The Price of Uncertainty
OUR PEOPLE ARE READY to fight for their rights, but the question that echoes through our meetings these days is where, exactly, are our leaders? What has happened to them? Why are they not leading?
Nothing has revealed the poverty of our current Indigenous leadership as much as the willingness by so many of them to surrender our fundamental rights by negotiating under the government’s discredited extinguishment policy. The sheer madness of this was driven home to me in the fall of 2010, when I received a call from Darrell Bob, chief of the Xaxli’p First Nation, a St’at’imc community on the Fraser River, about 225 kilometres west of Neskonlith.
Chief Bob wanted to talk about the B.C. Treaty Process. Xaxli’p had entered into the negotiations in 1994 and signed a Framework Agreement in June 1997. Then the negotiations stalled. Xaxli’p, like virtually all of the negotiating bands, ran up against the brick wall of extinguishment. Many bands believed that they could negotiate their own agreements with the government that would not force surrender of their Aboriginal title and rights. The Framework Agreement seemed to allow for this in article 2, which stated that everything was negotiable. Unfortunately, Xaxli’p, like all of the rest, discovered that no matter how much they protested, the government negotiators insisted they check their Aboriginal title and rights—which are recognized under of Section 35 of the Canadian Constitution—at the door. The only way to exit these negotiations was through extinguishment of Aboriginal title and rights.
Xaxli’p balked, pointing out that article 2 said everything was negotiable. But the government side held that the final result had to be “certainty” as defined by a “modified” rights framework that extinguished Aboriginal title and all of the rights not specifically described in the agreement. This was stated clearly in the government’s negotiating guidelines, and the government negotiators had no power to bend on it. Extinguishment of Aboriginal title and rights was, and remains, a federal cabinet-level policy.
Unlike many others who are trapped in these dead-end negotiations, the Xaxli’p leadership went back to their people to consult with them. When they called a community meeting in March 2001, Elder Irene Billy went to the meeting. She was connected to the community by marriage and some of her children and grandchildren are members of Xaxli’p. Irene spoke both the Secwepemctsín and St’at’imc languages, and in her younger days had served as a translator for respected Elder Sam Mitchell, who always took a strong position on Indigenous rights. Irene reminded everyone of the importance of standing strong. The people clearly rejected the extinguishment negotiation process and voted to have Xaxli’p withdraw from the B.C. Treaty Process. It was then that the truly pernicious aspect of this process came to the fore.
The way the negotiations work is that provincial and federal governments loan the band money to pay the costs of the negotiations. The money is used for lawyers and consultants, most of them non-Indigenous, and their hotel rooms, per diems, and travel budgets. Repayments of those loans are to be made from the settlement money paid to First Nations as part of the final treaty or, if the band pulls out of the negotiation, from the band’s general revenues. Overall, the negotiating bands in British Columbia today are in hock for well over a half a billion dollars in negotiating loans, an amount that increases day by day.
Xaxli’p is a poor community, but they would not buckle under to a negotiated surrender of their Aboriginal title and rights. So, five years after they pulled out of the process, they received a letter from Allan Price, their Department of Indian Affairs funding services officer, saying that their B.C. Treaty Process negotiating loan of $2,430,444 had come due and had to be repaid over five years at 4.3 per cent interest. The payments would be $27,291 a month. Price then mentioned, almost casually: “In the 2004/2005 audit review, we calculated your working capital ratio to be -4.46%. This year, the addition of the treaty loan ($2M) to current liabilities reduced the Band’s working capital calculation to -72.87%.”
The chief understood the fiscal message. The demanded repayment of the treaty loan would drive the band into insolvency and, for First Nations, this generally meant government-imposed third-party management. In other words, the penalty for pulling out of the negotiations was bankruptcy and an outside takeover of the band.
Chief Darrell Bob went to the leadership at the First Nations Summit who had gotten them into this mess, the people who with the government had set up the framework of the negotiations and who had promoted them across the province as the solution to the B.C. land question. Surely they would not accept the fact that simply participating in the B.C. Treaty Process should drive First Nations into receivership? The only response he received from the Summit was their offer of “moral support.” No concrete help. Nothing. Chief Bob went to the Union of B.C. Indian Chiefs and the Union referred him to me.
