Court decision underscores need to finalize treaties, says B.C. Treaty Commission boss
By Vaughn Palmer, Vancouver Sun columnist
VICTORIA — When the Supreme Court of Canada handed down the landmark decision on aboriginal title at the end of last month, it raised new doubts about the already troubled B.C. treaty process.
The big winner in the case, the Tsilhqot’in First Nation, had deliberately shunned the government-mandated process for negotiating treaties in B.C., instead proceeding through the courts to secure recognition of aboriginal title.
Moreover, Tsilhqot’in legal costs were covered by the Crown throughout the 339-day B.C. Supreme Court trial that established the basis for the finding of title, now affirmed by the high court.
Whereas the dozens of First Nations that have opted into treaty negotiations have collectively racked up hundreds of millions in debt as their share of costs in a process that has been fruitless more often than not.
The contrast has provoked dark talk about the high court having made suckers out of the First Nations that joined the treaty process, and vindicated the hardliners who disdained it.
In the 20 years since the made-in-B.C. treaty process was established by the Mike Harcourt-led New Democratic Party government, less than a third of the roughly 200 recognized B.C. First Nations have joined the process and only a half-dozen treaties have been produced.
Moreover, according to the B.C. Treaty Commission (BCTC) website, among the 60 First Nations that are officially “in,” about a third have either put talks on hold or abandoned them altogether.
Wondering what this latest development might mean for a process that was already said to be on life support, I sought out Chief Commissioner Sophie Pierre of the BCTC. She phoned in from Cranbrook, where she long served as chief of the St. Mary’s Indian Band and administrator for the Ktunaxa/Kinbasket Tribal Council.
Now in her sixth year with the commission, Pierre seized on the high court decision to reinforce the criticisms voiced by herself and the other commissioners in their annual updates on the negotiations.
“There is a whole basket of Supreme Court decisions that are in favour of First Nations,” said the chief commissioner, rattling off the list (Calder, Delgamuukw, Haida, etc.) by their legal shorthand. “It underscores the need for finalizing treaties.”
“What we need is strong mandates to get the treaties done,” and not, as she fears, a pretext for “another study of what this latest decision means.”
The latter comment was particularly directed at the federal government, which has been engaged in a series of exercises — the fiscal harmonization review followed by the results-based approach followed by the senior oversight committee — that together precluded progress in treaty talks for going on four years.
“No matter what it’s called, it’s still studying the issue rather than finding solutions,” as Pierre complained in a covering letter to the most recent annual report of the treaty commission.
The commission has also questioned the commitment of the provincial government, given a multi-year budget freeze and a preference for ad hoc deals with selected First Nations. “They deal only with those that they need today,” as Pierre said Monday.
Nor did First Nations escape mention in what the chief commissioner sees as the teachable moments provided by the Supreme Court of Canada.
“This decision underscores the need for First Nations to deal with shared territories and overlapping claims,” said Pierre, citing the high court finding that aboriginal titleholders have to be able to demonstrate that they occupied a given tract of land substantially, continuously and exclusively.
The Tsilhqot’in were able to do that for the 1,750 square kilometres of land that supplied the win in this case. But other parts of what they assert to be their traditional territories overlap with those of the Northern Shuswap Tribal Council.
The Northern Shuswap have opted into the treaty process and are in the fourth stage where negotiations are focusing on agreement in principle on settlement lands, resources and cash compensation.
Under Pierre’s leadership, the commission has been encouraging all means up to and including mediation and binding arbitration to sort out overlapping territories, including disputes between participants like the Northern Shuswap and holdouts like the Tsilhqot’in. “We have brought some tables together that have never spoken before,” she told me.
She also drew my attention to the way that successive delays are fuelling the growing anxiety among First Nations about the money they’ve borrowed to finance the costs of treaty negotiations.
The tally as of last year was half a billion dollars, spread over 50 bands and repayable out of the cash portion of treaty settlements. In some instances, the cumulative debt approaches the amount that the band might reasonably expect to receive from a treaty.
Especially galling to First Nations that joined the process in good faith while others held out for two decades and counting. In fairness, Pierre urges governments to adopt an “exit strategy” that would include at least a measure of loan forgiveness.
All part of what I took to be a warning that the latest court decision is not so much a reason to pull the plug on a troubled process as a final wake-up call if it is to be saved.