Twenty years of treaty talks frustrated by unmoveable government

Musqueam First Nation

Tomorrow, Sept. 21, will be the 20th anniversary of the BC Treaty Process. Two decades have passed since the signing of the historic agreement that established the BC Treaty Commission as the “Keepers of the Process.”

Instead of marking this important milestone with celebration, however, the mood around the First Nations Summit table during the last two days of discussion Sept 19 and 20 at the Musqueam Recreation Centre was subdued.

The process has seen only two treaties completed—Tsawwassen and Maa-nulth—and a pile of debt accumulated by First Nations who had to borrow money in order to effectively take part in negotiations.

And recently, to add insult to injury, the federal government has unilaterally decided upon a new approach to treaty and self-government negotiations, announced in a press release on Sept. 4. Canada, the press release says, will focus its resources on tables “with the greatest potential for success” in its response to calls for a faster process.

How this new approach will unfold has not yet been communicated, or negotiated. Which of the tables will make Canada’s list is anyone’s guess, because “greatest potential for success” has yet to be defined, or negotiated. What will happen to the debt of the nations “kicked to the curb”, as Grand Chief Ed John describes it, has also not been discussed or negotiated.

The hope, optimism and excitement with which First Nations entered the process 20 years ago has been replaced with cynicism, distrust, and frustration, it would seem from the comments of the leadership around the table, some of whom attended the agreement signing two decades ago.

This new approach to treaty and self-government agreements is a Canada-wide approach, but more than 50 per cent of the tables currently in negotiation are in British Columbia.

The First Nations Summit compiled a video (which can be seen here on the Ha-Shilth-Sa website) from footage shot at the time of the agreement signing at the Chief Joe Mathias Centre on Sept. 21, 1992. In it we see then-Prime Minister Brian Mulroney declare that Canada hoped to wrap up treaty business in BC by the year 2000.

“The time has come for all Canadians to say ‘yes,’ a solid generous ‘yes,’ to the Native peoples of Canada,” said Mulroney.

But ‘yes’ has rarely been a word in Canada’s treaty vocabulary over the last two decades, say the chiefs. And that has been the impediment to any of the success that was dreamed about or promised.

The federal government said ‘no’ to any discussion on taxation, residential schools and fish. The federal government said ‘no’ to bringing its ‘negotiation’ mandate in line with recent Canadian law. The federal government comes to the table with a ‘take it or leave it' approach which has forced some nations into litigation, and an even greater debt load.

The deck is stacked and results are pre-determined, say some of the process.

“That’s not negotiation,” said Tseshaht First Nation Chief Councillor Hugh Braker. “That’s somebody coming to you with the results.”

“Good faith in negotiation is not there,” said Grand Chief John, who was a signatory to the commission agreement. “Good faith has been elusive.”

And yet, the federal finger seems to be pointing at First Nations for the delay in reaching treaty in the province, he said, as if disagreement with the strict and unmoving federal mandate is a blame to be shouldered by First Nations.

“There will never be a treaty in Ktunaxa as long as extinguishment is on the table,” said Kathryn Teneese of the Ktunaxa Nation Council. She was in attendance at the agreement signing in 1992. She said the day was so full of hope and the belief that First Nations could move to a new place with treaty.

 The BCTC commissioners attended to report to the nations on day two of the Summit meeting. Commissioner Celeste Haldane said the new federal approach seemed to undermine that hope of two decades ago. There has been no discussion, she said, about this new paradigm.

Said Commissioner Robert Phillips “We do not want to see a ‘made in Ottawa’ approach” to negotiations. “That’s not what the last 20 years was about.” He said the treaty commission is looking for details about Canada’s intentions.

Phillips said the commission is now also going to have to look at an ‘exit strategy’ for those unwilling to go along with negotiations now that one party in the tripartite process has changed the rules of the game.

“We should not have to pay back this money,” he said. There should be loan forgiveness.

“We spent a lot of money to get to this point,” said Rod Naknakim, chief negotiator for Laich-Kwil-Tach Treaty Society. “And now to be dismissed for what we believe in.” He wanted the treaty commission to be involved in defining what “reasonable prospect for success” would mean. “One party should not be allowed to define this,” he said.

Grand Chief Ed John went further. He asked the commission to undertake an assessment of each table, independent of government.

Lake Babine Chief Wilf Adam said his community joined the process in 1994 and has a lot of debt to show for negotiations.  He wants the BC Treaty Commission, as keepers of the process, to take the government to task about the way the feds have decided to go forward.

“In a tripartite process, if a party unilaterally changes the approach, it usually doesn’t work,” he said.

“If the First Nations are not going to be on the list, then the debt should be forgiven,” said Adam.

Ktunaxa’s Teneese said the ‘new approach’ announcement had Ottawa’s bureaucratic fingerprints all over it. It seemed to her that it was an adjustment so the bureaucrats could have an easier time managing their “so-called files.” She was particularly bothered by the description saying First Nations are talking about people and land and rights. These are more than just “files,” she said.

Treaty Commissioner Dave Haggard thought back to the video and said “what a vision our leaders had.” Twenty years and only two treaties, he lamented. “It’s unacceptable” considering the money debt that has been accumulated.

Chief Joe Mathias had made it clear back at that beginning when he set out the parameters of the First Nations’ perspective on treaties.

“The treaty making process is a negotiation process,” he said. “We know that the negotiations will not be easy. We know that agreement on our land, our resources and seas will be difficult to achieve… We offer Canada co-existence, not confrontation. We offer British Columbia prosperity, not destruction. We view the treaty making process as the most civilized way to establish new relations between our people and non-Indian society. Negotiations, in our view, will not be based on that tired old notion of extinguishment. We will not tolerate the extinguishment of our collective aboriginal rights. Let us set that clear today.

“Rather we approach the negotiations with the view of sharing and co-existence…. Today there is wealth enough for all people in this great land. Our aim is to share and to co-exist in the bounty that this earth offers all people. It is said that one learns nothing from success. That one only learns from failure; that experience is a cruel teacher. With the signing of the treaty commission agreement today we now have the opportunity to turn that saying around. Indeed, we have the opportunity to turn history around.”

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