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The Real Reason Treaty Negotiations Are Stalled

By Murray Browne LL.B., M.P.A. Murray Browne is a lawyer and land-use planner who, in the past, has worked with the federal and provincial government and the B.C. Treaty Commission.  He is currently working with a number of First Nations and local governments.

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 Treaty negotiations.

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.

Question #1

Private 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.

Question 2

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. 

Question 3

Hunting, fishing and recreational opportunities on Crown land should be ensured for all British Columbians.

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. 

Question 4

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 legislation.

The negative side of this question is that some parks were wrongly created over top of sacred sites of First Nation villages.  Petroglyph Park in Nanaimo is an example.  These should never have become public access parks and should be repatriated to First Nations.  Finally, some First Nations are proposing wildlife refuge areas with no public access.  Such options may benefit all British Columbians even if they result in some parks or protected areas that are not open for public use.

Question 5

Province-wide standards of resource management and environmental protection should continue to apply.

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.

The Yukon treaties provide for First Nation environmental protection and management, including a right to clean water.  The B.C. government refuses to negotiate anything similar.  If B.C. were sincerely interested in environmental protection, it could negotiate provisions stating that when there is a conflict between provincial and First Nation environmental laws, the most environmentally protective standard prevails.

Question 6

Aboriginal 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 Campbell case that aboriginal self-government is unconstitutional.  The court explicitly rejected this argument.  There is something disturbing about the provincial Attorney General seeking to accomplish via referendum what his political party failed to accomplish in court. 

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 United States have extensive self-government powers that over-ride State laws in many subject areas. The American Nation and economy have thrived under this system.

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.

Question 7

Treaties should 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 amongst themselves.

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 Treaty Settlement Land by First Nations and zoning authority over First Nation lands.  These extreme demands by a minority of municipalities are more like annexation than harmonization.  How de we know if we are voting for legitimate harmonization or if a “yes” vote will be used to promote municipal control over First Nation lands under the guise of harmonized land-use planning?

Question 8

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.