BC Business
In most of Canada, the land rights of First Nations and the Crown have long since been signed into treaties. Not so in B.C. After 150 years of neglect, we don’t really know who has rights to what lands – an uncertainty that’s stifling investment, crippling community development and plaguing the province with lawsuits.
But times are changing – slowly. In 1992 the provincial government created the BC Treaty Commission, sparking the biggest effort yet to settle land claims. The commission won its first victory in December 2006 when the Tsawwassen First Nation signed the first treaty in B.C. since the groudbreaking 2000 Nisga’a agreement. The provincial government recently proposed a law that will formally recognize the land rights First Nations hold across the province, called the Recognition and Reconciliation Act, though its introduction to legislature will have to wait until after this month’s provincial elections.
But even such hopeful developments are racked with suspicion and controversy, signalling that agreements in these century-old disputes won’t be won easily. To explore what makes these deals so difficult to reach and yet so crucial to the future of the province, BCB sat down with three local experts: Eric Denhoff, a chief treaty negotiator for the Government of Canada; Jerry Lampert, a commissioner with the BC Treaty Commission and past president and CEO of the Business Council of B.C.; and Andrew Bak, councillor and lands manager for the Tsawwassen First Nation.
What does First Nations right and title mean?
Eric Denhoff: Some people will argue that, as the First Nations, they own that land outright, lock, stock and barrel. But that’s not what the courts have said. What the courts have said, essentially, is that aboriginal title is a burden on the Crown’s title, that it lays there with the Crown’s title simultaneously and that you have to reconcile those titles in order to go forward and use the land. It doesn’t mean that the First Nation has an absolute veto over development of that land; what it means is you can’t just willy-nilly go and convert that land into another use without some kind of negotiation.
What is the situation with aboriginal right and title in B.C.?
Denhoff: A series of court cases have found that there is unextinguished aboriginal rights and title in parts of Canada that are covered by historic and modern-day treaties. Historically, B.C. governments haven’t done treaties – for the most part – so the Crown has an obligation to sort out the aboriginal title and the Crown title that might be there. We have two options: we can either litigate or we can negotiate. And the advantage of negotiating is that we get certainty around exactly what the rights are and we can then get on with businesses, investing and people getting on with their lives. And do we really want to spend the rest of the century litigating?
Jerry Lampert: The interesting thing is that the major court cases have essentially ended up in the same place. Yes, there’s a lot of discussion about what the particular aboriginal title and rights are, but the court is ultimately saying, “Go back and negotiate.” That’s the bottom line for all of these cases.
Andrew Bak: The way it stands now, many decisions concerning communities like ours are made in Ottawa. There’s a kind of paternalistic view that governments had over time, and it’s time for all that to come to an end. We wanted to be a part of that decision-making process, and we wanted to be the most important part of that process. When you live right at the Pacific Ocean, you don’t necessarily trust someone who’s sitting behind a desk 2,000 miles away to know what’s best for the fishery that you and your family have relied on for literally thousands of years.
Why is B.C. in this odd situation of not having historic treaties?
Denhoff: There is this long history that prevented it, and a very frustrating history, I think, for First Nations. In B.C. we started the treaty-making process and then the colonial government essentially ran out of money and Britain wouldn’t send them any more, so they stopped the process. And then I think people became less and less interested because it got more and more expensive, difficult and time-consuming. First Nations were prevented by law from pursuing land claims for most of the century. In fact, they couldn’t leave reserves without an Indian agent’s permission. So if 20 chiefs said, “We’re going to leave the reserve to go have a meeting on land claims,” the Indian agent would just say, “No, you can’t.”
What problems arise from B.C. having all these unsettled land claims?
Lampert: What business is looking for is certainty so they can get on with their investments, and in most instances First Nations are looking for certainty as well. About 10 years ago, when I was president of the business council, a mining company out of Utah had come into town, doing their due diligence before moving into B.C., and I was asked to meet with them. We talked quite a bit about consultation with the First Nation, which they had no experience with. I said to them, “Look, you either have to go over and consult, or you could ask Victoria for an indemnity against a future land claim, which we know they would never do.” At the end of the day, they chose not to come to B.C. That was a missed opportunity, some would say, for an important mine development that could have led to local jobs, likely including jobs for First Nations. And there are many examples of that over the years.
Denhoff: You have an unclear situation where First Nations have a certain right and title and you need some kind of formal mechanism to deal with that. You can spend half your life trying to quantify what those rights might be. So the poor developer is operating in this great void. And the First Nations also want certainty because they don’t necessarily know without litigating exactly what are their rights.
Bak: For First Nations, it’s all about achieving parity in quality of life with mainstream Canada. Mainstream Canada doesn’t live with the Indian Act; aboriginal people living on Indian reserves do. That’s why I joined the table. I didn’t have much concern in the beginning for the economic components; I simply wanted to help my community be out from under the act. We need to have self-governance powers; we need to be able to have a direct voice in the decisions that affect us. At least at Tsawwassen, we see treaties as the tools for enabling that.
What is it about the Indian Act that makes it so problematic?
Denhoff: The Indian Act says that every single decision the chief and council make has to be ratified by the Indian Affairs Department – and this has not been the best model for self-sufficiency. When I first came across it, I was a lot younger (I had hair), but it stunned me. I grew up in a normal middle-class Canadian household and here was this South African-like apartheid legislation. You have this act that literally governs every aspect of one group of people’s lives, defined by race. Where else would you do that? I’m a negotiator for the government, but the department itself recognizes this as a problem.
