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Public Policy Sources #38:
Introduction

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Notwithstanding all of the well-publicized difficulties, it is clear that the business of treaty making with aboriginal tribes will continue in Canada, and especially in British Columbia. For those who are concerned with the course of the current process, there is an obligation to suggest alternate approaches. In discussing this, a few caveats should be noted at the beginning.

First, one should say what treaty-making does not achieve. Many people think that treaty making is synonymous with the comprehensive resolution of aboriginal/non-aboriginal issues. This is simply not true. Treaties are chiefly of importance to status Indians living on Indian lands. But this is a minority of aboriginals.

Of the approximately 1.1 million Canadians identified by the 1996 Census as of aboriginal ancestry, almost 300,000 no longer self-identified as aboriginals as such. The assumption is that they have made the choice to integrate into the larger society, and apart from special considerations such as occasional cultural contacts or cash entitlements from treaty settlements, which are probably rare for this category, treaties mean little.

Beyond that, of those who do continue to self-identify as aboriginals, only about half are, or will be, highly affected by treaties.

Some of these approximately 800,000 self-identifiers were Métis, Inuit, or non-registered Indians. Of the approximately 488,000 registered Indians identified in the 1996 Census, about 54 percent lived off-reserve, mostly in urban settings. Adjusting for known data problems1 the off-reserve proportion declines to a bit under 50 percent. While these people may have a legal connection with treaties (by way of ratification voting, for example) by far the major impact of treaties will be within the boundaries of the identified land base. Natives living off their land base and urban natives will continue to live under ordinary provincial laws and receive provincially-delivered services2 unless they choose to return to the land base. (Such a return, of course, even in the face of fewer opportunities for employment, is one of the hopes of some aboriginal treaty makers.)

An example of this on-reserve/off-reserve disconnect was seen in the ratification vote for the Nisga'a Treaty in the fall of 1998. According to government statistics, some 3,300 Nisga'a should have been eligible to vote. In spite of extensive advertising and other attempts to register people, in spite of the great importance of the vote, and in spite of the special arrangements in the treaty to provide for "urban locals" in Vancouver, Prince Rupert, and Terrace, only about 2,400 persons actually voted. On the reasonable assumption that most of the "missing" 900 were off-reserve, that suggests an off-reserve participation rate in this once-in-a-lifetime event that could rationally be expected to have positive financial consequences for those voting, of only about 50 percent.

More generally, statistics from the somewhat earlier Royal Commission on Aboriginal Peoples (RCAP) suggested that for self-identifying aboriginals3 overall, only about 35 percent live on-reserve, and of the balance, some 45 percent live in urban areas (very broadly defined) while the other 20 percent are rural.

In short, while treaties, which contemplate reserve-type situations, are extremely important to some aboriginals, that cohort is only something like one-third of the total census-identified aboriginals, and less than one half of the self-identified. Far too little attention is paid to the off-reserve group, and yet aboriginal ghettos are becoming a major issue in western cities such as Winnipeg, Regina and Saskatoon,4 and very important in Vancouver's Downtown Eastside.

Those left out

It is a shocking truth that while the privation and adjustment problems of reserve Indians arriving in urban settings are often greater than those of foreign immigrants arriving in Canada, the latter have a major financial and institutional support system, while the urban Indians are largely ignored.

Notwithstanding this, RCAP data show clearly that in terms of jobs, incomes, education, life expectancy, lesser reliance on welfare, lower family violence, and other such indicators, off-reserve Indians and other aboriginals do much better than those on-reserve. Of course, treaties seek to increase the incentives for Indians to stay on-reserve. That amounts to a clear choice in favour of the one route of the above three that has historically yielded by far the worst socio-economic outcomes (the other two involving greater or lesser contact with the general, off-reserve community).

Equally strange is the near-total indifference of most of the Indian Industry5 to the estate of the roughly 300,000 people of aboriginal ancestry who no longer self-identify as aboriginals. These are people who appear to have "voted with their feet" in a cultural sense, and become ordinary Canadians. How well are they making out? The best the $58 million Royal Commission could do was to footnote that there is some evidence that these people have "socio-economic characteristics quite similar to Canadians as a whole."

Think about that for a moment. If this is the case, those of aboriginal ancestry who have left the culture (in a self-identification sense) are quite similar to ordinary Canadians in terms of health, suicide, employment, incomes, education, substance-abuse, and so on. What does this suggest? Benign neglect of such an important question is understandable in terms of what turned out to be the Royal Commission's agenda. Still, it is surely not right in human terms that the Commission's researchers were not instructed to follow this question to its logical end.

Treaties as the "flavour of the decade"

The above said, the more glamorous treaty issues are centre stage in British Columbia, and under current thinking of government and aboriginal leaders will increasingly become so across the country. Many may feel, as Pierre Trudeau famously said almost thirty years ago, that it is unconscionable that Canadians should be making treaties among themselves. That remains my personal view in this context.6

There are indeed outstanding items to be settled between aboriginals and others, but these issues can and should be seen as simply very important matters of the law of property rights. Remedies (including compensation) should be resolved by negotiation if possible, or some mix of litigation and legislation if need be.

