Dr Ravi de Costa
Institute for Social Research
In this paper I’d like to provide a critical introduction to the BC treaty process, which some of its proponents see as the most comprehensive democratic attempt to resolve the consequences of colonialism anywhere in the world.
The democratic aspects are worth considering, because I think this type of engagement, building new relationships between peoples, is testing what we understand to be democracy as it might exist where identifiably different peoples reside in the same state.
The paper concludes with an exploration of the BC process’ credentials as a democratic practice but in order to arrive at that speculation, a review of the process is essential: its origins, its structure and operation, and its current direction. In particular, I will speak about the recent referendum held on treaty-making in BC.
2. How did the BC process originate?
Given Brad Morse’s recent presentation in this forum I won’t attempt to review the entire Canadian experience and BC’s place in it. What I will do is to try to offer some sense of why the BC process came about when it did.
By the early 1980s 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 CCP being the Federal policy response to the Calder judgment of 1973.
About 20 indigenous groups in BC had signed onto that process and seen nothing. Meanwhile, the Province continued to behave as though the land and resources were entirely unencumbered by indigenous interests, even though Calder had totally discredited that approach. The response of Natives was to step-up direct action across the province.
Indigenous protest had been a persistent feature for some time, thought his was largely taking place on reserves, where the focus of protests was on the lamentable state of services in Native communities. By about 1983, however, protest went ‘off-reserve’ and into the public view. The chief target was the resources sector.
The Province is hugely dependent on commodities and resources. Forestry products are especially 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, forestry 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.
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. David Mitchell – in 1990 an 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.’
I point this out to dispel any idea of an awakening public sensitivity to the moral and legal claims of BC Natives. 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 through less confrontational means remains to be seen; the example of British Columbia does not provide encouragement for those that believe Australian treaties will be the natural dividend of our extensive emotional investment in reconciliation.
3. What are some of the obstacles to reaching agreements in this process?
[refer to ‘Overview’ document for details on the structure and status of the treaty process]
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, giving them s.35 protection, 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 trained negotiators on its team. One 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, a sense of achievement is very limited and turnover of government personnel at tables is very common, causing a loss of table ‘memory’.
The problem is much more frustrating for First Nations, who see their loans pile up with no semblance of a success. 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 have deprioritised treaty negotiations to concentrate on basic community development, while others have formally abandoned the treaty process altogether.
For those that remain, there is a lot of talk now about ‘incrementalism’–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 such problems of process, there are a number of issues over which the governments and First Nations appear to be in ‘two solitudes’.
On interim measures there has been a total lack of substance from the Province. The idea of interim measures was that lands and resources would be protected from industrial development while final agreements were reached; First Nations were also expected to gain access to resources through interim measures as a matter of good will and social justice.
While there have been 70 interim measures reached (more than half in the last three years) there is little or no sense of land protection in them. The treaty Commission identified only one IM as being for 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 can provide a community with the means to develop or any sense of social justice, but rather appear aimed at keeping First Nations in negotiations. Meanwhile, development activities continue on First Nations’ traditional territories. As the Chief Treaty Commissioner of BC told 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 no common ground. The governments refuse to explicitly 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 they accept that First Nations can see treaty settlement packages however 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 recently passed a motion that no Final Agreements will be reached that do not deal explicitly with compensation. There’s no clear way forward on this issue.
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. Many of you will know that the Federal government of Canada has recently introduced governance legislation into the House of Commons; the Assembly of First Nations, the national peak body for Natives in Canada, totally opposes the bill, saying that any governance initiatives must come from Natives themselves.
In BC, the debate has become hamstrung in the last 18 months by one fundamental issue: should First Nations’ governing authorities have a delegated or municipal status akin to that of local government, or should it be of a completely different order, akin to a new branch of Canadian sovereignty.
Of course there are many intermediate positions, but the recently-elected Liberal government in the Province is deeply committed to the former. This debate is taking place in a context of non-Indigenous fear, where a nightmare vision of Native governments running roughshod over the rights of non-Natives is invoked with growing frequency.
On the issue of land quantum, I note that of seven comprehensive offers made by the two senior governments to First Nations at Stage 4, 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 that an undisclosed formula has been adopted by governments, with a figure of about $60,000 per person seeming to be the template for all land and cash offers; that is $60,000 in cash and/or the value of land. The Lheidli T’enneh are currently in a Freedom of Information action to procure documents showing how the senior governments arrived at their offer.
Another issue which has emerged in the years since the Delgamuuk’w judgement is the possibility that discussions at tables may be creating a future legal minefield.
One unambiguous 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 prepared 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 in Canada 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 under s.35? Or do treaties serve to indemnify the state against the future assertion of indigenous rights, limiting the indigenous sphere forever to what can be negotiated in this moment?
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.
4. The future for treaties in British Columbia.
There are no agreements and none on the immediate horizon. The total costs of negotiating already incurred continue to grow: at the end of 2001 operating year, 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 fully disclosed; though in 2000 the Auditor-General of Canada floated a figure of $500M. The ‘third-parties’ have committed significant funds and created research and lobbying structures as well. These figures in no way include the cost of settling final agreements.
