Treaties in Bunches? Don't Bet on It

The annual report from the B.C. Treaty Commission fairly reeks of optimism.  After ten years of negotiations without a single success to point to, the treaty negotiating logjam is about to be broken. "We have never been closer to treaties in British Columbia," the Commissioners say.

Five First Nations have how now signed Agreements in Principle with the governments of British Columbia and Canada: the Lhedi T'enneh Band near Prince George, the Maa-nulth First Nation on the west coast of Vancouver Island, the Sliammon Indian Band near Powell River, the Sechelt Band, and the Tsawwassen Band

Four of these First Nations, according to the Treaty Commission, "expect to conclude final agreement early in 2005." Resolving all outstanding issues and concluding even one treaty in the next year would be a major breakthrough for the much-maligned B.C. treaty process.

But will the political will be there to push through the final set of negotiations and actually reach a deal?  That is far from certain.

History of fits and starts

Back in 2001 treaty negotiations were also on an upswing. Four sets of talks were making good progress; agreements were in sight. None were finally signed.

Since then the treaty process has had some rough times. The new Campbell government imposed a bogus treaty referendum on the province and brought negotiations to a standstill for eighteen months.

As if to atone for the referendum blunder, the provincial government has recently accelerated the signing of interim measures agreements with First Nations. It has also sweetened its offer at treaty tables by, among other things, offering to share resource revenue.

Two of the parties to treaty negotiation clearly want to make some deals -- quickly! The B.C. government wants desperately to have a completed treaty to brag about in next May's election. The federal government has long wanted to resolve treaty disputes and would also love to have a success or two.

Negotiating is big business

But what about the First Nations who appear to be close to reaching settlements?  Is the political will there to conclude treaties? That is less certain.
 
For one thing, treaty negotiations have become a way of life. Fueled by more than $239 million in loans and nearly $60 million in federal and provincial grants since 1993, treaty making has been an economic windfall and source of steady income for many in band leadership positions. When a treaty is finally signed, loans have to be paid back, and the hard work of implementing a treaty and improving life for band members begins.
 
Then there is the looming provincial election. Band leaders can read the opinion polls; they know there is a chance the NDP could win next May's election.

In many areas the Liberals have been more generous at treaty tables than the NDP was prepared to be during the 1990s. However, the Liberals have insisted that First Nations' governments must be "municipal-like." On that question -- a crucial one--First Nations may feel they could get a deal closer to their desires from an NDP administration.

Governing a critical issue

Finally, there are the courts. Over the last two decades, rulings by Canada's courts have consistently expanded the legal definition of aboriginal rights and title. Currently the Haida have launched a major case seeking a more generous interpretation of the 1997 Delgamuukw decision than the B.C. government will accept.

A First Nations leader who signs a deal now could be open to considerable criticism if later court decisions show that he needn't have compromised so much at the negotiating table. Why settle now, when the chance of a better deal could arise? What's the rush?

The answer is, of course, that the lack of treaty settlements is a major barrier to economic growth, both for First Nations and for the province as a whole. That's the rush. Signing a deal now, even an imperfect one, allows First Nations to get on with life.

Let us hope that the momentum of the last year leads to some treaties.  But don't be too surprised if it doesn't.

Paul Ramsey is a former NDP MLA and Cabinet Minister. He now teaches at CNC and is a Visiting Professor in the Political Science Program at UNBC.