The Real Reason Treaty Negotiations Are Stalled
The logic for the Treaty referendum is flawed.
The Liberals say negotiations are stalled because B.C. does not have
clear mandates supported by the public. In
fact, the public has had extensive input into mandates through the RAC, TAC and
TNAC advisory processes and the ability to attend open Treaty negotiation
sessions and provide comments. The
real reason negotiations are stalled is that B.C. has very clear mandates but
the mandates are more rigid and outmoded than a whalebone corset.
The provincial government refuses to negotiate meaningful
self-government, insists on gaining new jurisdiction over First Nation lands,
refuses to return more than 2% of each First Nation’s land that was wrongly
taken in the past, and insists that the Province should get free minerals and
access to other benefits from the 2% of land that they are proposing to return
to First Nations. A referendum that
further narrows provincial mandates or makes them legally binding is more likely
to collapse the Treaty process than revitalize it.
These narrow provincial mandates are part of a historical
pattern that has prevented the negotiation of Treaties in B.C. since 1871
despite the fact that all other provinces have been able to negotiate Treaties.
In the late 1870s B.C. opposed the standard Reserve formula of 160 acres
per First Nations family and proposed 20 acres.
At the same time, the Province allowed non-aboriginals to pre-empt 320
acres each. B.C. also insisted that
coastal First Nations should get smaller Reserves because they made their living
in the commercial fishery. Our
society and economy have suffered from obstructionist provincial positions in
The 8 referendum questions are not helpful.
The real question is whether we want to settle these issues through
peaceful negotiations with region-specific input from the citizens in each area,
or whether we want to take hard-line positions and force First Nations into
litigation or confrontation.
property should not be expropriated for treaty settlements.
Question #1 is non-controversial in principle.
Despite the fact that First Nations were wrongly forced off of their
lands, most First Nations have agreed that they will not seek expropriation of
private property. Due to the lack of
Crown land, some Treaties are not viable unless private land is included.
This can come from individuals who are willing to sell their land.
The real issue is that some municipalities have opposed the inclusion of
private lands in Treaty settlements because they want to maintain jurisdiction.
This opposition is not consistent with the principle originally agreed to
by B.C. and First Nations that private property can be acquired if the owner is
willing to sell.
The terms and
conditions of leases and licences should be respected; fair compensation for
unavoidable disruption of commercial interests should be ensured.
Question #2 depends on the lease.
What if the lease was wrongly issued or granted in violation of
aboriginal rights? If B.C. refuses
to negotiate resolutions, First Nations will be forced into court to over-turn
the lease or seek compensation. No
non-aboriginal person would stand idly by and not challenge a lease that was
wrongly issued over their private property.
Question #2 only speaks of compensation for commercial
interests. This creates the
suspicion that the Liberals want to guarantee hefty settlements for corporate
interests that are “disrupted” (even if the corporate operations
still remain in place) but to deny similar compensation for
non-commercial interests such as leases held by private citizens.
Hunting, fishing and
recreational opportunities on Crown land should be ensured for all British
If the Province were sincerely interested in
maintaining the access in question #3, it would stop cutting parks funding and
closing down camp-sites. I have not
heard any First Nations proposing that non-aboriginal citizens should be
prevented from fishing, hunting or camping on Crown land. The real issue is that
the provincial government insists that non-aboriginal citizens should have
access to First Nation lands for
fishing, hunting and recreational opportunities.
Unfortunately, this is not apparent from the question.
The other issue is that First Nations have a priority right of harvest.
There is no problem sharing access for all citizens as long as
non-aboriginals recognize that, when fishing or hunting opportunities are
limited, First Nations have a legal right to harvest for their needs first.
Parks and protected
areas should be maintained for the use and benefit of all British Columbians.
The positive side of question #4 is that it could lead
to increased protection and maintenance of parks through Treaties.
This may prevent the provincial government from permitting logging or
mining in some parks and may reverse the trend in provincial funding cuts for
parks and interpretive programs. Treaties
provide a much higher level of protection for parks than does provincial
The negative side of this question is that some parks
were wrongly created over top of sacred sites of First Nation villages.
standards of resource management and environmental protection should continue to
Question #5 is misleading.
It suggests that provincial resource management standards already apply
throughout the province. Provincial
laws in these areas do not apply to Indian Reserves or aboriginal title lands.
What the Province is really seeking is new jurisdiction over First Nation
lands and resources.
self-government should have the characteristics of local government, with powers
delegated from Canada and British Columbia.
Anyone considering voting “no” to at least one question, should start with
#6. The imposition of delegated
municipal-style government is a serious threat to negotiations.
First Nations have borrowed more than $150 million for Treaty
negotiations on the understanding that they could negotiate based on their
inherent rights to govern themselves as they have done for thousands of years.
The Liberals argued in the
It is a weak excuse to assert that aboriginal
self-government is a recipe for balkanization and jurisdictional complexity.
Over 500 First Nations in the
There is no legitimate reason to impose delegated
governance on First Nations. Replacing
the federal Indian Act with a provincial Indian Act is not the way forward.
include mechanisms for harmonizing land use planning between Aboriginal
governments and neighbouring local governments.
Question #7 depends on the interpretation.
It makes sense for First Nations to try and harmonize their land-use
planning with their neighbours to prevent incompatible land uses along
boundaries even if many municipalities are unwilling or unable to do this
The real issue is whether harmonized land-use planning will
be a two-way street. Some
municipalities are demanding a veto over the selection of
The existing tax
exemptions for Aboriginal people should be phased out.
Question #8 is also a good candidate for a “no” vote.
Many First Nations people see the tax exemption as a right and as one of
the few benefits they continue to receive in return for all of the lands,
resources, and culture that have been wrongly taken from them.
In addition, one sovereign nation cannot tax another.
First Nations were regarded historically as sovereign nations.
Finally, representatives of the Crown historically made specific promises
that First Nation members would never be taxed.
This is why the courts decided recently in the Benoit case that Treaty 8
includes a right to a tax exemption.
One can understand why some non-aboriginal citizens may
resent the aboriginal tax exemption. The
tax exemption is not nearly as broad as some people imagine because it only
applies to property, goods and income on-Reserve and First Nation citizens on
Reserves generally do not earn enough income to reach taxable levels.
However, for some non-aboriginal citizens, this is a fairness issue, and
even one First Nation member benefiting from a tax exemption is too many.
Hopefully we can all look at fairness from a broader
perspective and try to understand the legal and historical reasons for the
exemption. If we want to take the
exemption away, we should consider what replacement compensation we will
provide. Any hard-line position that
imposes removal of the tax exemption with nothing to replace it is unlikely to
be accepted by First Nations. If we
push these issues into court, we may end up with more decisions like the Benoit
case confirming a perpetual aboriginal right to tax exemptions.