Settling Aboriginal Land Claims — Treaty The Only Fair Way

from the First Nations Summit

Shared Vision, April, 2002

The upcoming provincial referendum on aboriginal treaties is a blatant political smokescreen to buy time for a BC Liberal government adrift in a sea of red ink and broken promises. This is the angry claim of aboriginal leaders urging British Columbians to join them in a boycott of the planned referendum.

Recently, First Nations Summit executive Kathryn Teneese spoke in Vancouver, stating that the referendum provides a cover for a government getting set to impose sweeping changes to treaty-making. The proposals, she predicts, will be found unacceptable to many First Nations. Then, in the aftermath, the Liberals will offer settlements based on economic development and individual rights. Ms. Teneese warns the $9-million exercise will only frustrate and anger First Nations, subjecting them to what she claims is "the tyranny of the majority," a term used by political scientists. She also feels that it is likely that some British Columbians could find the referendum questions confusing, while it is also likely that many aboriginal people will reject them as offensive and intellectually dishonest.

Ms. Teneese says Premier Gordon Campbell and his BC Liberals are apparently determined to turn the clock back, threatening a fragile truce between aboriginal and non-aboriginal British Columbians. In a recent interview, she expressed fears that if the treaty-making machinery is threatened, the province may well face a flashback to the troubled 1970s and 1980s – when blockades, sit-ins, and rallies were the order of the day. That uncertainty over unresolved land claims also had economic fallout. In 1990, PricewaterhouseCoopers calculated the cost to BC of not settling land claims to be $1 billion in lost investment and 1,500 jobs a year in the mining and forestry sectors alone. "What got the different levels of government to the table in the first place?" asks Ms. Teneese. "It was uncertainty. That’s what’s going to happen again. I ask Mr. Campbell and his advisors: What kind of message are we sending to boardrooms of the world, as we get set to start lobbying for the 2010 Whistler Olympics?"

While no treaties have yet been signed since the BC Treaty Commission process started up in 1993, Ms. Teneese adamantly defends the formal process as still the most viable – and most fair – way to settle aboriginal land claims. "The process, with its glacial pace, may not be perfect, indeed it may be the worst way to resolve the issue except all those other forms that have been tried from time to time. Those who wish for the failure of the Treaty process should think of the alternatives and the consequences. It is the only means we have found of resolving the issues of land and government in this province in one hundred and fifty years."

She argues convincingly that treaty making, by its very definition, represents a series of hard-fought compromises that take time to negotiate. "It was only in 1991, recall, that Ottawa, Victoria, and First Nations agreed on 19 principles to negotiate modern-day treaties. Today, those principles – I call them the tools – are being taken away, one by one. Without any real understanding of the consequences." This, after more than 50 BC First Nations, acting in good faith, have borrowed hundreds of millions of dollars to take part in the formal, six-stage process. It alarms many aboriginal people who consider it dangerous if the BC Liberals ignore the Supreme Court rulings of recent years and the spirit of the treaty negotiation process, underway for almost a decade now.

She points out that the resulting confrontation on land claims would create greater investment and operational uncertainties for the province’s resource industries, many of which would be on aboriginal lands under negotiation. This is strange irony indeed from a premier who touted economic certainty as the lynchpin of his campaign. Consider as well the expense. The referendum process will likely cost taxpayers more than $9 million at the very time when the Liberals are slashing programs, laying off thousands of workers, and warning the people of more bad economic news to come. First Nations in BC were not accorded the opportunity to negotiate treaties until very recent times. Indeed, the governments of Canada were reluctant to do so and it was not until the Supreme Court of Canada ruled on the Sparrow case in 1990 that the province of British Columbia agreed to join the federal government at the negotiating table.

The negotiating parties, recognizing the long-term nature of treaty negotiations, have entered into over 50 "interim" measures. These agreements protect designated resources such as fish and set aside some of the claimed land base in advance of a formal treaty. As well, First Nations have signed numerous private commercial agreements relating to agriculture, real estate, and forestry. Similarly, both sport and commercial fishing industries have reached operational cooperative understandings. As treaty negotiations continue to the next stage, other sectors of the economy, such as cattle ranching and mining will continue to build working relationships and economic partnerships with First Nations. Delays caused by a referendum would add to the legitimate fears of First Nations that their traditional lands and sea will be stripped of their wealth before the claims are settled.

The slow progress made in the negotiations has cast doubts as to whether the treaty process can ever become successful in reconciling the differences that now exist between First Nations and the Crown. But change has, and is, taking place. After all, aboriginal people were only granted the right to vote in federal elections in 1960. And, inherent aboriginal rights were entrenched in the Constitutional Act of 1982 and the landmark court case Delgamuukw v. British Columbia in 1990, clearly outlining the inherent rights of First Nations. Beginning in the BC Supreme Court, this case proceeded to the British Columbia Court of Appeal in 1992-1993, and then to the Supreme Court of Canada in 1997. This historic outcome was rendered in 1998. Some critics claim there has been a lack of transparency in the land claims negotiating process in British Columbia and that a referendum might bring the issues directly to the people. This is patently false, says Ms. Teneese.

The Treaty Negotiating Advisory Committee (TNAC), has approximately 33 members representing community groups, but in the latest round of cuts, Premier Campbell cut funding for all such advisory groups. In 1993, subsequent to extensive studies, there was an agreement among the federal and provincial governments and the First Nations to a six-stage negotiation process. At no time, was the use of a referendum proposed as a negotiating tool, nor was it ever contemplated. In good faith, First Nations have accrued debts amounting to over $150 million dollars in the negotiating process to date. At least like amounts have been spent by both the federal and provincial governments, an investment that will be at risk if negotiations collapse. The economic benefits to the province should also be of interest to all British Columbians. It is anticipated that financial settlements will come from Canadians as a whole represented by the federal government while the land portion of any claim settlements would come from the province of British Columbia. In 1996, the accounting firm KPMG provided a detailed analysis of the potential economic impact of land claim settlements. It said, when all of the financial impacts were considered, the province can expect about a three-to-one return for every dollar spent. KPMG estimates the net financial benefit to British Columbia would be between $3.9 billion and $5.3 billion over 40 years. But with the referendum a distinct possibility and the continued uncertainty of unresolved land claims, the realization of this benefit remains remote.

Ms. Teneese says it is still not too late for Premier Campbell to change his mind, especially in light of the perception held by some that he has gone too far, too fast in slashing programs and laying off thousands of workers. In their haste, the BC Liberals appear heartless to many who wonder if this is an image that will help create the climate of confidence and stability needed to attract investors here from around the world. Keen-eyed commentators worldwide are also keeping a close watch on the Campbell regime. The influential British news magazine, The Economist is a recent case in point. In "Campbell’s War: A Wild Gallop to the Right Causes Consternation" the magazine noted that the premier gave away $1.5 billion in tax cuts, "just at a time when revenues were starting to fall." The article documents the hollow promise, now broken, that health and education would "get off lightly by merely having their budgets frozen."

"Aboriginal people living in BC," says Ms. Teneese, "hardly need to hear more broken promises from non-aboriginal politicians. That’s precisely why we intend to boycott the referendum."

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