Crown on the ropes in treaty making tilt

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The Indigenous Bar Association's 13th annual conference, hosted at downtown Vancouver's scenic waterfront district on Oct. 19 and 20, gave the country's leading Aboriginal practitioners of the art of treaty making a chance to update Aboriginal lawyers on the latest news and trends in their field.

The conference theme-Building Treaties and Restoring Relationships-along with the choice of presenters, guaranteed that Indigenous lawyers from across the country (with guests from around the world) would have plenty of stimulating ideas to take home at the end of the proceedings.

A couple of easily discernible trends emerged as the various speakers made their presentations. Aboriginal treaty makers believe the Crown is running out of legitimate excuses for not addressing the most difficult issues. They also believe the Crown's tactics already reveal a certain amount of desperation. All the speakers said they believe any progress being made towards the realization of Indigenous ideals, presently glacial in speed, must be accelerated to avoid even worse social costs in Aboriginal communities.

The premier of the Northwest Territories, two judges, the chair of the United Nations working group on the rights of Indigenous peoples, the former Ombudsman of Ontario, a former British Columbia cabinet member, the chair of the Law Commission of Canada, the chair of the British Columbia Treaty Commission and a handful of law professors were expected to be on hand for the conference. Only N.W.T. Premier Stephan Kakfwi was forced to bow out at the last minute in order to attend the funeral of the Fort Smith First Nation's band manager who died in a plane crash several days before. Kakfwi's remarks were delivered by his principle secretary.

In the opening address, Edward John, Grand Chief of the Tl'azt'en Nation in northern B.C., former First Nations Summit task force member and former NDP cabinet minister in British Columbia, reminded the audience that it was illegal for lawyers to pursue land claims for Native people between 1927 and 1951. He noted, as would many others during the next two days, that the growth of the Indigenous bar has been a huge factor in the fight for recognition of Indigenous rights.

One member of the first panel allowed the audience to get a true understanding of the pace of progress at the treaty table. Dave Joe, a lawyer and negotiator for his Champagne and Aishihik First Nations (Yukon), compared his people's 1970s final land claim agreement with the more recent Nisga'a final agreement.

Joe said his people get 10 per cent of the resource revenue generated on their lands, adding half the lands covered by the agreement are owned in fee simple to the sub-surface while the other half are reserve lands. He pointed out that the Nisga'a negotiated 100 per cent ownership of the sub-surface resources on their land. He also noted that Nisga'a law-making authorities are entrenched as part of the treaty and are therefore constitutionally protected whereas his people's law-making authorities are not entrenched.

"Yukon has agreed our law is paramount when there's conflict. Canada hasn't," he said, raising another point. "But that concession was made by Canada [in the Nisga'a agreement.]"

Edmond Wright, secretary/treasurer of the Nisga'a Lisims Government and a member of the nation's negotiating team, reminded the audience that there were areas where his people were not able to negotiate a favorable outcome.

"Taxation is one," he said.

Wright and his people have recently been celebrating a court victory of rare finality. After B.C. Premier Gordon Campbell sued to have the Supreme Court of British Columbia rule the Nisga'a agreement was unconstitutional, and lost, he announced he would drop his appeal of the decision, admitting with that action that he was wrong to say that the British North America Act (1867) had extinguished the inherent right of Aboriginal self government by dividing powers between the federal an provincial levels of government.

"Justice Williamson ruled that although our right of self government was diminished, it was not extinguished. Section 91 and 92 are not exhaustive; there's room [in the Canadian Constitution] for self government," Wright said.

He told the audience that his government has now passed 27 pieces of legislation.

"We've had six sessions of our government. The seventh is this coming week," he added.

Dogrib chief negotiator John B. Zoe made a fascinating and touching presentation of his people's point of view. He noted that place names in his people's language were a living map and a living history. By analyzing the names given to places, you can identify where his people travelled regularly and where the edges of their territory were and are, he said. The Dogrib people are close to a final agreement and Zoe said his analysis of place names and his people's familiarity with "the history in the land itself" will play a role in the final agreement. He took a shot at the government's use of the word "certainty"- generally employed to mean finality -to say that his people feel well armed to provide indisputable proof of their relationship with their traditional lands.

Shannon Cumming, legal counsel for the South Slave Metis Tribal Council negotiations secretariat, predicted that Metis rights will be a major item of contention in the coming years, calling the issue an "800 pound gorilla."

Cumming said the government's historic attitude that Metis have no special rights is on shaky ground.

"The Crown tries to say there's been a fatal breach with the past. I don't think that's going to last much longer," he said.

The two days of meetings expanded on the theme that treaty making is being impeded by political considerations related to entrenched colonial attitudes on the part of the Crown. The lawyers left the impression they are willing and ready to take those attitudes on, that layer after layer of unjust or irrational objections to legtimate claims are being peeled back as Indigenous lawyers build experience and gain confidence.

Many senior lawyers told the audience they felt rejuvenated by the meeting. Most of the newer legal practitioners left with a pumped up sense of purpose.