Even though this reckoning was clearly coming for all the B.C. negotiating bands—who shared a more than $500 million debt to the government—it came as a shock to hear what was happening to Xaxli’p. When I spoke to the chief and he told me that the Summit had washed their hands of this problem, I told him the only thing I could think of was to take the issue to the international level and try to embarrass the government into backing off. I told him INET was preparing a brief to CERD and that I would add their case to the submission.
When we put the bizarre situation of the Xaxli’p band, and in fact all of British Columbia’s negotiating bands, before CERD, Canada came back with a surprising assertion. They told CERD:
In regard to the Xaxli’p First Nation, the Xaxli’p First Nation accepted loan monies to participate in the Treaty process and elected to withdraw from Treaty negotiations in 2001. Canada restates that Canada has written to the Xaxli’p First Nation to state that the obligation to repay the loan amount has been placed into abeyance and thus loan repayment is not being sought by Canada.51
In our follow-up report to CERD, we pointed out Canada’s blatant lie with an email from the new Xaxli’p chief, Art Adolph, indicating that they had received no communication from the Government of Canada indicating that the loan had been placed in abeyance. On the contrary, even though Chief Adolph had told Indian Affairs that the community would not be repaying the loan, the Department continued to send the band statements of accounts on the loan, with ever-accruing interest.
But the Canadian assertion to CERD had an immediate benefit for Xaxli’p First Nation. With the government letter informing the band that the loan was due, the Xaxli’p auditor had been obligated to put that amount on the books. The band was therefore already considered drowning in debt, even though they were not making payments. But the Canadian assertion at CERD that the loan was to be held in abeyance was enough for the Xaxli’p management to get the auditor to reverse the entry on the books. Chief Adolph had asked for a formal letter confirming the new government position but, of course, he never received it. The last thing that Indian Affairs wanted other bands to know was that there might be a way out of the government negotiation loan extortion scheme.
The news of Xaxli’p’s plight was not only causing waves on the international sphere but also causing unrest among grassroots people in British Columbia, who suddenly became aware of the real economic danger the B.C. Treaty Process was exposing their communities to. Most bands had already borrowed millions of dollars to pay for legal fees, researchers, and flights and hotels for negotiators, and the people were beginning to ask their leadership pointed questions. With a public relations nightmare brewing, the Department of Indian Affairs, which administered the loans, quickly kicked the problem down the road by giving all of the negotiators a five-year extension on their loans. But the loans keep accumulating. By the time they fall due again, the total debt of the negotiating bands will be close to $700 million and heading steady toward the billion-dollar mark.
As time goes on, a number of bands that are still formally in the negotiating process are there in name only. They stay at the table to avoid having the government swoop down to collect on their loans, but they are no longer seriously negotiating. They are biding their time in the hope that when the whole thing collapses, they will be able to make an escape in the confusion.
Not surprisingly, a sense of frustration and open cynicism with this flawed and fundamentally unjust process permeates all of the B.C. Treaty partners. At the outset, in June 1991, the Summit leaders and their government partners optimistically claimed:
Modern-day treaties will form the basis of a new relationship between Canada, British Columbia and First Nations….
As history shows, the relationship between First Nations and the Crown has been a troubled one. This relationship must be cast aside. In its place, a new relationship which recognizes the unique place of aboriginal people and First Nations in Canada must be developed and nurtured. Recognition and respect for First Nations as self-determining and distinct nations with their own spiritual values, histories, languages, territories, political institutions and ways of life must be the hallmark of this new relationship.52
In 2011, the head of the B.C. Treaty Commission, Sophie Pierre, said British Columbia should abandon its 140-year-old quest for treaties with First Nations if it cannot find the will to make and meet targets for treaty settlements. Ms. Pierre said that pace is unacceptable. The commission, and the entire treaty process, should be jettisoned if both the provincial and federal governments won’t commit to firm targets.53
By its twentieth anniversary in the fall of 2012, only a handful of agreements had been signed and even fewer had passed the community ratification of the dozens of bands locked into the process. The Summit’s own assessment was announced in a press release:
“Unfortunately, some 20 years after the start, many First Nations remain frustrated by the growing debt and slow pace of the current treaty negotiation process,” said Grand Chief Edward John of the First Nations Summit political executive.
