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Watershed year in the treaty process?

This could be a watershed year in BC’s long treaty process, possibly reducing some of the uncertainty for the province’s forest industry.

By John Clarke

That investment decisions can’t be properly planned if investors don’t know how much control licence holders have over the timber.

On March 6, 2002, the Haida Nation filed suit in the BC Supreme Court claiming title to the seabed around its Queen Charlotte Islands homeland and all the gas and natural gas that may or may not be in it. How much area the seabed will add to the total claimed by First Nations groups is a matter of some unusual mathematics. If all claims were granted, aboriginals of one band or another would end up with 105 per cent of BC—and certainly all the land in which the forest industry works today.

Some First Nations groups are asserting rights over each other’s territories, which accounts for the odd arithmetic and indicates one of the difficulties of treaty negotiations. It also makes the forest industry very nervous about the outcome. Four months after the Haida initiative, the new Liberal government of Gordon Campbell held a referendum which was intended to add a third element in the negotiations—public opinion. Campbell had promised the referendum when he was in Opposition.

The idea was rejected by the then-New Democratic Party government as the wrong way to settle a moral issue, by a federal government that wouldn’t be bound by the results and by some influential business leaders afraid it might upset the sensitive treaty process. Campbell felt bound to keep his promise anyway—otherwise he’d lose public confidence early in his administration.

The vote created a clash of ideas that threatened to destroy or seriously damage the entire process. Aboriginal leaders angrily denounced it and said they would have nothing to do with it. Campbell insisted he needed a mandate for “new negotiation principles.” But the confrontations of 2002 seem to have wonderfully concentrated the minds of all the players. Now there is some growing hope that 2003 could be a watershed year in the long treaty process.

Agreements with First Nations groups could result in increased investment in wood manufacturing facilities in BC.

Only 35 per cent of eligible voters took part in the referendum. But they gave Campbell percentage majorities from the high 80s to the low-to-high 90s for all his principles. Terms of leases and licences have to be respected. Aboriginal self-government should be akin to municipal government. Land use planning should be harmonized between aboriginals and local governments. Private property is not to be expropriated to settle treaties. All these principles directly challenge the First Nations’ concept of inherent title rights.

The land was theirs before European contact and that is their starting point in treaty negotiations. In attempting to clarify the situation, the courts have given a number of decisions which native groups have interpreted as confirmation of their concept, but have left others confused. The Supreme Court of Canada’s Delgamu’uk ruling in 1997 affirmed the potential existence of aboriginal title. It said specifically that aboriginal title had not been extinguished. But the scope and content of title had to be determined on individual claims. The courts have also said federal and provincial governments “with proper justification” can infringe title, though justification can be defined only when specific claims are tried. Native groups have been insisting their claims should be accepted for “asserted traditional territories.”

Not so, say the courts. But First Nations should be consulted on resource development or on any other disposition of land in question. The biggest problem in all this for the forest industry is the effect on investment decisions, which can’t be properly planned if investors don’t know how much control corporate lease and/or licence holders have over the timber.

The Council of Forest Industries of BC (COFI) says: “Too often the forest industry finds itself the hostage or bargaining chip in the struggle between governments and aboriginal groups…Forest companies are drawn into expensive and disruptive legislation when the Crown’s jurisdiction and authority are challenged as a result of an aboriginal land claim.”

So when native leaders take angry protests to foreign governments and markets, as they have done, they damage the reputation of the government and the industry, says COFI. They “contribute to the uncertainty that undermines the investment climate.” Nobody sees a quick fix or even moderately paced progress in treaty making.

But after the referendum some subtle changes in wind direction are beginning to be noticed. The industry believes there is room to negotiate within the principles. BC Attorney General Geoff Plant has told his negotiators to be flexible and creative and to discuss “topics for which there is no established policy.” A new strategy seems to have emerged—the time out. Rather than do nothing when broad treaty talks stall, time outs could be used to explore interim agreements on how to manage resources.

The treaty process itself need not be suspended. But where possible, interim, incremental agreements to benefit the economic interests of native people should be pursued. In a letter to his negotiating team, Plant mentions revenue sharing and co-operative management as typical objectives. The forest industry approves this approach, although it will not accept co-operative management if it means co-management with the natives.

Co-management would be like dealing with two landlords, the Crown and the First Nations, and would be impractical. Plant acknowledges the risks of dragging out the negotiations, which is why the push is on. “Companies are not likely to invest if they are uncertain about their rights, government rights and about how treaty rights will affect their operations,” he says. “Therefore BC rejects the use of extinguishment (of rights) or the technique of cede, release and surrender.”

This may simply reflect what the courts have already said. But by taking extinguishment out of the government’s agenda Plant has given aboriginal negotiators some tangible evidence of flexibility, enough anyway for First Nations to become more involved in the treaty process. Self-government is going to be a thornier issue.

The referendum makes it clear aboriginal self-government will be on the delegated model and Victoria will not deviate from that position. How can delegated self-government be made compatible with the preservation of title? “First Nations people don’t talk about the alternative to delegated government, which is sovereignty,” says Marlie Beets, COFI’s vice-president of aboriginal affairs. “Canada and BC can choose to delegate as much authority as they want. That’s negotiable.” It can’t be sovereignty, though, if the referendum principle on self-government is adhered to. Sovereignty would cause all sorts of problems for the forest industry. Furthermore, if the referendum is to be a catalyst turning 2003 into a watershed year, it will have to find a way around the Haida move on the Queen Charlottes seabed.

The writ says the seabed has to be added to all the lands within Haida Gwaii (the native name for the Queen Charlotte Islands) and seeks a declaration that all activities within those lands should cease. And there has to be an accounting of all profits, stumpage payments and royalties paid to the federal and provincial governments in the past.

The Haida president, Guujaaw, dismissively calls aboriginal title a compromise and wants to use the writ to “clarify our relationship with Canada.” Still, the forest industry thinks the referendum may move some of the pieces of the puzzle around enough to make at least incremental agreements possible. It would prefer to negotiate agreements with native groups rather than face a continual threat of time-consuming and expensive litigation. “We would have to say that we have seen some of the worst of times and now we are optimistic that we need to see some of the best of times,” says Beets.

As for the impact of newly-minted BC treaties elsewhere, Beets says: “If BC negotiates treaties that use a different form of certainty language, it may well be that aboriginal groups in other provinces may question the validity of their treaties and insist on opening them up for re-examination.” Ottawa, too, will be anxious to see that nothing happens in BC that might open up a whole new constitutional crisis about aboriginal title.


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