SpruceRoots - Transcript No.3
April 17, 2003

Treaty Making and New Relationships

John Broadhead: Ladies held in high esteem, Chiefs, friends, neighbours, good people of Queen Charlotte City and Haida Gwaii. Welcome to the third event in the Gowgaia Institute Speakers’ Series.

Looking around the room, I see people from many different parts of Haida Gwaii. Thank you each and everyone for being here tonight.

How’a to everyone at Gwaii Haanas for providing this beautiful place to gather; to Carolyn Hesseltine for helping us arrange things; and to John Farrell for organizing everything and everyone as always.

The purpose of the Speakers’ Series is to engage in dialogue about changes that are occurring on Haida Gwaii, particularly those related to Haida Title and Aboriginal Rights. Our intention is to bring people together to hear well-informed perspectives on the issues, and then spend some time talking about them, and hopefully as a result become better equipped as a community to deal with some of those changes.

His Excellency John Ralston Saul began the series by providing us with a view from Canada, and he offered that the next chapter in Canada’s evolution as a democracy — which he believes is founded on a three-way relationship between anglophone, francophone and aboriginal cultures — would be written here on Haida Gwaii.

The next in the series had Terri-Lynn Williams-Davidson and Louise Mandel, QC explain the legal foundations of Aboriginal Title and the Haida Title case, as well as recent court rulings regarding the duty of the Province and tenure holders (such as Weyerhaeuser) to consult with the Haida and accommodate their interests and concerns related to constitutionally protected Aboriginal Rights.

Tonight, Miles Richardson is here to talk with us about Making Treaties and New Relationships. How does the treaty process work? Is it working? How do the Haida Nation and the Title case fit in the picture?

We’re very fortunate to be joined tonight by Kilsli Kaji Stins — Miles Richardson. Buddy was born in Skidegate and holds a degree in economics from the University of Victoria. After serving as the Skidegate Band Manager, he became at age 29 the President of the Council of the Haida Nation, which office he held for 12 years.

In the 1980s he led the Haida Nation through the troubles on Lyell Island and the injunction hearings in court, into the evening news and onto the world stage. And in 1987, after it all seemed to be over to most people, Miles led the negotiations with Canada to bring home the Gwaii Haanas Agreement and its unique co-management arrangement based on a mutually respectful relationship between Canada and the Haida Nation.

In the early 1990s, Miles joined with the First Nations Summit Task Group and the BC Claims Task Force in developing a blueprint for the treaty-making process in British Columbia, including the negotiation of interim measure agreements to accommodate aboriginal rights and interests prior to treaty completion.

In 1995, he joined the newly created BC Treaty Commission, representing the First Nations Summit. Since 1998 he has served and continues as Chief Commissioner by agreement of the federal and provincial governments and the First Nations Summit.

For his contributions as a bridge-builder, as an effective champion of Haida rights and aboriginal rights, as an articulate advocate for treaty-making and building new relationships based on respect and principled negotiation, Miles has received the National Aboriginal Achievement Award for Environment; a University of Victoria Distinguished Alumni Award for Public Service; and the Queen’s Golden Jubilee Award for his significant contribution to his community and his fellow Canadians.

When Miles is finished presenting, we’ll have questions and answers moderated by John Farrell, after which you’re welcome to stay for some refreshments and visiting.

Please join me in welcoming and inviting Kilsli Kaji Stins to come up and say a few words..

Chief Treaty Commissioner Miles Richardson
Haida Laas, good people, it’s good to be home. I really have been looking forward to tonight. I don’t know why I’m nervous, I used to get nervous, and it’s kind of a good feeling. Maybe it is like bringing something before the real critics — that is exactly what it is!

As was said, since I left the Council of the Haida Nation I’ve spent all of my time working to build a treaty making process in the province of British Columbia and it is that which I want to talk to you about tonight — why we’re doing treaties in this province; why it’s important; and some of the opportunities that are in front of us. And I want to speak about it in terms of the whole province. If we want to get in to how it relates to Haida Gwaii and specific issues around that I think there will be ample time for that in the question and answer session.

