First Nations, Last Hope

The First Nations of British Columbia stand at a crossroads, confronted with a Faustian bargain. Should they sacrifice their identity and principles in return for land and monetary settlements? Should they accept current recompense for past injustice while relinquishing the legal distinctions that have offered some (albeit meager) resources for their survival? Too often perceived as welfare-consuming dependents on a payroll subsidized by Canadian taxpayers, the First Nations of British Columbia hold but one bargaining chip: un-extinguished claims to Canadian lands. This could be their chance to take some of that land back. However, the current framework for treaty negotiations asks First Nations to exchange their rights and entitlements as sovereign nations for land and money. In this inequitable deal, Canada would settle the ongoing “Indian problem” once and for all, while First Nations would gamble with their future as a people. For nearly 150 years, British Columbia—a province one-and-a-half times the size of Texas—has exercised extraterritorial rights over the unceded lands of hundreds of First Nations. Aboriginal land claims comprise roughly 90 percent of the province’s landmass. Since the creation of the Canadian Confederation in 1867, it has been common practice for First Nations to sign treaties with the Queen, ceding title to their land while maintaining a government-to-government relationship with the Dominion of Canada. This practice has resulted in eleven numbered treaties signed between 1871 and 1930 spanning a huge geography, from the Yukon to Ontario. Although the word “treaty” with respect to First Nations is often a euphemism for “swindle,” treaties are nonetheless essential to the structure, function, and economic well-being of Canada and its provinces, which could not proclaim sovereignty and ownership over Indian lands without these pacts.

In 1871, the colony of British Columbia (BC) joined the Canadian confederation. This was just one month before the first of the numbered treaties was signed in present-day Manitoba and Saskatchewan. At that time, unlawful dispossession of Indian land was well underway in BC, fueled by a powerful combination of greed and poor governance. Settlers had poured into the colony during the Gold Rushes of the 1850s and 1860s, and, even after provincehood, mainland BC was often referred to as “the Gold Colony”—a tacit acknowledgement that the province was dependent upon natural resources and that the original inhabitants had been colonized. They brought with them the familiar diseases and policies of conquest: Smallpox epidemics in 1862 and 1863 killed off as much as two-thirds of interior First Nations, and the reservation system was introduced at about the same time. In these early years, the groundwork for provincial governance and economics was established—erasure of aboriginal title and exploitation of natural resources. The foundations of this system remain in place today.

In BC, treaties were never drafted or signed, perhaps because profitable natural resource industries provided and continue to provide ample incentive to ignore the province’s dubious title to its land. First Nations have protested this outright theft for over a century. In 1910, chiefs of the Shuswap, Okanagan, and Couteau tribes wrote a letter to the then-Prime Minister of Canada, Sir Wilfrid Laurier:

They say the Indians know nothing and own nothing, yet their power and wealth has come from our belongings. The Queen’s law, which we believe guaranteed us our rights, the British Columbia government has trampled underfoot. This is how our guests have treated us—the brothers we received hospitably in our house… We desire that every matter of importance to each tribe be a subject of treaty, so we may have a definite understanding with the government on all questions to date between us and them.

The grievances and demands of this letter—specifically to build and honor a treaty-based nation-to-nation relationship between Canada and its First Nations—are still unresolved. These century-old words resonate with Assembly of First Nations National Chief Shawn Atleo’s statement on January 24, 2013 that First Nations “want to see the Crown come meaningfully to the table and address the outstanding treaty relationship.”

To claim that the BC government has been nonresponsive to First Nations’ demands for treaties not only misleads but also grossly understates the extent of governmental wrongdoings. While land theft in BC was facilitated by indefinite delay of treaty negotiations, the Department of Indian Affairs, with the help of churches across Canada, used the residential school system to render this dispossession not only physical, but also spiritual and intellectual. Much has been written about the horrors of the residential schools. Physical and sexual abuse, negligent exposure of unvaccinated children to highly contagious but also highly preventable diseases, institutionalized psychological and corporal punishment for speaking in the only languages students understood—their own— and murder were commonplace. In 1922, Dr. Peter Bryce, the Chief Medical Officer of the Department of Indian Affairs, revealed that at least 24 percent of the pupils of residential schools died because of “criminal disregard” to their health, with one school reporting a 75 percent mortality rate. The history of Indian relations in Canada generally and in BC, specifically, is about more than taking land. Unfair and inequitable dealings—including some bent on cultural annihilation—are longstanding structural underpinnings of Canadian society and government.

Because the land could not be fully dispossessed from the Indian until the Indian was dispossessed from himself, Canada set about a project to eradicate the cultural and intellectual property that served to differentiate and distinguish First Nations from other Canadians. For example, the potlatch, an important economic and ceremonial gathering to coastal people, was banned until 1951. Similar cultural prohibitions affected First Nations throughout Canada, the most pernicious of which was manifested in the residential schools, where children were forbidden to speak their native languages so that they would permanently unlearn the ways of their families and communities and become good British subjects. The effect was that the Shuswap nation, or Secwepemculucw, was now “British Columbia,” and that the earth, or tmícw,was now “private property,” or “not yours.”

