The long awaited September 11th meeting between the Chiefs of BC and BC Government happened without much of a breakthrough or much a splash in the media for that matter. Considering the fact that the entire province and its resources are in question this is quite astonishing.
The Tsilhqot’in decision really rocked this country with the ruling that aboriginal title really does exist in the province and the reverberations of that decision are still being felt across this great land.
What’s at stake in this province? All the land and resources including water where First Nations can prove aboriginal title. Which is basically most of the province. Grand Chief Stewart Phillip at the Chiefs-Cabinet meeting reiterated that “BC is Indian Land”, and I add, always has been and always will be until the First Nations and all their members fully consent otherwise. (full, prior and informed consent).
I find it interesting that I cannot find Christy Clark’s speech to the Chiefs on the government of BC website or anywhere on the web. You would think with all of peoples and corporations fears over this decision, this would be one speech that would be shared in many places. There is more coverage on her meeting with Tsilhqot’in the day before. The press release on the BC Government website is largely from the Leadership Council’s statement. All it really says with respect to BC’s position is:
1. "It is a historic opportunity for First Nations and governments to “build a new path” for recognition and reconciliation."
Oh, but wait, wasn’t that the New Relationship that Premier Gordon Campbell agreed to in 2005 with the Chiefs of BC? And didn’t the New Relationship have a plan/strategy on how that would be achieved and 9 years later is no further advanced? Isn’t this the same Liberal Government, who is now just regurgitating what was previously promised and committed to but never implemented? But now, instead of on a political good faith basis, a have to basis because of court case?
2. “The Government of British Columbia also recognizes that Aboriginal title in British Columbia exists - this is without question and dispute."
Again, the New Relationship was all about recognition of title, jurisdictions and laws and commitments to reconcile titles and jurisdiction. The Premier would have been more favourably perceived if she could have said, “My government recognized aboriginal and title and rights in 2005 in the New Relationship. The courts have only now agreed to what we stated over 9 years ago. We have endeavoured over the years to try and achieve recognition and shared decision making but have a long ways to go…” Something along those lines instead of going only with Tsilhqot’in ruling. Maybe she didn’t want to admit to a miserable track record of lack of progress on the New Relationship or maybe she just doesn’t like to be reminded of what the former Premier committed to or maybe she wants her own legacy with First Nations (which right now is nominal).
3."The Government of British Columbia is committed to working with B.C. First Nations through the establishment of an annual gathering and through ongoing, government-to-government engagement."
In light of the game changing ruling in Tsilhqot’in, the Premier commits to meet once a year in a large forum, or it seems on a First Nation by First Nation basis. In this regard, has Christy Clark hired on new negotiators to deal with the onslaught of requests by First Nations to work out aboriginal title lands and resources? Has she committed resources to enable such large scale negotiations? Or has she kept to her list of working with First Nations where the government wants LNG facilities or other large scale developments that will bring them revenue?
If I were a resident in BC, I would be wondering why the Premier wasn’t more progressive in her meeting with the Chiefs. Why wasn’t she proposing ways and means of establishing processes and institutions to deal with what is a very real threat to the lands and resources within BC. I understand the need to be collaborative with the Chiefs but suggestions would have shown she had given some thought to how things could work. Innovative ideas. Showing she was open to other ideas and suggestions. But if the Chiefs and cabinet couldn’t even agree on a joint press statement, the parties are so far apart in any shared vision of how to proceed on aboriginal title-that it jeopardizes the certainty of any business in BC and the continued uncertainty of fee simple lands that still has aboriginal title on them. This was not dealt with by the Courts in Tsilhqot’in and will need to be.
I can tell you as a First Nations person, I am deeply disappointed in what appear to be the total lack of preparation by the BC government to meet with the chiefs. Points to the Premier to having this Summit, but why have a Summit if you have nothing to offer or nothing prepared. I wasn’t expecting anything concluded at such a meeting, but shared visions or concrete commitments on how to proceed, a workplan, a strategy, anything more than this one pager. It seemed more of a photo op and an opportunity to have an illusion that the Premier and her cabinet were acting on an important issue. Actions say it all and I saw no actions coming out of this meeting that shows me the Premier is willing to work immediatey with any First Nation in a meaningful way other than the Tsilhqot'in.
There was more on the government website about the Premier’s visit to Tsilhqot’in the day before. Of course, there are now Tsilhqot’in lands not crown lands, Tsilhqot’in timber, not crown timber. That is the reality there. Perhaps the Letter of Understanding(LOU) signed between the Tsilhqot’in and the Premier will give us more insight on what direction BC will head with the issue of Aboriginal title. This LOU commits the Premier to meet with the Tsilhqot’in people in Fall 2014. This in order to strengthen their relationship and move forward based on recognition and respect.
