – but this body has a fairly general role in the process. So far it has acted as a mouthpiece for indigenous discontent, as well as entering into some discussions with the two governments. It is not yet a policy-making body nor is it likely to become so in the near future.
There is long-standing resistance to this whole idea amongst First Nations in BC. The political history of indigenous collectivism – what is often called pan-Indianism – is not especially successful. Deep divisions exist between indigenous groups organised as Tribal Councils and those in Bands, or differences between coastal and interior Natives. A ‘consensus’ statement issued by all major indigenous groups in BC in February 2000 agreed only that government policy had not responded appropriately to the Delgamuuk’w judgement.
There are signs that some First Nations committed to negotiating are swallowing
their concerns about the need for nation-to-nation negotiations and talking
about regional or province-wide approaches to some of the more complex and
intractable questions at tables. However, the huge social, economic and
cultural variations between First Nations will remain an impediment.
Ø
Should there be an
independent authority overseeing the process?
The statutory powers of the BC Treaty Commission are to distribute funds and to
ensure the ‘timely’ conduct of negotiations. Part of the latter role sees the
BCTC accepting SOIs and declaring tables ready; part of it is to ensure that
obstacles to negotiation are identified and resolved. In both these tasks it is
criticised by First Nations: on loans, many see the Commission as a proxy for
governments’ fiscal paternalism; on timeliness, the criticism is made that the
Commission is too soft on the government intransigence that is the real
obstacle to progress. The Commission’s response to affirmative results in the
referendum will be an intriguing test of its independence.
Considering the lack of respect for statutory human rights authorities in this
country, one cannot be optimistic about the creation of an effective,
well-resourced body to oversee agreement-making. The grudging, formal
lip-service paid to the Council for Aboriginal Reconciliation as it asked
governments to live up to their reconciliation promises, should be a further
warning. Any statutory authority can only be effective where it has clear and
substantial powers: should governments agree to a process of negotiations and
then create an independent body, its powers will be a good index of the
government’s intentions.
Ø
What is a treaty
for?
Is a treaty an agreement between nations? A partnership, of ‘separate equals’
like the Two-row wampum that Don Nicholls spoke of?
Are negotiations a way of finalising indigenous claims and grievances against the colonial state?
What positions might be available in between these two extremes?
In my view, the underlying logic of the BC process is finalising. The
government view seems to be ‘let’s finish this off’: pay-off the claimants and
make sure that they can never reopen comprehensive negotiations, no matter what
happens or how the world changes. Governments want to recreate the
pre-confrontation period in BC on the bulk of First Nations’ traditional
territories, where the Province had an unfettered access to valuable resources.
Their approach is to trade-off rights to a fraction of those lands. Nobody
calls this extinguishment because everybody knows what that means, but
the intention seems clear enough.
Michael Mansell said yesterday that he could not imagine any indigenous leader anywhere in Australia going into a community and ‘talking extinguishment’. There is a significant body of indigenous opinion in Canada that sees treaties as much closer to the extinguishment end of the spectrum than the recognition and partnership end. Indigenous people in this country will need to assess carefully whether they can avoid these pitfalls.