When I was first appointed Chief Commissioner of the Treaty Commission four years ago, I said that I was accepting the position because I was committed to pursuing Treaties with integrity. By that I meant that I didn’t want to be part of any Treaty that was going to be shoved down anybody’s throat, whether it be a First Nation or the Province of British Columbia. I have come to the belief that we are all good people, and I really truly believe that of First Nations, Canadians and British Columbians. My years of experience with political battles and initiatives have shown me that if you give people good information and an opportunity to work things out, we will.

Treaty making seems like an unlikely initiative and many days it still seems like that. It is a monumental undertaking, but the longer I’m involved in this initiative the more I am convinced that we are going to do it, we are going to achieve a mutually respectable new relationship amongst ourselves. I believe the terms that we have established in the province of British Columbia are the appropriate terms.

Coming up on the plane today and reading the newspapers, it never fails to amaze me how much ink Haida Gwaii gets. You have to ask yourself: why is that? You open the newspapers of the day, the Sun, the Province, the Globe and Mail and there’s Haida Bucks fighting Starbucks on one page and today there were two editorials in the Sun. One was Haida Bucks and the other one was whether or not we should harvest seals and it talked about Chee Xial and the Skidegate Band Council. There is never any shortage of attention. One column was also talking about white Raven and the Golden Spruce and all those things. There is a lot of attention focused on Haida Gwaii — there are high expectations of this place and of the people who are here. I think that is rooted in history, I think it’s a reflection of our circumstance. We are unique geographically, we have a lot of wealth, this is a rich place and it’s just ripe for opportunity. There are changes that can happen here that will happen before they occur in other places. This new relationship that we’re talking about pursuing is something that is ripe to happen here. But there is one factor in how long it is going to take and that’s us. In God’s wisdom he has put us in charge of our affairs around here. We have an inordinate effect on the place that we live and we have an opportunity to lead the way here. I think we have made great progress over the last ten years, but nothing like we can achieve over the next ten years if we take advantage of the opportunities that are in front of us.

Tonight I’m not really interested in trying to convince anyone that they should be engaged in treaty making. I’m definitely not here to talk about treaty making as a preferable option to the courts or litigation — I really believe that they work in tandem. I am here to share information about treaty making in this province, so I’ll begin.

In looking at any question such as this, it is crucial to understand what’s at issue. Throughout the years in British Columbia, it has been referred to as the ‘Land Question;’ it has also been referred to as ‘Land Claims.’ In my view and in view of the parties that are engaged in the treaty process in British Columbia, in it’s simplest terms, what’s at issue here is Title. It’s a dispute regarding Title. There are two titles that have completely different views of the world on the same matters.

The two Titles that are in dispute are on the one hand the ancient First Nations Title and as we know in this province there are about thirty First Nations — unique historic First Nations that have lived in their respective homelands for time beyond memory. They each have their view of Title, like the Haida Nation does, and each of these Nations comes to the negotiating table with that unique view. First Nations Title is given expression also in Canadian Law as a term called Aboriginal Title. If you talk to the Council of the Haida Nation or Haida leaders about what Haida Title is, they will say Haida Title is all encompassing, it is sovereignty, it’s ownership, it’s jurisdiction and it’s on the same level as any Nation on this earth. I know that view is consistent with most First Nations in this province. So that is the Title on one side of the table, on one side of the dispute.

On the other side of table is Crown Title and in Canada two authorities in parallel exercise that Crown Title. It is exercised by the Parliament of Canada, which has a list of powers pursuant to Crown Title; and there are the Provincial powers, in this case exercised by the Legislature of British Columbia. In Canada’s Constitution there is a list of powers that are exercised by each of the provinces — ten different provinces across this country. In this case it’s the Legislature of British Columbia, and the parliament and the legislature sit on the other side of the table representing the Crown in right of Canada. Those are the Titles that are in dispute.

