Has BC neglected its obligation to native peoples?

British Columbians have been told that most of the rest of Canada has long since entered into treaties with their native people and because we have not done so (apart from the Douglas Treaties on southern Vancouver Island) it is now our turn.

Just what was the nature of treaty-making 100 or more years ago when the “numbered treaties,” which totally blanket the three prairie provinces, were negotiated? To what extent (if at all) have we in BC been derelict in our duty towards native people in failing to enter into treaties until now, and what are the lessons to be learned from these earlier efforts for modern day treaty-making?

Treaty No. 7 between the Crown and the Blackfeet, Blood, Piegan, Sarcee, and Stony native people of southern Alberta, entered into in 1877, is typical of all the numbered treaties and is as much in full force and effect today as it ever was. By its terms the native people surrendered any right or interest in 35,000 square miles of territory in return for reserves being set aside for them sufficient to provide one square mile for a family of five. To this was added small annual payments ranging from $25 for chiefs down to $5 to every other Indian, a rifle for each chief, an annual supply of ammunition, and a small selection of farm implements to encourage the practice of agriculture. That was about it.

Note that the main feature by far of these earlier treaties was the establishment of Indian reserves. Although BC did not enter into early treaty-making, the point to be stressed is that it did establish Indian reserves and did so in spades.

So what’s all this fuss about BC not having entered into treaties? A good argument can be made that BC achieved the same result—establishing reserves—without entering into treaties. So much so that today, out of a total of 2,323 reserves in the whole of Canada, 1,634 of them are located in BC.

True, BC’s reserves are generally smaller in size than those on the Prairies but that is due in part to the difference of the two regions and the difference in native pursuits on the prairie which were partially based on agriculture, versus the coastal native economy which was based on the products of the sea. That said, the per capita difference is not all that great. BC has 17 percent of Canada’s status Indians and 13 percent of the area of all reserves in Canada.

Why is the significance of existing reserves being totally ignored by modern day BC treaty-makers? Surely BC negotiators should be holding to the position that BC has already paid the price and that, under the Constitution, outstanding obligations to the native people are Ottawa’s responsibility. At the very least, existing reserves should be offset against land-claim settlements. This is not happening. The ownership of 1,930 square kilometres of land to be given to the Nisga’a is in addition to the approximately 70 existing Nisga’a reserves.

There are other lessons to be learned from Treaty No. 7. It is six pages long. Contrast this with the Nisga’a agreement which is 252 pages, plus an appendix volume with an additional 462 pages.

The Nisga’a agreement contains literally dozens of special rights, concessions, and privileges not available to non-Nisga’a. Collective land ownership of 1,930 square kilometres, mineral rights, water rights, timber rights, commercial fishing rights, effective control over the annual harvest and sale of designated wildlife species in an area one-third the size of Vancouver Island, the right to establish a quasi-provincial government financially supported by others, major tax and royalty concessions, exemption of some provincial licence fees. The list goes on.

The point is that because of section 35 of the Constitution Act, 1982, these rights are forever “locked-in,” and cannot be retrieved in the future by either federal or provincial law. The Nisga’a would have to agree to any removal of these government-granted rights. Treaties, like diamonds, are forever. That is why it is folly for negotiators to assume omniscience and produce voluminous treaties that attempt to cover every eventuality.

What if public policy attitudes on these issues change over time? What if the provincial government finds that the deal is too generous or that Nisga’a government should be cut back but the Nisga’a leadership doesn’t see it that way? Ordinarily Parliament or the provincial legislature could take the necessary remedial steps, but not here. That is why the Nisga’a deal should be subject to the broadest and most careful public scrutiny. To let British Columbians in on the deal, essentially negotiated in secret, only after the initialing ceremony and be told by those in authority that no changes will be considered is the height of arrogance and is simply unacceptable.