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Truth about Reconciliation (agreements

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Ryan Day BA Economics (SFU) MA Indigenous Governance Candidate (UVic)

The following is a summary and comments regarding current pre-treaty agreements being negotiated by First Nations taking part in the British Columbia Treaty Commission (BCTC) process. The Snuneymuxw signed the latest of these agreements Tuesday March 26, 2013. The title of this agreement is officially the Snuneymuxw First Nation Reconciliation Agreement. Despite it’s name it follows very closely with other recent Incremental Treaty Agreements signed by the Nazko on June 29, 2012; Tla-o-qui-aht on November 16, 2012; Kitselas and Kitsumkalum on January 31, 2013; and Malahat, Scia’new, Snaw-naw-as, Songhees, and T’souke on February 26, 2013. Because these agreements are near identical I will use the most recent Snuneymuxw agreement as the example as the most recent can be taken as the going precedent. The importance of understanding these agreements and their implications for all communities whether involved or not in the BCTC process cannot be overstated, as they will severely compromise the ability to assert our Inherent Rights as Indigenous peoples and the caretakers of the land in which our Ancestors rest and the water which gives it life. “Reconciliation: The Snuneymuxw First Nation acknowledges and agrees that, in the spirit of the New Relationship, the Lands transferred to the Snuneymuxw First Nation in accordance with this Agreement constitute a contribution by the Province towards the reconciliation of the Province’s and the Snuneymuxw First Nation’s interests [rights and title to lands and waters] and, as such, the benefits provided to the Snuneymuxw First Nation under this agreement will be counted as a portion of the Province’s contribution towards any Final Reconciliation Agreement [outcome of BCTC process] that the Parties and Canada may conclude.” [square brackets are my additions]   Reconciliation in this context is not referring to the Truth and Reconciliation Commission process regarding Residential Schools. Reconciliation in the context of the BCTC refers to reconciling the crown’s assertion of title rooted in the assertion of British sovereignty (which is based on the Doctrine of Discovery. In short, because Indigenous people were not Christians, these lands were considered terra nullius, vacant, and thus sovereignty could be asserted.), and aboriginal title (I will use the term aboriginal throughout as not to be confusing). Aboriginal title of course is rooted in the existence of our ancestors bones in the very ground we walk on, however in terms of Canadian law our “existing aboriginal and treaty rights are hereby recognized and affirmed” in the Constitution Act 1982. These rights are further articulated as including title in the 1997 Supreme Court of Canada (SCC) Delgamuukw decision. In the

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Snuneymuxw situation this reconciliation also refers to their Douglas Treaty. In sum, it means to reconcile who holds the title and who holds which rights associated with that title, which will then create economic certainty for the province, the Snuneymuxw and the private sector (I will return to this later). Furthermore, the lands in question are part of the possible lands transferred in a final agreement and so do not constitute additional lands but an advance. However, should a final agreement be signed, the Lands in this agreement may not necessarily become treaty lands. This agreement involves 877 hectares of the 98 000 hectares of Traditional Snuneymuxw Territory, that’s 0.89%. One of the single most important aspects to this agreement is laid out in the first article (1.2.h) stating that for the purposes of this agreement the Chief and Council represent the Snuneymuxw First Nation. Unlike a Final Agreement outcome of the BCTC, which requires a referendum, this agreement requires only the decision of the Chief and Council. In fact, the agreement requires the pre-existence of a Band Council Resolution that permits the Chief and Council the authority to sign the agreement (5.1). Furthermore, the Lands will not be transferred directly to the Nation, but to a Designated Company owned by the Nation.

“3.3 Termination on Litigation. Notwithstanding 3.2 [termination of the agreement], the Province may terminate this Agreement, including the transfer of any Lands which have not been completed, in the event the Snuneymuxw First Nation commences any action or other proceeding relating to any Governmental Action within the Traditional Territory” [where Governmental Action means: all land and resource-related processes, decisions, authorizations, permits, licenses, approvals, Crown land dispositions, agreements and other actions whatsoever issued, granted, entered into or otherwise taken by a Provincial Official either before or after the date of this Agreement]  To be clear, this means if the Snuneymuxw object to anything the Province does regarding lands in their Traditional Territory (the other 99.11%) there is nothing they can do about it either through direct action or litigation, or the Province will terminate this agreement. If the Snuneymuxw still choose to take the province to court, by article 13.3 they are required first to go through a Dispute Resolution process in article 17. Additionally, by article 13.1 the Snuneymuxw will suspend any litigation against the Province until March 9, 2022 or the signing of a Final Agreement. If a Final Agreement is signed, then by article 13.2 the litigation will be terminated.