“Further, Canada and British Columbia must abandon and renounce their colonial policies to seek certainty through the extinguishment or surrender of Aboriginal title and rights.” As Chief Joe Mathias said 20 years ago today, “the negotiations, in our view, will not be based on that tired old notion of extinguishment. We will not tolerate the extinguishment of our collective aboriginal rights! Let us be clear about that today,” added Chief White.54
Extinguishment, however, is exactly where these negotiations lead. During the past several years, it was not just Xaxli’p who contacted me. Bertha Williams from Tsawwassen First Nation, just south of Vancouver, was following her people’s treaty to its unhappy conclusion. The Tsawwassen First Nation had voted to accept the final draft of the treaty in 2007, but Bertha and many others believed that the process was rigged from the start. For one thing, the backers of the treaty were given a $1.5 million slush fund to sell the treaty to the people, using everything from slick brochures to “signing bonuses” to anyone over the age of sixty. Treaty backers justified these payouts so “Elders could benefit from the treaty before it was signed,” but opponents saw them as crass vote buying. When asked about the payouts by the local media, the provincial Aboriginal relations minister Mike de Jong simply responded “guilty as charged.”
It was clear that the government was ready to pay any price for the treaty. Bertha also joined our submission to CERD, and the UN committee took issue with the inappropriate procedures in the treaty vote. Despite the international criticism, the vote backed by the payments passed and the agreement was implemented by the federal and provincial governments.
The consequences of signing the treaty were exactly as predicted. Commercial industrial developments immediately began increasing in the territory of the Tsawwassen people. One of the developments is the South Fraser Perimeter Road, a major infrastructure venture in the Greater Vancouver Area. The route resulted in the destruction of sacred sites, including Tsawwassen burial sites. Bertha, a descendant of the hereditary leadership, brought a legal action to challenge the development. In its response to the application, the provincial government tabled in court the provisions of the Tsawwassen First Nation Final Agreement. They said Tsawwassen no longer had a claim to their territory. By agreeing to the B.C. Treaty, the Tsawwassen people had been given four hundred hectares of land and a cash settlement of $16 million in return for the extinguishment of their Aboriginal title and rights and the abrogation of their Section 35 rights under the Constitution. “Certainty” was indeed extinguishment.
This is what happens, as we had been saying for twenty years, when you accept the deal offered by the government. But what happens when you vote no? Well, as the Lheidli T’enneh First Nation discovered when they rejected that final agreement in a community vote, the B.C. Treaty Process will not take no for an answer. As soon as the Lheidli T’enneh rejected the treaty, proponents were back demanding another vote. When there was no immediate mechanism for another vote on the treaty, they demanded a vote on whether to proceed with a second vote. And, as we have seen, the government is not shy in supporting the treaty promoters with slush funds in cash. In the past, the government has been able to live quite well with these endless negotiations that go nowhere. As they followed their business-as-usual approach, the unending negotiations became part of a risk management strategy. They contain First Nations claims against Crown land within negotiating tables that have more or less fixed outcomes modelled on the Nisga’a Treaty. The government has clearly stated that that was the only possible outcome to these negotiations, so any First Nations still negotiating would have to be willing to accept a similar deal that extinguishes Aboriginal title and rights. While the negotiations go on, the meter on the loans to First Nations keeps increasing. With ever-increasing indebtedness, it becomes ever more difficult for Indigenous communities to walk away from the table without signing off on the government’s cash-for-land deal.
I know of the stress communities that are trapped in the negotiations feel, because I often receive calls from them when they are dealing with Aboriginal title and rights issues and trying to cope with the B.C. Treaty Process and the Comprehensive Claims policy. I try to help, and I have gone to speak at Lheidli T’enneh, Port Hardy, Port Alberni, and Sliammon, to mention only a few. I go to as many of these communities as I can to rally support, and to champion the defiance of the people of Xaxli’p in walking away from the national disaster that the government is serving us on their negotiating tables.
