Dr Ravi de Costa
Research Fellow
Institute for Social
Research
Swinburne University
rdecosta@swin.edu.au
1. Introduction
In this paper I’d like
to provide a critical introduction to the BC treaty process, which some of its
proponents see as the most comprehensive democratic attempt to resolve
the consequences of colonialism anywhere in the world.
The democratic aspects
are worth considering, because I think this type of engagement, building new
relationships between peoples, is testing what we understand to be democracy as
it might exist where identifiably different peoples reside in the same state.
The paper concludes with
an exploration of the BC process’ credentials as a democratic practice but in
order to arrive at that speculation, a review of the process is essential: its
origins, its structure and operation, and its current direction. In particular,
I will speak about the recent referendum held on treaty-making in BC.
2. How did the BC
process originate?
Given Brad Morse’s
recent presentation in this forum I won’t attempt to review the entire Canadian
experience and BC’s place in it. What I will do is to try to offer some sense
of why the BC process came about when it did.
By the early 1980s there
was growing dissatisfaction amongst BC Natives with both the pace of the
comprehensive claims policy and the nature of the agreements being reached. The
CCP being the Federal policy response to the Calder judgment of 1973.
About 20 indigenous
groups in BC had signed onto that process and seen nothing. Meanwhile, the
Province continued to behave as though the land and resources were entirely
unencumbered by indigenous interests, even though Calder had totally
discredited that approach. The response of Natives was to step-up direct action
across the province.
Indigenous protest had
been a persistent feature for some time, thought his was largely taking place
on reserves, where the focus of protests was on the lamentable state of
services in Native communities. By about 1983, however, protest went ‘off-reserve’
and into the public view. The chief target was the resources sector.
The Province is hugely
dependent on commodities and resources. Forestry products are especially
important: British Columbia employs nearly 100,000 directly in forestry industries;
out of a workforce of 1.9 million, another 200,000 work in activities dependent
upon forestry.
Also, forestry in BC
accounts for approximately CAN$16B in export revenue, which is half of the
total of all exports from the Province, and nearly 5% of total exports from the
whole of Canada.
This means that
resources and particularly forestry have a strategic position in any
negotiations, but also means that the economy as a whole is highly susceptible
to poor outcomes in that sector.
Logging roads and train
lines were blocked by Native activists; some groups cut logs ‘illegally’;
others sought and won injunctions against development on their traditional
territories. David Mitchell – in 1990 an executive in a logging company and a
BC cabinet minister – was quoted as saying, ‘It is no longer certain who
controls the forests in BC.’
I point this out to
dispel any idea of an awakening public sensitivity to the moral and legal
claims of BC Natives. The government of BC was forced to negotiate by the tactics
of Native people who severely disrupted the resource economy of the province
through litigation and direct action. Whether Australia can approach a treaty
process through less confrontational means remains to be seen; the example of
British Columbia does not provide encouragement for those that believe
Australian treaties will be the natural dividend of our extensive emotional
investment in reconciliation.
3. What are some of
the obstacles to reaching agreements in this process?
[refer to ‘Overview’ document for details on the structure and status of the treaty process]
A major problem for
treaties is the obligation of ‘swallowing the whole pill’ at once: rather than
signing off on sections of an agreement that work and implementing them, giving
them s.35 protection, while difficult issues continue to be discussed, the
process obliges all parties to reach an agreement on everything at each stage.
This is an immense
technical undertaking in which huge resources are required and consequently
huge costs incurred. The Province is quite stretched as there are few trained
negotiators on its team. One consequence is that there are very few negotiating
days on each table: 1 day of negotiations every 6 weeks was a common figure
quoted to me in 1999-2000. In this situation, a sense of achievement is very
limited and turnover of government personnel at tables is very common, causing
a loss of table ‘memory’.
The problem is much more
frustrating for First Nations, who see their loans pile up with no semblance of
a success. While litigation is certainly expensive, negotiating treaties in BC
has turned out not to be cheap. The presence of large liabilities on the books
of small First Nation community organisations has greatly impaired the access
of many to commercial credit.
Meanwhile, their
communities experience ongoing privations and social dysfunction. Many First
Nations have deprioritised treaty negotiations to concentrate on basic
community development, while others have formally abandoned the treaty process
altogether.
For those that remain,
there is a lot of talk now about ‘incrementalism’–phased implementation of
agreements, such as the land component being fast-tracked while the thorny
issues of governance or compensation are left for another day.
Aside from such problems
of process, there are a number of issues over which the governments and First
Nations appear to be in ‘two solitudes’.
On interim measures
there has been a total lack of substance from the Province. The idea of interim
measures was that lands and resources would be protected from industrial
development while final agreements were reached; First Nations were also
expected to gain access to resources through interim measures as a matter of
good will and social justice.