They are establishing two working groups, one political working group of Tsilhqot’in leaders and one of a more technical table that will carry out the directions of the leaders. The political table will have one senior official who will report directly to the premier. The tables will put in place a plan with priorities and actions as set out in the LOU. The priority issues are:
"6. The Parties will work in good faith to develop detailed options to address the following priorities at the Leadership Table and through the Working Group:
a. Transition of the Title Area to Tsilhqot’in, management, benefit and control;
b. A process to discuss remedies for the breach of Crown duty found in Tsilhqot’in Nation;
c. Establishing innovative interim financial arrangements, which the Parties intend to replace with enduring agreements, to share benefits from resource development in the Tsilhqot’in territory;
d. Exploring other economic opportunities for the Tsilhqot’in communities;
e. Addressing the health, education and socioeconomic well-being of the Tsilhqot’in people;
f. developing a Protocol Agreement for Tsilhqot’in territory, as described below; and
g. other priorities as identified by the Parties"
The protocol agreement is important as it will address Tsilhqot’in title in areas the court decision did not cover.
The parties will try and include Canada in their processes for reconciliaiton, but it is not conditional on their joining the processes.
BC will fund Tsilhqot’in participation in these processes.
BC and Tsilhqot'in will engage industry in the new vision. Interesting especially in light of the opposition of Tsilhqot’in against the New Prosperity Mine and other such activities. Would be wise to leave industry out of discussions until the fundamentals are set by the parties. BC plays such a huge role in promoting industry that they do not need to be at the table until later in the process.
This is how the BC Government and the Tsilhqot’in have chosen to proceed. There is nothing in the agreement about how disputes will be handled, or if negotiations are stalled but this can be figured out. The same processes were not offered to all First Nations at the Chiefs/Cabinet Summit for good reason. BC does not have the resources, the staff, or the political will to do so. The government website does say
“The challenge and opportunity is how to implement title across British Columbia given that a diversity of views exists on how best to achieve this in the most collaborative and timely way.”
That is indeed the challenge. There can be no melting pot solutions. First Nations need to determine their own processes, their own visions, their own needs. So much to be done from the position that the land is First Nations land.
The Throne speech today (Oct. 6, 2014) does not mention First Nations other than in the Jobs Plan and that forestry has been very important to First Nations and mentions 3 First Nations companies. Nothing about the implications of Tsihqot’in decision or the fork in the road Premier Christy Clark mentioned to the chiefs. The Throne speech talks of a turning point, whether to grow or to decline with no recognition that without settling aboriginal title with First Nations, there will be no growth. This is a very mixed signals from the BC Government to First Nations. They are not a central theme, or even a priority in the throne speech. Doesn’t bode well for the year ahead.
My Key Recommendations to First Nations:
1. Any proposed developments going on in your territory cannot go ahead without first settling aboriginal title issues on the lands and resources. Aboriginal title lies with the Nation, consent flows from that. If you don’t like a project, withhold consent. If you can agree on a project, still insist that the aboriginal title land belongs to you. The land is yours and could be your equity contribution to the project and a flow of revenue. You may have to settle aboriginal title on a piece by piece basis. Not a preferred route, but one that could be used to bring the province to the table when they get tired of the piecemeal approach.
2. Avoid use of the word reconciliation unless you define what it is. Reconciliation can mean anything and does mean many things to different people. Your vision of Reconciliation is not the same as the government. Spell out what needs to resolved in any agreement, framework or LOU you enter into with the government-don’t rely on “catch phrases”.
3. Recognition. What does this mean? By having the government recognize us as First Nations, or recognize our title, does this not give them the power? We should be recognizing them as the late-comers to the land and how we intend to share the land with them.
4. First Nations are in a position of power with the Tsilhqot’in decision and you must take aggressive steps to implement the decision. Do not wait for the province to take action, do not wait for the First Nation provincial organizations to put in place a strategy, or a negotiate a framework or processes. Put your own action plan and strategy in place and aggressively pursue the province to work with you. If they don’t, then assert your title in every way possible to show who you are as First Nations and let them know you are a force to be reckoned with. Better to negotiate then litigate, but that is always an option and there are many others.
The game will only be changed if the rules changed and they did. The game will only be changed if the First Nations and the government put down different regimes, play a different game then the tired old recognition game or treaty negotions that haven’t achieved results. Tsilhqot’in can be a game changer if we work hard at it. The New Relationship Vision was to be a game changer too, but the government team wasn’t willing to implement the new rules, the new vision, and look for a world where First Nations title lands exist, First Nations jurisdiction and laws are utilized and First Nations governments function outside of the BC/Canadian governments. We can learn from past experiences and change them for the better.
We are the designers and builders of our worlds. Now is the time to act.