As we talk about this tonight I also want to spend a bit of time talking about the background to this dispute and some of the critical events in recent history that have led us to this point. Secondly, I want to spend some time talking about the process we’ve designed in this province to address the reconciliation of these Titles. And thirdly, I want to talk about the experience that we’ve had over the past ten years of negotiations and look forward to the end and what might be possible and what we’re going to do to achieve success. So I’d like to touch on those three points tonight.

When we look at the Title dispute we’ve got to remember that it’s older than this province. The Title dispute began, in our case, when people in sailing ships arrived on the shores of Haida Gwaii. The dispute began right at that time. If any of you have the opportunity to look at the chronology of representation that has been made by the Haida Nation about the facts of the content of the Title put forward at the first Land Commission that they had in this province in the 1800s, followed up by another in the early 1900s, you would see a record with very eloquent testimony by the people of what their belief was about the issue, and the need to resolve it. The issue moves throughout time as we move forward, but it’s a dispute that has lingered and has increasingly come to the forefront. There is really no question today, and the treaty process is not going to change that about Crown Title. In coming to the Treaty table, First Nations are agreeing that they are going to work out a reconciliation between their Title — their right to exist as people — and the nation state of Canada, including British Columbia.

This process is not about drawing thick lines between peoples, it’s not about kicking anybody out. It’s about bringing people together, figuring out how we are going to live together and share. It’s only been about two and a quarter centuries, 225-odd years since first contact here on Haida Gwaii — it was 500 years ago on the east coast of Canada. It’s been relatively recent for us and let’s keep in mind that our objective is very clear, the objective of the parties sitting around the table is the reconciliation of Titles. No longer is it to extinguish one Title — to do away with one of the Titles and subject one of the parties to the other. It is a reconciliation to figure out who exercises authority over what and how it relates — that’s the reconciliation, that’s the objective of treaty-making.
Let’s look back, just for a second, at how we got here in terms of relationships. If you look at British Columbia before it became a province, you look at the colonial period when there were forts around Victoria and Nanaimo and other areas. All of our people would head down there regularly to trade; that was the center of commerce. When the British first started colonizing this area they came with institutions, they came with a view of governance, a way of living that they were bringing to this place. If that wasn’t brought here maybe we’d still be back in the days where you settled issues by bonking your adversary on the head and whoever won took all the spoils. But here we’re trying to build a democratic state — that’s Canada’s ideal — we’re trying to build a country that has two fundamental characteristics, two principles that guide it.

One is majority rules, one person one vote, and the Rule of Law necessarily tempers that. In this state there are rights, and people, individuals or institutions possess rights and those are protected by the state through the Rule of Law. That’s the fundamental balancing act that the British brought to this place and that is what we have been developing as Canada ever since. Let’s keep that in mind as we go through this evening.

Before BC became a province, there was the Colonial period and they started implementing a Rule of Law according to Britain. I know many of you know about the Royal Proclamation of 1763 — Terri-Lynn [Williams-Davidson] and Louise [Mandell] probably talked a lot about it when they were here previously. The proclamation is a simple law that is still a part of Canada’s constitution, and it says: before Indian Nations can be disturbed from their Title, from their rights, it can only be with the Crown through a formal agreement, a Treaty if you will. It means that the Hudson Bay Company or Chevron or whatever fishing company couldn’t come in and acquire Indian Title. British Law said that only the Crown could acquire it. So in this colonial period, in the 1850s and 60s, Governor Douglas started making treaties on Vancouver Island — treaties that exist today — they’re called the Douglas Treaties. He got halfway up Vancouver Island and he stopped. Some say he ran out of money, some say there was a change of heart. Whatever it was, in 1871 British Columbia joined Canada — the fledgling Province of British Columbia got together and had a vote and they joined Canada, they entered into Terms of Union.
But there was one serious problem. Even though in 1871 aboriginal peoples were by far the majority of the population, they did not participate in that vote, they did not participate in that choice, and from that day forward the policy of British Columbia changed. It became not one of respecting the Royal Proclamation and making treaties with the First Nations, it became a policy of deny, deny, deny — that is my term. The policy said that First Nations do not have any unique entitlement. It said that if in ancient history they did have unique entitlements we extinguished them because we made laws that were inconsistent with their ownership. That became the policy of the Province of British Columbia and that guided the development of this province for the next 150 years.

