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The provincial government made much fanfare over signing treaties with the Tsawwassen and Maa-nulth First Nations in recent months, but University of Victoria indigenous governance professor Taiaiake Alfred says they are the last two "surrender for money" treaties the province is likely to see.
Following the B.C. Supreme Court's November decision that found the Tsilhqot'in hold Aboriginal title to some 200,000 hectares of their traditional territory, Alfred says there's a growing consensus the treaty process needs to be completely restructured before it makes sense for most First Nations to continue with it or join it.
"In practical terms, it means the treaty process is going to have to stop," he says. There's little point talking with the government nation by nation. "I would redesign it. I would have a treaty conference instead. You come up with a new framework and a new draft of a unified treaty."
The conference should be held in public so the process and arguments are transparent and open, he adds. If everyone knew the arguments, he says, "I'm certain the public would be supporting the natives."
The goal would be to set out the basic principles underlying the negotiations. They would likely include starting from the point of view that, like the Tsilhqot'in, First Nations hold title to their land and the province has no jurisdiction over that land or the people. Once those principles are affirmed, says Alfred, "you can go negotiate the details with each First Nation. They're doing it ass backwards right now, and it shows."
A decade ago, Alfred's arguments for ditching or restructuring the treaty process would have put him on the fringe even among Aboriginal leaders, but following the Tsilhqot'in decision, the ideas have become mainstream. The First Nations Summit reacted to the ruling by saying future agreements will have to recognize Aboriginal rights and title. Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, said, "Without question, the Indigenous Nations of British Columbia are on the brink of collectively exercising our sovereign authority and inherent jurisdiction over the management of the resources within our Aboriginal title lands."
Despite the publicity around the Maa-nulth and Tsawwassen treaties, Alfred says, there was little there for natives to celebrate. "The two deals they signed were the weakest links on the native front," he says. "They're the abnormal cases.... It's not a situation where this is reflective of the way things are going to go with regards to native politics."
Money not the issue
The Tsawwassen got 700 hectares of land and $14 million. The Maa-nulth got about 245 square kilometres of Vancouver Island, $73 million and a resource royalty agreement. To fix the treaty process, he says, the parties will have to shift their basic premises.
"The money aspect is trivial," says Alfred. "It's all very short term. The big question is jurisdiction and land ownership."
Both the Maa-nulth and Tsawwassen gave the province jurisdiction over their lands and governance, according to Alfred. That's too much to give away, he says, and going forward, First Nations won't have to.
Where past agreements have focused on cutting a share of mining and logging royalties to First Nations, now leaders should be free to decide to "do something radically different," he says. "The treaty process is designed to accomplish surrender."
"In order to achieve something for their people, native leaders don't need to sell out."
Related Tyee stories:
- Judgment Day for Treaty Process
A landmark court ruling criticizes government dealings with First Nations.
- Tsawwassen Treaty 'Fraud' Say Gulf Island First Nations
Will ask BC Supreme Court to halt signing.
- Reconciling with First Nations: A Reader-funded Solutions Series