Monday, November 26, 2007

Courts give another boot toward treaties

The government expected a celebration last week.
The second B.C. treaty process success, an agreement with the Maa-nulth of Vancouver Island, was being introduced in the legislature.
But a big court ruling stole the show. One of the longest, most expensive land-claim cases came to an end with a very big win for the Tsilhqot'in First Nation.
B.C. Supreme Court Justice David Vickers heard the natives claim for their traditional territory, about 4,000 square kilometres in the Chilicotin, near Williams Lake. (That's about two-thirds of the size of Prince Edward Island.)
The Tsilhqot'in claimed title - actual ownership of the land. The provincial and federal governments said that couldn't be proven. Even if the natives spent time there, that didn't equate to ownership.
That's one of the big irritants in relations with First Nations today. They say the government's starting point in negotiations is to fight any title claims.
Vickers found the Tsilhqot'in had occupied the land for 200 years before it was taken from them. There was no payment or agreement to transfer ownership.
So they still owned it. He found they could show title to about half the plan claimed - about 2,000 square kilometres. The Tsilhqot'in had an interest and right to be consulted on the rest of the land.
There are some technical hitches that affect the claim.
But the ruling still sent quick shock waves through the treaty process. Typically, treaty talks have seen First Nations getting about five per cent of the traditional claimed territories. The Tsilhqot'in got 50 per cent by going to court.
There are other variables, of course. Treaty settlements have included cash and resource allocations.
But the Tsilhqot'ins' success means that expectations have just been raised sharply at the negotiating table.
Grand Chief Stewart Phillip sees it as a bigger change than that. "Clearly the process is dead," he said after the ruling. It makes more sense to go to court than negotiate, said Phillip, a long-time opponent of the treaty process.
Not really. For starters, this case has taken 17 years and the Tsilhqot'in still don't actually have anything. If the governments decide to appeal, the case could be lost in the courts for another 10 years. That means more than a generation will have lost a chance at a better life.
Negotiations only work - in any situation from selling a car to trading hockey cards - if both parties have at least some interest in reaching an agreement. The more both want a deal, the better the chances of success.
The track record of the B.C. treaty process suggests no one is that keen on a deal. It's been 14 years since it all began, and more than $1 billion has been spent - about $6,000 per native in the province.
And so far, there are two treaties - the Maa-nulth and the Tsawwassen.
Sure, it's complex sorting out what happened and how much is owed. But two treaties numbers don't suggest great urgency. When people want a deal, they find a way to get it. That has not been happening.
It's understandable. For the federal and provincial governments, there are not many reasons to be keen on agreements. It would be good to have the issue put to bed, and for B.C. some certainty around land claims would bring increased investment and economic activity.
On the other hand, doing nothing has a lot of advantages. It doesn't cost much and the problem can be pushed off into the future, when someone else is in power.
For First Nations, there should be reasons to do a deal and get on with life, with digging out of the hole they're in. But there's also a big fear about settling too soon, for too little.
The Tsilhqot'in ruling should encourage the governments to get serious about reaching agreements. The risk in leaving to the courts is enormous.
And First Nations, all they have to do is look around to see why it's time to settle these claims.
Footnote: Vickers urged the governments and First Nations to sit down and reach agreements, rather than spend money and years in legal battles. "This case demonstrates how the court ... is ill-equipped to effect a reconciliation of competing interests," he noted.


Anonymous said...

Judge Vickers is saying the same thing the Supreme Court of Canada has said so many times. For title, yopu have to prove it's yours or you have to negotiate the bundle of rights. and as the courts and Judge Vickers has said, you can lose big by going the court route. It seems the assorted lawyers prefer the court route, even is the band is less likely to win that big, as the courts decisions can be on very specific points.. But as long as the governments end up paying all the costs it would appear the lawyers will get paid and the bands can spend years anticpating big wins.

Anonymous said...

The "technical hitches" you refer to includes the fact that the award is non-binding. That's a Pyrrhic victory - years of legal battles and years to go, and the most favorable judgement to date doesn't have much legal effect. The judge's recommendation for negotiation goes towards both sides: aboriginal bands must decide what they're really trying to accomplish with their land claims. There's no way that they will ever achieve full political and economic control over the areas they claim - that possibility ended with the European settlement of the continent over a hundred years ago.