Friday, June 26, 2009

'Seismic change' for First Nations needs close look

I have no idea what to make of Gordon Campbell's proposed Recognition and Reconciliation Act. There's just not enough information.
The Liberals think it's huge, in a good way.
Some critics - business and First Nations - think it's huge, in a worrying way.
The initiative was born in quiet talks between a few First Nations leaders and the premier's office. The only public document from the government is a discussion paper of less than five pages, plus a map showing the province divided into 23 "sovereign indigenous nations."
It's thin gruel to explain a proposal billed as bringing "seismic change" to the relationship with First Nations.
The First Nations' leadership has started limited consultations in a handful of communities.
But there has been no apparent process for talking to business, municipalities or the non-native public. No public hearings are planned. The legislature's aboriginal affairs committee, inactive since 2001, hasn't been the chance to consider the changes.
Broadly, the act would bring about three sweeping changes.
First, the government would recognize aboriginal title and rights. The province now requires First Nations to prove they have occupied or used territory over generations before it accepts their claims. Under the act, title could be acknowledged without those tests.
Second, the provincial government would accept a First Nations' role in decisions on land and resource use and revenue sharing. A government-to-government partnership would be in effect.
Third, in return, First Nations would make it easier for the government - and industry - to deal with them. Now, the government deals with 203 councils and bands. The act envisions a shift to 20 to 30 "sovereign indigenous nations" that could speak for aboriginals within a region.
The discussion paper includes a map that shows the province carved up into 23 sovereign indigenous nations. The Secwepemc nation, for example, would stretch from Kamloops to Williams Lake to Golden (and into Alberta).
The discussion paper sets out a three-stage approach to implementing the new relationship. The initial level offers a little more joint decision-making then the status quo. The farther First Nations move toward the "indigenous nation" model, the greater the commitment to their right to shared decision-making, a claim on resource revenues and government-to-government relations.
The new act would override all other provincial land and resource legislation, the government says. But it would not apply to private land or current Crown tenures.
The aim is laudable. After 17 years and some $1.5 billion, the treaty process has produced few results. Life in most First Nations is still substandard by economic and social measures. It's hard to defend sticking with the same approach.
But the concerns about the act - in part because of the secrecy - are piling up. Municipalities, especially regional districts, worry they'll lose planning authority to the new indigenous nations. Companies wonder if the nations' share of resource revenues will come from the provincial government's current take, or result in higher payments. The whole notion of a new form of government, with unclear powers, worries some.
At the same time, some First Nations are rejecting the act. They argue the form of title it conveys is too weak and falls short of the standard set in court rulings.
And they're suspicious of the new form of government too, worried about giving up the local authority of a band or tribal council for an as-yet undefined sovereign indigenous nation.
The government hoped to pass the act in the spring, but abandoned the plan at the last minute in the face of concerns. Campbell says it's still a priority.
But this isn't the kind of change to be made without consultation and debate about the impacts.
The best option would be to introduce the bill as soon as possible and put off the debate and vote until the spring, allowing all British Columbians a chance to consider and discuss the implications of this "seismic change."
Footnote: The act never became an election issue, in part because the New Democrats are - at least broadly - sympathetic to the direction the government is going. That increases the onus on First Nations communities, municipalities, business, MLAs and individuals to make sure the act gets a thorough review.


DPL said...

Gordo is up to his old tricks by not telling the tax base just what he is thinking of doing with Indian Issues. He will as usual forge ahead and when it all falls apart blame others for its failure. This is the guy who was so very much against the Nisg'a treaty, went to court, and when elected had a referendum which proved very little. His handling of the Tsawssen Treaty was more toward getting some more parking space for equipment for the coal port. Ms. James fiddles while he tries to give away a lot of the province. A lot of BC is provincial crown land and if this deal goes through, there will be a lot less of it around.

Anonymous said...

Good summary, Paul.

It was silly, to put it kindly, of Gordon Campbell and Co. (and the provincial native leadeship) to even think about passing this act on the eve of the last election, Fortunately, saner heads than theirs prevailed (on both sides) and this thing got parked.

But now what? Is this thing going to become another divisive and anti-native public debate like the BC treaty process was subjected to in1990s? Christ, I hope not.

Actually, I think the province has matured since then, reflected by the actions and words of the main political parties themselves and to some measure by the media, as well. So hopefully it will be a civil discussion.

I think the side of the debate that needs a lot of attention is on the first nations side, as that one and its outcome will drive the outcome of this proposal as much or possibly more than on this aide, as this thing cannot move ahead without their agreement -- or at least not without a majority agreement, I suppose.

If that agreement is reached then we all have something to consider, otherwise, not.

Obviously, the "agreement" they had earlier in the year wasn't sufficient, thus proving Mike de Jong's and the first nations leadership council's confidence to be premature or perhaps short-sighted.

But as for the tectonic movement on this file, it's really only a big surprise to average non-first nations folks in this province because likely 99.5% of them haven't read the 2005 New Relationship document, as endorsed by the Premier and first nations, and on which this legislative proposal is based on. Simiarly so with the corresponding Transformative Change accord of that same year.

To me, it's not surprising that the promises in those documents are being pushed by the first nations leadership to be legislated, given the duplicity they've had to endure in this province.

