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Cassidy, Frank --- "Canadian Update - The Modern Treaty Process and Aboriginal Governments in British Columbia" [1993] AboriginalLawB 43; (1993) 3(64) Aboriginal Law Bulletin 10


Canadian Update -

The Modern Treaty Process and Aboriginal Governments in British Columbia

by Frank Cassidy

A modern treaty-making process is about to begin in British Columbia, as the federal and provincial governments join First Nations hi an effort to forge new relationships.

The defeat of the Charlottetown Accord in 1992 has reopened many of the questions which will predominate in this process. Certainly, the issue of Aboriginal governance will continue to occupy centre stage. It is a good time to take stock of this issue and to see if new ways of understanding and talking about it are required.

The 1980's was the decade in which Aboriginal self-government was envisioned, to a very significant extent, in terms of constitutional issues and provisions. The argument, and it was an argument, about self-government became one which was focussed largely within the confines of an on-going federal and provincial constitutional debate.

The federal-provincial arena appeared to provide a pathway for the recognition and realization of Aboriginal self-government in Canada, but the hoped for pathway was only a dead-end alley. The federal-provincial dialogue on the Constitution was not rooted, in the final analysis, in concerns about the relationships of Aboriginal peoples and other Canadians. Rather, it was centred on the jurisdictional and fiscal conflicts of the federal and provincial governments.

A constitutionally-focussed opening which will allow for a resolution of the Aboriginal governance question may appear in the near future, but it is not likely. In any case, the federal-provincial arena will continue to feature and highlight an intergovernmental discourse on power and resources. It always will tend to lead towards the development of constitutional provisions which circumscribe Aboriginal governance within a federal-provincial framework which does not accept the fundamental principles of Aboriginal governing authority. To do otherwise would undercut the central dynamic of federal and provincial relations.

The aspirations of many of the Aboriginal peoples across Canada are continuing to evolve, and a strictly constitutional focus within a federal-provincial framework may well be too narrow in light of these aspirations. An arena in which dominance is one of the central motifs will continue to have difficulty accommodating a relationship which must be built upon harmony, balance and respect.

Some might think that hope lies in the judiciary process, but the courts cannot be expected to do the work of the political process. The British Columbia Court of Appeal recently overturned important parts of the British Columbia Supreme Court's 1991 ruling regarding Delgaruuukw v the Queen. The Appeal Court recognized that Aboriginal rights have not been extinguished in the province, but it defined these rights in a generally narrow manner. This judgment may be appealed and results which are more acceptable to Aboriginal peoples and many other Canadians may emerge. Other judgments regarding Aboriginal rights will be forthcoming, but, at best, the courts only frame the issues and provide direction. They cannot produce just and lasting settlements.

It may be much more productive to address the legal and constitutional issues surrounding Aboriginal governments within the context of a modern treaty-making and implementation process, a process which brings specific First Nations, the Canadian and British Columbia governments into direct negotiations. The new Delgar uukw judgment provides a good basis for negotiations. The continued existence of Aboriginal land rights is now firmly established in law. It is the time for meaningful treaty negotiations.

If a successful treaty-making and implementation process is to take place in British Columbia, such an initiative must be accompanied by a transformation in thinking and language. This paper is intended to provide a few initial ideas concerning this transformation. It cannot begin to do justice to the task. It can point only in a few directions and, hopefully, stimulate further thought. First, the basic nature of the modern treaty process in British Columbia is discussed. Then, the language which is used most commonly in relation to Aboriginal and Canadian governments is re-examined. Lastly, the implications of the argument are explored with specific reference to the prospects for an effective modern treaty-making process in British Columbia.

Thinking About the Treaty Process

In April, the membership of the British Columbia Treaty Commission was announced. The Commission is chaired by Chuck Connaghan, former head of the provincial Round Table on the Environment and the Economy. Mr Connaghan was selected by the three parties which have convened the Commission: Canada, British Columbia and the First Nations. The federally-appointed member is former Conservative MP Lorne Greenaway and the provincial appointee is Barb Fisher, general counsel in the British Columbia Ombudsman's Office. The First Nations commissioners are Carol Corcoran, a Dene from Fort Nelson and the Treaty 8 area, and Douglas Kelly, a Sto:lo from Soowahlie in Fraser Valley. These commissioners were picked by the First Nations Summit, a coalition of many, but not all, of the First Nations of British Columbia.

The Treaty Commission was established by the federal and provincial governments and First Nations to facilitate the process of treaty negotiations. It has a mandate to receive statements of the intent to negotiate from First Nations; to fund First Nations to take part in negotiations; to assess the readiness of various parties to commence negotiations; to encourage and assist the parties to establish a timely negotiation process; to assist in the provision of dispute resolution services; and to submit an annual report on the progress of negotiations and related matters.