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“3.4 Survival of Lands Conditions. Notwithstanding 3.2 [termination of the agreement], and subject to a Final Reconciliation Agreement, where any of the Lands are transferred under this Agreement, Articles 7, 10 and 12 will survive the completion of the transfers or the termination of this Agreement and, for greater certainty, will continue to apply to the Lands.”    This clause says that even if the province terminates this agreement (3.2), by Article 7 the Snuneymuxw are still on the hook for any environmental liabilities and damage both above and below ground. By article 10b the Lands cannot be added to and designated as reserve lands as in section 91(24) of the Constitution Act 1867. Also by Article 10.1(c):

“the Lands are subject to provincial and local government laws, including applicable zoning, land use, land development and property tax laws, and at no time after Closing will the Snuneymuxw First Nation challenge the applicability of provincial laws to the Lands.”  This article speaks for itself. So the Lands, bound by the provincial and local laws, will be transferred from the Province to a Designated Company, bound by the laws of the province, owned by the Snuneymuxw. This is no different than if the crown was to turn land over to a private company, save for the fact that the Snuneymuxw are on the hook for any potential environmental liabilities. For even further clarity this means giving up ANY existing aboriginal rights to that land and being under the complete jurisdiction of the settler government. This is why these agreements should be held to a referendum just as a final agreement would be; it extinguishes the aboriginal rights held by all Snuneymuxw. The agreement also outlines “Permitted Encumbrances,” which essentially means no interference with any existing title registered under the Land Title Act, any exceptions contained in any previous Crown grant of the land, water licenses, grants and rights under the Mineral Tenure Act, Coal Act or Petroleum and Natural Gas Act among other things. in article 5.2, the Snuneymuxw are required to terminate any objections they have with ANY and ALL referrals from the province(due to the crown’s “duty to consult” First Nations, when issuing a permit for anything they must send a referral to the associated First Nation whose rights could potentially be infringed upon by the granting of said permit). Furthermore, by article 4.1(e), the Province has fulfilled its duty-to-consult with regards to all Lands and all Permitted Encumbrances. Finally, throughout the agreement aboriginal rights are referred to in several articles:

That’s not all. 

To add to this point, 

“19.5 No Admissions. Nothing in this Agreement will be construed as an: a) admission by the province of the validity of any claim by the Snuneymuxw First Nation to a specific treaty right or aboriginal right or aboriginal title within the meaning of section 35 of the Constitution Act, 1982; or b) acknowledgement by the Province that it has an obligation to provide financial or economic accommodation to the Snuneymuxw First Nation.” “19.6 Not a Treaty. This Agreement does not: a) constitute a treaty or land claims agreement within the meaning of section 25 or 35 of the Constitution Act 1982 (Canada); or b) recognize, affirm, define, deny, limit or amend any aboriginal or treaty rights or titles or any responsibilities of the Parties except as set out in this Agreement.”  These articles (commonly referred to as non-abrogation/derogation clauses) are here to very clearly state the Province’s position on aboriginal title and rights (or Douglas Treaty rights in this case), that is, their nonexistence until proven. The final article regarding aboriginal rights is the following:

“10.3 Provincial and Government Laws. For greater certainty, 10.1(c) is not intended to affect the rights of the Snuneymuxw First Nation recognized and affirmed in section 35 of the Constitution Act 1982.” For emphasis here is article 10.1(c) again: “the Lands are subject to provincial and local government laws, including applicable zoning, land use, land development and property tax laws, and at no time after Closing will the Snuneymuxw First Nation challenge the applicability of provincial laws to the Lands.”  This clearly states that so long as the Snuneymuxw consider their aboriginal rights to be no different than the rights of any other Canadian citizen or company their Constitutionally protected rights will not be affected (aboriginal rights extinguishment).