The courts at all levels have consistently expressed a preference for the parties to settle their differences by negotiation, but have not insisted on treaties as the final settlement instrument. However treaties, which are given constitutional recognition and protection under S.35(3) of the 1982 Constitution (as amended in 1984), arguably can give a degree of certainty not available in an ordinary agreement. This is particularly important in British Columbia, given the immense legal uncertainties stemming from the Supreme Court of Canada's 1997 Delgamuukw decision.

The essence of Delgamuukw is that Indian title existed in BC prior to the effective extension of British sovereignty, and continues to exist as a burden on land titles unless properly discharged. Where title still resides in the Crown, the burden must be recognized and dealt with by agreement. When title has been or will be irredeemably infringed (as is permitted for good public purposes, presumably including the grant of fee simple title to private interests), compensation is due.

From the point of view of all concerned, this uncertainty needs to be resolved. From the point of view of governments, compensation for past infringement is a very touchy issue, both in terms of overall dollars, and public reaction. Accordingly in British Columbia, both those Indians who are the legitimate inheritors of Delgamuukw rights and governments have an incentive to sort these issues out in a mutually agreeable way. One technique for doing so is to make treaties which, with respect to the subject area of the province, trump the Delgamuukw uncertainties as a result of the constitutional primacy referred to above.

Political realities are also important, and the flavour of the decade is "treaties" as the vehicle for settling outstanding issues. The concept fits well with the "nation-to-nation" perspective accepted by governments in both Ottawa and Victoria (though not by the Official Opposition in either capital). If governments insist on continuing down this path, we need to study the best way of so doing.

Unfortunately, the process followed to date, which has found its first full flowering in the Nisga'a Treaty, has been extremely controversial with the public. That is not good. Quite independent of the merits of the Nisga'a Treaty itself, in a democracy the issue of process is central. Better ways—ways more fully supported by the general public—should be found. Indeed, if the current government of BC is replaced by the Opposition (as the polls indicate will be the strong likelihood at the moment) better ways will have to be found, given the Opposition's rejection of much of the current policy.

But those who have difficulty with the approach being taken to treaties at the moment have an obligation to propose a better way. That is the purpose of this essay.

Constraints

As we consider the fundamental principles that should inform a new treaty process, we must remind ourselves that all future actions must be taken in the light of the historical situations we have inherited. Therefore an "ideal" set of principles, such as those that follow, may require political adaptation to the case at hand. The history and circumstances of every tribe are different; their needs and goals are different. Solutions that vary from this or any other purely principled point of view may well be necessary for agreement. However, policy makers should at least have a place to start, from which point they can make such changes as they believe reality requires.

As a second, somewhat related caveat, some of the principles set out below will be deeply threatening to the practical interests of members of the "Indian Industry." This group has blossomed in the past generation to include many thousands of participants, including members of Indian elites, bureaucrats, members of the aboriginal bar, and a myriad of consultants, who gain their livelihood solely as a result of the existence of legal and other differences between Indians and ordinary Canadians. Without such differences, their present work and/or status would not exist.

It is not surprising, therefore, that these industry participants are overwhelmingly dedicated to maintaining and serving these differences. It is their raison d'etre. Many of the members of this industry, like any other so closely linked to the well-being of people, want a better world, and are thoroughly and selflessly dedicated to their work. But for most of us who are ordinary human beings, experience teaches that any change which poses a threat to our status and income is invariably and fiercely resisted. The arguments used against change by members of the industry seldom refer to this deeply personal interest, but it is a fact of life.

As the principles to be set out below would, over time, reduce the legal and policy frameworks that sustain differences between Indians and ordinary Canadians (leaving only those differences voluntarily chosen by individuals following their own cultural wishes), one may expect the leadership of the Indian Industry (i.e., those with the greatest stake in the maintenance of difference between Indians and others) to oppose change with vigour and tenacity. This observation does not of itself challenge any given position taken, but rather suggests that all arguments in this field need to be examined with special care.

As a third caveat, and as noted above, the author believes that the concept of treaties between groups of Canadians defined on the basis of their racial and/or cultural heritage is in and of itself objectionable. That said, 132 years of constitutional mistakes (beginning with the singling out of "Indians" in the BNA Act, 1867) and Supreme Court decisions may arguably have left treaties as the easiest option, short of amending the Constitution, which is an even more difficult exercise.

Again, continued litigation might well yield faster answers than the interminable talks we have seen to date, but each side is worried about "rolling the dice." We will almost certainly see further litigation to clarify some legal issues, but negotiation will equally likely be the tool to finish the job of settlement. Thus, to that extent, what follows is a "practical" approach, and the best we can do under the circumstances of history.

Principles and requirements of treaty content

A treaty, as used in the North American aboriginal sense, is an instrument designed to settle past and existing differences, and provide for future relationships. In many ways, questions of process are as important as questions of substance. Both will be canvassed here.