As First Nations Summit Leader Chief Edward John has said, the Treaty Commission "is the culmination of many years of hard work...It marks the beginning of a new relationship between First Nations and the federal and provincial governments - a new relationship which recognises and respects First Nations as self-determining and distinct nations."

There are few existing treaties in British Columbia. Only a small region on the southern part of Vancouver Island and a strip of the northeastern area of the province are covered by treaties. The Nisga'a of northwestern British Columbia have been involved in land claims negotiations with the federal government since the 1970s. In 1991, the provincial government joined these talks. To date, they have not resulted in an agreement.

The slowness of the Nisga'a negotiation process can be attributed to an approach to treaty-making which, to a significant degree, is adversarial and focussed on specific rather than general questions. This may not be the best approach. If the treaty process is to work properly, then the principles underlying treaty relationships will have to be clarified and agreed upon, before specific arrangements are sorted out. These arrangements will cover many complex matters. If this complexity is not to overwhelm the process or become an excuse for ignoring the diversity in the aspirations and traditions of various Aboriginal peoples, then it will have to be addressed on the basis of understandings which are relatively clear and encompassing.

The principles of treaty-making will have to be explicit rather than implicit, for there can be no backdoor to a meaningful treaty process. Above all, the spirit and intent of treaty-making and implementation must be generous, if treaties finally are going to finish the business of establishing British Columbia and Canada as a place which is at home with itself and if treaty implementation is to be accompanied by economic certainty, political stability and social justice. Treaty-making cannot be seen as a way in which to end the 'Aboriginal issue'. It must be seen as a process which establishes a new and more positive relationship between particular Aboriginal peoples and the Crown.

This imperative has profound implications for the doctrine of extinguishment, for the idea that treaty rights can be rooted only in the nullification of Aboriginal title and rights. The doctrine, in one form or another, has been the keystone of the federal government's comprehensive claims policy since the midseventies. It requires Aboriginal peoples to consent to exchanging their Aboriginal rights for rights and benefits which are clearly defined under Canadian law. For Aboriginal peoples, the message is dear. The price for 'just' settlements is a fundamental transformation in their relationships with the land.

The extinguishment doctrine is inherently flawed. It assumes that the treaty process is about the Crown, its Constitution and its governments, absorbing Aboriginal title and rights in a way that is final and authoritative. Such a perspective, if it is adopted in British Columbia, will perpetuate the injustice, the frustration and the bitterness of the past rather than building a future based upon respect and promise. The federal and provincial views on extinguishment will be the litmus test for the approach of these parties to this process.

If treaty negotiations are to work, British Columbians must be more concerned about giving and extending than about taking and finalizing. The accommodations which will need to accompany the treaty process should be based, in the first instance, on a conversation, on an effort at shared understanding. Knowledge and wisdom must precede power.

It might be suggested that such an approach to the treaty process is not in line with much of the recent experience regarding the relationships of the governments of various Aboriginal peoples and the governments of the Crown. One lesson which might be drawn from the debate around Aboriginal self-government over the past fifteen to twenty years is that the progress which has been achieved has been the product of 'practical' ,approaches which emphasise limited and specific arrangements around particular services, programs and processes. Tangible progress arising from a focus on 'bread and butter' issues may be contrasted with the meagre results and 'high politics' of the constitutional amendment process.

From such a perspective, it could be argued that the larger issues are not resolvable and that advances can only take place when more specific arrangements are developed. In this light, the treaty process should be pictured and approached as one which should focus on the 'hard and fast' matters of land, money and political power, while not being consumed with efforts to reach more fundamental understandings. If so, it might be posited that each side could maintain its principles, while proceeding with the practical work of governing, rebuilding Aboriginal economies and fostering healthy Aboriginal communities.

Such an approach may seem to be effective, but not for long. Issues about principles and practice cannot be detached. It may appear that they can in the short run, but some forms of agreement can be misleading. In the long and the short run, issues of principle are amongst the most practical of matters.

A treaty process which does not address matters of principle in a fundamental and meaningful way will not be successful. Such a process will result in documents which are called treaties and which may be accepted by various Aboriginal peoples because of the pressing need to address the poverty and health of their communities. The papers might be signed, but they will not reflect a spirit of reconciliation. There can be no mistake about it: the implementation of such treaties will be a troubleriddled experience which will end in frustration and mutual dissatisfaction.