All this time, First Nations were standing up in forums during the late 1800’s, early 1900’s— and subsequently in the courts and on blockades throughout the province saying, ‘What you’re doing is wrong. On our terms, our Title has never been relinquished to anyone. And on your terms, according to your law, you’re wrong. You must sit down and deal with our rights and us.’

It continued. In 1924 the Allied Tribes of British Columbia, as they’re called, were led by Peter Kelly from Skidegate and Andrew Paul from the Squamish people on behalf of the ‘Indians,’ they called them then, in British Columbia. These two men went to Ottawa and they felt just as passionately as anybody does today and more articulate than today’s leaders are about this land question. They felt that all they had to do was bring to the attention of these people that what they were doing was wrong according to their own law and they will make it right — that’s what they believed.

So in 1924 they got on a train and went to Ottawa. There they appeared before a joint sitting of the House of Commons and the Senate, they got up and made a plea to these responsible parlia-mentarians to respect their own law and deal honourably with this land question. What they said is in Hansard. You can read it; it’s very eloquent. Then they came back to British Columbia and following that the government outlawed the potlatch. Instead of deciding to deal with these issues the government of the day outlawed the potlatch and they made it illegal under the Indian Act for Indians to hire lawyers to pursue this land question — that’s part of our history. When I’m saying that I’m just trying to relay facts. In my role here I’m impartial in terms of the negotiations that take place, but we all own these facts, this is our collective history. If we’re going to make progress on these issues we should all be aware of that.

Gradually things evolved. So Aboriginal people, for whom it was illegal to hire lawyers, it was illegal to potlatch, would still get together, and from that the Native Brotherhood emerged. They would get together and talk about the land question. In the late 60s the Nisga’a decided that something had to be done, so they went to court on the Title question, on those same principles I talked about, the Royal Proclamation. They said, ‘Just because you guys passed these laws, that didn’t extinguish our Title, our Nisga’a Title exists.’ So they went to court; Thomas Berger was their lawyer and they went to the Supreme Court of Canada. At the Supreme Court of Canada, in a really eloquent decision if you look at their reasoning, half of the court, three of the seven judges said, ‘BC, you’re right, Aboriginal Title is extinguished. And for the first time in the courts in this country three judges said, ‘No, your Aboriginal Title isn’t extinguished. The colonial period laws did not extinguish it. Your Title still exists.’ There was one judge left, on a seven-member bench, and that judge sat on the fence, he wouldn’t give a ruling because he said the Nisga’a didn’t get permission from the Province to sue them, or some minor technicality. But it raised the question in the courts of this country, ‘Does Aboriginal Title still exist?’

Pierre Trudeau, who was Prime Minister said, ‘You guys have more rights than we thought, let’s sit down and start negotiating.’ That is when the Nisga’a started negotiating — over 20 years ago. The blockades continued in this province, First Nations were standing up insisting on their Title, insisting on their rights, but the governments of the day continued to deny. They would sit at the table, but it was business as usual everywhere else. Then the issue continued forward in the courts. In the 70s we saw a series of decisions in the Supreme Court that the Musquiem took, the Guerin and Sparrow decisions, and they clarified the field further. They said these Aboriginal Rights, including Aboriginal Title, they’re not gifts from the crown, they’re not gifts from this court, those rights’ that we’re talking about began and continue from ancient history to today. Those rights, the court said, have never been lawfully extinguished. ‘What these First Nations were saying had some merit.’ My-oh-my, the rights have never been lawfully extinguished.

In 1982 when Canada repatriated the Constitution from Britain, these rights became protected by the highest law in this country and gave notice that the legislatures of this country didn’t have the authority to unduly interfere with these rights, whatever they are. The cases that went before the courts talked about fishing rights, that’s all, and they said the fish could be used for food, social and ceremonial purposes. That is not to say that’s all there is, but that’s as far as they went in defining them, so it really created uncertainty in the mid 1980s.

