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Trying to break BC logjam; Eyford says abandon unproductive talks
A 20-year process to achieve self-determination for 203 First Nations in British Columbia has cost more than C$1 billion and yielded only four treaties.
The result is a virtual standstill for plans to create thousands of jobs and billions of dollars in revenues - with a large chunk up for grabs in First Nations - from LNG and crude oil export projects.
In a bid to break the deadlock, Vancouver attorney and treaty negotiator Doug Eyford was chosen two years ago as special envoy to Prime Minister Stephen Harper.
His work concluded with the release on April 1 of a 53-page report that contains some stinging criticism of governments and First Nations, leading Eyford to suggest that treaties close to completion should be fast-tracked, while exit strategies should be prepared for those with little prospect of settlement.
The report makes dozens of recommendations, many of them focused on the need to promote a “principled dialogue” about resource development to advance energy pipelines and marine safety and strategies to mitigate potential impacts of oil spills.
‘Lack of urgency’ “There is a conspicuous lack of urgency in negotiations and in many cases there are sharp differences between the parties about the core elements of a modern treaty,” Eyford wrote.
“It is never too late to engage and do so in a process of good faith negotiations,” he told reporters. “This won’t be easy. I hope my report will provide objective and blunt advice to all the parties engaged in this process.”
In a rebuke of some First Nations, he said the negotiations have created an “aboriginal rights industry” by offering incentives in some First Nations to drag out negotiations, thus prolonging jobs of aboriginals involved in the process.
He said communities, many of which have only a handful of members, are motivated to avoid reaching a deal because that would trigger a requirement to pay back federal loans from whatever cash settlement was reached.
Eyford also urged the Canadian government to work with British Columbia and aboriginal groups to establish a roster of retired judges and dispute resolution specialists to help resolve the disagreements among aboriginal communities that have overlapping claims to land.
“The fact the treaty process provides a constant source of funding and employment in aboriginal communities can serve as a disincentive to conclude negotiations,” he wrote, adding many communities “are simply not ready to take on the responsibilities of a treaty despite spending a decade or longer in negotiations.”
BC as an example Eyford said Canada must embrace the initiatives shown by the British Columbia government, which has reached more than 250 resource-sharing and economic development deals with First Nations without the need to involve the Canadian government or a commitment to reaching treaty settlements.
He said such agreements are supported by natural resource industries and aboriginal groups including the Tsilhqot’in National Government that won a landmark Supreme Court of Canada decision last year covering a huge tract of land.
Eyford noted the Tsilhqot’in community is open to non-treaty pacts in areas of governance, land use planning education, health, child and family services and employment training.
Those types of deals underpin efforts of Premier Christy Clark’s British Columbia government, which caused an uproar in March when it made an abrupt change to the British Columbia Treaty Commission and withdrew its support for incoming treaty commissioner George Abbott, a former provincial cabinet minister.
Clark said the commission’s “status quo is not working. We have to be able to move faster.”
But she would not be drawn into defining what shape the new process would take, beyond insisting that continued allocations of millions of dollars in grants and loans to support negotiations was not sustainable.
British Columbia Aboriginal Relations Minister John Rustad praised Eyford’s call for “new and innovative ways to achieve lasting reconciliation with First Nations.”
Federal process stymies progress Eyford also said the Canadian government’s complex and bureaucratic approval process for elements of each claim stymies progress at negotiations table.
He found there is a consensus among First Nations that the federal government is “unresponsive” to aboriginal interests, “rigid and inflexible” in applying its policies and interested only in meeting its “minimal legal obligations.”
Federal Aboriginal Affairs Minister Bernard Valcourt said his government is taking steps to make the treaty process “more effective for the benefit of all Canadians,” but promised only to consult aboriginal groups and other stakeholders on Eyford’s findings.
Still to be resolved is the thorny issue of overlapping land claims, which the British Columbia Treaty Commission identified six months ago as “one of the biggest challenges to be overcome.”
Currently, more than 100 percent of British Columbia is subject to claims by First Nations.
Judith Sayers, chief negotiator for the Upacasath First Nation and an assistant law professor at the University of Victoria, said treaty claims were never supposed to proceed to even an agreement-in-principle stage until boundary issues were resolved.
But she said governments want “settlement so badly that they don’t care about overlap.”
- Gary Park
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