For opponents of the extinguishment process, there are no four-star hotel rooms, per diems, or plane tickets. We take our pickup trucks and count on someone at the end of the meeting passing the hat to pay for our gas. It is like in my father’s time when they were building the movement, before the creation of the government-funded national organization. Recently in Stó:lō Territory, an Elder told me how they had raised money so my father would have a suit to wear when he lobbied for Indigenous peoples. Today we need to rebuild our movement, until it is once again independent from government and the new Indian agents who administer the government’s will.
For communities that have refused to enter such negotiations, or that wish to withdraw from them, there is no official alternative to the Comprehensive Claims process. We tried to achieve a change in the policy one last time under Shawn Atleo. I met with him at the AFN meeting in Calgary in July 2009 at the urging of the Neskonlith chief, Judy Wilson, while he was running for national chief.
As soon as Judy saw me come through the door, she said “You should meet with Shawn.”
I asked her why. After all, only chiefs had votes in the election for national chief, and Shawn and I had been on different sides on a number of important issues so we probably wouldn’t have much that was positive to say to each other.
But Judy persisted, I think, because she wanted to make sure that I did not actually oppose Shawn. She didn’t want to find herself in a different camp from me after the election. Eventually, because she was so determined, and because I greatly respect her, I agreed to a quick meeting with Shawn in the hallway.
While we spoke, I asked Shawn if he would support an AFN committee to yet again review the government’s Comprehensive Claims policy and suggest an alternative process for bands to follow. I knew Shawn worked closely with the First Nations Summit people, but as often happens in leadership campaigns, he seemed open to the idea of a new battlefront. In the hallway at the Calgary convention centre, he agreed to set up a Comprehensive Claims policy review committee if he was elected national chief.
Shawn kept his word. After he was elected, he gave me a relatively free hand in framing the committee’s mandate and bringing together the people I wanted to work with. My idea was to keep it small and staff it with those I knew would be serious about finding ways to push the government away from the Comprehensive Claims policy. The initial membership was me, Chief Harry St. Denis, an Algonquin from Wolf Lake in Quebec, Chief Wayne Christian from Splatsin First Nation, Chief Judy Wilson from Neskonlith, my friend Russell Diabo, and Robert Morales, with the national chief as ex officio member. The only representative of the Treaty Process people was Robert, an Aboriginal rights lawyer and negotiator from the Hul’qumi’num Treaty Group. He had been part of the Common Table discussions of Indigenous communities that were involved in the treaty process but were unhappy with the form and format of the negotiations.
While we came from different positions, Robert was always blunt about what is actually going on inside the process and we had some very fruitful exchanges. I even travelled to Washington in 2011 to support his Hul’qumi’num people in their formal complaint to the Inter-American Commission on Human Rights that neither the B.C. Treaty Process nor the Canadian courts gave them an effective remedy for their land rights issues. Some of the Hul’qumi’num Elders present knew my father from his time in Cowichan, and they must have mentioned I was his son because Robert suddenly asked me if I was related to George Manuel. I told him, yes, he was my father, and Robert nodded. “Ah yes,” he said, “a second-generation leader.” We do respect each other, even if we have different positions on some issues.
According to AFN rules, committees also have to include a vice-chief as their chair. In our case, the position was claimed by B.C. Regional Vice-Chief Jody Wilson-Raybauld, who had a much different vision than the rest of the committee. She was a former B.C. treaty commissioner, and has since announced that she will be a candidate for the federal Liberal party in the Vancouver Granville riding.
Our review began with a new analysis of the Comprehensive Claims policy and its obvious flaw that allows Canada to have its cake and eat it, too: demanding that First Nations be willing to extinguish their Aboriginal title and rights before they enter negotiations. The way the policy works, Canada concedes nothing but gains everything before the negotiations even start. This bears no resemblance to the process of recognition and reconciliation that the Supreme Court has called for, and everything that is wrong with the negotiations flows from this. Since Canada does not admit to the existence of Aboriginal title, there is no recognition that Indigenous peoples actually own the lands and resources within their territories.
