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Policy changes aimed at reviving B.C. treaty process, gaining support for natural-resource projects: Aboriginal Affairs

Lawyer Douglas Eyford named Valcourt’s 'special representative'

By Peter O'Neil, Vancouver Sun

OTTAWA — The Harper government announced Monday sweeping policy changes aimed at reviving the B.C. treaty process and convincing more First Nations they should support major natural-resource initiatives in B.C.

Aboriginal Affairs Minister Bernard Valcourt’s new approach is in response to numerous criticisms over several years that the government has been inflexible in its approach to treaties, and that it has failed to adequately consult First Nations on controversial oilsands pipeline proposals.

Valcourt appointed Vancouver lawyer Douglas Eyford, the author of a critical government-commissioned report published last December, to lead a process to “renew and reform” a comprehensive treaty process that has produced just four deals in more than two decades of talks.

Ottawa also announced a more flexible approach to treaties, saying it is open to concluding interim agreements on specific issues rather than forcing First Nations to ratify final deals before they get any benefits.

And the government is establishing clearer standards on how government and industry meet their Supreme Court of Canada-mandated duty to consult First Nations on project proposals.

The federal government said the new approach is the result of years of consultations going back to 2009, and is not related to the recent landmark Supreme Court of Canada decision that gave a B.C. First Nation title to a large tract of land.

However, Monday’s announcement reflects the government’s preference for resolving claims at the negotiating table rather than risking similar court judgments.

“We are taking action to help address some of the key impediments to treaty negotiations in British Columbia, and engaging on broader reforms to advance reconciliation across the country,” Valcourt said in a statement.

“Our goal is to work in partnership so we can seize opportunities to promote prosperous communities and economic development for the benefit of all Canadians.”

Eyford will play a key role in the government’s initiative, being named Valcourt’s “special representative” to engage with First Nations and stakeholders involved in treaty negotiations to ensure Constitutionally-protected rights are recognized and affirmed.

Eyford “will host regional meetings with negotiation partners in key areas to complement engagement by federal negotiators at individual negotiating tables,” the release stated.

“This engagement will take place over the summer and into the fall of 2014, with completion of the process by the end of the year.”

Valcourt’s announcement was made public after a meeting with John Rustad, B.C. minister of Aboriginal relations and reconciliation, Sophie Pierre, chief commissioner of the British Columbia Treaty Commission, Grand Chief

Edward John of the First Nations Summit, and Dave Porter of the First Nations Energy and Mining Council.

The treaty process was launched in 1992, engaging 61 First Nations representing 104 of the 203 B.C. bands registered under the federal Indian Act.

But productivity has been painfully slow. Just four treaties involving eight First Nations have been ratified, while another four have agreements-in-principle. A further 44 are negotiating AIPs, according to the BCTC.

Among the frustrations expressed by First Nations leaders and other stakeholders has been Ottawa’s refusal, after a commission of inquiry into missing Fraser River salmon was struck in 2009, to negotiate fishery components to treaties.

Critics, including a report by the Conservative-dominated Senate Aboriginal affairs committee, also complained that federal negotiators lacked the flexibility to make deals.

Among Monday’s changes:

* Ottawa will now consider proposals to negotiate agreements in areas of federal jurisdiction with First Nations outside the treaty process. The federal government is also willing to participate in B.C. government-negotiated deals involving those First Nations.

* Federal negotiators, in a bid to display greater flexibility, will be prepared to negotiate incremental agreements in specific areas prior to the finalization of treaties.

“While a final treaty remains the ultimate goal, these incremental treaty agreements will be designed to deliver more immediate results for Aboriginal communities and build momentum toward concluding treaties,” the federal government said in a news release.

* Ottawa, criticized in Eyford’s report for not doing enough to consult with First Nations impacted by pipeline proposals, will negotiate more “consultation protocols in areas of high resource development.”

* The federal government will spend the autumn preparing new guidelines for both government and industry, with the goal of producing a new policy statement by the end of 2015 on their respective roles and responsibilities in consulting and accommodating First Nations.

* Ottawa will also play a greater role in helping to resolve conflicting claims involving First Nations claiming title to the same tracts of land. “This could include providing support for Aboriginal participation in alternate dispute resolution processes or for research and information-gathering,” according to the statement.

* The federal government will also try to remove a major criticism from First Nations who oppose Ottawa’s insistence that social program transfers be reduced if the band has its own revenue streams. “For example, program transfers for health, education and social development will not be reduced based on” a First Nation’s own revenue sources, said the statement.

* Ottawa will resume negotiation of fisheries provisions, which have removed out-of-bounds even though Justice Bruce Cohen submitted his findings in the autumn of 2012.

* The government is implementing, “in partnership” with the B.C. government and First Nations, a new approach to the thorny legal issue of “certainty” — that is, whether treaties fully and finally resolve the First Nation’s claims to title and rights.

Instead of asking First Nations to surrender any rights not spelled out in the agreement – a major sticking point in many Aboriginal communities — they will be asked to agree to not assert these undefined rights as part of the final settlement.

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