BC Treaty Monster Grows 3 Heads (from Warrior Publications)

After 13 Years, The $1-Billion Treaty Machine (Nearly) Produces 3 Treaties, January 2007

After 13 years, and over $1 billion in negotiations, 3 modern-day treaties are near completion under the BC treaty process. The first to sign a final agreement were the Lheidli T'enneh, on October 29, 2006, at a widely publicized event in Prince George, BC. Government officials from Canada & BC were on hand, along with treaty commissioners, to witness the signing by Lheidli T'enneh band chief, Dominic Frederick. This first agreement was followed December 8 by the Tsawwassen band, located near Vancouver, and then the Maa-nulth (on December 9), located on Vancouver Island (part of the Nuu-Chah-Nulth). These three final agreements, the fifth step in a six-stage process, represent great advancements for the BC treaty process, which has yet to complete one modern-day treaty.

Although taking over a decade to reach this phase, the agreements are basically the same as that made with the Nisga'a band councils, back in the late '90s. The Nisga'a treaty was completed in separate negotiations, and has often been said to be a blueprint for the BC treaty process. This process, which involves federal & provincial negotiators, band councils, and the BC Treaty Commission, has come under increasing pressure for its failure to conclude even one treaty. Meanwhile, white lawyers, bureaucrats, technicians and negotiators have made millions (along with a few chiefs & councilors).

Money, Land & Resources

The final agreements provide cash, land, & access to natural resources. Most of the land comes from the provincial government, while money is provided by the federal government. Natural resources are in the form of access to (primarily) the fisheries & forestry industries. The band councils & their corporations are the legal entities through which the state will transfer these assets. Some of the money provided must be used to pay back millions of dollars loaned to band councils by the government for treaty negotiations.

The Lhedli T'enneh are a 320-member band located near Prince George in the central interior of BC. Their treaty is worth an estimated $76 million, with over $60 million in cash over a period of up to 50 years. The rest is in the transfer of land, natural resources (access to fisheries & forestry), and participation in new hydroelectric projects. The total land transferred to the band is 4,275 hectares, expanding its reserve land base from 677 hectares. About 1/3rd of this land (1,160 hectares) is located within the Prince George city limits. The band is expected to vote on the final agreement by February 2007, and must have 70 per cent approval of those voting.

The Tsawwassen treaty is worth an estimated $120 million to the 360 members of the band. Most of this is in resources transferred to the band council, including land & fisheries, as well as the band's involvement in port expansion. The Tsawwassen treaty has been more controversial because it removes hundreds of hectares of farm land –from the agricultural land reserve– for industrial use by the band (i.e., facilities to accommodate large-scale port expansion), and because it guarantees Natives access to 1 percent of the Fraser River fishery. This treaty has also brought protests from neighboring bands, including the Semiahmoo, who claim that it infringes on their territory. The total land transferred to the band is 724 hectares, up from its reserve size of 290 hectares. The Tsawwassen band is expected to vote on the final agreement by mid-summer, 2007.

The Maa-nulth are comprised of 5 bands (the Huu-ay-aht, Kay'yukth, Toquaht, Uchucklesaht, & Ucuelet) totaling some 2,000 members. They are located on north-east Vancouver Island. Their reserves total 2,064 hectares; under their treaty settlement, this will increase to 24, 498 hectares. The bands will also have access to fisheries & forestry resources. (a hectare is 10,000 square meters)

Loss of Land: the Real (Estate) Danger of Treaties

Although bands signing treaties will receive more land, their entire land-base will become fee simple, a form of private property that can be bought, sold, leased or seized. Their reserve lands– "Crown lands reserved for use by Indians" –will no longer exist. In this way, the final remaining land base for Native peoples will be exposed to the free market as private property. Future generations may well be dispossessed of any land base (a long-term goal of assimilation):

"The Indian Reserve will no longer exist and all land… will then be able to be sold… and as poverty will push people to sell land, it will lead to fragmentation of our communities and many of our people will be forced into even worse poverty in the cities." (Art Manuel, "New Relationship or Final Solution?" First Nations Strategic Bulletin, December 2006)

Economic Certainty & Increased Resource Exploitation

Each final agreement, like the Nisga'a treaty, contains provisions that surrender Aboriginal title and rights. They are described as the 'full & final settlement' of title & rights. This is one important goal of the treaties: to achieve legal certainty for government & corporations seeking to exploit land & resources.

