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Long Road to a Treaty

In 1867, the BC government reduced Stó:lō reserves by 92 per cent without Stó:lō consent. Justice today?

By Sandra Shields 20 Apr 2007 | TheTyee.ca

Sandra Shields lives on a farm in the Fraser Valley with photographer David Campion. Their first book won the 2003 Hubert Evans Prize; Where Fire Speaks looks at how development arrived for one African tribe. Their second book, The Company of Others, explores the power of caring relationships in the lives of people with disabilities and their families and friends.

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Photo by David Campion.

[Editor's Note: Two years ago, the government of British Columbia and First Nations leaders laid out a vision for a "New Relationship," spurring initiatives aimed at "closing the gap" between Aboriginal and non-Aboriginal British Columbians. This is the second-to-last article in a Tyee Solutions Reporting Fellowship series by Sandra Shields, who is looking at steps being taken in her home community of the Fraser Valley. To learn more about Shields, her series and Tyee fellowships, go here.]

It probably happened in May. The first salmonberries would have been ripening along the creeks draining into the Fraser and the last eulachon would soon be headed upriver to spawn. Queen Victoria was not there, though her birthday was the occasion. She was over in England, mid-way through her long reign. Throughout the 1860s, her birthday was a time when Stó:lō chiefs and their families from up and down the mighty river gathered at New Westminster to meet with representatives of the Queen who had claimed their territory as her own. On this occasion, speeches were traded back and forth and the colonial governor made a promise on behalf of the Queen.

Keith Thor Carlson is a professor of history at the University of Saskatchewan and first became intrigued by this promise when he was working as a treaty advisor for Stó:lō Nation.

"The Stó:lō have this story," he explains, "that says: We did not fight you, we did not cause problems for you when your settlers moved into our territory, because we were under the impression that you would be compensating us according to a standardized formula that we thought was very fair."

The promise went like this: when lands outside their reserves were sold, the Stó:lō would receive a third of the proceeds, B.C. would receive a third, and the Queen would receive a third.

"One of the things that I think is impressive about the oral history is the consistency of it," Carlson says. "A couple of different families have slightly different versions -- one says a quarter, one says a third -- but that's not important, all the basic parts are consistent and unchanging."

Revising history

"The irony is that it's the written culture that is inconsistent and is constantly trying to go back and revise and ignore its own text," he says.

"There was this important book that was published called Papers Connected with the Indian Land Question. It was published way back in 1875. The Opposition party in the province was looking for a way to get elected and they latched onto this issue of Indian title. They said: you know we've got a lot of disgruntled Indians in this province and they say they've been wrong done by. So the Opposition party commissioned an archivist to go in and collect all the papers that related to the Indian land question in the archives of the province and put them together in a book form. The Opposition promptly got elected and when they realized how much it would cost to follow through on what they had promised, they took that book and pulled it from the bookstores and refused to issue any further editions. So you have Stó:lō people, right up until the 1920s, two generations later saying: We would like a copy of this book, we know it exists, we know it justifies our oral history. But by this time the Opposition was the government and they wouldn't do it. These things are easy to document, they're well known historical facts."

Carlson offers another example. Originally the Stó:lō had relatively big reserves. "A few years later when the government came in and reduced the reserves, they said: You don't need big reserves because you are fishermen and you have this lucrative fish economy. The Stó:lō were selling fish to white people and making all kinds of money from it. So no sooner had they shrunk the reserves than the government changed the laws in the 1880s and said: You can no longer sell fish that are caught in the river, only fish caught in the ocean can be sold, and the fish you do catch can only be used for personal consumption or ceremonial purposes."

Carlson has spent years studying the oral and written history of Aboriginal-colonial relations in the Fraser Valley. When it comes to treaties, he knows where he stands.

"The sad thing here," he says, "is that the Stó:lō are asking us to live up to our laws. They're not saying that for you to come here you have to live up to Stó:lō laws. They're saying: We understand that you have laws that protect our rights and we're asking you to live up to your laws."

Coles notes on treaties

Today, the Stó:lō, like most First Nations in B.C., still lack formal written agreements with the governments that assumed control of their territory. There is a bit of folk wisdom that says that if you don't deal with your problems, they go down to the basement and pump weights. On an issue where disagreement is the norm, it is safe to say that the B.C. government did not make the work of negotiating treaties any easier by ignoring it for over a century.

In undertaking this series, I was curious to learn more about the negotiations going on in my corner of the Fraser Valley. Was a treaty imminent? How might it affect the whole community? What was the place of treaties in the "New Relationship"?

If you find yourself confused by treaties, you're not alone. Treaties between Aboriginal people and newcomers have a long contested history that has created volumes of case law. Amidst all the legal jargon, it can be easy to miss the drama of treaty negotiations as they continue to build, as any good plot must, to a still uncertain outcome.

