Analyzing the problem

A recently released study by the federal Department of Indian Affairs confirmed what we all know: that living conditions on many Indian reserves in Canada are comparable to those of the Third World. Unemployment, poor housing, drug abuse, lack of education and economic opportunity are far worse than the national average. The plight of many native young people who have left their reserves and have congregated in large cities is, in many cases, equally pitiful.

This much is certain: the present state of affairs must not continue; on that we surely all agree. Where there is genuine disagreement is on the appropriate course of action best likely to provide a remedy.

There are those who advocate the treaty-making process in BC, of which the Nisga’a agreement is the first manifestation. They wrongfully brand anyone who raises serious questions or concerns over the implications of treaty-making as being mean-spirited and determined to keep native people in their backward condition. In their clamour to be politically correct, governments seem disinterested and even antagonistic towards any consideration of an alternative solution.

Before going on to suggest an alternative solution to the treaty-making process, allow me to list a couple of self-evident but often ignored facts.

First, treaties, long since in place in the rest of Canada, have not resulted in any better living conditions on reserves established by those treaties than on the 1,634 reserves already in place in BC. In fact, the government study referred to above found that living conditions on BC reserves were somewhat better than on those elsewhere in Canada. Don’t misunderstand me. I am not advocating the continuation of the reserve system. In fact I advocate the very opposite. I am merely saying that entering into treaties in other parts of Canada has not proved to be the panacea.

Second, the problem has not been solved through the massive expenditure of public funds made each year. Special federal programs for status and treaty Indians (which incidentally will continue to be paid to the Nisga’a) amount to close to $7 billion a year. Provincial programs and tax exemptions add at least a billion dollars more. So massive amounts of money have not solved the problem.

Well, what is the solution? It starts with a deeper diagnosis of the problem. Poverty, drug abuse, high unemployment, poor housing on reserves, et cetera, are not the problem. They are merely symptoms of it. The problem is that the native people have suffered for 130 years under a federal government policy regime that has made them wards of the state. It is a system based on the collective rather than individual ownership and therefore has discouraged self-reliance, individual initiative, and personal rewards for success. It places the power and dollars in their leadership’s hands rather than in the hands of individual natives. And above all, it has been a system that has treated native people differently in law from other Canadians.

Such a policy, with the Indian Act as its centrepiece, has isolated aboriginal people from mainstream Canadian society; it has allowed special federal laws based on race to supersede many provincial laws of general application; it has isolated reserve communities from the provincial society to which they are adjacent; and it has deprived native people of developing any sense of provincial community.

Sad to say, the proposed Nisga’a treaty does not strike out in a new direction but reconfirms this failed and discredited federal policy even to the extent of incorporating some of the undesirable provisions of the Indian Act into the treaty. The ghettos which are reserves are to be made larger, and the barriers caused by separate legal regimes are to be made still higher.

Any solution to the outstanding native issues in this province must take into account the decision of the Supreme Court of Canada in the Delga-muukw case of December 1997. Although the court ordered a new trial and did not find one square foot of BC to be covered by aboriginal title, it set out the criteria on the nature and scope of aboriginal title, thus making it easier to establish it in specific cases than had previously been the case.

How the application of the criteria will play out in site-specific situations remains to be seen. Some analysts of the decision interpret it in a narrow way, suggesting that aboriginal title would largely be confined to existing native settlements and other areas clearly in their possession. Other analysts see the criteria as giving a much more expansive application to the aboriginal title so as to cover much of the province.

Moreover, by its decision in the Delgamuukw case, the Supreme Court of Canada has seriously weakened the meaning and scope of the assertion of British sovereignty in 1846 over the territory of what is now British Columbia. Sovereignty was always considered to have established English law and its institutions within the territory and placed land ownership in the hands of the Crown in right of the colony. The Court’s decision has put all this into question. It’s time to take the necessary steps to shore up the province’s legitimacy and to also provide a fair and reasonable solution to the land claims issue. Federal and provincial legislation will be necessary and possibly a constitutional amendment as well.