Speaking of which, consider these words of the New Relationship:

"We agree to establish processes and institutions for shared decision-making about the land and resources and for revenue and benefit sharing, recognizing, as has been determined in court decisions, that the right to aboriginal title “in its full form”, including the inherent right for the community to make decisions as to the use of the land and therefore the right to have a political structure for making those decisions, is constitutionally guaranteed by Section 35. These inherent rights flow from First Nations’ historical and sacred relationship with their territories."

This raises the question if the eventual legislation will live of up to that lofty promise or if the New Relationship itself was just another false promise made to the Indians, that in actuality (read: British Columbia) there was never any real hope of it ever being realized, regardless if some on one side let themselves get caught up in the smell of roses it produced?

I look forward to more updates, Paul.

Dawn Steele said...

Isn't this what the European colonial powers did when they carved up Africa? Sketched out a bunch of artificial boundaries that would keep traditional rivals busy fighting bloody feuds forever, while multinational corporations colluded with corrupt European-installed regimes to rob the continent's wealth of natural resources?

Where is the process that gives ordinary First Nations people the opportunity to discuss and decide what THEY want, and to shape the options that will be on the table for discussion, before we go legislating another potentially disastrous top-down all-or-nothing solution?

DPL said...

Folks talk about Indian land. The Nisga'a own their land and anyone with a modern treaty will own their land. No other band owns the land the reserves sit on. The feds own the land and by the constitution are responsible for managing indians. More folks should read up on the treaty process. Books like "Native Law" and most recently "Disrobing the aboriginal Industry". some folks might go read the Aboriginal Gazette to get a basic understanding of who controls what and who has to authorize a lot of just what Indians can do in this country. Consulting with bands has been the norm for a number of years, it's not something Gordo dreamed up. Consent is another word well hashed out by assorted courts.The Indian act is a very poweful federal law and as it exists the feds hold the control. so called band land is actually "federal land set aside for Indians".

Anonymous said...

Dipstick, when "folks" talk about Indian land they are talking about land subject to Aboriginal rights, which includes title, a special but no less legal right to exclusive use of traditional lands - a far cry from the measly reserves bequeathed to Indians by this country's forefathers. A great deal of this title in BC, i.e. in this region of Canada, was not and still has not been legally acquired or ceded to the Crown or neutralized. That is what this whole mess is about. Now try that "basic understanding" on for size.

paul said...

Hey anon, we don't do name-calling here. It's a barrier to useful discussion, and unnecessary.

berlintamara said...

Thanks for his post!! I've learned a lot. And I agree with Paul, it's better not to mention names. What's more the author of the post has signed anonymous...


Anonymous said...

I agree that the intention of this act is indeed very laudable. Unfortunately it will become yet another fruitless exercise as the special interests group who now grow very wealthy as the first nations legal industry continues to balloon will ensure it never is ultimately passed.

No surprise that many of the First Nations lawyers are opposed to the “streamlining” provisions…they would hate to loose hundreds of clients to have them consolidated into just 23 clients…that would be bad for business. Likewise for some of the Chiefs and band counsels who enjoy the current all expenses paid trips to the Vancouver Four Seasons for “negotiations” meetings also have no interest in seeing this current taxpayer financed produce no results cash cow to come to an end either.

My predication is that the status quo and special interests groups will prevail.

DPL said...

The Supreme Courts of Canada has stated that aboriginal tile exists but has not defined just where it might be. They went on to state that to prove title there are two ways of doing so. In court or by negotiation to establish assorted "bundle of rights", with negotiating being the courts favourite. In a conference on the subject that was one of just many I attended, the governments had tried to assemble enough information to run a case. They admitted they were a long way from being able to prove anything. Oral history is a tough sell, even though the multi multi million dollar massive report on aboriginals, tried to insist that oral history of elders should trump previous treaties. I'm no expert but did live on land set aside for ten years, sat on the regional advisory board for parts of Vancouver Island and attended over 70 main table negotiations, as a represenative for non indian occupiers, and did give presentation in front of the Standing Committee debating Nisga'a, and even at the Indian taxation conference at the request of the Indian Taxation authority. I figure anon might like to sling cute names at others but I do think it might be better for such folks to actually do some reading, listening on such a very complicated subject. One of the biggest thrills in my life was to attend a certain ceremony in a long house , given token money to be a witness to the proceedings, have secret songs sang to us as witnesses of the process. Modern treaties will resolve much ofthe issues, endless court cases make more enemies and cost a lot of money.I do believe I have a small understanding of things aboriginal, as many indians mentioned . I use the word Indian as that is the legal definition of those who history and the courts says got here before European contact. The Constitution does not include a Indian level of governance

Anonymous said...

this is interesting in terms of layers of government, my primary interest would be child welfare. child protection is a federaly funded provincial responsibility that can be delegated NOT abdicated. so, who maintains child protections ultimate responsibility. My absolute belief is the federal government will hold the province responsible for any child injury claims that ever make it to court regarding civil actions against the provincial / federal governments for band children lost under the care of band agencies without provincial supports. wouldnt it be good to be clear and discuss what is already an issue before expanding the game?

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