A consider Treaty Commission Annual Report 2004 …a new relationship Contents 4…our status 18…our progress report 34…a different future 46…our three roles 1 …As history shows, the relationship between First Nations and the Crown has been a troubled one. This relationship must be cast aside. In its place a new relationship, which recognizes the unique place of aboriginal people and First Nations in Canada must be developed and nurtured. Recognition and respect for First Nations as self-determining and distinct nations with their own spiritual values, histories, languages, territories, political institutions and ways of life must be the hallmark of this new relationship… BC Claims Task Force Report, June 28,1991 kitlope lake cover photo: fred seiler Commissioner Wilf Adam First elected April 1995 Commissioner Jack Weisgerber First appointed March 2002 Commissioner Jody Wilson Elected March 2003 Commissioner Michael Harcourt Appointed May 2003 3 Letter from the Commissioners Last year we pronounced that treaties were within We owe our special thanks to former chief commissioner reach if the parties could clear the remaining, Miles Richardson who was an outstanding spokesperson significant hurdles. As the views we have gathered for the treaty process and the Treaty Commission, in this report show, that process is underway and the and a consensus-builder among the parties in treaty new relationship being sought is beginning to take negotiations. shape for some First Nations. We are grateful to our staff for their efforts in maintaining Three more agreements in principle have been ratified, the Treaty Commission’s high standard of service in the bringing the total to four in the past 14 months. absence of a full-time chief commissioner. Negotiators for the parties hope to reach final agreements early in 2005. The Treaty Commission is committed The British Columbia Treaty Commission was appointed to assisting these four tables achieve treaties and will on April 15, 1993 under the terms of an agreement support through active facilitation all those tables between the Government of Canada, the Government where the First Nations are ready and committed to of British Columbia and the First Nations Summit, moving forward. whose members represent the majority of First Nations in British Columbia. We have been without a chief commissioner for the past six months. However, current conditions demand The terms of the agreement require the Treaty that we continue to act. We have developed a Mission Commission to submit annually to the Parliament of Statement, which will set the tone and direct the Canada, the Legislative Assembly of British Columbia actions we will be taking to move treaty negotiations and the First Nations Summit a report on the progress forward. The Mission Statement identifies 10 key of negotiations and an evaluation of the process. Our recommendations from the BC Claims Task Force as financial information has been prepared to coincide being fundamental to fair and effective negotiations. with the release of Annual Report 2004 and is submitted Of key importance is the need for interim measures as a separate document. as an early form of mutual recognition pending the completion of treaties. We see it as necessary for the Principals and the Treaty Wilf Adam Jack Weisgerber Commission to meet to assess progress and address ongo- Commissioner Commissioner ing concerns about treaty making in British Columbia. It will be an opportunity for the newly appointed federal minister, newly elected First Nations Summit Task Group members and the provincial minister to also address the Jody Wilson Michael Harcourt Commissioner Commissioner pressing need for a chief commissioner and to consider our role and mandate in light of the effectiveness review undertaken by the Principals last year. …the current status 5 Overview There continue to be conflicting views on how much An expression of mutual recognition progress is being made in treaty negotiations. Underlying all of the Treaty Commission’s efforts to see treaties concluded is the undeniable fact that the While it is true that we have never been closer to status of Canada’s aboriginal people is unique. There treaties in British Columbia, it is also true that much is no changing that historical fact. It is a reality. It is of the groundbreaking negotiation is taking place at why we have a treaty process in British Columbia. only a handful of tables. To be successful, the parties in treaty negotiations must On the one hand we have seen heartfelt displays of acknowledge the legacy of the past, understand the celebration to welcome agreements in principle at the current situation facing aboriginal people and come to Lheidli T’enneh table in July 2003, followed by the agreement on provisions for the future. The Treaty Maa-nulth table in October, and the Sliammon table Commission’s duty is to make sure the parties honour in December and at the Tsawwassen table in March their fundamental commitments through this made-in- of this year. BC treaty