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. Political differences amongst First Nations have so far been contained by the minimal role played by the Native peak body, the First Nations Summit. Moving down the ‘template’ path may highlight long-standing differences once more.
Meanwhile, there is 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.
This was the situation up to May 2001.
At that point, the government of BC changed. The NDP had held government from 1992 and 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 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.
The Liberals had already tried to have the NFA 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.
The new government held a mail-in ballot (there is no compulsory voting in Canada) that took place from early April until May 15 when polling closed [refer to ‘Overview’ document for details and outcomes of the referendum].
The Province’s assertion that this was not to be a referendum on minority rights was disingenuous: treaties are negotiated statements of the content and character of Native rights to be protected under s.35; limiting the legal scope of one party’s position as has happened through this vote, clearly confines any attempted definitions of Native rights.
Take self-government. There is now a legal obligation on the BC government to seek a delegated form of self-government through negotiations; more than that, to refuse to negotiate anything other.
The courts have said otherwise. In Campbell, the BC Supreme Court described Native self-government as an inherent right. DIAND Minister Bob Nault, has said that municipal government ‘is not on’ for that very reason.
A new path to litigate has been potentially opened up. 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 on the issue of self-government could possibly constitute good faith negotiating. If the Province seeks outcomes not consistent with the referendum results, litigation may come from an entirely different direction.
However, this invites the question of why the government would expose itself in such a manner? In 1999, while they were still in Opposition, I discussed 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.
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 noted earlier. In light of their criticism of the process throughout the 1990s as ‘shadowy and unobserved’, this seems bloody-minded.
In my view, the referendum was a calculating and cynical attempt 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 counted on the disruptive possibilities of a neo-populist referendum on the rights of indigenous people; particularly the likelihood that the referendum would see an ‘us versus them’ mentality given free rein. The activities of ‘white pride’ groups urging positive votes in the referendum were widely reported.
An even more troubling possibility is that the resort to a referendum reveals the provincial government’s fundamental lack of both capacity and will to conclude agreements through a fair and honourable process.
Realising that it cannot reach 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 a pseudo-democratic strategy of abdication, allowing the appearance that it is at treaty tables “under instruction’ from the BC public.
There are serious challenges to democratic political institutions that are arising through treaty-making; the referendum is not the only instance. The role of Parliaments has also changed: for example, the BC legislature has been asked to consider formally the treaty process on two occasions: the original passage of the BCTC Act in 1993, and the passage of the Nisga’a agreement in April 1999.
On the first occasion there were no amendments to the package of legislation and little dissent, though the Leader of the Opposition wondered why functions had been arranged to celebrate the legislation with invitations sent out before the legislation had even been tabled.
On the second occasion, there was no such moderate puzzlement. The Nisga’a legislation passed the provincial House unamended again, but the NDP government had to use its numbers to close what had become a rancorous debate; this, after promising what we call a ‘conscience vote’ of all MPs.
I am not suggesting that this does not happen regularly but the structure of treaty-making necessitates Parliament to act as a rubber stamp: it is an expectation rather than implicit, because agreements are negotiated ‘elsewhere’ with the Parliament to act like a Governor-General and simply provide its assent.
At bottom, this situation has arisen because of the ‘empty box’ approach to s.35 and the addition of s.35(3) which protects treaty rights to be agreed in the future. Indigenous rights are there, they exist, and are protected by s.35, but treaty-making establishes what they are, comprehensively.
In this way, treaties are not constitutional amendments but a form of constitutional description, a negotiated description that receives constitutional protection itself.
Personally, I am not at all troubled by this more sophisticated approach to fundamental reform of democratic institutions. However, it would seem that some people in BC are, and they have been able to use the distance between that sophisticated approach to constitutional reform and the more familiar majoritarian notion of reform, as a space in which to operate and sow mistrust.
Perhaps the problem lies with the premise of comprehensiveness and finality that threads through the BCTP; and can be avoided by seeking a much longer term for negotiation, perhaps in perpetuity. Though the rhetoric is of creating new relationships between Indigenous peoples and the larger communities in which they live, the reality is closure. The apoplexy over what constitutes ‘certainty’ demonstrates that clearly.
If the goal is truly a partnership of peoples, then why the urgency to solve everything in a single negotiated process? A true and effective partnership between peoples would be able to address issues as they became pressing and as the parties moved into positions where mutually agreed outcomes were likely.
The referendum is simply the most stark evidence of the goal of closure in BC: by using the shield of majoritarian democracy, the Liberals have sought to harden the edges of the negotiating space on key issues such as self-government and approaches to resources.
Though it is far from clear what the results will actually mean at treaty tables, the effect has been to demonstrate incontrovertibly that the Province will resort to pseudo-democratic bastardry in order to effect certainty on its terms; or rather, to prevent other more inclusive notions of a certainty built on a trusting relationship between peoples.
The BC process originated in a series of actions that demonstrated the limits to democratic processes for indigenous recognition: a combination of lawful and democratic litigation, as well as direct action clearly outside the democratic channels. It now seems that at the point where recognition can be institutionalised in this process, that the nature of democratic legitimacy is itself being challenged.
The gloves are off, the positions are hardened; what some in Australia call Canada’s ‘culture of rights’ is being tested in BC.