The “resource revenue sharing” components that sometimes accompany the Comprehensive Claims agreements therefore do not acknowledge the real book value of our assets. Instead the First Nation “share” of resource revenues is arbitrarily determined by citing “comparability” with other claims and available budgets (which in turn are established unilaterally and arbitrarily). Again, this is in opposition to the Supreme Court’s findings in Delgamuukw, which confirmed that Aboriginal title is a property right with a real value, one not to be given up without “valuable consideration.” In addition, the Comprehensive Claims policy explicitly denies that First Nations own subsurface resources—which is also at variance with the findings of the Court in Delgamuukw that Aboriginal title does indeed include minerals, oil and gas, and other subsurface resources.
Under the smokescreen of being “forward looking,” the existing Comprehensive Claims policy explicitly prohibits any compensation for past losses, damages, infringements, or foregone revenues. This, too, is contrary to the Supreme Court’s findings. The Court has made it clear that in cases of infringement, depending on the degree, compensation is due.
When our committee finished its review, we began to formulate a response that would help our people to break free of these surrender negotiations. But the moment we headed down this road, we found a sudden burst of interest on behalf of the vice-chief and the B.C. First Nations Summit leader. Our committee was soon to find its wings clipped, with Ed John and Jody Wilson-Raybauld calling for the government to be given a last chance to comply before we acted. The AFN leadership was now talking about a Plan A and a Plan B, and we suddenly found any direct challenge to the government listed as Plan B. Our committee was being undermined before it had really begun to do its work.
I remember looking across the table at Russell Diabo. He had a smile on his face. This Plan A and B nonsense was an obvious way to ensure nothing changed in the national organization’s approach. For him, it was over with the AFN. The fact that they could not even consider challenging the government on such a fundamental issue as title to our lands, which had been recognized in the Constitution and by the Supreme Court, suggested that it was indeed over. For Russell and most of the original members of our committee, it symbolized exactly what was wrong with the AFN and the First Nations Summit: their complete dedication to not rocking the boat, to going again and again to government with hat in hand to request justice, which was always denied.
At the same time, of course, the government was always delighted to meet with them, to take part in this charade, to fund their organizations that, in turn, paid them handsome salaries and generous travel expenses to turn around in circles year after year and decade after decade. Business as usual. It served the government’s purpose and provided lucrative salaries and per diems to our compromised leaders.
Plan A turned out to be nothing but more meetings over terrain the two sides had been covering for decades. These new meetings were called the Crown–First Nations Gathering. The first one was held on January 24, 2012, and in a surprise, the parties grandly committed to making sure federal negotiation policies reflected the principles of recognition and affirmation mandated by Section 35 of the Constitution. But then, during the follow-up meeting in April 2012, Jean-François Tremblay, assistant deputy minister of Treaties and Aboriginal Government, told the gathered First Nations that actually he had no mandate to change the federal Comprehensive Claims policy, despite what had been suggested in January. In one fell swoop, Plan A was dead in the water. But the AFN and the government participants bravely promised to produce a “progress report.”
Then, in September 2012, the AFN members of the Crown–First Nations Gathering learned that they themselves had been tossed overboard by the government. With no consultation whatsoever, and not even any warning, Indian Affairs Minister John Duncan announced the government’s new “results based” approach to modern treaty and self-government negotiations. The core of this approach was to skip most of the negotiation and force the First Nations at the ninety-three negotiating tables across the country to agree on all of the essentials before the negotiations even began. Those essentials included reaching “certainty” through extinguishment and the awarding of municipal powers under the name of “self-government.” To remain at the negotiating table, a First Nation had to accept the following:
For those First Nations that would not immediately agree, negotiations would end. This was the first part of the government’s power play. The second was the announcement of severe cuts to Indigenous peoples’ regional and national political organizations. All organizations would have their funding capped at $500,000 annually. For some regional organizations, this resulted in a funding cut of a million dollars or more. First Nation Band and Tribal Council funding for advisory services would be eliminated. In essence, the federal government was continuing to turn Indigenous organizations into service and program delivery vehicles for the Department of Indian Affairs.
These new policy measures were on top of the suite of crippling legislation the Harper government continues to impose on First Nations, a change to band elections in the Indian Act that shifts power away from community members, and a devastation of Canada’s environmental protections.