Thinking About Government

If the treaty process is to be successful in British Columbia, the issues surrounding Aboriginal governments will need to be recast and seen in a light which is different from that which has prevailed to date. Terms such as 'Aboriginal self-government', 'the inherent right of Aboriginal self-government' and 'sovereignty' - terms which are more a product of Western or European discourse on governance than Aboriginal thinking on the matter - will have to be re-assessed, redefined and, in some instances, disregarded. To a considerable degree, the fundamentals of governance in Canada will have to be re-evaluated.

Self-government is a phrase that has a history which is prior to its application to Aboriginal governments in Canada. The British used this phrase when they arrived or were forced to arrive at the conclusion that one of their colonies was ready for more autonomy. In Canada, over the past twenty years, this term frequently has taken on a much wider meaning and it has been employed by many Aboriginal people as a way of representing their aspirations concerning governments. It is important to keep the roots of the phrase in mind, however, particularly because of the diverse ways in which it is used.

Aboriginal self-government has been the object of many definitions in Canada. It has been defined, particularly by the governments of the Crown, as more or less municipal government and as the relatively autonomous administration of programs and services which find their roots in the authority of federal or provincial governments. Alternatively, self-government has been envisioned as a creature of Aboriginal authority, of the legitimate authority of distinct Aboriginal peoples to make their laws, design their governing institutions and govern themselves as they see fit.

Between these two visions of Aboriginal self-government, one can further picture a wide variety of self-governing arrangements. The analogy of Aboriginal self-governing powers with provincial powers within the Canadian federal system is just one additional example of how Aboriginal self-government may be envisioned.

Given the ambiguities surrounding the term 'Aboriginal self-government', it might be best to use this term with great care or not to use it at all. Self-government may not be as far-reaching a concept of government as might be required in a treaty making and implementation process. Self-government describes a circumstance in which a group or a people has control over its own affairs. As the notion of Aboriginal title indicates, Aboriginal peoples have interests - strong and fundamental interests - in matters which affect every British Columbian, in the land, the sea and natural resources. To reflect these interests adequately, the treaty process will need to focus on Aboriginal governments in a much broader sense than the term self-government might normally allow.

This brings the argument to the concept of sovereignty. This notion is an important one because it is tied to the idea that a government or a set of governments has an over-riding and authoritative decision-making power. Where there are fundamentally divergent interests, contending governments always will tend to develop discrepant preferences about matters of importance, whether they involve finances, accountability, service standards, conflict resolution, citizenship rights or a myriad of other issues. When preferences on such issues vary continually, the notion of authority, of which government is ultimately the legitimate source of governing powers, will arise, because the government with the greatest authority will prevail.

In the Western or European political tradition, the idea of sovereignty has come to represent such a notion of authority. This idea is fundamental to the nature of the constitutional systems of modern nation states, and this is why Aboriginal peoples - whether they be First Nations, Metis or Inuit - continually come back to the idea that their governments are rooted in an independent and higher source of authority than that of the Crown.

Given the centrality of the concept of sovereignty to the nature of the modern nation state, the debate about the nature of Aboriginal governance must address this concept in one way or another. Thus, the significance of the idea of the inherent right of Aboriginal selfgovernment. If the power to conduct external affairs is put to the side, it might be argued that there is actually little difference between sovereignty and an inherent right of selfgovernment. Both notions speak to the idea of an independent source of the authority to govern. Both notions root powers i n an authority which is self-contained and not delegated. Both notions can be associated with a truly broad array of powers.

The language of the inherent right is an attractive one because it can be used to mean the same thing as sovereignty, while not employing the 'S word'. Such an approach rests upon the assumption that those who hold to the traditional notion of the supreme and singular sovereignty of the Crown will be better able to entertain the idea of sharing power with autonomous and self-authorizing Aboriginal governments within the Canadian governing system, if they do not have to confront the idea that Crown sovereignty must be accommodated to Aboriginal sovereignty. As the 1992 constitutional process shows, this assumption does not hold when the authority of Aboriginal governments is the subject of debate. At that point, the governments of the Crown once again feel compelled to assert its hegemony, to protect its authority and supremacy.

What, then, of the idea of Aboriginal sovereignty? Again, it might be best to recognize - that the term 'sovereignty' is one that is rooted more in the Western or European political tradition than in Aboriginal customs or values. Indeed, Canadian notions of sovereignty are reflective of a very particular view of sovereignty, a view which emphasises the supreme power of the Crown over the body politic. In Canada, Aboriginal peoples do not share the cultural assumptions which underlay such a notion of sovereignty. They do not share a worldview which emphasises power and domination.

