CANADA:
Native Land Deals Get Mixed Reaction
Am Johal
VANCOUVER, 1 Aug (IPS) - The costly British Columbia land claims negotiations between the government and native peoples, which have garnered few victories over many years, seems to be finally achieving results.
Two recent treaties have won overwhelming support among aboriginal groups despite criticism of the treaty process from some aboriginal leaders.
Last week, the Tsawwassen Indian Band voted 130-50, or 72 percent, to approve the first modern urban treaty in the Greater Vancouver region. The deal still needs to be officially ratified by the provincial government, but it is expected to pass as a formality.
The Tsawwassen Treaty transfers 724 hectares of land and 13 million dollars to the band over 10 years, and provides an additional 1.8 million dollars for mineral rights. It includes another 2.6 million dollars for ongoing self-government costs and 15 million dollars in one-time startup costs.
In return, the Tsawwassen will abandon other land claims and transfer 207 hectares of native farmland for an industrial port expansion -- a provision that has been a focus of criticism from some other native leaders.
The Huu-ay-aht First Nation is the second band in the province to ratify a treaty under the BC Treaty Commission. The 615-member band, on the west coast of Vancouver Island, voted 90 percent in favour last weekend to adopt the Maa-Nulth Treaty.
The band also voted 90 percent in favour of self-government and a share of 8,258 hectares of land, as well as cash and access to resources such as fisheries and forestry. Additional economic opportunities are valued at 136.7 million dollars, according to the Vancouver Sun newspaper.
The Maa-Nulth Treaty includes four other First Nations bands, who will also have to approve the treaty in votes later this fall.
Altogether, the BC Treaty Process has cost 942 million dollars since it was initiated in the early 1990s.
Doug McArthur, Simon Fraser University public policy professor and advisor for the Tsawwassen Indian Band, told IPS that the treaty is good news for the land claims process.
'This deal has a real meaningful basis for the Tsawwassen people to achieve economic self-sufficiency,' he said. 'They would have wished to have different outcomes on specific, detailed matters, but overall, looking at the deal completely, they will get an opportunity to control their own destiny and engage in economic development that can sustain themselves outside of the Indian Act.'
McArthur added that it was unlikely that the provincial or federal government would refuse to ratify a negotiated deal that had been accepted by a First Nations band in a democratic vote. He said that it was a longstanding tradition in Canada for political parties to show unanimous support for negotiated settlements at the federal level.
McArthur said the port development would help finance some of the treaty.
'The port expansion, however, was already approved by the government,' he noted. 'The treaty had no effect in approving the port expansion itself. With the additional lands and resources, the Tsawwassen have the opportunity to negotiate with shippers and operators to discuss leases, and also develop and tax rental revenues.'
Grand Chief of the Union of BC Indian Chiefs and a long-time critic of the British Columbia treaty process, Stewart Phillip, told IPS in an interview, 'The problem with the process is that it is founded on the 1986 comprehensive claims process, which has stood still in time. It has not incorporated more recent Supreme Court decisions.'
'These landmark rulings define aboriginal title within territory, resource revenue sharing, and that aboriginals should compete on an equal footing with the government,' he said.
Phillip added, 'Economic benefit sharing agreements and the BC Treaty Commission Process seek the extinguishment of rights for a small amount of money and land. As a result of these rulings, the BC treaty process was sideswiped. The Tsawwassen agreement is not about aboriginal rights, but clearly about economic opportunities.'
Phillip also said that 35-40 percent of British Columbia First Bands were outside the process. He cited the recent Nanaimo Unity Protocol, which advocates a new approach to break the impasse between many First Nations and the provincial and federal governments. It has been signed by more than 60 bands previously within the treaty process.
Principles of the protocol include certainty that aboriginal rights will not be taken away in negotiations and statements regarding the constitutional status of treaty lands, governance, co-management of traditional territories, taxation and fisheries.
'It is not viable to not reflect the principles laid out in the Supreme Court of Canada rulings,' Phillip said. Under this process, it is still vaguely defined rights and there is no necessity to complete treaties. That is the essence of the problem. The public relations of government during the signings is political hucksterism. This is a fundamentally flawed process,' said Phillip.
In an official letter to Prime Minister Stephen Harper and BC Premier Gordon Campbell on Jul. 25, the Union of BC Indian Chiefs noted that the treaty process has failed to incorporate new legal precedents governing the Aboriginal/Crown relationship.
'The Court's decisions have eclipsed the 1986 Comprehensive Claims Policy, which is now contrary to law. You have not responded to our requests that your governments indicate how they will alter their relationship to Indigenous Peoples, through an amendment to the Comprehensive Claims Policy, so that Delgamuukw and other decisions of the Supreme Court of Canada are followed and implemented.'
In the landmark 1997 case of Delgamuukw v. British Columbia, the Supreme Court expanded the definition of aboriginal land title to include the modern use of resources like forestry and mining -- in essence, full ownership. It determined that oral histories should be given as much legal weight as written evidence, and that the government should provide compensation if there was a compelling reason to infringe native land rights.
Proponents of the recent settlement appear satisfied with the deal. Valerie Cross-Blackett, an assistant negotiator and member of the Tsawwassen Indian Band, told IPS, 'I thought the vote went really well and was pleased with the outcome. The community showed a clear mandate.'
'Under the different challenges, we voted to make change and become self-governing and pursue opportunities. My personal view of the criticism is that although the treaty process is not perfect, they are the building blocks for future treaties and reconciliation.'
Other BC First Nations bands are the Nisga'a in the northwest, the Temexw Treaty Association and the Lheidl T'enneh First Nation.
In 2000, the Nisga'a agreed to a negotiated deal which fell outside of the treaty process.
Earlier this year, the Prince George-based Lheidli Tenneh First Nation rejected a 71.5-million-dollar treaty.
The BC process is distinct from other negotiations currently underway at the federal level. According to the Assembly of First Nations, there is a backlog of 800-1,000 unresolved claims within the federal specific claims process -- in other words, claims involving Canada's treaty obligations.
Estimates of the total value of these unresolved claims range from 2.6 billion dollars to six billion dollars. It takes an average of 13 years to settle a claim under the current system.
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