I have spent many hours studying legal texts, academic papers and opinion pieces on the BC Treaty Process. Throughout this research my ideas have evolved considerably. I have come to the conclusion that unless the structure itself is altered significantly, there can be no just negotiations between the Governments of Canada and First Nations. The only agreements that can come out of the current process will be skewed unjustifiably in favour of Canadian business interests aimed at further degrading the Earth, our mother. And for our people, a temporary cash flow and a mere fraction (less than 7%) of our land that cannot even guarantee us one generation of 'prosperity,' the very reason we are negotiation in the first place. Let me explain.
Although extinguishment is no longer official policy of the Crown in treaty-making, the BC Treaty Commission (BCTC) explains its new policy as “a modification model. Under this model, aboriginal rights are not extinguished but are modified into those rights that are defined in the treaty.”[i] It is difficult to see modification as anything else but a surrender of rights (extinguishment) in the name of economic ‘certainty.’ This is important to know because the extinguishment of our rights means that our traditional ways of being in this world are limited and sometimes rejected outright. This directly counters the recognized human right of self-determination. Rights practiced by our people since time immemorial.
The BCTC states “the Government of Canada recognizes that aboriginal people have an inherent, constitutionally-protected right to self government—a right to manage their own affairs.[ii]” Self government will be negotiated on its own unique terms. Self government is important, but current models are nothing more than delegated authority from the Crown. According to the BCTC, administration of the governments will include “education, language and culture, police services, health care and social services, housing, property rights, child welfare and other provisions agreed to by the three parties.”[iii] The problem is that legally, justifiable infringements are currently allowed on First Nations’ treaty rights and title and there is little guarantee the current levels of exploitation will abate even with a constitutionally protected agreement. This one-sided power equation reads to First Nations: join the BCTC process and get a piece of the economic development while it lasts.
First Nation self government has legal support among experts and through political acknowledgment. Many First Nations believe that their laws supersede federal/provincial laws because they existed before the imposition of Canadian laws. The Nisga’a’s modern day treaty is an example of the First Nation right to self government, although this agreement is widely seen as nothing more than a municipal, delegated authority. A number of legal experts believe that S.35(1) includes a right to self-government.[iv] In 1985, Quebec National Assembly passed a resolution for self-government within Quebec and as of 1991 Ontario recognized the inherent right to self-government.[v] Even the Charlottetown Accord had agreement from all parties for First Nation self-government. The real question should be not what level of autonomy the Crown is willing to release, but how to restructure the negotiation process to produce more equitable and just treaties, leaving governance up to the nation in question.
Unless things are fundamentally altered, the BC treaty process will not achieve its primary goal of certainty for the BC economy. As Richard Day points out, “policy statements from the federal government are clear: self-government will be exercised within the existing Canadian Constitution.”[vi] This overriding authority of the Constitution means that treaties will be subject to the same mediocre protections of their lands and rights as older treaties. The difference is that First Nations in BC are drowning themselves in millions of dollars in debt only later to be susceptible to infringements on those very negotiated agreements. This creates certainty for BC business in exchange for the continued uncertainty in First Nations communities. The controversial policy of excluding the province’s history in treaty negotiations is answered by “the Province’s resources are not usefully spent in a lengthy exploration of historical and archaeological evidence…The Province is not interested in recreating the past.”[vii] Yet the treaties are obligations on the Crown which are based on historical injustices. Taiaiake Alfred argues “there is no concept of redress, responsibility, reform or even true reconciliation in the BCTC process because there is no questioning of the assumptions about the justice of the past and the present.”[viii] Avoiding First Nations’ history also means the Crown does not have to divulge how it initially obtained title to claimed lands and therefore, conveniently bypassing the question of sovereignty altogether.
Although the BC treaty process is built on a colonial foundation made to perpetuate the status quo and domesticate Indigenous nations, a treaty is still the best instrument to negotiate coexistence between two peoples. Suggestions of improvements to the BCTP only serve to make a faulty system slightly more palatable, while falling short of addressing the very structures of domination built into the negotiation process itself. I believe that only after a cultural renewal based in Indigenous spirituality can nations legitimately negotiate the lands of their ancestors for future generations. But Ill save that for later.
[i] Can be found at: http://www.bctreaty.net/files_3/faqs.html.
[ii] Ibid.
[iii] Ibid.
[iv] Imai, Shin. Aboriginal Law handbook, page 315.
[v] Ibid., 315-16.
[vi] Day, Richard. The BC land question, liberal multiculturalism, and the spectre of Aboriginal nationhood, page 13.
[vii] Ministry of Aboriginal Affairs, 1995.
[viii] Alfred, Taiaiake. Deconstructing the British Columbia Treaty Process, page 4.