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Jeffrey Simpson (Brigitte Bouvier For The Globe and Mail)

Jeffrey Simpson

(Brigitte Bouvier For The Globe and Mail)

JEFFREY SIMPSON

Two decades of B.C. treaty flop Add to ...

Twenty years ago, the federal and British Columbia governments and the province’s First Nations Summit committed to “Made in B.C.” treaty negotiations.

The negotiations would provide a path to aboriginal self-government underpinned by modern treaties. A treaty commission to facilitate negotiations was established, ground rules were agreed upon and negotiations were to begin in a province that was largely without treaties but with massive overlapping aboriginal claims.

The negotiations have largely been a flop. Only two First Nations had wrung treaties from this process by 2012. Three others had final agreements and five more had agreements-in-principle. That’s a dispiriting result after more than two decades.

Yes, 30 other First Nations are in earlier stages of negotiations, but that means they are likely decades away from any treaty. Twenty more are in the treaty negotiations process, except that they aren’t actually negotiating. Many other First Nations never participated in negotiations because they do not recognize the sovereignty of Canada over any part of their lives and territory.

Almost reflexively, First Nations blame governments for these disappointing results. Even the B.C. Treaty Commission questioned the Harper government’s commitment to negotiations in its recent report Pathways To Change. Negotiations over fish allocations – an important part of some treaties – stalled after 2007 when the West Coast Fisheries Review began, followed by a delay caused by a commission of inquiry into salmon stocks.

Both Ottawa and B.C. have indeed been frustrated with the process, and with good reason. Former B.C. premier Gordon Campbell got so fed up that he made an astonishing, if vague, offer to recognize aboriginal title holus-bolus. Very regrettably and rather foolishly, the aboriginal leadership backed away from exploring the offer.

On the aboriginal side, there’s no ignoring the overlapping territorial claims made by First Nations. The B.C. Treaty Commission, charged with bringing governments and aboriginal groups together, spends some of its time trying to mediate among First Nations themselves.

Then, there is what is euphemistically called the “capacity” challenge. Many of the First Nations that want to self-govern have very small populations. They struggle to negotiate, and given their numbers, they would struggle under a modern treaty to provide the range of services delivered by a self-governing entity.

A check of First Nations populations with complete final agreements or agreement-in-principle illustrates the challenge: Lheidli T’enneh (390 members), Tla-amin (1,030), Yale (160), In-SHUCK-ch (760), K’omoks (322), Tsimshian First Nations (4,034 members in five nations combined), Wuikinuxv (283, of whom 60 live on the reserve), Yekooche (220). Even these population statistics mislead, because children and the elderly would have to be subtracted to get a full picture of able-bodied people capable of delivering the services of a self-governing entity.

Self-government means that a First Nations government should deliver something roughly comparable to services in Canada provided by municipalities and/or provinces: education (academic and vocational), health care, roads, social services, justice, policing, recreation and so on.

Otherwise, the description of “self-government” is a misnomer, more rhetoric than fact. And any self-government entity has to provide for at least some revenue from its own sources, because any government that is largely dependent on outside sources of income will be a good deal less sovereign than it pretends.

The “capacity” challenge figures in the B.C. Treaty Commission’s analysis of why negotiations have gone so slowly, which is true enough. But the challenge is a much wider one. Even with a treaty, how does a self-governing First Nation deliver a range of services with a small population, a limited number of trained people to deliver those services and, in many cases, a small land base? Self-government is easy to demand, but much harder to accomplish in the real world.

It is possible, of course, that a settled land claim would give a First Nation the chance of earning revenue from, say, natural resource exploitation (mining, forestry, fishing). Some First Nations don’t want such exploitation, fearing it will disturb their traditional way of life; others claim land with limited exploitation potential.

B.C., Ottawa and some First Nations hoped 20 years ago that negotiations would produce treaties that, in turn, could make First Nations self-government a reality throughout the province. By and large, the hopes have crashed against hard realities.

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