Treaty Troubles: The Yale Eye End of 17-Year 'Marathon'

[Editor's note: The 20-year effort to create modern treaties between B.C. First Nations and the federal and provincial governments has not produced many agreements. Underlying the challenge are complex structural relationships between First Nations that more than a century of colonial influence has aggravated. This four-part series by Carly Wignes looks at the deep tension one potential treaty has created, how others have succeeded, and the complex history that makes it so difficult to redress longstanding inequity.]

"The Indians really have no right to the lands they claim," wrote Joseph Trutch, Chief Commissioner of Lands and Works, in 1867. "Nor are they of any actual value or utility to them." He then reduced the size of existing reserves by 92 per cent. The federal government had told reserve commissioners not to disturb the Indians in areas where they "might be specially attached." Settlers were to interfere as little as possible in the villages, fishing stations, fur-trading posts, settlements and any other clearings the indigenous peoples occupied.  

But under the leadership of Joseph Trutch who later became lieutenant governor of B.C. in 1871, the new province adopted its own land settlement policy, and it left no room for treaty negotiations. Not until almost a century and a half later would Ottawa, the provincial government and a coalition of First Nations leaders called the First Nations Summit finally agree to address the longstanding-neglect of Britain's initial respect for indigenous peoples. In 1992, the three groups formally established a treaty process and an independent treaty commission to take on the work that Trutch neglected to do.

But even though the long-overdue modern process came with "much fanfare and promise," the treaty commission calls its progress a "disappointment" with only two treaties concluded in 20 years. For more than a decade, the treaty commission has highlighted shared territory disputes like the one between Yale and Stó:lō First Nations along the Fraser River as a serious barrier to progress. Though the Yale Final Agreement only needs federal approval to become the province's third treaty, competing claims to land included in the treaty have not yet been fully worked out. The treaty commission says it is up to the First Nations, which have spent decades in pursuit of their land claims, to take the initiative and resolve overlaps on their own.

It's just one more challenge in the very long and frustrating road First Nations have travelled in pursuit of territorial rights. As Trutch directed authorities to resurvey and reduce reserves, First Nations in B.C. were not oblivious to what was going on elsewhere in the young country. They knew the federal government had adopted a much more generous policy than what Trutch provided with his miserly "10 acre per family" formula. And they were determined to see the Crown carry out its duty, as written in the Proclamation of 1763, to negotiate fair treaties that recognized their territorial rights.

Chiefs from communities along the Lower Fraser and surrounding areas submitted a petition to the province that asked for a more appropriate allocation of land. "We are fully aware that the Government of Canada has always taken good care of the Indians, and treated them liberally, allowing more than 100 acres per family," wrote the chiefs. "And we have been at a loss to understand the views of the Local Government of British Columbia, in curtailing our land so much as to leave, in many instances, but few acres of land per family."

"Discouragement and depression have come upon our people," they added, reflecting sentiments among Aboriginal peoples across the province.

Patient pursuit

It was a cold January day when a delegation of Nisga'a chiefs left their territory in the Nass Valley in 1887 to paddle almost a thousand kilometres down the rugged west coast. They came to discuss land title and self-government directly with the highest policy-makers in the province.

They wanted bigger reserves and treaties that recognized their rights, like the ones Canada had provided through agreements with the Aboriginal peoples of the Prairies. But Premier William Smithe denied any knowledge of treaties elsewhere in the country and said that the Natives were "simply misguided." He told the chiefs, "When the whites first came among you, you were little better than the wild beasts of the field." Then he dismissed his visitors and all of their claims to the land.

Policies that ignored the First Nations would continue in British Columbia for the decades that followed. For 24 years, it was illegal for First Nations to pursue land claims, and any lawyer that accepted money to help a band file a land claim against the federal government could be fined or jailed for up to two months. It wasn't until 1960 that Aboriginals living on reserves even got the right to vote.

The treaty impasse was broken in 1973, when the Supreme Court of Canada confirmed that Aboriginal title existed before settlers came to North America. The decision forced the government to acknowledge that Aboriginal title in certain areas of the province had never been lawfully extinguished. Almost 100 years after the Nisga'a chiefs rode their canoes to the provincial capital, the B.C. government was finally willing to negotiate. When the federal government passed the Nisga'a Treaty in 2000, Dr. Joseph Gosnell, who became the president of the Lisims Government, called the agreement a "beacon of hope for Aboriginal people around the world."

Implementing agreements

Chief Bob Hope anticipates federal ratification of the Yale Final Agreement this fall, and if it goes through he says the Yale people will celebrate with a huge dinner. "We were at the treaty table for 17 years," Hope said. "It was a marathon. We had to borrow millions of dollars."

The Yale Final Agreement includes a cash settlement of $10.7 million and a transfer of ownership to the First Nation of 1,966 hectares of land, made up of 1,749 hectares of Crown land and 217 hectares of former Indian reserves, at the east end of the Fraser Valley next to Harrison Lake and above Hope. The federal government covers about three quarters of the cash settlement and the province, which provides the available rural Crown land, springs for the rest. In addition, both governments will contribute a $1.3 million in ongoing annual funding and $0.9 million in one-time funding to pay for things like social programs, resource management and educational services that will support the economic development of the community.

The Yale people will be able to use the land they will formally own through the treaty as capital to apply for loans, which they couldn't do historically with reserve lands that the federal government owned. The idea is that this will create businesses and jobs that will allow the Yale government to eventually become economically self-sufficient. Ideally, the Yale Nation will develop the capacity to govern itself and to administer its own health centres, schools and social service programs, as the Nisga'a people have begun to do since their final agreement came into effect. Uniquely Nisga'a-made programs and services replaced the ones previously delivered through the provincial and federal governments. Implementation of the province's first modern treaty finally undid the shackles that federal legislation, most particularly the Indian Act, had placed on the Nisga'a people's ability to determine their own fate.