The Western political tradition is not one dimensional. Power is not its only motivating force. The notion that sovereignty and governance are rooted in hierarchy and dominance represents but one strand of Western discourse on politics and governance. That discourse also evidences a persistent concern about matters such as equality, democracy and liberty and their relation to political power. If the treaty process is to work in British Columbia, political values such as these will have to come to the fore. As British Columbians rethink Aboriginal governance, they will have to rethink the matter of governance more generally.

Negotiating Treaties

When the goals of the treaty process are stated as broadly as they have been stated in this paper, it is inevitable that many questions will arise. Given the diversity of Aboriginal peoples and their geographic dispersion across the province of British Columbia, one set of these questions relates to the potential variety of Aboriginal government arrangements. Such questions can be phrased in these ways:

  • What is Aboriginal government going to look like?
  • Will it mean that thirty, fifty, or one hundred nations, each with their own governments, will exist in British Columbia?
  • Will this create a political and governing log-jam?
  • Will the federal and provincial governments be overwhelmed by the demands of many small and inefficient governments?
  • Will the stewardship of land and resources become a nightmare of excessive regulations and review processes?
  • What kind of self-government rights will Aboriginal people have when they are not on an Aboriginal land base? And what will Aboriginal government look like in urban settings?
  • Will there be an improper divergence in the kinds of economic and social programs and services which Aboriginal peoples are able to receive?
  • Will non-Aboriginal peoples be subjected to the powers of governments that are beyond their control?
  • What principles will be used to determine when provincial and federal laws apply to Aboriginal governments, on Aboriginal lands and to Aboriginal people?

The list could be enlarged. These questions are often asked as a way of derailing the treaty process. They represent important issues, however. In the end, their resolution will be critical to the British Columbia treaty process. To achieve such a resolution the difficult questions surrounding Aboriginal governance might be best addressed through an approach to negotiating treaties which is bicultural and principled and which relies on education, institution building and innovation.

Trust and good will are going to be essential elements of the treaty process, if this process is to achieve its most fundamental goals. All parties to the process will have interests they will want to protect. Each will develop positions from which they cannot move. In such a context, how can trust and good will be developed? The best approach might be one that relies on mutual education and shared efforts in a bicultural process designed to educate the public about the treaty issues and possibilities.

Such an approach might employ several strategies. For example, the principal parties to the process might organise open negotiating workshops where key issues are explored without recourse to positional bargaining. A degree of openness in the treaty process might give various publics an idea of what is happening at the negotiating tables and about what is possible. Another strategy might be to have negotiators spending time together in community and bureaucratic settings, to obtain a better idea of the varying contexts in which they are working and forming their ideas. Many similar strategies are conceivable.

These strategies are more likely to be successful if negotiators on all sides attempt to identify the core of common interests which are shared by the various parties to the negotiations and if they seek to define first principles. Once this is done, the spirit and intent of the treaties should be evident. Then, this spirit and intent can be translated into institutions and processes which represent theconcrete dynamics of co-existence.

In both the treaty-making and treaty implementation processes, there will be a need for institutions and processes which allow for alternative and innovative approaches to dispute resolution. The new British Columbia Treaty Commission is one such institution. If each of the three orders of government - Aboriginal, federal and provincial - is assumed to have its own authority to govern, then there will be a strong need for institutions which facilitate agreements on difficult matters. Such institutions, institutions which represent the shared spirit of recognition and accommodation, should be built into the framework of the treaties, to help make them living and lasting documents.

The Treaty Decade

The focus for the discussion of the issues surrounding Aboriginal governance in British Columbia - and in Canada generally- is shifting. Aboriginal communities are actively questioning and testing many of their assumptions concerning government. The Treaty First Nations across Canada are asking the Crown, ever more insistently, to honour the spirit and intent of their treaties and to understand Aboriginal governments in this light. In British Columbia, the issues of Aboriginal governance have become closely tied to a modern treaty process. British Columbia is not in a truly unique circumstance. The 1980's was the decade when Aboriginal self-government was hotly debated in the constitutional area. The 1990's will be the decade of the modern treaty process across Canada.

This does not mean that the Constitution has lost its relevance to the matter of Aboriginal governance. Sooner or later there will need to be an amendment process which is focussed on Aboriginal issues, even if this process is limited to an explicit recognition of the constitutional status of the Aboriginal government arrangements which are contained in treaties. Given the dynamics of the federal-provincial approach to constitutional issues, this may not be a simple task.

In the end, there may have to be recourse to the courts for an interpretation of the constitutional status of treaties and Aboriginal governments. If this does happen and if the treaties are to survive as living documents which represent a lasting recognition and accommodation, Aboriginal peoples should not be compelled to bring these matters before the courts by themselves. They should have important allies. These allies should be their treaty partners. That would be in the spirit of the treaties.

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