For several decades now, land claims & lawsuits by Natives have led to many corporate investors withdrawing from projects, costing billions of dollars to the BC economy in lost revenue (along with roadblocks). A primary factor has been the absence of treaties & any legal surrender of land by Indigenous nations throughout the province (a fact re-affirmed in the 1997 Delgamuukw Supreme Court decision, which recognized the existence of Aboriginal title).

The achievement of certainty for government & corporations, through the extinguishment of Aboriginal Title, along with provisions limiting further claims, sets the stage for greater resource exploitation & environmental destruction of Indigenous territories once treaties are signed:

"[The Leidli T'enneh treaty] will create certainty & will help to allow for increased economic development… This initialing will contribute to improving the business & investment climate in the province." (Jerry Lampert, Business Council of BC, "Treaty Creates Certainty," by Jim Jamieson, The Province, October 31, 2006)

Self-Government & Economic Dependence

Self-government is part of modern-day treaties, and forms an important part of Canada's overall strategy towards Indigenous peoples. Some bands have already signed self-government deals, including Sechelt, Westbank, James Bay Cree, Yukon bands, etc. In exchange for signing these agreements, band councils receive greater political & legal power. They are removed from the Indian Act and re-defined as municipal levels of government, with the same authority (and responsibility) over local services such as education, health, housing, water, roads, etc. Although able to pass by-laws & other local codes, the band governments remain subject to provincial & Canadian law.

Through their increased legal & economic capacity (including land), the band councils & their corporations will be better able to engage in business (primarily with resource corporations). After 12 years of signing the treaty, the band governments will also be responsible for taxation of their citizens. These measures are designed to enable the band councils to achieve greater levels of economic independence, which is actually dependence on the capitalist economic system. As bands take greater control over municipal governance, including services, they will be under greater pressure to attain self-sufficiency, and even more vulnerable to signing deals with corporations (or even selling land).

Lack of Prior, Informed Consent

The final agreements, which must be ratified by community members, appear at first glance to be huge settlements. But this is misleading. The Leidli T'enneh agreement, for example, breaks down to just $230,000 per band member. Some $20 million of their $60 million cash settlement, in the form of resource-revenue shares, will be distributed over a period of 50 years. Most of the remaining moneys are designated for programs, services, economic development, & administration. In exchange, they will surrender their Aboriginal title & rights to their territories, potentially lose any remaining land base, while their territories are further destroyed by resource corporations.

Why would Indigenous people accept such agreements? Because, for the most part, they have little idea as to what is actually in the final agreements or their consequences. These documents are over 200 pages long, full of complex legal jargon that requires lawyers or negotiators to explain. They have also been crafted largely behind closed doors, primarily by lawyers & government negotiators (which is also why they are almost identical, word-for-word), with little if any community involvement (or even knowledge of):

"…the language & terms are alien to community people and very often the communities are kept absolutely in the dark about the negotiations… these final agreements are carbon copies of each other in regard to the extinguishments of Aboriginal title, which points to our people being coerced into a "final solution." (Art Manuel, "New Relationship or Final Solution?," First Nations Strategic Bulletin, December 2006)

Assimilation

Even before the 1876 Indian Act was passed, Canada's long-term plan was to assimilate Indigenous peoples into the European settler society. Although the Indian Act created an apartheid system with separate reserves, schools, governance, and even legal status for Natives, these were always seen as temporary measures necessary for the indoctrination of Natives into European culture.

By the late 1960s, government officials were publicly discussing the possibility of abolishing the Indian Act and the Department of Indian Affairs. In 1970, the government released a 'white paper' calling for just these measures within a 5-year period. The White Paper caused a groundswell of opposition from Native peoples across the country, and was eventually withdrawn.

Nevertheless, Canada's long-term strategy of assimilating Native peoples continues to this day, in the form of the BC treaty process and other 'self-government' negotiations going on across the country. These have as their goals the removal of all legal & political status of Indigenous peoples & reserve lands. They are also the means by which Indigenous people will become more dependent on the capitalist economic system as traditional land, culture & resources are destroyed.

