'Certainty' model causes concern

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Young people belonging to Treaty 8 nations are fighting with Treaty 11 members in the streets of Yellowknife, because of a boundary dispute and rights issues raised by the signing of a major self-government agreement.

The Tlicho Agreement was initialled Sept. 4 by the chief negotiators of the Dogrib Treaty 11 council, the government of the Northwest Territories and the government of Canada.

It is the first combined land claim and self-government agreement in the N.W.T.

Under the agreement, the Tlicho First Nation would own approximately 39,000 square kilometres of land in a single block surrounding or adjacent to the four Tlicho communities of Behchoko (Rae-Edzo), Wha Ti (Lac la Martre), Gameti (Rae Lakes) and Wekweti (Snare Lake). Tlicho lands would include both the surface and subsurface resources. The Tlicho would also receive about $90 million that would be paid over a number of years, and a share of the resource royalties received by the government annually from the Mackenzie Valley.

The Tlicho government would succeed the Dogrib Treaty 11 council and the Indian bands in the Tlicho communities. The Tlicho government would have law-making powers over a wide range of matters, including the protection and promotion of Tlicho language, heritage and culture, and the management and protection of Tlicho lands and resources. Tlicho laws would apply, generally, to all persons on Tlicho lands and to Tlicho citizens off Tlicho lands.

But the Tlicho's First Nation neighbors in the northern reaches of Treaty 8 territory say the agreement extends over their traditional lands. In a scenario that is reminiscent of the conflict between the Nisga'a and Gitanyow people in British Columbia, the Akaitcho people say their interests have been ignored by a federal government that wants a deal so badly it's not playing fair.

Paul Boucher, a negotiator for the Akaitcho First Nation in Treaty 8, blasted the deal.

"First and foremost, it's the worst deal in Canada," he said. "Look at the certainty clause. It extinguishes rights that you wouldn't believe. I wouldn't sell out my land for that kind of certainty clause. To me, to get a certainty clause like that in the agreement, someone must be bought out."

A federal government press release said the Tlicho agreement "would provide certainty with respect to Tlicho rights, title and obligations. The Tlicho would agree not to exercise or assert any Aboriginal right, other than any right set out in the agreement, or any Treaty 11 right, other than rights respecting annual treaty payments and the payment of teachers' salaries."

Boucher and other observers say there's no difference between extinguishing a right and requiring the First Nation party to agree not to exercise or assert that right. The right is still dispensed with.

Robert Nault, minister of Indian Affairs and Northern Development, told Windspeaker that's not the way it works.

"Well, I think the new certainty model that we're using is a recognition of the reverse, that there are certain rights that are not defined that may be defined in the future and the way the certainty model is structured is that it allows for an orderly process to bring those rights to the treaty," he said.

"And so what's being suggested to you is the exact opposite. This model has recognized that in government we can't assure ourselves completely that everything you put in that you need will be all that's needed down the road in the future. So we've allowed for this orderly process and, in particular, if the courts rule on a particular right down the road, it gives us an opportunity to negotiate putting it into the treaty in an orderly way without having it upset, as Marshall did, the whole structure of government as we know it.

"But in fairness, I think the question should be asked of the Dogrib themselves. They're the ones that have been pushing and now supporting the certainty model. Governance is a fluid thing; it chanes over time. What goernance looked like in Canada for non-Native people a hundred years ago is a lot different than what it looks like today and that's the recognition in this treaty."

Boucher believes that this, like the agreements that have been negotiated under the British Columbia treaty process and then rejected by the grassroots people, is one that grassroots Tlicho people will not agree with.

"I don't think that agreement was ever explained to the people," he said.

The Akaitcho say that between 230,000 and 250,000 square km of their territory are affected by the agreement. They have initiated court action to challenge the inclusion of this land in the agreement.

Boucher said this agreement doesn't recognize what's best for First Nations people in the region.

"It's about the government's own agenda," he said. "Why do you think the government initialled. Because they have a big land mass now and [the government says] 'We extinguish' and then we're secondary. No, it's not that way. We have legitimate treaty, traditional land use rights up there that our people have used that land since time immemorial," he said.

He said his people hope to work out their differences with their Tlicho neighbors.

"It's First Nation to First Nation and we have to work it out," he said. "But then the government put in their own agenda."

He pointed out that there were two First Nation parties in the region and the government could have chosen to negotiate with one or the other.

"And guess who they chose? The ones that wanted to extinguish. There's no doubt that this is extinguishment," he said. "What does fee simple mean? What happens when you don't pay your taxes? The government's going to take it back."

Boucher said his community doesn't want to interfere in the affairs of the Tlicho people.

"They can have their agreement as long as it's not a land grab against another First Nation," he said. "We agree that people should have an agreement and whatevr they agree to, they have to live with i. But they also have to respect us and not grab all our lands that actually belong to us."

Much like the legal action launched by the Gitanyow after the Nisga'a final agreement was signed, the Akaitcho lawsuit accuses the government of bad faith bargaining.

"They're trying to sell the same car to two people and whoever comes up with the best deal for government; the government will go for that," he said. "The government does not want to deal with the historic treaties. It's not about doing modern treaties. It's about implementation of the treaties that have been negotiated already and living up to those expectations."

The fact that young people are fighting over a political issue is a sign that there are very strong feelings on both sides of the issue, he said.

"It's going to get worse. Elders going to bingo, they're not even talking to each other."

Copies of the agreement are being made public for information and comment. The information period will last about three months. Communities will be advised of opportunities to learn more about the agreement and provide their comments. It is at this stage that changes to the agreement can be considered, government sources say.

After the information exchange period, the agreement will be taken through the ratification process by each of the three parties. It is expected that this will occur before the end of the year.