Next week, this series explores what is happening with treaties and asks what the future might look like once they are in place. But treaties can only be understood by looking to the past, so what follows is a short primer on key events that have led to the strange embrace that B.C. and Aboriginal people find ourselves in today.

1763: Rules for colonizing

The promise made to the Stó:lō was in keeping with Britain and Canada's approach to relations with Aboriginal people. Common law was made explicit in the Royal Proclamation of 1763 when King George III declared that only the Crown could acquire lands from First Nations and that all purchases must be agreed to in open negotiations. Accordingly, across the rest of Canada, treaties were entered into that saw Aboriginal people give up title to the land in exchange for reserves and various other promises.

BC: A law unto itself

With a few exceptions, the powers that be in B.C. never got around to negotiating with Aboriginal people to acquire their land. One of the reasons: lack of funds. Another: lack of public support.

1858 -- The mainland became a colony; there was a gold rush going on and instead of negotiating treaties, Governor Douglas went ahead and laid out reserves.

1867 -- The B.C. government reduced Stó:lō reserves by 92 per cent without Stó:lō consent. This was consistent with what became B.C.'s position of denying that Aboriginal people ever owned the land and refusing to pay compensation for loss of lands and resources.

1871 -- B.C. became part of Canada and continued to maintain its no-treaty policy for more than 100 years.

1876: Indian Act

This act of Parliament dismantled traditional governance systems and made Aboriginal people wards of the federal government living on reserve land, which was owned by the federal government. They did not have the right to vote, own property or purchase alcohol. (In B.C., title of Indian reserves was not transferred from the province to the federal government until 1938.)

1884 -- Indian Act was amended to include "anti-potlatch law" which made it illegal for Aboriginal people to gather together for any kind of ceremony where gifts were given out.

Nisga'a: First modern treaty

It was a court case that finally changed the B.C. government's no-treaty position. The Nisga'a people of the Nass Valley had been petitioning to have their land rights recognized for generations before they took B.C. to court.

1887 -- Nisga'a chiefs traveled to Victoria to press for treaties and self-government.

1913 -- Nisga'a filed formal claim to the Nass Valley.

1967 -- Nisga'a chiefs launched a case against B.C. seeking recognition of their Aboriginal title to the Nass River Valley where they had fished and hunted for thousands of years.

1973 -- The Supreme Court of Canada found that Aboriginal rights are recognized under Canadian law but the judges were split on whether those rights had been extinguished in B.C.

Within months the federal government announced it would seek to settle land claims in parts of Canada where treaties were never signed. The federal government and the Nisga'a began to negotiate but the B.C. government maintained its no-treaty position. With B.C. holding most of the Crown land in the province, the process was doomed without B.C.'s participation. Throughout the 1980s protests and blockades became a feature of life in the province.

1990 -- In a break with B.C.'s longstanding denial of Aboriginal rights, Premier Bill Vander Zalm sent negotiators to join talks underway between the federal government and the Nisga'a.

1999 -- B.C. and Canada ratify the final agreement leading to the Nisga'a treaty.

2000 -- The Nisga'a treaty becomes law.

BC treaty process (part 1)

1990 -- The current B.C. treaty process grew out of the Nisga'a negotiations. First Nations leaders met with Canada and B.C. and asked for a task force to develop a process for modern treaty negotiations in B.C. The B.C. Claims Task Force was established.

1991 -- The B.C. Claims Task Force report recommended that First Nations, Canada and B.C. establish a new relationship "based on mutual trust, respect and understanding" -- through political negotiations.

1992 -- The BC Treaty Commission was established as an independent body to monitor adherence to the recommendations of the task force.

The six-step treaty process in use in B.C. today was put in place by the task force. The six stages are a way of organizing the complex series of discussions and documents that ultimately result in a treaty.

In the Constitution

1982 -- Section 35 of the Constitution Act recognizes and affirms aboriginal rights and treaty rights, both existing and those that may yet be acquired.

Back in court

1997 -- In the landmark Delgamuukw decision, the Supreme Court of Canada ruled that Aboriginal title is a right to the land itself, not just the right to hunt and fish and gather. The decision confirmed that Aboriginal title does exist in B.C. and that when dealing with Crown land, the government must consult with and may have to compensate First Nations. The court strongly urged governments and First Nations to negotiate rather than litigate. The Chief Justice pointed out that litigation is costly and divisive and said the Crown is under a moral, if not a legal, duty to negotiate in good faith. The decision ended with the often quoted words: "Let us face it, we are all here to stay."