Resistance is Vital to Survival

"They must give up their status as an Indian reserve & thus would begin paying taxes, like other Canadians, after an 8-12 year period. Most of their lands would also become "fee simple," meaning it would be subject to the same laws as all real estate in BC… The same principle applies to the resources they obtain, from salmon to hydro-power sources & forests. All would have to be managed under prevailing provincial & federal laws." (Miro Cernetig, "Native Treaty Worth $76 million," The Vancouver Sun, October 30, 2006)

"It is the grassroots Indigenous Peoples, who have not been informed & often pressured to accept an outcome, who will have to live under these Final Agreements, and they must understand the devastating impacts these agreements will have on their communities and on future generations." (Art Manuel, "New Relationship or Final Solution," First Nations Strategic Bulletin, December 2006)

Analysis of the final agreements signed by the Leidli T'enneh, Tsawwassen, & Maa-nulth in 2006 shows that treaties will mean:

Loss of Land-Base (from reserve to fee simple property)
Surrender of Aboriginal Title & Rights to Territory
Greater Resource Exploitation by Government & Corporations (by achieving legal & economic certainty)
Taxation (ending of tax exempt status after 12 years)
Ending of Indian Act (assimilation as Canadian citizens)
Forced Dependence on the Capitalist Economic System

While providing short-term economic gains for some, modern-day treaties threaten present & future generations with dispossession of land & even greater impoverishment, including the loss of a genuine land-based culture & way of life. Treaties are a clear danger to Indigenous peoples, culture, land & resources, and must be resisted. A crucial first step is education. Anti-treaty resistance is also a good way to learn the history of colonization in BC, and why there are no treaties in the province to begin with.

For More info, contact:

Grassroots Coalition
Neskonlith Indian Reserve
RR 3 Site 31 Comp 7
Chase, BC, VOE 1M3

Cell: 250-319-0688
Amanuel@telus.net

Warrior Publications:
Warrior-Publications@hotmail.com

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New Relationship or “Final Solution” – An Analysis of the Certainty Provisions of the Final Agreements Initialed Under the BC Treaty Process by Arthur Manuel, Dec 2006 First Nations Strategic Bulletin

Canada has not moved an inch from its policy to extinguish the land rights of indigenous peoples and assimilate us into the existing white settler population.

This is also why Canada has opposed the UN Declaration on the Rights of Indigenous Peoples and late last year pushed African Countries to stall its adoption after over a decade of negotiations had resulted in a final text. On the domestic level and especially here in British Columbia the three initialed Final Agreements clearly show how Canada wants to do this through these so called modern treaties, although the term Agreements is more appropriate because they simply do not have the makings of a treaty as set out by international law. They also do not meet the substantive minimum standards as set out in the UN Declaration on the Rights of Indigenous Peoples as adopted by the UN Human Rights Council in June 2006.

It is important to point out that all three indigenous groups are all very small Indian bands who have been strategically separated out from their respective nations in the negotiating process so that more pressure could be exercised on them through the historic divide and rule strategy. These Final Agreements modify the full extent of the Aboriginal Rights including Aboriginal Title of each of the Indigenous groups, and they will also affect the entire Aboriginal Nations and even neighboring nations who have not been part of the negotiations. They also modify the constitutional and legal relationship between the indigenous peoples of these three groups vis-à-vis the Canadian and British Columbian governments. These three Final Agreements reflect the present status and the mandates that the government negotiators operate under pursuant to the federal Self-government and Comprehensive Land Claims Policies of Canada.

It is important to point out that all three Final Agreements are nearly or are identical in key provisions that the Canadian and British Columbia governments want indigenous peoples to concede to the federal and provincial governments.

Although they took many years to negotiate, they absolutely conform to the blueprint that the governments already set out in the Nisga’a Final Agreement. The key provisions include the modification of Aboriginal Rights to be surrendered and Aboriginal Peoples to be under the power or jurisdiction of the federal and provincial governments. These Final Agreements are between 221 to 284 pages long and must be examined very carefully because their implications must be fully understood before they can be considered as meeting the standard of “free prior informed consent” which has to be reached to make any negotiation or vote on these agreements valid.

At the recent UN sponsored meeting on treaties even historical treaties signed in the Prairies between the Crown and Indigenous Peoples have been criticized because of the lack of “free prior informed consent”. At that time there was a big difference between how Indigenous Peoples understood the spirit and intent of the treaties to validate their rights whereas the governments read them down to mean the surrender and extinguishment of rights. The problem with these final agreements is that we now have lawyers and technical people on all sides working on them. Still the language and terms are alien to community people and very often the communities are kept absolutely in the dark about the negotiations. Therefore the point about lack of free prior informed consent has to be made very strongly at this stage in the negotiations especially in view of the fact that these Final Agreements are carbon copies of each other in regard to the extinguishment of Aboriginal Title, which points to our people being coerced into a “final solution” which will extinguish our rights and assimilate or exterminate our nations.

