Reconciliation: An Alternative to the Treaty Process?
Many citizens concerned with social justice feel that BC and Canada owe it, both to the community at large and the aboriginal peoples, to implement as soon as possible a just and honourable settlement of aboriginal rights and land issues in BC While the Treaty Process in British Columbia is an example of the federal and provincial governments working towards settling these issues, the process, as presently set up, has serious flaws and is shunned by a significant number of First Nations.
Obstacles to settlement are:
1) The demand for the extinguishment, or release, of aboriginal rights in favour of treaty rights.
2) The rigid insistence on a controversial land selection model. Some claim it is an extension of the reserve system and will lead to poverty.
3) Using the terms of the Nisga'a treaty as a basis. This treaty, the first negotiated in modern times, was concluded outside the Treaty Process.
Its terms reflect the particular circumstances of the Nisga'a nation and are not acceptable to many other First Nations who resent negotiators' attempts to impose them.
First Nations who do not accept these preconditions to negotiation have their interests ignored by governments so that their only alternative is to enter into lengthy and costly litigation. Many First Nations who enter into treaty negotiations bargain from a position of weakness as their leaders feel an urgent need to improve the poverty and poor social conditions of their people. They should not be forced, from desperation, to accept conditions that are profoundly unpalatable to them.
The Treaty Process rests upon established European views, such as common-law notions of land title and exclusive possession. These assumptions infringe on First Nations' perceptions of themselves, as well as their relationship to their land and the Creator. By attacking their religious beliefs, culture and identity, certain aspects of the Treaty Process may be in violation of human rights issues and signal the reappearance of colonialism.
Given these objections, it has been suggested that the Federal and Provincial governments consider setting up an alternative process of reconciliation outside the Treaty Process. It would start by demonstrating respect for differing ways of being, perceiving the world, and exercising spirituality, as well as aboriginal peoples' traditional ways of regarding property, and the connection they feel between land, people and the Creator. It would uphold aboriginal peoples right to self determination within the boundaries of the nation state, Canada, and insist on bargaining in good faith and with full consultation to arrive at a just settlement of land-related issues, including the co-management of resources.
Certainty, that is obtaining exclusive rights to specific pieces of land through fee-simple and extinguishing aboriginal title to any areas outside the designated parcel will not be an essential precondition to agreements governing shared land use and management. Instead there will be shared or joint use and management of aboriginal territories without first parcelling the land into discrete and separate units over which one or other of the respective parties has exclusive rights.
A reconciliation process will also provide for negotiated agreements on aboriginal governance in relation to heath, education, family services, culture, and so on.
In addition to engaging in government-to-government negotiated settlements of land, development, and social issues, reconciliation opens the door to a larger community dialogue between First Nations and non-aboriginal peoples. All non-aboriginal people readily acknowledge that Canada, in 1867, upon Confederation, inherited and continued to administer a colonial system that
resulted in many abuses and immeasurable suffering. Much work still remains to be done to raise public awareness of the issues and to take steps towards expressing recompense and reconciliation.
Possible Strategies for Implementation
Part One - Government-to-Government
1. Establish a federal-provincial Reconciliation Protocol, arrived at after full consultation with First Nations, setting out a process for reconciling Crown title with aboriginal title and rights.
2. Abandon federal-provincial demands for so-called certainly, i.e. extinguishment or release of aboriginal title and rights in exchange for treaty or other contractual rights.
3. Adopt a shared-use policy of land holding as a way of reconciling both Aboriginal and Crown title rather than persisting in a claim that First Nations traditional territories be parcelled up into discrete pieces, a small percentage to be held by First Nations in fee simple and the rest to be given to the Crown in fee simple. A shared-use policy preserves title of both the Crown and the First Nation in question, and concentrates on practical, negotiated settlements respecting resource development on the jointly held lands.
4. Adopt a policy of full consultation with respect to shared use of jointly held lands.
5. Review federal and provincial legislation to identify areas where the legislation impinges on aboriginal title and rights, then amend the legislation so as to provide for consultation and negotiated settlements of the First Nation's interests.
6. Draft protocols to supplement legislation and provide details to guide consultations and negotiations in specific instances.
7. Provide for a mediation process to assist the parties when there is difficulty reaching agreements, together with an enforcement mechanism in case agreements are not implemented.
8. Develop standards for fair and just agreements and protocols.
Part Two - The Community Level
1. Community groups adopt programs to increase members' awareness of, respect for, and acknowledgement of aboriginal title.
2. Church groups meet with their leaders and others who have a consultative role with governments, and press them to lobby for a reconciliation process where the Treaty Process is not the preferred option.
3.Lobby national and international bodies to support a Reconciliation Process, and refrain from buying products processed from First Nations territories without their consent.
4. Sponsor public education programs on the issues
5. Produce literature and web-site material relevant to Reconciliation
6. Non-aboriginal people make statements acknowledging Aboriginal Day.
7. Prepare a brochure for immigrants explaining the issue of aboriginal title and rights and how it differs fundamentally from property rights enjoyed by non-aboriginal Canadians.