November 2004 -- The Supreme Court ruled on two cases: one involving the Haida Nation and the other the Taku River Tlingit First Nations. In both cases, the court confirmed that government must consult and possibly accommodate the interest of First Nations before proceeding with development on their traditional territory, even where Aboriginal title has not been proven. This duty is an interim measure prior to the question of rights being addressed in treaty or in court.

Campbell vs. Nisga'a

The Nisga'a treaty met with a great deal of opposition. In particular, the B.C. Liberal party under Gordon Campbell took the treaty to court.

1999 -- The B.C. Liberal party (Leader of the Opposition Gordon Campbell, along with Geoff Plant and Mike de Jong) brought a lawsuit challenging the constitutionality of the Nisga'a Treaty.

2000 -- The B.C. Supreme Court ruled against the B.C. Liberal party and found that the Nisga'a treaty is constitutionally valid and that self-government is a constitutionally protected Aboriginal right.

2001 -- B.C. Liberal party was elected, Gordon Campbell became premier and the legal challenge to the Nisga'a treaty decision was dropped.

Campbell's 180

April 2002 -- Following through on an election promise, the B.C. Liberals held a referendum asking voters whether they agreed or disagreed with eight questions regarding treaty settlements. The questions dealt with legal positions regarding property, governance, resources and tax issues. Critics charged the questions circumvented and contradicted court decisions and were designed to give the province leverage in treaty talks. Ballots were returned by 36 per cent of eligible voters (7 per cent of those were spoiled).

February 2003 -– B.C. throne speech embraced the concept of reconciliation, declared an end to denial and pledged to take serious steps to undo the damage caused to Aboriginal people.

September 2003 -- First Nations Summit (representing Aboriginal people in the treaty process) stated it was time for B.C. to pull itself out of colonial times, and presented "Framework for Recognition and Reconciliation" to Premier Campbell.

November 2004 -- Decisions in the Haida and Taku River cases confirmed that government must consult and possibly accommodate the interest of First Nations before proceeding with economic activities on Crown land.

February 2005 -- Premier Campbell acknowledged that the provincial consultation policy was not working and expressed an interest in "doing it right" this time. He committed to openly discuss how to establish a new relationship.

New Relationship

March 2005 -- First Nations leaders came together in a historic accord between Union of BC Indian Chiefs, First Nations Summit and BC Assembly of First Nations. The province began meeting with this leadership council and a joint vision statement, "The New Relationship," was released to reduce uncertainty, litigation and conflict.

June 2005 -- B.C.'s Ministry of Aboriginal Relations and Reconciliation is formed.

February 2006 -- Speech from the throne declares that "British Columbia is determined to lead Canada and walk the path together to lasting reconciliation."

March 2006 -- First Nations New Relationship Trust Fund announced with $100 Million for First Nations capacity building. Shawn Atleo with BC Assembly of First Nations said, "Undoubtedly we are at a turning point in our journey towards reconciliation...."

May 2006 -- Premier's Statement on the New Relationship with Aboriginal People: "We have seen the consequences of Canada's collective political failures to its first citizens. We know the toll it has taken on Aboriginal children and families -- and there are no more excuses. We have seen the consequences of shattered hope spawned by over a century of betrayal, denial and negligence by governments of every stripe. There are no more excuses. We have seen the consequences of confrontation, litigation and opportunities lost. We know too well the consequences of frustration, anger, mistrust and despair. There are no more excuses."

BC treaty process (part 2)

The "New Relationship" makes no mention of treaties and has resulted in a growing number of interim agreements designed to (1) address the socio-economic gap and (2) provide a degree of certainty for economic activities on Crown land. Some commentators have speculated that the interim agreement approach may eclipse treaties altogether. In November 2006, the Auditor General of Canada's report stated that the B.C. treaty process "is important to all Canadians," and criticized the cost, pace and lack of results. About 60 per cent of First Nations in B.C. are in the treaty process, but as yet, no treaties have resulted. By the end of 2006, three final agreements had been initialed. In order to move forward to treaty, final agreements must be accepted by community members through a ratification vote.

October 29, 2006 -- The first final agreement reached under the B.C. treaty process was initialed by the Lheidli T'enneh near Prince George.

December 8, 2006 -- The second final agreement reached under the treaty process was initialed by the Tsawwassen First Nation.

December 9, 2006 -- The third final agreement reached under the treaty process was initialed by the Maa-nulth First Nations on Vancouver Island.

March 30, 2007 -- In the Lheidli T'enneh ratification vote, community members voted 123 against the final agreement and 111 in favour.

July 25, 2007 -- Tsawwassen First Nation scheduled to vote on ratification.

Fall 2007 -- Maa-nulth First Nations scheduled to vote on ratification.

Next week, last in the series: What does the future hold?  [Tyee]

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