Mandating and ratification

Treaties are agreements between two or more collectivities. When collectivities make agreements, it is important that they have the widest possible support. In earlier times in European history, treaties were made by leaders, with little concern for the wishes of their people.

However, the practice on the aboriginal side of the table seems to have always been more consensual. Advance discussion on the aboriginal side today often (though not always)7 can provide for a well-mandated set of negotiators, a well-informed membership, and a direct voice of each member in ratification once the mandate is actually achieved.8

That said, aboriginal mandating typically supports the options held out by the elites, which options always support their own continued hegemony. No mandating in favour of a level playing field for urban Indians outside of elite control, or in favour of individual as opposed to collective rights (cash distributions of all settlement proceeds, for example) will easily get through this sieve.

There is a major lack of aboriginal mandating in one other very important sense. Territorial overlaps exist on many of the land claims in British Columbia. The Nisga'a settlement is currently in litigation brought by two neighbouring tribes, claiming an award of their land to the Nisga'a band. Since the foundation of treaty negotiations in British Columbia is based on land claims, the territorial bounds of those claims should be made specific, distinct, and mutually exclusive (unless there is an agreement as to joint tenancy) before negotiations are begun.

The lack of such a requirement is a serious flaw in the BC Treaty Commission process.9 Some aboriginal spokesmen say this requirement for the elimination of overlap is simply an attempt to divide the aboriginal side. The other side of the table should say, reasonably, that in the first place, areas of misunderstanding should be reduced, and second, one should not have to pay for the same thing twice.

There is another technical, but extremely important aspect of mandating from the aboriginal side. To the extent that what is being negotiated is the resolution of Delgamuukw rights, it must be the possessor of those rights who is at the table. Unfortunately, band groupings, or even tribal councils, may not be synonymous with the owners of Delgamuukw rights. A striking example is apparent in the Okanagan, where the Westbank Band is close to an Agreement in Principle, but is almost certainly not the holder of Delgamuukw rights for the area.

As a practical aspect of mandating, it must also be asked whether the aboriginal entity at the table is of sufficient size to have the ongoing capacity to use extensive treaty rights. Even the Nisga'a— one of the larger groupings—certainly do not have anything like the human resources and population density to use a fraction of the stipulated self-government powers which exceed those of even the largest municipality. Some of the bands in negotiation have as few as 400 hundred members, and the largest is under 10,000. Does this make sense?

The mandating practice on the non-aboriginal side of the table is still rooted in earlier times. To be sure, the negotiators have instructions from governments, but none from the people or the people's representatives—i.e., elected MPs or MLAs. Far from seeking mandates from the citizenry, governments10 in Canada and British Columbia have not even sought negotiating mandates from their legislatures. This is simply unacceptable in so fundamental an area, and is a direct cause of much of the controversy in British Columbia today.

For example, the terms and implications of the Nisga'a Treaty came as a great surprise to most British Columbians. Governments went through certain "consultation" motions, but concealed information about negotiating targets, minimized problems, and chose not to highlight questions of principle for public debate. Accordingly, when the final treaty was first unveiled, public opinion was well disposed, but confused. Initial goodwill has soured as the implications sink in. With growing familiarity the public balance of opinion has, as at this writing, turned clearly against the treaty.11

While there is room to discuss different forms of ratification in the far larger non-aboriginal public (as distinct from the direct referendum vote available to each Indian person), it is absolutely clear that the mandating process at the beginning must be thorough and unambiguous. Only thus can general public support be gained. The idea is not to hamstring the negotiators in such matters as quantum of land or cash for settlement purposes, but rather to define the principles and the boundaries of discussion. (For example, will the Charter apply fully to Indian organizations through the waiving of S. 25, or not? Is a "Third Order" of government on the table?)

The choice of negotiator is also of great importance. For the aboriginal side of the table, this is a weighty matter, to be much discussed. For the government side, the general practice has been to give the lead to the federal or provincial aboriginal department (Indian and Northern Affairs, or the Ministry of Aboriginal Affairs). This is wrong. These ministries are deeply conflicted.

Federal and provincial aboriginal departments have a fiduciary and/or advocacy relationship for their aboriginal clientele. Thus, they cannot properly at the same time represent the larger public interest. Governments have sought to compensate for this by having mandates flow from Cabinet, but the fact is that Indian matters are seen by most Ministers as misery best left to others, i.e., the responsible departments. Fortunately, the immense financial and political consequences of treaty making will increasingly bring negotiators squarely under the control of the First Minister, or the Finance Minister in the future.

Within the mandating context, it is also important to consider the positions of third parties and local governments. These private and public entities have large and legitimate interests in the negotiations of treaties. Attempts have been made to involve these interests on an ongoing basis, but they have been clearly unsatisfactory. The secrecy that shrouds the real horse-trading and decisionmaking is the barrier here. Clear public mandating about principles will make these tensions easier to resolve.

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