The governments of the day were starting to tap their tail saying there are issues here we have to deal with; the courts are becoming clearer, the case that these First Nations have been making is becoming more apparent. They realized that they couldn’t just push them aside forever, so they started looking for options. And in 1989, I remember it clearly, I was the President of the Haida Nation, all the First Nations in the province gathered together and said, ‘Here we are spending all our time fighting different issues,’ — that was in the wake of all the Lyell Island — ‘and there is only one issue in this province and let’s put all our minds together to work on this one issue and that is the issue of Title.’ The objective was to convince Canada and British Columbia to sit down and negotiate. The issue was getting the governments’ attention from the continuing persistence of First Nations and the increasing clarity that the courts were bringing to it.

In 1989, Prime Minister Mulroney came out here [to British Columbia] and a week later the then [First Nations] Congress met with Premier VanderZalm — the most unlikely leaders you’d expect to deal with this issue, after not having dealt with it for so long. Prime Minister Mulroney said, ‘Look I have the solution to your problems. You are telling me you want to negotiate. I have something better. I’m going to strike a Royal Commission, we’re going to look at this issue across the country.’ The Congress said, ‘You can cut your Royal Commission off at the Rockies and let’s sit down and start negotiating now.’ I was in that room when Mulroney said, ‘Is that really what you want?’ The Congress answered, ‘yes’ on behalf of all the First Nations. He didn’t cut his Commission off at the Rockies, they still included BC but to his credit he agreed to sit down and try to figure out how to negotiate this issue. Based on that and some work that the Province had been doing Premier VanderZalm called his whole cabinet into the Crystal Ballroom in the Hotel Vancouver — it was the biggest table you ever saw, all the walls were down. His whole cabinet and all the First Nations leaders in the province had a seat at the table and he said, ‘I’ve been looking around this province for the last three months and all I hear about is this land question, this Title issue. Is that the issue?’ Everybody said yes, and he said, ‘Well let’s get at it.’ It was that simple and within one week both governments started to address the issue.

So Canada, BC and the First Nations struck a task force in 1990 called the British Columbia Claims Task Force and gave them six months to figure out a process to address the issue that had stymied this province for so long. Six months later the task force reported. I was one of the First Nations representatives, there were three of us, myself, Ed John and Joe Mathias. Canada and BC had two representatives each. We met the six-month deadline, reported in June of 1990 I believe, with nineteen recommendations, all of which were unanimously endorsed. That was eleven or twelve years ago and I remember when the report came out, the Vancouver Sun newspaper really didn’t understand the issue but said, ‘Those recommendations and this process is a model of clarity, lets get on with it.’ Get on with it we did.

The process was unique in a few ways; one of the ways it was really important and unique was that there was agreement between First Nations to be involved. Two-thirds of the First Nations in BC participated and a third chose not to, but with the First Nations involved, the government of Canada and British Columbia sat down and developed this process. It wasn’t forced on anyone; they worked to build it by agreement. That was a big step, the nineteen recommendations; it was three equal parties at the table, each First Nation, Canada and British Columbia. Canada and British Columbia each had a seat for the simple reason of the way Canada is organized — the federal government can’t force the province to do anything, the Parliament doesn’t rule the Legislature and vice versa. So if you’re going to get an agreement on land issues you need BC at the table. So, there are three equal parties on a government-to-government basis, that is a really important under-standing. What was developed was a six-stage process and any of you who want to see it — I won’t spend any time as we’re running out of time already — look at the Treaty Commission web site, it outlines it very clearly.

Another thing that was established was putting in place a keeper of the process. An institution to sit with the three parties while they’re negotiating to constantly remind them of their fundamental commitments and to help them get over obstacles when they inevitably bump up against them, and that’s the BC Treaty Commission.