It is the grassroots Indigenous Peoples, who have not been informed and often pressured to accept an outcome, who will have live under these Final Agreements and they must understand the devastation impacts these agreements will have on their communities and on future generations. They have to weigh the full scope of their Aboriginal Rights, including Aboriginal Title, against the profound limitation that will be imposed by these agreements where very little amounts of land will be returned as “fee simple” in exchange for the extinguishment of their Aboriginal Title. It is clear that Indigenous Peoples who live on Indian reserves are not familiar with “fee simple” simply because fee simple does not exist on Indian Reserves. In turn after a final agreement the Indian Reserve will no longer exist and all land will then be under provincial jurisdiction and subject to payment of taxes.

Probably even more importantly the land will then be able to be sold to the general public and as poverty will push people to sell land, it will lead to fragmentation of our communities and many of our people will be forced off their fee simple land and into even worse poverty in the cities. When looking at the economic status of most Indian peoples living off reserve, we see that they normally rent property and therefore would not have much experience with private “fee simple” ownership of real property. The persons most likely to purchase land that comes on the market following the dissolution of the Indian reserve will be non-indigenous persons. The way land is held and owned off Indian reserve is called fee simple. It is the highest private property interest that can be held by individuals. The owner is registered in the land register, but there is still underlying Crown Title under the individual ownership and if the owner fails to pay the property tax, the property will be lost to the state. Similarly if the person fails to pay their mortgage, it will be foreclosed and again lost. Therefore there is a lot of work that needs to be done educating Indigenous Peoples about the implications of reserve lands being transferred into “fee simple” and the loss of Aboriginal Title over their entire traditional territory before any vote on ratification would satisfy a minimum standard of “free prior informed consent”.

These three Final Agreements are very long and deal with a lot of issues therefore this first article in a series is going to deal with the Chapter 1, General Provisions of all three Final Agreements. Other Sections and aspects of these Final Agreements will be examined in subsequent articles to be published in the First Nations Strategic Bulletin. In particular it will focus on the Certainty provisions with the following headings: Full and Final Settlement; Exhaustively Sets Out Rights; Modification; Purpose of Modification; Release of Past Claims; and Indemnities and Specific Claims. These provisions are contained in each Final Agreement with the exception of Specific Claims which does not exist in the Tsawwassen Final Agreement. These provisions give certainty to the federal and provincial governments, because they spell out that all Aboriginal Rights, including Aboriginal Title, are then transformed and exhaustively contained in the Final Agreements and can no longer be claimed outside of them. This means that these Final Agreements are the Bible of the Lheidli T’enneh, Tsawwassen and Maa-nulth Indigenous Peoples regarding Aboriginal Rights including Aboriginal Title.

It is important to note these similarities because they reflect the fact that these provisions are an integral part of the federal and provincial governments Self-government and Comprehensive Land Claims Policies. It also highlights the fact that there are no genuine negotiations covering a range of solutions like “extinguishment under the modified rights model” to some other kind of final agreement based upon “recognition and coexistence of Aboriginal Rights including Aboriginal Title”. The model is really unilaterally pushed on the Aboriginal groups at the negotiating table, or one could say they got pulled over the table. It is clear that the wording of these provisions that the federal and provincial governments are committed to use the Nisga’a Final Agreement as the precedent to be the “final solution” to the so called Indian problem.

The wordings of these provisions are fairly straight forward to any person who has been dealing with these matters. The implications of these provisions do need to be considered and thought out in terms of how they cut back, limit and restrict broader interpretations given to Aboriginal Title and Rights by legal debate and decisions of the Supreme Court of Canada and of course as enshrined in Indigenous law. The 1997 Delgamuukw decision and other Superior Court decisions, although conservative have given a much broader concept to Aboriginal Rights including Aboriginal Title than the restrictions established by the narrow confines imposed by the provisions below. Through these politically determined Final Agreements, the federal and provincial governments are creating limitations that undermine and will extinguish Aboriginal Rights that the Courts have recognized, and that are protected by the Canadian constitution and international law. The only way our Aboriginal Title and Rights can be saved from being extinguished is if our people take an informed decision and vote against these Final Agreements.

In concluding this review of the Certainty provisions of the three Final Agreements one is left to wonder how agreement could have been reached on these provisions. Anyone who has been in working with Indigenous Peoples knows that getting unanimity amongst Aboriginal peoples, is as hard as herding cats. Therefore, it would seem that in this case, just like with all other aspects of the Final Agreements, the provisions were really being forced on Indigenous Peoples. They were really left no other option in coming to a final agreement than agreeing with what the federal and provincial governments want. Coercion again does not meet the internationally accepted requirement of free prior informed consent.

