Premier Christy Clark and Minister John Duncan really stirred the water this week over what was once seen as the beacon of hope for some First Nations in BC-the BC Treaty process. Will it survive? Will it be replaced with economic agreements? Is there any political willingness left at the Federal and Provincial government levels?
As First Nations have always known that the priority in this country is the economy, it reigns supreme even over our constitutionally protected rights. Elections are won and lost over the economy, jobs and a positive economic future. Christy Clark is behind the NDP in the polls and the Premier is going to do everything she can to get her government to remain in power. She well knows it will be through good fiscal policy, a thriving economy and jobs for everyone.
I remember when Gordon Campbell was first elected into power in 2001, he called a meeting of his cabinet and the Chiefs of the First Nations Summit. This was at the onset of the treaty referendum and a fiery meeting ensured as the Chiefs battered the Premier over the referendum. I remember rising and telling Gordon Campbell and his cabinet if they wanted to achieve their campaign promises of making their number one goal of the economy a reality, they had to deal with First Nations first or suffer the consequences. It took Gordon Campbell’s government 4 years to take the advice of the Chiefs to heart and changed direction in 2005 with the New Relationship. There were Chiefs that were concerned that the New Relationship would become more important than the treaty process but that never really happened. It was to be a stepping stone into treaty.
When Premier Clark unveiled her jobs strategy that included developing more mines, LNG plants, forestry opportunities, infrastructure and transportation and international students, it came as no surprise. I commented in my last blog that she should remember that First Nations must be consulted and in some cases their consent given on large developments.
That is why this week’s announcement that time and energy will be spent on negotiating agreements with First Nations to do development projects and share revenue was an interesting twist on how the Premier can achieve all the resource exploitation she wants to do. The province is willing to transfer land, share revenue and even to be a power broker between First Nations and private companies to ensure they work together and get these large mining, and energy projects go ahead.
Christy Clarks thinks as many corporations do that if there is enough cash and resources in a deal, that First Nations will jump on board. Think again, look at how many First Nations have rejected the ONE BILLION dollars offer from Enbridge. Look at the Tsilhqot’in Nations and how they have continually reject the Prosperity mine no matter how many dollars, jobs and procurement opportunities are offered. There are many other examples of First Nations turning down what may be considered a lucrative deal. It must be understood with First Nations that the most important thing is recognition of title, protection of our rights, continuation of a way of life and ensuring there is enough resources for seven generations. If all of that can be achieved, then First Nations may look at how the development/business can be done in a sustainable way with the proposed project.
Christy Clark wants to put an emphasis on the quick fix, and put aside the long term certainty and reconciliation that can be achieved by equitable treaties and enter into economic agreements. While that may find favour with some First Nations, others who have put years and millions of dollars into negotiating treaties, may not find that as attractive. If you allow your entire territory to be developed to its full potential, what incentive does either government have to complete treaties?
Minister John Duncan says that he would like to complete those treaties where there is the possibility of success. He also said that he would like to encourage “unproductive tables” to shut down and focus on “productive” tables. He also said that he is prepared to address issues that are obvious and make changes. Whoa, what makes an unproductive table? One that wants to deal with the hard issues that have plagued treaties table for the past 17 years and that the common table was organized to deal with? A First Nation that won’t abrogate or derogate an aboriginal right? A table that wants to ensure their financial future with lands, money and resources and be in a better position than they are now? That is very discretionary for the government to decide who is productive and what they think are obvious issues. It is good that Minister John Duncan wants to try and salvage the treaty process and address some issues but he is going to have to move further than that.
Both the Premier and Minister of Aboriginal Affairs and Northern Development have to remember that once the treaty negotiations have stopped, the loan agreement comes to an end, that First Nations will need to start paying back loans that they have no ability to pay. You cannot just shut down a process without a plan or a commitment from governments to write off these loans as they do for many third world countries.
Both the Premier and Minister Duncan also need to be very careful to ensure that their comments and commitments do not bring up not negotiating in good faith arguments that could be challenged in the courts. I agree there are issues with the treaty process but they need to be carefully resolved with solutions that will not impoverish First Nations and provide another avenue determined with First Nations on how lto resolve and reconcile aboriginal rights and title.
If these issues are not resolved, First Nations will be using other mechanisms to try and find solutions to bring the governments to the table to resolve title and rights issues. The Hul’qumi’num Treaty Group have a Human Rights Complaint against Canada before the Organization of American States and expect a decision in early spring. If they rule that Canada must demarcate the territories of First Nations, the treaty issues will surface again. International mechanisms, court cases, protests, occupy AANDC, and opposing developments are all possibilities to what could happen if title and rights issues continue to be unresolved.
I did want to comment on revenue sharing. If BC is going to be providing revenue sharing on projects, they should do so without dictating how that money should be spent. While I am unaware of whether a First Nations requests it, many times trusts have to be established in which the money is put in. For example, the Economic Benefits Agreement with Doig River, Prophet River and West Moberly requires the First Nations to establish a trust. The trust says moneys can only be spent on things that benefit community Members. The Settlements with Kwacha and Tsay Key Dene also required the establishment of endowment funds in which trustees determine if requests from the First Nation are community related. Is a trust in the best financial interests of the First Nations? In the mining revenue sharing agreement with Tk’emlups and Skeetchestn Indian Bands, they are required to account to BC for how they spent the money they receive yearly and establish community priorities. Why is that necessary, the money is being paid to the First Nation, it is their money. First Nations should be given the money and let them invest and use the money in a manner they and their members see fit. We really need to get beyond paternalistic and colonial attitudes if Economic Agreements are to work.
Summing this all up, aboriginal title and rights issues in British Columbia must be resolved and reconciled and the political will needed to do this must be in place to do it now. It has gone on too long. Aboriginal rights and title must be recognized and protected in any development. Sustainable development may happen with the complete involvement of First Nations on how that development can happen. Many First Nations like the Squamish, Tseil Waututh, Hupacasath, have implemented Land Use Plans that set out where and how development can happen. Others like the Taku River Tlingit First Nation (TRTFN) have established a Mining Policy that sets out what process developers have to go through in order to get the consent of the TRTFN and what values they want to maintain through any mine. Other First Nations have consultation and accommodation protocols or Strategic Engagement agreements with the province on how consultation takes place. Any Economic Agreements need to be with the full and informed consent of the First Nation and the ability to use the money as they see fit. The provincial and federal governments can expect backlash from First Nations who want to complete their treaties and are told they cannot do so. Every First Nation needs to determine their future and their path forward on reconciliation. Quick fixes like money will not bring the certainty, reconciliation and long last relationships with First Nations in BC.