Yet finalizing a treaty is no small feat. Hope says reaching the Yale agreement took "pure hard work and honest and honourable negotiations with all three parties." But even after nearly two decades spent negotiating all the precise details that make up the Yale Treaty, some say the federal government will "end up with a treaty that's unworkable" if it signs the proposed agreement as it is now written.

A 'fish treaty'

"If the Yale Treaty, as it is constituted now by Ottawa, is ratified without making some accommodations for Stó:lō Aboriginal rights and title and interest in the fisheries and canyon, governments are going to end up with a treaty that will be very difficult to implement," said Ernie Crey, an advisor to the Stó:lō Tribal Council. "In the contemporary world of the Stó:lō, a large number of Stó:lō families have fishing sites in the Fraser Canyon. Some of those sites are on what are regarded as sites that are soon to become Yale Treaty lands. These families have been going there for generation after generation after generation. It goes back millennia."

The Five Mile Fishery is the best stretch of the riverbank for fishermen to cast their nets. Corky Douglas, whose family has been returning to his fishing site along the Fraser River since the 1970s, says Yale First Nation is trying to gain control of the whole territory near the canyon. "That's what it is," Douglas said. "There's probably more fish being caught here by Natives than anywhere else on the river system, and that's what they want."

The proposed treaty will give the Yale people the right to fish for food, social and ceremonial purposes on their settlement lands and trespassers in the area will be subject to the same laws that apply to private Canadian property subject to Canadian law. The Stó:lō worry that the Yale Treaty will cut off Stó:lō access to land that the Yale people claim exclusively as their own. And when that land includes access to a lucrative fishery, the stakes are high.

If the Yale Final Agreement passes and Chief Hope denies Stó:lō members permission to fish on treaty settlement lands, what will happen? Crey says the Stó:lō will ignore Hope, which will force him to take the issue to the police. The RCMP, according to Crey, will declare the issue to be a political one that is outside of their jurisdiction and the courts will do the same. "The Yale chief will have to go back and talk to the Stó:lō," Crey said. "I don't want [Harper] to have egg on his face. All I'm saying is that that's where they'll end up."

But Chief Hope, who has referred to the agreement as a "fish treaty" in the past, says those Stó:lō who say their community would lose access to their fishing sites once the federal government ratifies the Yale Treaty are "fear mongering."

"The only thing they're interested in is upsetting things for the Yale Treaty," he told The Tyee. "If they were ever to prove their Aboriginal rights here in the Yale territory, we would amend the treaty to correct things."

Feds under pressure

If the federal government ratifies the final agreement this fall, Yale will be the third First Nation in the province to have reached the last stage of the treaty process -- the implementation of a treaty. Ottawa, the provincial government and First Nations communities have already spent more than $1 billion on the process in B.C. and negotiating First Nations owe an additional $420 million in legal bills that the federal government will cover until First Nations can pay it back using the cash included in their final settlements.

Political pressure to conclude treaties has never been so high. Echoing widespread sentiment across the province, the federal government admitted last September that the agonizingly slow pace of the B.C. treaty process is creating enormous bills and delaying economic opportunities for First Nations. "The current process allows negotiations to carry on for years, with no foreseeable end," said John Duncan, the Minister of Aboriginal Affairs and Northern Development. Aboriginal communities that pay to engage in lengthy negotiations face enormous financial liabilities, he added.

"Governments have probably spent something approaching a billion dollars on this enterprise and they have very little to show for it," said Crey. "So when they do get a chance to reach a treaty of course they tend to want to put a lot of positive spin on it." But according to Crey, bands still shouldn't rush into agreements. "The thing with treaties," he said, "is you never can tell if they're a good thing in the long run."

Crey believes governments have not given the Stó:lō and Yale enough time to resolve their differences and work out a shared territory agreement. "What they did do is put their treaty vehicle in high gear and concluded a treaty," he said.

Retired President of the Stó:lō Tribal Council Grand Chief Clarence Pennier said formal Stó:lō meetings with B.C. and Canada "didn't happen until later on," when Yale First Nation's Agreement in Principle was signed. "Our chiefs explained our position with the whole territory and our concern." Pennier says the problem dates to the beginning of the process. "Yale jumped into the process immediately and didn't have any intentions of notifying us," he said. "And they didn't have to, according to the criteria."

The creators of the treaty process anticipated that issues would arise that concern overlapping claims on shared territory. But they never came up with a "firm solid way of dealing with it," Chief Commissioner Sophie Pierre told The Tyee. "So we're left with a process that's not perfect; we have to figure out how to make it better for people."

The treaty commission says First Nations need to resolve overlaps on their own. The First Nations Summit, which is a meeting of B.C. chiefs who represent bands involved in treaty negotiations, proposed several options for First Nations to overcome shared territory disputes. One suggestion included a "council of Elders" that would look closely at the issues around the province and propose resolutions. Another described an "Indigenous Legal Lodge" that would inquire into overlap disputes and work with First Nations to develop agreements. But that was in 2008 and the suggestions have yet to be carried out.

Only in some instances have First Nations in B.C. taken the initiative to directly negotiate dispute resolution agreements over their shared territories.

Tomorrow: Part four, the final article in this series, will look at how some bands have agreed to share rights in overlapping territories.