Time is running out on treaty talks

By Katherine Palmer Gordon, September 2012

The BC treaty process turns 20 this month. Will it make it to 21?

Sometimes it seems that for every step forward in the BC treaty process, we take two steps back,” says Chief Treaty Commissioner Sophie Pierre, the frustration loud and clear in her voice. 

At its inception 20 years ago, there was optimism that the treaty process would be complete by now. It’s not even remotely close. Only two treaties have been completed, the Tsawwassen and Maa-nulth agreements. 

Three other final agreements have been signed, but that’s not as good as it sounds. The Lheidli T’enneh rejected theirs in 2007. A second vote is planned, but the outcome is uncertain. The Yale’s 2010 final agreement is on hold pending resolution of objections from their Sto:lo neighbours, who have overlapping claims to the Yale First Nation’s traditional territory and believe the Yale’s agreement infringes upon their rights. The Tla’amin approved their agreement this summer, but had to face down a court challenge to do it.

Of the remaining 56 negotiations, only K’omoks First Nation has an agreement-in-principle, and there is little to suggest that any other deals are close to fruition. At 18 tables, absolutely nothing is happening.

Last September, on the nineteenth anniversary of the process, Pierre openly questioned whether nearly two decades of effort and a tab of one billion dollars have been worthwhile, given the glaring lack of results. She also expressed her belief that unless significant progress was made within twelve months, the treaty process would be in grave jeopardy. 

She was not alone in her views. In 2011, consultant James Lornie undertook a review of the treaty process for the Minister of Aboriginal Affairs and Northern Development. Lornie echoed Pierre’s call for urgent action: “My view is that if little has changed [by the 20th anniversary of the process in September 2012], the process as a whole will be at serious risk of failure.” 

Among numerous barriers to progress Lornie identified were immensely bureaucratic and painfully slow decision-making structures within the federal government system, and inflexible federal government mandates. Lornie also emphasized the need for action to relieve the overwhelming debt burden to the government that BC First Nations have accumulated to fund their negotiations—$450 million to date and counting. 

But if the federal government is planning to act on the Lornie report, there’s little sign of it. “There’s been no discussion on how to use the recommendations in the report, even though the other two parties and the Commission keep raising it,” says Pierre. The offline chatter is that, like every other damning report on the process that has been produced over the last decade—and there are many—the Lornie report will be quietly shelved. “Yes, I think if they had their druthers, the federal government would prefer that this report simply gets buried like all the others and doesn’t see daylight again,” agrees Pierre sadly. 

The impenetrable federal bureaucracy hasn’t been the only thing getting in the way of reaching agreements. Back in 1992, First Nations were riding high on the crest of a wave of powerful court cases supporting aboriginal rights and title. But most of them were also starting from zero in pulling together their negotiating positions, let alone sorting out conflicts between themselves over shared or overlapping territorial claims, like the one that has the Yale stymied. 

There has also been an almost insurmountable gap in expectations as to what treaties will deliver. Among other things, First Nations want recognition of their aboriginal rights and title and full compensation for the many losses they have suffered. But governments have been reluctant to even discuss these matters, let alone agree to them. The recalibration of the provincial and federal government systems to contemplate a whole new world of sharing lands, resource revenues, and governance authorities with First Nations was also akin to turning a ship at sea: it took an inordinate amount of time to slow down and change direction to start working with First Nations rather than continue century-old habits of either ignoring them or actively working against them. 

That’s still a work in progress: witness the federal government’s lack of reaction to the recommendations in the Lornie report. Its aggressive support for the proposed Northern Gateway Pipeline also suggests that it has little sincere interest in reconciling Aboriginal title, at least to the lands in the pipeline’s path. The provincial government also continues to permit development activities on traditional lands despite First Nations’ opposition, forcing them into court action they can ill afford. That consumes enormous energy, and treaty negotiations are often left on the sidelines in the meantime. 

Another factor at play has been negative public reaction to the process. In many instances, especially in the early days, First Nations faced vitriolic public opposition to their negotiating positions, often sufficient to sway nervous politicians into backing off from potential deals.

To say it’s discouraging seems an understatement. But Lornie also said that he firmly believes significant progress can still be made. “I am optimistic that if the issues are addressed,” Lornie wrote in his report, “that will restore faith in the process and the consequential acceleration of conclusion of mutually satisfactory treaty agreements.” Pierre emphatically agrees: “We must recognize the potential that’s there.” 

That potential is huge. Quite apart from the social and cultural benefits, it is estimated that the settlement of treaties could result in net financial benefits to BC of more than $7 billion. There is also more to show for the efforts of the last 20 years than just a handful of agreements. First Nations have benefited from two decades of research into their history, rights and title. They have also started building human resource and governance capacity and, with the help of the Treaty Commission, started working out some of their shared territory claims. 

Outside the process, a significant number of economic deals and land transfers have been inked with the provincial government over the last few years, helping to resolve some of the issues around development activities on traditional lands and building goodwill. Last but not least, British Columbians have become more supportive, with public opinion rising to a 75 percent approval rating for treaties in early 2012, up from 65 percent in 2001.

In the meantime, however, the clock is ticking, apparently in an empty room. “Last year I asked if we can start finalizing agreements now,” says Pierre. “A year later, I’m still asking that question, and I still don’t have a firm answer.” 

Is the process going to fail? The costs of that scenario go beyond wasted dollars and effort; the dreams of First Nations people to see justice in their lifetimes is also at stake. Pierre is anxious, but believes the momentum can and will shift. 

Certainly if New Zealand’s treaty experience is anything to go by, it is too soon to give up yet. The treaty settlement process started there in 1975. As in BC, there was a very steep learning curve for everyone involved. There was also great reluctance on the part of Maori claimants to be the first to sign an agreement. What if you settled for too little? Negotiating groups were extremely distrustful of government, and nervous of setting unpopular precedents for those following in their footsteps.

It took more than 20 years to get past that initial distrust and fear of compromise. The first comprehensive agreement wasn’t signed until 1997. But the number of deals snowballed rapidly afterwards, and the rate of progress has continued to accelerate as comfort levels have risen around the impact of treaties and the financial and social benefits have started to show.

It isn’t unreasonable to surmise that First Nations have simply invested too much in the process to give up just yet. The alternatives aren’t necessarily attractive. The cost of turning to the courts to decide these issues is prohibitive, with no guarantee of a favourable outcome. Resorting to protest action is understandably tempting, but also unlikely to achieve any mutually satisfactory resolution of the issues at stake.

New Zealand’s success hasn’t just been a product of time but of real political commitment by the government there to conclude agreements. In the absence of the same level of commitment from both the federal and provincial governments here, how long the patience of First Nations with taking one step forwards and two steps back will continue to last is anyone’s guess.

Katherine Gordon is a former New Zealand land claim negotiator and Chief Treaty Negotiator for BC, and a writer based on Gabriola Island. She worked closely with Jim Lornie on producing the Lornie Report.