Another unique aspect of this made-in-BC process is that it was agreed that as we’re dealing with territorial issues, land and resources, we are going to deal with governance. First Nations insisted on that and Canada and BC agreed, very reluctantly, but they agreed. The basic bargain was that the First Nations said, ‘Look, we’ll negotiate certainty over our land and resources and in return we want you to recognize our powers, our authorities in areas after we work them out, and agree to protect them in Canadian law, through this Treaty.’ No treaties up to that time had accomplished that in Canada and it makes the BC Treaty process fundamentally one of nation building, well nation rebuilding. I’m sure First Nations would insist that there were Nations operating and functioning in place, but that is an essential part of the task that we’re working on.

The notion of interim measures was also agreed to while the negotiations are unfolding — and they’re going to take time — that if there is an issue that comes up that’s really bugging one of the parties, an issue they can’t live with — for example, logging in some area that is felt to be sacred — then the parties commitment was to come to the negotiating table and resolve it. That’s the notion of interim measures and a critical part of that was manifesting recognition for the first time; the governments of Canada and British Columbia were recognizing the parallel authorities. They were not agreeing to them fully or agreeing to what they were, but they did recognize the parallel authorities of First Nations and vice versa and they were sitting at the table as equal governments. That has taken time to come, we’ve been at this for ten years and we’re getting there, and to me it’s better late than never. So in a nutshell that is the background and the process we’ve set up to address the issue of Title.

As I said, we’ve been at it for ten years. ‘What’s happened and what have we accomplished?’ If you talk to different people on the street, or you talk to people that are involved in the negotiations you get very different views. One thing that has become absolutely clear is that even when negotiations began, the two solitudes that I have described on the views of Title weren’t really in people’s heads as they came to the negotiating table. British Columbian’s didn’t understand fully what First Nations were saying when they talked about Title, when they talked about reconciliation or when they talked about this new relationship. One thing I have observed over the last ten years is that we’ve come a long way in understanding the two solitudes. I remember a professor in one of our conferences said, ‘We have done a lot more over the past years to understand and shine light on these solitudes than we have done to bridge them.’ That’s a necessary step, and if we understand where each of us sits we can begin the dialogue and begin reconciling.

Two years ago, the Treaty Commission decided to do a cumulative review of the process following the landmark Delgamuukw decision. That decision in 1997 upped the anti even more. Previously the Supreme Court had said Aboriginal rights exist, they are protected by the highest law. But the Province and industry took the view, ‘Fine they exist but they’re skimpy.’ The interpretation became that Aboriginal rights are just, you know, you can go and pick a berry or catch a fish or cut a tree when we’re not using it. The Delgamuukw decision blew that out of the water. The Supreme Court of Canada came forward and said Aboriginal Rights have continued to exist, they have not been extinguished in ritish Columbia, they are explicit, and they are substantial interests in the land itself. That is exactly what First Nations had been saying. The rights are a unique property interest in the land itself, they’re not fee simple, they’re not some grant from Canada or BC, they’re something else, but they are a property interest in the land itself. The Supreme Court said, ‘We’re not going to go any further than that today. We’re urging each of you to sit down and negotiate this issue in good faith, negotiate this issue from time to time with the help of these courts, but sit down and negotiate this issue.’ So all the parties stepped back from the table, it seemed for a couple of years. So the Treaty Commission did a cumulative review of the past eight years of negotiations and asked, ‘What could we do better?’

Through the review we found that the process was sound and we found that the fundamental commitments that were made at the outset were appropriate to resolve this issue, it’s just that we’re not doing it. The inefficiency comes about when we’re not doing what we said we’re going to do. So the discussion then became, ‘Let’s not expect that we’re going to make all the progress we need.’

There were 43 separate negotiating tables, each of those negotiation tables having three sets of negotiators supported by a battery of lawyers and advisors. You have got to do that when you get down to the area-specific details, but we said, ‘Let’s bump some of these issues up to the higher level and let’s deal with them, let’s not fool ourselves.’ The parties accepted the Treaty Commission recommendations to do this and then they sat down with mandates directly from Cabinet and from the First Nations.

The first thing they did was agree with the Treaty Commission that the process is sound. They said, let’s address the real issues and they had at it. From very early on they were talking about coming to grips with the issues and that this is really about power. This isn’t about a program where you transfer money and a bit of land and a few delegated authorities. What we’re talking about here is sharing power and how the heck are we going to do that? They got right into it.

