Treaty process breaks down; bad faith alleged

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Dare-devil Evil Knievel would have a tough time bridging the Grand Canyon of chasms separating First Nations, like Snuneymuxw [pronounced Snuh nay mow] on central Vancouver Island, from government negotiators at B.C. treaty tables.

The gulf has emotions running high and both sides are testy. One Native leader, upset by what he feels is a government drive to extinguish hard-won, legally- and constitutionally-protected Aboriginal rights, went so far as to accuse the governments of pursuing a Final Solution. That's a not-so-subtle reference to Adolf Hitler's way of exterminating Jewish people in Germany and Europe during the Second World War.

For their part, government negotiators are especially sensitive as the significance of a 1999 northwestern British Columbia legal decision sinks in. Known as Luuxhon, the judgement by Justice Paul Williamson of the B.C. Supreme Court requires Canada and British Columbia to negotiate in good faith with First Nations. While it has often been routine in the past for First Nations unhappy in their dealings with government officials to accuse them of "acting in bad faith," now such an accusation prompts fits and news releases.

The issue emerged last month in Nanaimo, B.C. shortly after Snuneymuxw officials were briefed on the details of a long-awaited treaty offer that was to be made public within days. What happened next now has implications for all talks across the province.

Charges and countercharges flew. Peter Smith of B.C.'s ministry of Aboriginal affairs said Snuneymuxw, after being briefed, held a news conference the next day and "fired off a letter to (DIA Minister Bob Nault) accusing us of bad faith negotiations."

Before the offer could be tabled publicly, a war of words erupted, becoming the top story in the Nanaimo Daily News on Jan. 18.

'Bad faith' charge stalls treaty talks, read the page one story. Angry government negotiators pushed their chairs from the table demanding the allegations be withdrawn before talks resumed. Snuneymuxw senior negotiator Michael Rodger declined to release the three-page letter to Nault from Chief John Wesley, but insisted in an interview with Windspeaker, "We did not allege the government acted in bad faith but that our interest is in protecting good faith negotiations and a level playing field."

That's not how chief provincial negotiator Trevor Proverbs sees it. He said an "extremely serious charge" had been made, which had legal implications "that we were at the table negotiating in bad faith. This was put forward without any evidence provided and we are requesting the Snuneymuxw First Nation withdraw this. We are not standing down. We are simply stating we will not be coming to further negotiations until this issue is resolved."

Proverbs said the letter to Nault included this statement: "We do not understand why the current MOU (memorandum of understanding) should force your government to be dragged into the same acts of bad faith negotiations the provincial negotiator is proposing to commit."

If all went well, Snuneymuxw was hoping it could have a signed, sealed and delivered treaty by 2003, giving the band one of the first urban treaties in Canada - if not the first. Over the last six years, Snuneymuxw has spent about $3 million chasing a treaty only to receive a long-awaited offer from government negotiators that nation representatives immediately slammed as ridiculous. For instance, the nation was offered ownership of less than one per cent of its traditional territory as part of the treaty package.

It's part of a pattern that has emerged over the last six months as government has stepped up the pace of treaty offers. No sooner are the offers made than they're rejected by the First Nations as hopelessly inadequate. "We're not expecting that in tabling cash and land offers that First Nations are going to accept immediately and say 'Where do we sign?' " said Smith.

In what appeared to be progress, offers were made recently t Ditidaht and Pacheedaht First Nations on Vancouver Island's southwest coast and to the Gitanyow in northwest B.C. Each was spurned.

The rejection by Pacheedaht and Ditidaht was swift. Pacheedaht Chief Marvin McClurg said he regretted having delayed court action.

"With the benefit of hindsight, we should have gone directly to the courts to protect and assert our rights and interests," he said.

In another recent example, Sliammon First Nation on the Sunshine Coast, north of Powell River, rebuffed an offer made to them Jan. 28. They, too, were offered ownership of only about one per cent of their traditional lands. Smith of B.C.'s ministry of Aboriginal affairs said the offer was a major step forward.

An offer is pending to Vancouver Island's Nuu-chah-nulth. Archie Little, Nuu-chah-nulth Tribal Council co-chair for the northern region, has said it will likely be turned down unless changes are made.

"They are not negotiating in good faith," he said.

Surprisingly, there seems to have been little reaction to Little's accusation.

Almost lost in the war of words in the Snuneymuxw situation were some of the details of the federal-provincial offer.

"They had proposed a land and cash package that didn't give the nation the tools it would require for cultural, social and economic sustainability," Rodger said. "The offer would lead to extinguishment of Snuneymuxw rights throughout their territory."

Existing hunting and fishing rights would be downgraded, he said. Snuneymuxw was offered about 1,800 hectares of land and $40 million cash. "It was a low-ball offer," Rodger said.

Elders were upset the nation received such an offer after its substantial investment of time and money in the process, he added.

"We became aware they were going to make the low-ball offer weeks before it came down. It's extremely demoralizing for everyone," said Rodger. "We've invested a lot in this process and we're committed to it, but we leave our options open. We're committed to pursuing ths with vigor and getting a treaty that works for Snuneymuxw."

Smith told Windspeaker the province believes the recent offer is "fair and addresses the economic and cultural interests of Snuneymuxw while balancing the interests of third parties in Nanaimo, which is an urban environment. We want to continue moving forward with negotiations, but we recognize it [the offer] is something with which they have concerns. It's a starting point for advancing discussions further. Snuneymuxw made formal accusations about our negotiations. Those will have to be sorted out before we carry on with negotiations. It has sidetracked things. Hopefully we can deal with it and move on."

Rodger insisted provincial and federal negotiators "want to extinguish Aboriginal title. There's no question. They want to exchange it for something that's very small. This nation views it as disrespectful of their rights, their negotiations and their title," he said. "One thing First Nations have on their side is time. They've been at this 150 years. The issues, if they're not resolved, will have to be in the future. They're not going to go away."

The issue of extinguishment was tackled by the Supreme Court of Canada which, on Dec. 11, 1997, handed down a stunning and unanimous decision in the landmark, Gitxsan-Wet'suwet'en court case known as Delgamuukw. The court said that before Aboriginal title is infringed, a First Nation must be consulted about the use of its traditional lands and it must receive "fair compensation" when title is infringed. The judges described the nature and scope of Aboriginal title, set out rules for proving its existence and ruled it's a constitutionally-protected right.

Among other things, the court also said:

o the federal and provincial governments may only infringe Aboriginal title if they have a "compelling and substantial legislative objective";

o and Aboriginal title can't be extinguished by the B.C. government.

Smith denied the governments are trying to get Firt Nations to voluntarily give up Aboriginal rights, which the country's highest court has said can't be taken from them. Asked if the province was committed to extinguishment of Aboriginal rights, he said "No, we're committed to certainty."

Asked about the province's decision to appeal Luuxhon, Smith insisted it wasn't because it required the province to negotiate in good faith. The province is committed to negotiations, he said.

"There's no second-guessing about that. We've put forward five land and cash offers in the last five months. We are committed to good faith negotiations. But we don't want the court set up as judicial supervisors. It's on that basis we have appealed Luuxhon. We feel the decision of the court in Luuxhon sets up a process of judicial supervision of the treaty process. If there is court supervision, we think that'll slow the process down."