First Nations perspective on the treaty process

by Grand Chief Edward John

The 1990s heralded a decade of optimism for the negotiated resolution of the land question and the recognition of the inherent authority of First Nations to govern themselves in their traditional territories. To achieve these objectives, Canada, B.C. and First Nations established a process to negotiate treaties that were to address both the land question and self-government.

As a first step, Canada, B.C. and the First Nations Summit established the B.C. Treaty Commission to facilitate the negotiation process. The Treaty Commission was also expected to ensure there was some semblance of a level playing field in the negotiation process. The role and effectiveness of the Treaty Commission is currently under review, as required by the agreement under which it was established.

Treaty Commissioners were appointed in 1993 and treaty negotiations began in 1994. Progress at the 42 negotiation tables has been slower than anticipated. To date, the parties have not successfully concluded any agreements-in-principle (AIPs) or treaties. A number of AIPs initialed in 2001 by negotiators for the parties did not receive the necessary political support in the First Nations communities. This was largely because the formula-driven land and financial resource packages were seen as insufficient to enable First Nations to achieve and maintain self-sufficiency. As well, First Nations were being asked to make significant concessions, while receiving no assurance that the treaties would improve their standard of living.

While progress has been slow on the negotiation front, First Nations have achieved a greater degree of success in litigation, beginning with Sparrow in 1990, through to the Delgamuukw decision in 1997 and the Campbell case in 2000. Most recently, the B.C. Court of Appeal in the Council of the Haida Nation case, building on the Taku River Tlingit case, found that both industry and government have a legal obligation to meaningfully consult with and accommodate the interests of First Nations. For the most part, the federal and provincial governments have done little to implement these court decisions. The B.C. Government has reacted to the latest round of court decisions by focusing on preparing for litigation, rather than implementing the requirement to consult and accommodate.

The unwillingness of the federal and provincial governments to adjust their negotiators’ mandates to implement the advances in the courts has been the source of a great deal of frustration and delay at the negotiation tables. The B.C. Government’s recent referendum that sought to limit First Nations’ inherent right of self-government, which the B.C. Supreme Court has determined is recognized and affirmed by the Constitution, also slowed negotiations. The federal government, for its part, recently issued notices to at least a dozen negotiating tables threatening to shut down negotiations due to “lack of progress.”

In our view, the lack of progress is largely reflective of the level of political will to negotiate and conclude fair and comprehensive agreements. For example, until recently, the issue of compensation was not an item for negotiation. Even now, it is only an issue that may be “explored” at negotiation tables. As well, notwithstanding court decisions from the Supreme Court of Canada which state Aboriginal title in B.C. has never been extinguished, neither Canada nor B.C. will recognize the existence of Aboriginal title to any part of B.C. They state this must be proven through litigation.

For the time being, the legal uncertainty will continue and capital will be invested elsewhere. To achieve certainty, Canada and B.C. will have to provide mandates to their negotiators that are sufficiently broad and flexible to conclude fair treaties with First Nations.

Despite our considerable frustration, we remain hopeful that in the coming year AIPs will be reached at several tables. Only time will tell whether our optimism is well founded.

Grand Chief Edward John, a lawyer, is a Hereditary Chief (Akile Ch’oh) of Tl’azt’en Nation. He is a member of the First Nations Summit Political Executive which is authorized by the Summit to carry out specifically mandated tasks on issues related to treaty negotiations in British Columbia.

This article was published in the February 2003 issue of BarTalk. © 2003 The Canadian Bar Association. All rights reserved.