While there have been 70
interim measures reached (more than half in the last three years) there is
little or no sense of land protection in them. The treaty Commission identified
only one IM as being for the protection of lands from resource development while
negotiations were underway.
Most of the measures are
for modelling of economic activities that may take place after treaties
have been reached, such as aquaculture or forest management. These are not sums
that can provide a community with the means to develop or any sense of social
justice, but rather appear aimed at keeping First Nations in negotiations.
Meanwhile, development activities continue on First Nations’ traditional
territories. As the Chief Treaty Commissioner of BC told me in 1999,
Right now First
Nations are largely saying, and I think quite legitimately that, ‘it’s just not
on that we continue sitting negotiating at treaty tables accumulating huge
amounts of debt when the very assets, the very resources that we’re talking
about are rolling by our offices on logging trucks’.
On compensation
there is no common ground. The governments refuse to explicitly acknowledge
compensation in treaty negotiations.
BC has been coy about
this, saying that they see the cash components of treaty packages as providing
the basis of economic development, not as reparation for past injustices,
though they accept that First Nations can see treaty settlement packages
however they want.
The Federal government
says that its response to the Royal Commission on Aboriginal Peoples called
‘Gathering strength’ (especially the healing fund for victims of the
Residential schools) exhausts its responsibilities for past injustice.
The FNS recently passed
a motion that no Final Agreements will be reached that do not deal explicitly
with compensation. There’s no clear way forward on this issue.
Moreover, it is
difficult to see how agreements might be reached in urban areas without massive
cash compensation because of the lack of unalienated Crown land.
The challenge of self-government
is immense and reproduces national tensions. Many of you will know that the
Federal government of Canada has recently introduced governance legislation
into the House of Commons; the Assembly of First Nations, the national peak
body for Natives in Canada, totally opposes the bill, saying that any
governance initiatives must come from Natives themselves.
In BC, the debate has
become hamstrung in the last 18 months by one fundamental issue: should First
Nations’ governing authorities have a delegated or municipal status akin to
that of local government, or should it be of a completely different order, akin
to a new branch of Canadian sovereignty.
Of course there are many
intermediate positions, but the recently-elected Liberal government in the
Province is deeply committed to the former. This debate is taking place in a
context of non-Indigenous fear, where a nightmare vision of Native governments
running roughshod over the rights of non-Natives is invoked with growing
frequency.
On the issue of land
quantum, I note that of seven comprehensive offers made by the two senior
governments to First Nations at Stage 4, none has been accepted.
The experience of the
Lheidli T’enneh Band near Prince George is indicative. They identify their
traditional territory as 4.6 million hectares; the governments’ offer in
mid-2000 was for 2900 ha, of which nearly 700 ha was reserve lands they already
held. The Band felt that an amount of 280,000 ha, or 6% of traditional
territory was appropriate to their needs.
In rejecting the offer
as an insult and an act of bad faith, the Chief of Lheidli T’enneh pointed out
that had his people reached a treaty 100 years before (their lands adjoin those
over the Alberta border which are part of Treaty 8) they would have been
entitled to 14,000 ha.
First Nations suspect
that an undisclosed formula has been adopted by governments, with a figure of
about $60,000 per person seeming to be the template for all land and cash
offers; that is $60,000 in cash and/or the value of land. The Lheidli T’enneh
are currently in a Freedom of Information action to procure documents showing
how the senior governments arrived at their offer.
Another issue which has
emerged in the years since the Delgamuuk’w judgement is the possibility
that discussions at tables may be creating a future legal minefield.
One unambiguous goal of
treaty discussions is to make rights clear, or to ‘define the undefined’. Yet
there is no guarantee that the representatives of First Nations at tables are
actually the holders of the legal rights of particular communities, or entitled
to speak for those people.
In 1999, the BCTC
prepared a confidential report that raises ‘the spectre of negotiations being
carried out with a First Nation that is not coterminous with the nation that
holds title to a particular territory’.
This could spell
disaster at a number of tables, with doubts cast over the validity of framework
or interim agreements and great uncertainty about the status of debts already
incurred. The report remains confidential and the issue is far from resolved.
Perhaps the most
intractable conceptual difficulty is over the ‘certainty’ of final
agreements to be reached through the process. A rich vocabulary has evolved in
Canada to express certainty, with overtly extinguishing phrases like ‘cede,
release and surrender’ giving way to softer language like ‘modify and release’.
What is being made
certain? Is it the case that indigenous rights are being made certain
through their explicit definition and protection under s.35? Or do treaties
serve to indemnify the state against the future assertion of indigenous
rights, limiting the indigenous sphere forever to what can be negotiated in
this moment?
