Change mandates and give negotiators authority to deal

To mark the 20th anniversary of the BC Treaty Commission, a report has been issued urging Ottawa to forge a renewed commitment to the province’s treaty process.

Entitled A Commitment Worth Preserving: Reviving the British Columbia Treaty Process, the report provides recommendations that focus on collective involvement, fairness, cost-effectiveness and transparency within the system.

The Standing Senate Committee on Aboriginal Peoples released its 11-page report June 27. It calls on Canada to ensure federal decision-making processes and negotiation mandates be revised to provide federal negotiators sufficient flexibility and authority to engage in open, genuine and valued negotiations with First Nations in B.C.

“In order to contribute to a renewed approach to treaty negotiations, the Committee urges the federal government to address certain procedural barriers to the conclusion of treaties under the current process. Bureaucratic federal decision-making structures and narrowly defined negotiation mandates are causing unnecessary delays in the treaty process,” the report reads.

“The conclusion of treaties provides important benefits both within and outside First Nations, including a solid legal basis for future economic development,” said Senator Gerry St. Germain P.C., chair of the committee. “Although significant efforts have been made to come to a just and equitable settlement of the land question in B.C. since the BC Treaty Process began almost 20 years ago, the parties to the process have also faced and continue to face significant challenges in connection with the negotiation, ratification and implementation of treaties within the process. Focused attention and a renewal of efforts are required, at this stage, to address and overcome these challenges,” he said.

Additionally, the report recommends that adequate resources be available to the BC Treaty Commission to provide or appoint dispute resolution services to assist First Nations in the resolution of overlapping claims within the B.C. treaty process.

“Moving forward, as the list of concluded treaties grows, we urge all those involved in the process to give further consideration to the provision of institutional supports to assist treaty parties in implementation and management of the treaty relationship,” said Senator Lillian Dyck, deputy chair of the committee, adding that the BCTC, whose mandate is presently focused on overseeing complex treaty negotiations, may eventually transition into such a role.

The commission report comes on the heels of a 47-page report made by James Lornie, special representative to Aboriginal Affairs and Northern Development Canada Minister John Duncan. Lornie submitted the document to Duncan last November, but it was only made public in June.

Lornie’s report provides nine recommendations, including more transparency in the treaty process and the ability to give federal negotiators more leeway to accept proposals at their local negotiating tables without seeking approval from Ottawa.

Other recommendations address fisheries issues, Aboriginal revenue policies and cost-sharing arrangements.

Lornie’s findings also state that First Nations treaty negotiations’ debt now tops $420 million, which he maintains is a huge barrier to reaching treaties.

Other government reports confirm that between May 1993 and March 2011, the BCTC disbursed $533 million in negotiation support funding to more than 50 First Nations–$422 million in the form of loans and $111 million in the form of non-repayable grants.

Lornie’s report further suggests that First Nations need the option to leave the negotiation table without feeling intense pressure to pay off debts and be allowed to return to the table at a later date.

The province agrees that the huge treaty debt plaguing First Nations is a big issue.

Money borrowed by First Nations to participate in the treaty process is taken out of the capital transfer that the federal government would eventually put forward at the end of a final agreement. Mary Polak, minister of Aboriginal Relations and Reconciliation, said that some First Nations are “reaching debt levels that might indeed surpass what their eventual capital transfer might be, or at least reduce it significantly.”

B.C. Treaty Commission Chief Commissioner Sophie Pierre said in a statement that Lornie’s recommendations, if imple-mented, will improve the prospects for treaties.
The BC Treaty Commission [BCTC] oversees the federal, provincial and First Nations government-to-government negotiation process in place since 1991.

In the Commission’s 2011 annual report, Pierre suggested that parties should start examining negotiations more seriously or explore alternate solutions to settle land debates and create First Nations governance.

“Get it done or shut it down,” she noted.

While Ottawa has not made any firm commitments to change the 20-year-old process, it plans to “explore” the report recommendations.

“I think all parties to the BC treaty process would agree that more could be achieved,” said Jason MacDonald, a spokesperson for Aboriginal Affairs and Northern Development.

“Canada is collaborating with BC and First Nations on a number of initiatives involving senior officials and technical experts to find efficiencies and new opportunities to advance treaties” he said.

“Canada continues to explore concrete, specific ways to address many of the issues and recommendations raised in the report, through existing initiatives with our partners in the BC treaty process,” MacDonald added.

“Canada and its partners in the BC treaty process have worked together on an ongoing basis to identify barriers to treaty and develop solutions. This work has yielded improvements to the process and has helped maintain ongoing dialogue between the principals.”

The BCTC reports that there are currently 60 First Nations participating in the B.C. treaty process. Two treaties negotiated under the B.C. treaty process – the Tsawwassen First Nation Final Agreement and Maa-nulth First Nations Final Agreement–have come into effect. Of the remaining First Nations involved in the process, as of January 2012, 40 First Nations are engaged in active negotiations at varying stages of the process, while another 18 First Nations are not currently negotiating a treaty.

There are also a number of agreements-in-principle (AIP) being signed, the latest being with K’omoks First Nation in March of this year. On July 10 Sliammon First Nation on the Sunshine Coast ratified its treaty and is beginning the process of government ratification.