The primary objective of Treaty negotiations is certainty — this big boogieman called certainty. They said what we’re trying to do in a Treaty is simply define the rights, responsibilities and authorities of everyone. If the Province of British Columbia currently under Canada’s Constitution has jurisdiction over all of the forests of Haida Gwaii and a Treaty is going to recognize that the Haida Nation is going to have jurisdiction — I’m just using it as an example — over some of those, then let’s recognize that’s what we’re doing and talk that way at the table. Let’s clarify our objectives and while we’re doing that let’s come to terms and understand this one fact. All across Canada we’ve achieved certainty by a technique called extinguishment. We’ve asked First Nations, in return for some land, some money and in this case some powers, that they’ll forever relinquish any rights they ever had or ever will have in the future. First Nations said, ‘That’s not on.’ And Canada, well BC, let me start there — Canada hasn’t really fully responded.

In my view BC has responded. In November, the Attorney General invited the Treaty Commission to a cabinet meeting in Victoria and I believe that was a historic occasion. It was directly a result of this process I’m talking about to focus in on the tough issues. On television and in an open cabinet meeting — I know people get cynical and I know talk is just talk, but good talk is a beginning and now we have to turn it into treaties — what he said is this, ‘We’ve tried since the inception of this country to achieve certainty by cede, release and surrender language and he told his Cabinet and British Columbian’s that it has not achieved our objective. If you look at the Northeast of this province, they have Treaty 8 up there and they’re drilling for oil on the land. He said, you tell the MLA from that area that they’ve achieved certainty with the First Nations because they have this Treaty — it was anything but. He said, ‘I’m here to tell you that the only way that British Columbia and Canada are going to achieve certainty in this province is by establishing good relations with First Nations. That’s what he said, all which is in the public record, it’s in verbatim transcripts, and I thought British Columbians should be dancing in the street. So now the challenge is to turn that into treaties. We have about three or four treaties that are about to roll out that will manifest that. I’d encourage each of you just to watch and to see how that plays out.

Associated with that is co-management. Most of this process has been characterized by frustration from First Nations, because in their view the mandate of the Crown has been, ‘You get three to five percent of the land, and we get the rest.’ Basically, First Nations across the province said take a hike, but they wouldn’t leave the table, they said that just doesn’t work. They said we are here, we intend to maintain a relationship with all of our territories and we don’t mind sharing in terms of jurisdiction. We will retain some jurisdiction and we’ll agree to you having some, but where we don’t have jurisdiction over our lands we want a say in what happens. We’re not going anywhere and also you’re going to want access for emergencies, so let’s figure out who has jurisdiction over what and how we can co-exist — co-management. They are negotiating that now, with a clean slate.

One of the best examples of that, and it started a couple of years ago, is Turning Point. That is where the government of British Columbia and each First Nation are working out land use protocols, even before they get to the treaty table. The objective of which is agreeing on land use, not on three percent of the land, but for 100 percent of those territories. It is exactly what was envisioned at the outset. And the real issues. Where do you log? Where do you not log? How do you log? What areas are going to be protected? What are the foreshore zoning designations? All the real issues cover 100 percent of the territory. Again I thought British Columbian’s should have been dancing in the street. We haven’t got there yet but I read the paper and see the Council of the Haida Nation are negotiating full bore on that. We’ve made huge progress since the three or five percent days, we still haven’t got to the tough negotiation of jurisdiction but I’ll tell you having this done at the outset is going to make that a much more manageable negotiation.

In the last budget another issue that came up is financing for governance and activities. There is no point in talking about self-governance when you can’t pay for it. In the last budget speech a few months ago BC announced revenue sharing with First Nations — government-to-government — right from the source we’re going to share revenues. First Nations thought the numbers were small but the principal has been established and this is in negotiation — we move forward in negotiation — I think that’s progress, I think that is good news.