The Delgamuuk’w
judgment defines aboriginal title as subject to ‘national interest’
infringement. The issue of infringement of treaty rights has yet to be tested
and it may be that ‘certainty’ cannot be negotiated but must be further
litigated.
4. The future for
treaties in British Columbia.
There are no agreements
and none on the immediate horizon. The total costs of negotiating already
incurred continue to grow: at the end of 2001 operating year, CAN$180M has been
disbursed to First Nations ($150M as loans) for the purpose of negotiating
agreements that seem remote.
Total government
expenditure on treaty negotiations has not been fully disclosed; though in 2000
the Auditor-General of Canada floated a figure of $500M. The ‘third-parties’
have committed significant funds and created research and lobbying structures
as well. These figures in no way include the cost of settling final agreements.
There is some discussion
beginning on the value of working out ‘templates’ or even Framework Agreements
for the whole province or regions, so that individual tables’ workload could be
reduced and the process expedited.
The idea of regional or
province-wide solutions, however, cuts across the ‘nation-to-nation’ quality
that many First Nations have seen as a crucial aspect of treaty-making.
Political differences amongst First Nations have so far been contained by the
minimal role played by the Native peak body, the First Nations Summit. Moving
down the ‘template’ path may highlight long-standing differences once more.
Meanwhile, there is
growing disaffection of many Native groups for existing negotiated processes.
The Canadian Supreme Court’s Delgamuuk’w judgement of 1997 has
significantly expanded the nature of aboriginal title in Canadian law, yet in the
view of all the peak indigenous groups in Canada, neither the BC process nor
the Comprehensive Claims process has responded adequately to this massive
shift.
Many First Nations are
actively reconsidering litigation as an option; others, believing that the
burden of proof of title has shifted away from Natives onto governments, are
simply exercising their rights on their traditional territories.
This was the situation
up to May 2001.
At that point, the
government of BC changed. The NDP had held government from 1992 and been
consistent backers of treaty-making; the opposition BC Liberals (a completely
separate organisation to the national Liberal party, which holds government
under PM Jean Chretien) were supportive in-principle, but highly critical of the
practice of treaty-making which they described as ‘shadowy and unobserved’.
Last year the Liberals
annihilated the NDP, winning 77 out of 79 seats in the provincial legislature.
A long-standing commitment of the Liberals in opposition was to ‘relegitimise’
the process through a referendum – a commitment first made soon after the
substance of the Nisga’a negotiations became public.
The Liberals had already
tried to have the NFA declared unconstitutional by the BC Supreme Court – they
argued that it changed the constitution without being a formal amendment which
would need public ratification through a referendum, not simply passage through
the BC and Federal legislatures. Though their legal argument was unsuccessful,
their politics were clear.
The new government held
a mail-in ballot (there is no compulsory voting in Canada) that took place from
early April until May 15 when polling closed [refer to
‘Overview’ document for details and outcomes of the referendum].
The Province’s assertion
that this was not to be a referendum on minority rights was disingenuous:
treaties are negotiated statements of the content and character of Native
rights to be protected under s.35; limiting the legal scope of one party’s
position as has happened through this vote, clearly confines any attempted
definitions of Native rights.
Take self-government.
There is now a legal obligation on the BC government to seek a delegated form
of self-government through negotiations; more than that, to refuse to negotiate
anything other.
The courts have said
otherwise. In Campbell, the BC Supreme Court described Native
self-government as an inherent right. DIAND Minister Bob Nault, has said that
municipal government ‘is not on’ for that very reason.
A new path to litigate
has been potentially opened up. Recent jurisprudence in Canada has developed
the concept of ‘good faith’ negotiations between governments and Natives, the
Supreme Court stating in the Luuxhon judgement that although governments
are not obliged to negotiate, once they commence negotiations they are obliged
to do so in good faith.
It is doubtful whether a
retrospective move of the goalposts on the issue of self-government could
possibly constitute good faith negotiating. If the Province seeks outcomes not
consistent with the referendum results, litigation may come from an entirely
different direction.
However, this invites
the question of why the government would expose itself in such a manner? In
1999, while they were still in Opposition, I discussed the Liberals’ referendum
plans to the Chief Commissioner of BC. This is what he said to me at the time:
We’d be
reminding them of the commitments that they’ve made and the substantial
investment that each of the parties has made over the past seven years to
negotiations, and we’d encourage them to uphold their commitments and to make
this treaty negotiation process work … Canada and British Columbia’s
institutions and legitimate processes for giving effect to (treaty commitments)
are well articulated in the constitution and the traditions of the federal and
provincial bodies … You don’t need to count hands amongst the democratic
majority to determine what the rights of a numerical minority are. That just
seems mischievous.