It is however probably good to highlight the hectares of “fee simple” land that will be subject to these Final Agreements. This is what the Lheidli T’enneh, Tsawwassen and Maa-nulth Indigenous Peoples will be voting on in the Ratification vote needed to implement these initialed Final Agreements. Looking at the provisions and the numbers below it is left up to the reader to judge: Is this a fair deal?

The Land Selection Model is the determined objective of the existing federal Self-government and Comprehensive Land Claims Policies. These Policies and the Final Agreements modeled after these policies do not even contemplate any new settlement model based on “recognition and coexistence” of Aboriginal Rights including Aboriginal Title. The effort of the Assembly of First Nations, Delgamuukw Implementation Strategic Committee to change the federal Comprehensive Claims Policy from the extinguishment model to a model based on the recognition of Indigenous Rights were rejected in December 2000 by the federal government because negotiations based upon extinguishment under the modified rights model were accepted by the parties negotiating under the British Columbia Treaty Process.

The fatal weakness of these Final Agreements are a direct result of not forcing the Canadian government to change its Self-government and Comprehensive Land Claims Policy to conform to the Supreme Court of Canada and International Human Rights decisions that specifically recognize Aboriginal Land Rights, and condemn Canada’s effort to extinguish Aboriginal Land Rights under the “modified rights model”. The fact that the governments are well on their way pushing these Final Agreements upon Aboriginal Nations, is also the reason why Canada has been opposing the UN Declaration on the Rights of Indigenous Peoples because it recognizes indigenous land rights and would not allow for their extinguishment. The Declaration also recognizes the principle of free prior informed consent, a principle that Canada did not want to recognize in a number of international negotiations, as the government continues to unilaterally push their policies in domestic negotiations.

It is clear that the existing leadership and negotiators are too weak to create the kind change required to ensure recognition and coexistence therefore it is up to the people to take action that will force this fundamental change and stop these agreements before it is too late. It is clear that the federal and provincial governments will try to create a snowball effect by these agreements and force all of us to accept the Nisga’a Final Agreement Modified Rights Model as a settlement or “final solution” for our Aboriginal Rights.

We cannot do this because we will betray our Elders who fought so hard to get us to this very critical crossroads, and it would cause our future generations poverty. Never in the history have our people been in a similarly strong position to create fundamental change to our situation based upon recognition of our land rights, but these Final Agreements could mean a gigantic step backwards and destroy the efforts of our past leaders and peoples.

The provision highlighted in this article need to be eradicated from any agreement dealing with our land rights. Aboriginal Rights including Aboriginal Title must not be modified to be nothing more than “fee simple” but recognized as the fundamental “radical title” underlying our traditional title just like Canada claims Crown Title underlies all property in Canada. This radical title will then be a basis for collecting tax revenue from all properties held by non-indigenous peoples in our traditional territories. Aboriginal Title is the basis of our right to make decision regarding our traditional territories and benefit from wealth generated from our natural wealth. Aboriginal Title is not limited to our existing Indian Reserves but is our inalienable right to govern over and benefit from our traditional territories. That is what is at stake here. That is why the federal government is so happy with their one hundred million dollar New Relationship, because it has brought silence from our elected leadership on these very critical issues.

The Indigenous grassroots need to step to the plate and change the existing dynamics or we will lose once and for all our rights as Indigenous Peoples. We will lose our lands, our title and rights for all future generations and we will be to blame for it.

The documents referred to can be gotten on the internet. It is clear that the British Columbia government really supports this process because they have devoted a lot of effort to maintain a public relations campaign including web page with the most recent material on it. The British Columbia government has arranged these Final Agreements and related material under the Ministry of Aboriginal Relations and Reconciliation Webpage under: http://www.gov.bc.ca/arr/treaty/final.html.  Review the website and see for yourself how the government is trying to sell and promote not only these agreements but to create the groundswell to flood us all with their policies and to wash away our Aboriginal rights in the process. The British Columbia government’s primary purpose for endorsing these so called modern treaty agreements because it would allow them to pretend that they are filling the legal and constitutional gap and the uncertainty created by the Supreme Court of Canada (SCC) Delgamuukw decision in 1997 in which the SCC recognized Aboriginal Title as an Aboriginal Right.

But the only way to deal with the fundamental question of our Aboriginal Title and Rights is through their full recognition. Our elders have told us that we have an obligation to maintain our traditional territories, so how could we ever give them up and how could one group of people be allowed to give up our rights in the name of all future generations. What would mean certainty to the governments of British Columbia and Canada in securing non-indigenous control would mean certain continued poverty for our children and grand-children.