Another issue that has been crucial is compensation. From day one in this process Canada and BC said we’ll negotiate a treaty, we’ll sign off but we will not talk compensation. They say it is because it will open the doors to unlimited liability. First Nations have said no way, we can’t sweep the past under the rug, we are never going to be able to go forward on a constructive, positive footing until we deal with the past injustices. First Nations have also said we know you don’t have enough money to pay for everything you took — that’s their view — but let’s acknowledge what happened, let’s come to an agreement on reparations, whatever they are, and let’s move forward. For the first time in the last few months Canada and BC have agreed to negotiate compensation, to address compensation — excuse me — they didn’t say negotiate, they began the discussion of compensation. So we’re not all the way there yet but they’ve opened the door a crack. In a process like this you take every little glimmer of light you can and run with it. So were making progress on that front.
So just briefly looking forward, what are the prospects? And again I want to be really clear that it’s up to each of us. We could have wonderful new agreements, treaties, across this province in the next few years if we put our minds to it. When this process started I had a view sitting here on Haida Gwaii of the Caribou, you know Cowboys and Indians, some of you are familiar with that area. It’s the ranchers and the Indians — they never mixed — they’re at each other’s throat.

The Treaty Commission office has an initiative called Regional Visioning. That is where you sit down in the same room, just neighbours — if you’ve got a title fine — if you’re interested, sit down and talk to each other. You don’t get into the intricacies of treaty-making, just talk about what you share in common, your values and really importantly what kind of a future you want. What kind of neighbours you want. It’s been amazing to me what’s happened up there. All these people who were at each others’ throat sitting down, talking about land use planning and about their common issues. Last time I looked they were even re-writing a history of the Caribou just so it was respectful to each of them. Now that’s not a treaty but that’s a pretty good beginning, I think, and you put that together with the other initiatives I’m talking about and we’re making progress.
In looking at the news in the last few days you’ll see that Snuneymuxw in Nanaimo — who incidentally already have a treaty — they were one of the Douglas Treaty First Nations and are using this process to implement it. They’ve completed the wording on an agreement-in-principal, which is the stage before finalizing the Treaty. That First Nation right now is seeing if it does the trick, if they can ratify it. It’s a huge decision, every one of you I know can appreciate that, and these are big stakes.

Even though we have made a lot of progress on issues that have been dogging us, there is still more progress to be made on each of them and whether we’ve made enough progress to conclude a treaty depends on your vision. I know that the Haida vision of a new relationship — of a treaty — is probably much different than Snuneymuxw or Nuu-chah-nulth. In looking at the situation, if enough progress has been made you’ve got to measure that against your objectives and each Nation will do that. I look at Sliammon — that’s around Powell River — they rejected their agreement-in-principal before Christmas. Tsawwassen, right in the urban area of Vancouver, they’re getting very close. On the west coast of Vancouver Island the Nuu-chah-nulth are working full bore again, after having some ratification difficulties with the new mandates on the Crown side that I talked about. But they’re working full boar to re-negotiate and in their view hopefully ratify their agreements.

So in a nutshell this treaty process is sound, very much so, but I will be the last one to say it’s perfect, I’ve always seen it as a work in progress. I think we’ve really made progress on some of the key issues in the last few months. If those can be turned into treaties in some areas I think the interest amongst British Columbians in understanding these issues, in working toward resolution, will move forward quickly. Who knows, even in tough areas like this one we may be able to work toward sharing and co-existence as Lavina White always so eloquently expresses. I have that hope and however that is done I believe that if you fight it out on the land, go to court, whatever you do, if we’re going to resolve this issue, at the end of the day you’re going to do it at a negotiating table. The issues are too comprehensive and too complex to have some arbitrator sit there and resolve them all. That’s where we’re going to do it, at the negotiating table, and I believe we are making strong progress toward that.

I want to thank the Gowgaia Institute for making this opportunity for me to share a few thoughts with you and for not reminding me that the 40 minutes is up. I think it was me that set the time anyway. But I really thank you for that and look forward to addressing any questions or clarifications that you might have about what I said.
Thank you.

Chief Treaty Commissioner Miles Richardson