process. On the other hand we have seen First Nations protesting No longer acceptable is the view that aboriginal rights on the lawns of the legislature in Victoria, citing a are of minimal importance and have no impact on continuing denial of aboriginal rights as the reason for provincial jurisdiction over lands and resources. Two their action. At the protest were participants from First landmark rulings in the BC Court of Appeal confirm the Nations in treaty negotiations and those that are not. BC government must properly consult with and accom- modate the interests of First Nations before proceeding Even in Stage 5 negotiations, where there is a substantial with development on their traditional territories. amount of momentum and optimism, the participants remain understandably cautious about their prospects The implication is obvious — First Nations can no for treaties. longer be ignored. And it is counterproductive to do so. We acknowledge there is a greater degree of recognition The courts made it clear that interim approaches, for First Nations than was the case when the treaty either through the courts or negotiated agreements, process began. But we cannot ignore the First Nation can temporarily reconcile competing interests until leaders who are saying that aboriginal rights continue there is a final reconciliation through a treaty or decision to be denied. A measure of their dissatisfaction is the at trial. number of First Nations that are taking court action while still at the treaty table. The BC treaty process, as it is set out, is fundamentally Litigation remains an option sound. Through negotiated interim measures agree- The Treaty Commission has witnessed firsthand the need ments, the parties can temporarily reconcile competing for a delicate balance between negotiation and litigation. interests until there is a treaty. The BC Claims Task Force noted that interim measures are a way of balancing the While it is certainly true that litigation can inform interests of the parties prior to the completion of treaties negotiations, at the end of the day a government-to- and are an early expression of mutual recognition. government relationship, with all of its complexities, must be negotiated. Relationships cannot be built in The commitments that were made by the governments court. And ultimately, treaty making is about building of Canada, British Columbia and First Nations in new relationships. establishing the BC treaty process were fair and appropriate for resolving the land title dispute in We have been critical of the federal government for British Columbia. The treaty is to be a key expression its at times inflexible, litigate-or-negotiate policy. of the new relationship. We recognize that in other spheres of life, litigation and negotiation go hand-in-hand. We are all familiar Treaty negotiations are a voluntary political process. with the out of court settlements negotiated on the When First Nations sit down at the treaty table, they courthouse steps. must recognize there is legitimacy to the claims of title, of ownership and jurisdiction by Canada and The conundrum is this: First Nations may feel forced British Columbia. to take legal action to protect interests they do not see being addressed at the treaty table. And then they Similarly, Canada and British Columbia, in coming to cannot negotiate a resolution of their rights because the treaty table, must recognize there is legitimacy to they have taken legal action. It is a catch-22 situation. the claims of title, land ownership and jurisdiction by First Nations. In its facilitation efforts, the Treaty Commission has encouraged Canada and BC to be more flexible in their The challenge is to give this mutual recognition adequate policies on litigation in cases involving individual practical expression in a treaty or through interim First Nations, as well as those cases impacting all measures. At the end of the day, First Nations people First Nations. must decide if the expression of recognition is sufficient to enable them to regain control over their own lives. Most First Nations felt compelled to launch legal action in December 2003 to preserve their aboriginal rights Perhaps as important at this stage of negotiations for and to prevent the governments of Canada and BC many First Nations is receiving a measure of respect from using limitation defences under the provincial and understanding at the treaty table sufficient to Limitation Act. establish the basis for a new relationship. photo: don bain Protest First Nation leaders cite the continuing denial of aboriginal rights as the reason for the protest held on the lawns of the legislature in Victoria earlier this year. Limitation statutes prevent plaintiffs from bringing Columbians about treaty making. The report says the actions to court after a set time. Talks to head off Commission is managing its operations efficiently with the need for legal action, facilitated by the Treaty a limited budget and has been particularly efficient in Commission, were unsuccessful.