Here is a piece I wrote last month for the Ontario Bar Association newsletter:
In its 2011 annual report, released in October, the BC Treaty Commission notes that the 20 th anniversary of the BC treaty process is less than a year away. It then poses two thought-provoking questions:
On September 21 , 2012 British Columbians and Canadians should be asking: Has there been a sufficient return on investment in the BC treaty process given the time and money spent? Has it been worth it?[1]
What is the report card? The raw numbers look like this:
Sixty First Nations comprising 110 Indian Act bands are currently in the treaty process, thereby representing just over half the bands in BC. Of these, two First Nations have implemented treaties, three have completed final agreements which are not yet fully ratified, two are said to be close to concluding Final Agreements, and one has completed an Agreement-in-Principle. Eight First Nations are in advanced Agreement-in-Principle negotiations, 26 are said to be “actively involved” in negotiations, and 18 are not currently engaged in treaty negotiations.
Judged by the criteria of implemented agreements, these are modest results, to say the least. And while Chief Commissioner Sophie Pierre calls on the parties to “shake the status quo”, there is little likelihood that the pace or progress of negotiations will change in the next twelve months.
But is this the best measure of success?
From the outset, it was bound to be difficult to reach Final Agreements. Key elements of the process design, essential to establish its credibility, also made it hard to achieve closure. For example, the parties were deliberately encouraged to put all issues on the table; all First Nations in the province were encouraged to participate and to organize themselves as they saw fit; and there were no timelines.
These and other commitments were necessary to give First Nations some confidence that the process was legitimate, and not simply a mechanism for imposing government-dictated settlements.
But negotiations that are purely voluntary, consensual, and without any timelines are inevitably complex and lengthy. And while the premise is that each table is negotiating freely, the reality is that governments have often been - and are today - constrained by mandates that can appear inflexible, given that they are the result of policy decisions intended to ensure fairness and equity - as well as affordability - across all tables. Mandate constraints have created frustration at many tables, and this has contributed significantly to the delay in reaching Final Agreements.
There are many other reasons why it has proved difficult to achieve more Final Agreements in this process. But for those who have persisted, it needs to be said that in those communities where agreements have been achieved, there is a tremendous sense of pride and ownership in the process and its outcome. There is also the reality that the end of negotiations marks the beginning of the hard and on-going work of implementation, so that for First Nations, the work never really ends.
Still, the question remains whether the process has been a success. In this context it is helpful to recall that the first recommendation of the 1991 BC Claims Task Force report - which led to the creation of the BC treaty process - was to "establish a new relationship based on mutual trust, respect, and understanding-through political negotiations".
In ways too numerous to explain fully here, this simple, but profoundly important objective is being achieved. As well as being a forum for the negotiation of mechanisms for recognition of aboriginal rights and title, the treaty process has provided opportunities for a tremendous exchange of ideas, knowledge and aspirations for aboriginal economic and social development. The result has been the development of a plethora of additional processes and tools for engagement, everything from self-government capacity-building projects to resource-specific economic development funding, and much more.
In addition, and perhaps more importantly, developments in the case law have also re-directed focus away from the need to establish aboriginal rights and title either by litigation or negotiation towards the processes of consultation and accommodation laid down by the Supreme Court of Canada in the Haida Nation case in 2004 and further developed in subsequent cases. That decision itself was the impetus for the work that led to the negotiation of the New Relationship political protocol between the BC government and the province’s First Nations political groups in 2005 . The case law, and the New Relationship, place less emphasis on requiring proof of title, and instead encourage different forms of engagement intended to build mutual trust, respect and understanding, and to provide practical economic and social benefits to aboriginal communities.
Increasingly, for some First Nations, the decision not to participate actively in the treaty process reflects their own experience that other forms of engagement with governments and businesses have produced more direct and immediate results. The phrase one hears from time to time is that these First Nations “don’t need the treaty process” to advance the goals of their communities.
The forms of engagement have multiplied. For businesses, there are consultation protocols, impact benefit agreements, joint ventures, equity partnerships, and corporate social responsibility initiatives. The province has also expanded the toolkit of options for direct engagement with First Nations. These include the comprehensive land use planning agreements with multiple First Nations on the North and Central coasts. Forest and range agreements. Strategic engagement agreements. Resource revenue sharing policy frameworks. ‘Recognition and reconciliation’ agreements intended to create processes for shared decision-making.
Twenty years on, perhaps what has changed most is a shift away from the original objective of ‘settling’ land claims. Increasingly, there is a recognition that the goal is not to end something, but rather to establish on-going relationships, based on the recognition of aboriginal rights and title, where the parties focus on more limited and immediate social and economic development objectives.
For some First Nations, the best platform for progress will be a comprehensive Final Agreement under the BC Treaty Process. But for others, progress will be found in other forms of engagement, with the possibility that at some point in the future it will be possible through the treaty process to achieve comprehensive agreement. The work of achieving real trust and mutually beneficial relationships is rarely easy. Matching expectations with the reality of limited government budgets and corporate profit objectives requires hard work - and it is too often still the case that First Nations engagement is seen as an add-on requirement to a project development process, rather than an integral aspect of government and business planning. But to the extent there is progress, it has at least some roots in the treaty process. The legacy of twenty years of treaty-making is real success; perhaps not exactly as planned, but in ways that are starting to make a real difference in the lives of aboriginal British Columbians.
[1] BC Treaty Commission, Annual Report 2011 , online: BC Treaty Commission <http://www.bctreaty.net/files/pdf_documents/2011 _Annual-Report.pdf>.
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