The government was also considering a new law making it possible for Indian bands to opt into a scheme to turn all of their land into fee simple real estate, an initiative that had already been condemned by the overwhelming majority of them. This idea has been promoted by Manny Jules, who, in conjunction with the Fraser Institute and its leading Indian fighter, Tom Flanagan, have enthusiastically backed the so-called First Nations Property Ownership legislation. This legislation would dissolve our reserves into real estate that could be purchased outright by local developers and, of special significance today, by pipeline companies seeking to push their lines across the country.
We have seen that the proponents of this approach are not interested in an open debate with our people, because they know we will never agree with their plan. They are closer to the government and Department of Indian Affairs, which funds them and shapes their agenda, than to the people they pretend to work for. They are used to making back room deals and pushing an agenda that is not endorsed by our people. At the 2010 AFN General Assembly, a resolution condemning the fee simple plan was overwhelmingly endorsed, with only three chiefs supporting fee simple land ownership for our communities.
The government, as we have seen, never stops pushing its assimilation agenda. But at the same time, the business-as-usual approach is becoming more and more difficult to sustain.
Treaty negotiations are continually teetering on collapse, because the people do not want to extinguish their title for a tiny piece of land and a tiny amount of cash, even though their leadership is, in many cases, urging them to do so. You only have to look at the recent glum twentieth anniversary of the B.C. Treaty Process to see how the government process is running out of steam. The Harper government offensive, with its suite of legislation and aggressive “results based” negotiations, has the air of a desperate gamble to try to regain traction in pointlessly spinning negotiations.
The desperation is also seen on the side of the provinces, which have hundreds of billions of dollars of resource investment knocking at the door but no land claim deals to give their investors the “certainty” they need to make the investments. As a result, the B.C. government has been peddling its Recognition Framework Agreements (RFA) and Strategic Engagement Agreements (SEA), which attempt to sidestep the failed treaty process but still open the door to resource development by recognizing the province as the final decision makers on our lands.
The process demands that we set aside our title and rights in return for an “engagement process.” There are absolutely no economic guarantees or securities for Indigenous peoples, and the process is under the exclusive powers of the province under Section 92 of the BNA Act. The province remains the sole decision maker regarding access to our lands and resources. We want a process based on the recognition and affirmation of Aboriginal rights under Section 35 of the Constitution Act, 1982. We want to be decision makers regarding access to our lands and resources, precisely what the province is trying to avoid under these agreements.
While governments continue to try to entice us to surrender with half measures, uncertainty is increasing around the land question. Major resource sector investors rev their engines on the sidelines, or quietly drive out to meet us to try to do a deal directly. They are aware of the recent study by a former government consultant, Bill Gallagher, that listed more than 150 Aboriginal rights and title court cases—on everything to land ownership to fishing, hunting, and logging rights—that have been won by Indigenous peoples in Canada. Gallagher does not at all ideologically favour our cause, but nonetheless, his view is that “until [Canadians] have true resource-power sharing with natives, the fate of Canada’s resource sector will be in the hands of native strategists in their new capacity as resource rulers.”55
Gallagher and his allies do not see the solution as acknowledging our title and rights and coming to an honourable agreement with us. Rather, they seek to enter into low-cost resource-sharing agreements that pay us a kind of rent while a mine or other extractive industry is operating, then cut and run and leave us with our poverty and Aboriginal title over the tailings pond after they have made off with the gold.
Today more than ever, it is time to push away from what my friend Russell Diabo calls the “termination tables,” which have as their stated goal the reduction or elimination of our rights. This is, essentially, what the First Nations Summit and its supporters call Plan A. But at long last, it looks like Plan A is reaching the end of its course. As we saw at the end of 2012 with the sudden rise of Idle No More, the people are moving back into the equation for the first time since the Constitution Express. And it is the people, finally, who hold the key to their own liberation.
This is Plan B. That we respect our territorial integrity and our internationally recognized right to self-determination and proprietorship of our lands—something that our Elders knew in their blood and the leaders of Andrew Paull’s generation and my father’s generation fought for, but that many of our current leaders seem to have forgotten. We have to rekindle that spirit of resistance and seize the new tools to fashion a new Indigenous economy. And I believe we have seen the first stirrings of this movement in the rise of activists groups like Idle No More.