The Broader Picture As stated at the outset, reconciliation refers to the incompatibility of the basis of Crown assertion of title born of the inherently racist Doctrine of Discovery and the pre-existence of Indigenous people living with the lands now labeled British Columbia, to the assertion of Crown sovereignty. To be clear:  The claim of Crown title of the vast majority of lands in BC is not by treaty and not by conquest but by assertion of sovereignty by the British Crown based on the fact that Indigenous peoples were not Christians and thus the lands were effectively terra nullius, vacant. The claim of Indigenous or aboriginal title of the lands in BC is by the stories, art, language, archaeology and bloodlines evidencing complex economic and political systems coexisting with the lands and waters and

all their inhabitants, which pre-existed the assertion of sovereignty by the British Crown. The importance of this in economic terms is fairly obvious: whoever has title to the lands and the associated rights, receives the benefits. Currently the landmass of Indian Reserves totals 350,556.7 hectares, which equals 0.4% of the total landmass of British Columbia. That means the province claims 99.6% of the landmass of British Columbia and receives the benefits from economic activity by way of taxes and royalties etc. This is why BC is rich and Indigenous peoples are poor. The problem is the province claims 99.6% of the landmass, where the basis (which is false) of that claim is explained above. Furthermore, aboriginal and treaty rights are “recognized and affirmed” in the Constitution Act 1982 and, as articulated in the SCC Delgamuukw decision, inclusive of an “inescapable economic component.”1 In simple terms the Province lays claim to land and resources (assets) they do not have rightful ownership of.  The ability of Indigenous peoples to assert in practice our inherent title and rights to our territories is an extreme economic risk to the Crown.

In fact, this risk is reported in the Province of British Columbia Public Accounts financial statements as a Contingent Liability.2 The realization of aboriginal title is a liability, which is contingent (dependent upon) the outcome of the BCTC process. In plain-speak,  the BCTC is a Risk Management strategy by the Crown Consider the following model of risk management:

Delgamuukw v. British Columbia: http://scc.lexum.org/decisia-scc-csc/scc-csc/scccsc/en/item/1569/index.do 2 Office of the Comptroller General – Public Accounts 2011-2012: http://www.fin.gov.bc.ca/ocg/pa/11_12/Public Accounts 11-12.pdf
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Now consider this model from the perspective of the Crown:

(By Assertion I don’t mean merely claiming, I mean actually practicing Territorial Authority based on inherent and constitutional rights) Returning to our Snuneymuxw example, the arrow labeled ‘A,’ representing the reduction in the likelihood of the Snuneymuxw asserting their aboriginal rights and title, refers to:      Article 3.3 Regarding Termination of the Agreement if direct action or litigation is pursued involving any part of the Traditional Territory Article 5.2 Regarding Termination of any objections to referrals in Traditional Territory Article 8.1 Regarding Interference with any Permitted Encumbrances Articles 13.1 and 13.2 Regarding suspension and subsequent termination of any existing litigation Article 13.3 Regarding obligation to enter dispute resolution before any new litigation is considered

The arrow labeled ‘B,’ representing the magnitude of assertion of Snuneymuxw aboriginal rights and title, refers to:  Article 7 Regarding additions to Reserve Lands

Article 10.1(c) Regarding applicability of all provincial and local government laws, including zoning, land use, land development and property tax laws, and challenge of the applicability of these laws being forbidden.

On top of this is article 19.5 containing the non-abrogation/derogation clauses ensuring the Province does not recognize the aboriginal or treaty rights and title of the Snuneymuxw. I hope with this framework it is clear that the pre-treaty agreements and the final agreements sought by the BCTC process is,  in no uncertain terms, a risk management strategy by the Crown to mitigate (minimize) the potential enormous economic liability the realization of aboriginal rights and title poses.

What does this mean in terms of reducing the systemic poverty of Indigenous peoples in BC?  BC and Canada are at the mercy of the Global Economy, which is concerned about economic certainty. Not the province or federal economic certainty, just economic certainty. That means clearly defined ownership of lands and resources and clearly defined rights to those lands and resources (which can and should be held by Indigenous peoples). By asserting aboriginal and treaty rights and title to Indigenous Territories economic risk is created for the Crown, which threatens its position in the world economy (by way of its Credit Rating). Therefore, coordinated assertion of aboriginal and treaty rights and title in greater magnitude and with greater conviction creates Economic Leverage. Economic Leverage is Real power to negotiate a future for our grandchildren. This is the power of IdleNoMore, an increased Indigenous presence on the land, reinvigorating Indigenous Nation-to-Nation treaties and alliances, reinvigorating Indigenous Nation governments and laws, from direct action to fundamental rights-based political and legal action paired with sound economic strategy.

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For this reason, the negotiation of incremental treaty agreements, reconciliation agreements and final agreements of the BCTC severely compromises the ability for ALL Indigenous peoples within and beyond the borders of British Columbia to fight for our inherent rights and responsibilities vested in us from our ancestors. Every agreement signed sets a precedent, which strengthens the Crown claim to Indigenous peoples lands, and every agreement signed weakens the ability for Indigenous peoples to protect the future of our people and all those who depend on these lands and waters.