Is B.C.’s treaty process dead?

Malahat Nation Chief David Michael Harry says treaties can be a path to equality

The B.C. government, frustrated with the slow treaty process, is forging ahead with more one-off economic deals with First Nations. But at what cost?

When Vancouver Island’s colonial governor James Douglas acquired the lands around Victoria in the early 1850s from four local First Nations—for around $85,000 in today’s dollars—he skipped over Chief David Harry’s ancestors, the Malahat. Their territory was seized nonetheless. This past April, Harry—who represents the Malahat Nation, a band of around 400 people on the Saanich Inlet—came a step closer to compensation, signing an agreement-in-principle with the province, along with four other First Nations, for $142 million and 1,565 hectares of land.

In 1992, the NDP government of the day introduced a process to address the question of who owns what land in B.C. The feds, province and First Nations all agreed to come to the negotiating table, with agreements to be hammered out under the auspices of the independent British Columbia Treaty Commission. To incent bands to come and stay at the table, the commission doled out loans—$650 million over two decades. Yet two decades later, the Malahat remain one of the few First Nations bands to have actually signed a treaty.

The number of revenue-sharing agreements signed between B.C. First Nations and either the provincial government or private companies (by year):
2010: 20
2011: 108
2012: 95
2013: 89
2014: 80

With only four treaties ratified, and fewer than a dozen close to completion, the current BC Liberal government is growing impatient. In late March, Premier Christy Clark vetoed the appointment of George Abbott as treaty commission chair, arguing that another way had to be found to secure economic peace with First Nations. “We have to be able to move faster and we have to find a way to include more First Nations in the process,” said Clark. In the premier’s mind, the solution lies in more funding agreements between First Nations and the private sector, similar to the headline-grabbing $1-billion offer from Malaysian oil-and-gas giant Petronas for Lax Kw’alaams’s support of its LNG project in Prince Rupert. (The Lax Kw’alaams ultimately voted No to that proposal, which could mean costly legal headaches in the future.)

First Nations involved in the treaty process are not exactly enamoured with its current form either. Member chiefs of B.C.’s First Nations Summit, including David Michael Harry, acknowledge that the treaty process has been broken for years. In part, they attribute bogged-down negotiations to the fact that federal and provincial ministers have doled out very limited mandates to government negotiators. At a March conference in Vancouver, one seasoned negotiator reminisced about the time when then-prime minister Jean Chrétien flew to northern B.C. to hammer out final details of the historic Nisga’a treaty himself. 

B.C.’s business community—with several major resources projects, from LNG terminals to coal mines, hanging in the balance—also wants a more expedient and effective process to deal with outstanding land claims. Greg D’Avignon, president of the B.C. Business Council, acknowledges that the treaty process established a common table for all sides to come together and discuss issues: “We need those kinds of forums to continue to advance reconciliation, whether it’s the treaty commission or some vestige of it.” But he points to a best practices manual for revenue-sharing agreements, promoted by Campbell and ramped up by Clark, as the real forum where deals are done.

Since 2006, the province has entered 200 revenue-sharing agreements with First Nations; that’s in addition to 500 direct agreements between private companies—from BC Hydro to Imperial Metals—and native bands. According to B.C.’s minister for aboriginal relations and reconciliation, John Rustad, these sorts of short-term impact benefit agreements are part of a “stepping-stone approach” that sets the stage for a final treaty. Still, these agreements leave many questions un-answered—especially in light of the Supreme Court of Canada’s 2014 Tsilhqot’in decision, which requires a higher level of consultation. Miles Richardson, former chief commissioner of the B.C. Treaty Commission and leader of the Haida Nation, argues that the short-term agreements are, at best, Band-Aid solutions and, at worst, assimilation: “They allow companies to pick bones of weaker First Nations, giving them beads and trinkets in order to give permission for multibillion-dollar projects to go ahead.”

For Chief David Michael Harry, who remains committed to the treaty route—with the province guaranteeing that it will sit down with the Malahat until their treaty is finalized—the opportunity to sign an agreement nation-to-nation between Canada and his people is one he can’t forgo. “We’re giving up the inherited rights to land and water and inherent right to self-determination,” he says, “but we’ve gained the ability to be equal citizens in this country.”