Already a full year has been
wasted, with BC effectively freezing debate at tables on many issues since it
took office last year. Another example of the Liberals’ vandalism of the
process is their recent decision to cut provincial funds for the ‘third-party’
consultative bodies I noted earlier. In light of their criticism of the process
throughout the 1990s as ‘shadowy and unobserved’, this seems bloody-minded.
In my view, the
referendum was a calculating and cynical attempt to change the political and
social climate in which the claims of indigenous peoples in BC are heard.
In a way entirely
reminiscent of John Howard’s tolerance of Hansonism as ‘free speech’ that lead
to a flourishing of division and cultural conflict in Australia, the BC
Liberals counted on the disruptive possibilities of a neo-populist referendum
on the rights of indigenous people; particularly the likelihood that the
referendum would see an ‘us versus them’ mentality given free rein. The
activities of ‘white pride’ groups urging positive votes in the referendum were
widely reported.
An even more troubling
possibility is that the resort to a referendum reveals the provincial
government’s fundamental lack of both capacity and will to conclude agreements
through a fair and honourable process.
Realising that it cannot
reach agreements at tables that satisfy First Nations and also the often
fundamentally opposed resources sector and their rural dependents, as well as
assuaging the bulk of British Columbians who want social moderation but fiscal
conservatism, it has adopted a pseudo-democratic strategy of abdication,
allowing the appearance that it is at treaty tables “under instruction’ from
the BC public.
There are serious challenges to democratic political institutions
that are arising through treaty-making; the referendum is not the only
instance. The role of Parliaments has also changed: for example, the BC
legislature has been asked to consider formally the treaty process on two
occasions: the original passage of the BCTC Act in 1993, and the passage of the
Nisga’a agreement in April 1999.
On the first occasion there were no amendments to the package of
legislation and little dissent, though the Leader of the Opposition wondered
why functions had been arranged to celebrate the legislation with invitations sent
out before the legislation had even been tabled.
On the second occasion, there was no such moderate puzzlement. The
Nisga’a legislation passed the provincial House unamended again, but the NDP
government had to use its numbers to close what had become a rancorous debate;
this, after promising what we call a ‘conscience vote’ of all MPs.
I am not suggesting that this does not happen regularly but the
structure of treaty-making necessitates Parliament to act as a rubber stamp: it
is an expectation rather than implicit, because agreements are negotiated
‘elsewhere’ with the Parliament to act like a Governor-General and simply
provide its assent.
At bottom, this situation has arisen because of the ‘empty box’
approach to s.35 and the addition of s.35(3) which protects treaty rights to be
agreed in the future. Indigenous rights are there, they exist, and are
protected by s.35, but treaty-making establishes what they are,
comprehensively.
In this way, treaties are not constitutional amendments but a form of
constitutional description, a negotiated description that receives
constitutional protection itself.
Personally, I am not at all troubled by this more sophisticated
approach to fundamental reform of democratic institutions. However, it would
seem that some people in BC are, and they have been able to use the distance
between that sophisticated approach to constitutional reform and the more
familiar majoritarian notion of reform, as a space in which to operate and sow
mistrust.
Perhaps the problem lies with the premise of comprehensiveness and
finality that threads through the BCTP; and can be avoided by seeking a much
longer term for negotiation, perhaps in perpetuity. Though the rhetoric is of
creating new relationships between Indigenous peoples and the larger
communities in which they live, the reality is closure. The apoplexy over what
constitutes ‘certainty’ demonstrates that clearly.
If the goal is truly a partnership of peoples, then why the urgency
to solve everything in a single negotiated process? A true and effective
partnership between peoples would be able to address issues as they became
pressing and as the parties moved into positions where mutually agreed outcomes
were likely.
The referendum is simply the most stark evidence of the goal of
closure in BC: by using the shield of majoritarian democracy, the Liberals have
sought to harden the edges of the negotiating space on key issues such as
self-government and approaches to resources.
Though it is far from clear what the results will actually mean at
treaty tables, the effect has been to demonstrate incontrovertibly that the
Province will resort to pseudo-democratic bastardry in order to effect
certainty on its terms; or rather, to prevent other more inclusive notions of a
certainty built on a trusting relationship between peoples.
The BC process
originated in a series of actions that demonstrated the limits to democratic
processes for indigenous recognition: a combination of lawful and democratic
litigation, as well as direct action clearly outside the democratic channels.
It now seems that at the point where recognition can be institutionalised in
this process, that the nature of democratic legitimacy is itself being challenged.
The gloves are off, the positions are hardened; what some in
Australia call Canada’s ‘culture of rights’ is being tested in BC.