The BC First Nations Treaty Commission has just released a report highly critical of the Government of Canada and BC for the slow rate of progress of treaty negotiations.  In particular it finds that the mandates of the government negotiators are far too limited to make agreements possible.  Take this to mean that government offers are far too small to get agreement from First Nations.  The result is that only three treaty agreements have been reached in BC:  Nisga’a, Tsawwassen, and Maalnuth.

 It is worth reminding readers why treaties are needed in BC.  Under British law since 1763 (law which Canada inherited in 1867), for all land occupied by First Nations, the Federal Government must first acquire the title to it before the land can be taken over and settled.  This is because under common law original occupation and use of land constitutes ownership and thus title.  The title belongs to the First Nations unless it is lawfully acquired.  The means of acquiring the land from First Nations as set out in law is a treaty, through which rights to land are sorted out and re-defined by agreement of the parties.  This was done everywhere in southern Canada except BC, where until 1993 the government foolishly refused to abide by the law.  The result is that virtually all of the land and resources in BC are being managed and exploited illegally, with potential dire consequences for the provincial economy.  The Supreme Court has been patient with the federal and provincial governments, giving them time to reach agreements that will bring the holding of land in BC into conformity with the law.  However, this uncertainty is a great source of disquiet to long term external capital that might invest here, since capital fears more than anything else uncertainty about ownership.

In 1993, the BC and federal governments and a large proportion of BC First Nations committed to negotiating treaties to address the problem.  However progress has been difficult.  The real problem is that First Nations largely believe that they are not being offered enough to reach agreement on the sharing of the title to their land and resources.  The exceptions have been the three that have settled, where various techniques were used to get past the rigid mandates of the governments that limit what can be offered in negotiations.  In the face of this problem, the BC government tried to by-pass the need to settle treaties with its proposed Reconciliation Act, which would have temporarily bought off First Nation objections to developments on their lands with money and other benefits.  This failed for reasons that will be explored another time. 

Without settlements, the provincial economy is in trouble.  The patience of First Nations, and they have been very patient, is running out. The Federal and BC governments really have no choice but to accept the findings of the BC Treaty Commission.  They must substantially increase the amount of land and resources, including fisheries, which the First Nations will retain after the treaties are settled.  And they must increase the amount of money to be paid in compensation for leaving things for so long.  Like it or not, the cost of past intransigence has become very high.  Nothing else will bring settlements. 

The time for further delay is long passed.  The lawyers and academic experts who defended the governments for so long, and politicians and civil servants who are ignorant of the obligations of governments, cannot change the reality.  The cost to the province of continuing unlawfully to exploit land and resources is mounting and will soon become prohibitive.  It is time to get on with negotiations.  That means that the governments must work with much more generous mandates.  More money, more land and more resources.  There is no other choice.