Bak: When you look at legislation, you always start with the idea, What will this law accomplish? Why are we creating this? When you look at the Indian Act, it really is not very specific: it touches on every aspect of your life when you live in those communities. But you have to ask yourself all the time, Does it really improve the lives of aboriginal people living on reserves? And it doesn’t. How is the relationship today between government and First Nations? Have we made progress there?
Denhoff: In my few months as a deputy minister with the B.C. government under Bill Vander Zalm, I was up at a roadblock near Fort St. James, in 20-below weather, and there were logging trucks lined up five miles deep. The First Nations had applied for an injunction to prevent the logging from taking place. It was a crisis atmosphere. The government had taken the position that none of this was the responsibility of B.C.; it was up to the federal government to solve all this, and good luck to you. In fact, it was a firing offence to attend a meeting on land claims. A fellow was fired for exactly that. You go from that point to Vander Zalm saying, “Well, we should at least take a look at land claims,” through to Mike Harcourt actually doing a treaty. We’ve had a number of agreements in principle around the province and the B.C. government has made a huge push to get these deals done. Not that there isn’t litigation still going on, but there used to be absolute hostility between government and First Nations. So things changed quite dramatically.
A few landmark treaties have been signed, but overall talks have been very slow. How long is this going to take? When are we really going to see significant changes in B.C.?
Lampert: I think you express it well. There is certainly frustration within the First Nation communities and with the public that they would like to get on with these things. There are currently 60 First Nations in this six-stage process. The bulk of those are in the fourth stage, which is the real tough, grinding work. You’ve got about eight to 10 in Stage 5. You can say it’s taken a long time, but we’re sort of on the verge of that breakthrough that we could see with a lot more goodwill. We could see a great number of agreements in principle and final treaties over the next decade. But it is time-consuming.
Bak: And as you get farther and farther into that process, instead of moving more quickly, you move more carefully because the changes that you make mean more and more. After you come to terms and it’s time to draft the actual wording of the document, the whole process really slows down. It’s a huge document: it’s 700-something pages, and that’s just for a community of 400. But it’s so difficult to take ordinary people into a boardroom, whose lives are going to be tremendously affected by this, sit them down with these huge, complex legal documents and say, “Here’s a look at your future. Now, what do you think about it?”
Denhoff: The difficulty is everybody wants to do it expeditiously, but nobody wants to make a mistake. This isn’t a labour contract, where three years from now we can revisit it if we’ve screwed up. These are constitutionally protected treaties, and when they’re done, they’re done. That’s it. We don’t get a second chance.
So what issues are holding up agreements?
Denhoff: There are some common things. There is a real desire for First Nations communities to be self-sufficient, so we propose in treaties that when a First Nation receives a bunch of new revenue in a treaty, that should allow us to reduce our federal transfers. Generally, First Nations don’t oppose that idea, but we have some significant disagreements about that formula. And it’s very tough trying to, on the one hand, find the land and resources in an increasingly settled province to satisfy the desires of First Nations for a real role in the economy and, on the other hand, not displace the existing interests on those lands and cause havoc.
Lampert: Yes, there are others as well. One that really hits the First Nations directly is when you have overlaps in territory claims. They’re very difficult to resolve.
What were the challenging issues in Tsawwassen’s case, and how did you overcome those?
Bak: The whole process was kind of adversarial because you get your mandate from your community and you go to the table where Canada has its view of the world, B.C. has its view of the world and we have a different view of the world. You battle it out and you have a product that you then have to take back and sell to your community. And we also had to engage with the business community, the municipality and the other First Nations around us. Anyone can hire a number of people and sit in a room and hammer out a piece of paper, but I think the most difficult part of the process is trying to cast it all forward and say, What kind of responsibilities does this create for us in the future and does this really enable us to do what we want to do? It wasn’t enough for us to say, “This is the perspective of our members.” We have to be ready to actually use those assets and those self-governance powers that we get from the treaty and fit into the economic world around us.
Lampert: The other aspect though for First Nations is leadership. There’s been a real emergence of strong leaders who have vision for their communities and articulate that vision and convince others in the community to come on board. They’re very articulate about where they want to go and how they want to get there. It’s very impressive. And then behind that you have an amazing effort to build the capacity to govern. Now this capacity doesn’t exist in all communities, and that’s part of the problem.
Has the Indian Act discouraged this kind of leadership?
Lampert: It did. Because you had strong leaders in the past, in the early 1900s, who were trying to articulate a different perspective, and they were just suppressed by governments.
What are the benefits of well-crafted treaties to First Nations and the rest of B.C.?
Bak: Under the Indian Act there’s a steady stream of government money coming in but no real opportunity to do anything with it other than just deliver very fundamental programs. Now we can make decisions about how to recreate that wealth inside our community and partner with people outside the community and become part of the economic mainstream. It’s really, really exciting.
Lampert: These treaties, if done, will pump billions of dollars into the B.C. economy. There’s an estimate that up to $7 billion will be turned over to First Nations once we get all of these done. That money will be used in communities to raise the socio-economic standard. Look at a community like Terrace: it went into the economic doldrums just a few years ago but was somewhat saved by the fact that the Nisga’a had their treaty. The Nisga’a were coming into town looking for goods and services in Terrace, and that has helped that community enormously.
Denhoff: All of this is a part of reconciling this really difficult century that Canadians have had with First Nations people. You really see this in the treaty process. I think that you’ve got to be there at a signing ceremony to see the unbelievable joy and power that’s unleashed. I mean, people are standing there with tears streaming down their face, unbelievably happy that this difficult chapter in Canadian history for them has been broken – that they can see their way to a more positive future. It’s not a panacea for every issue facing First Nations people, but the emotion in that room when the deal is done is just breathtaking, and you never forget it.