Eradicating the culture was key because indigenous cultural practices maintain a fundamental relationship to the land that manifests itself in a distinct but real form of ownership. Cultural and intellectual property not only differentiates First Nations from non-Natives, but also legitimizes their territorial claims. The centrality of land to indigenous people is obvious in subsistence practices such as hunting, fishing, gathering, and farming; however, this relationship also manifests itself spiritually and ideologically through oral histories, ceremonies, songs, dances, and games. For example, in lahal, which on the surface looks like a gambling game, songs composed in honor of the land and in memory of deceased ancestors accompany the exchange of gambled items (physical property). It is not surprising, then, that missionaries and government agents outlawed lahal along with other cultural practices in the late nineteenth and early twentieth centuries, as these practices presented an implicit challenge to the settlers’ title to the land. Cultural prohibitions together with forced removal to reserves facilitated the erasure of indigenous land claims and ownership. Thus, the land question in BC is not merely about land. It must also be about culture.

The British Columbia Treaty Process was started in 1993 to address outstanding land claims surrounding un-extinguished aboriginal title to vast territories throughout the province. Widely considered a failure, the process has produced just two treaties: Tsawwassen, implemented in 2009, and Maa-Nulth, in 2011. (The first modern treaty was implemented with the Nisga’a outside of the process in 2000.) Part of the problem is that the government’s settlement offers come in at about five cents on the dollar—honoring a paltry 5 percent of First Nations’ land claims. With court cases such as that of  the Xeni Gwet’in demonstrating that First Nations can prove irrefutable aboriginal title to over 50 percent of their traditional territory, it is clear that First Nations are right to resist signing for just 5 percent. Not surprisingly, the Xeni Gwet’in case has been called “the final nail in the coffin” for the British Columbia Treaty Process.

Even such dire predictions did not foreshadow the resurgence of an energized indigenous rights movement under the banner of “Idle No More.” Idle No More began in Saskatoon, Saskatchewan, when four indigenous activists held a teach-in responding to the Harper administration’s unilateral introduction of omnibus Bill C-45. Bill C-45 removed environmental protection from thousands of bodies of water throughout Canada and changed the language of the Indian Act to allow tribal councils to surrender reserve lands without receiving the consent of a majority of their community. The bill was introduced without First Nations’ consultation. Responding to Bill C-45 as an assault on indigenous sovereignty, Idle No More has grown into an international protest movement. While Idle No More has focused on upholding the eleven numbered treaties, the movement also draws attention to the outstanding land question in BC. Idle No More is catalyzing the treaty process, and treaties are exactly what many First Nations throughout the province have been demanding for over a century.

To be fair, however, the current state of negotiations is in part the result of First Nations’ demands for treaties. Thus the Faustian bargain—to reiterate: an exchange of aboriginal rights for land and money—is as much a product of First Nations’ willingness and demand for compromise as the provincial government’s mismanagement of Indian affairs. Compromise is all too often inadequate, and this compromise, in particular, creates a false dilemma stemming from an incomplete understanding of what dispossessing First Nations’ of their lands has truly entailed. This century-long mistake seems to forget, or even ignore, the fact that it is cultural and intellectual property rights that make First Nations’ land claims meaningful. Culture and indigenous intellectual property, like the land, were wrested away from First Nations through insidious, institutionalized efforts throughout the twentieth century. And so, treaty negotiations that solely address the “land” issue and do not include a cultural component miss the bigger picture.

However, noting that treaty negotiations should not be structured as an exchange of land and money for sovereignty and self-governance does not explain what those negotiations should look like. Modern treaties are not marketed as exchanges of rights for land and money. Indeed, treaties often include provisions related to education, economic development, annuity payments, and even semblances of cultural investment that distract indigenous counterparties from what’s really at stake. One of the tricks of treaty negotiations is to frame agendas of assimilation in more favorable terms such as economic and social development. This makes the disagreeable seem more palatable. Belying these selling points is the plain fact that treaties are negotiated with a stated monetary value for the land that is doled out in payments over time, thereby demonstrating that final agreements between nations are actually market transactions—or, better yet, bribes. To underline this point, it is rare for trade agreements, let alone treaties on the international scale, to be discussed, valued, or negotiated monetarily. It is generally understood that agreements between nations possess sanctity above and beyond the market, though they may be tied to and shaped by economic concerns. The fact that the BC treaties are stated in terms of their monetary value is revealing.

Whereas First Nations who sign treaties gain title to more lands, they must exchange rights as sovereign nations in return. In 2000, the Nisga’a Final Agreement, which was negotiated outside of the BC Treaty Process (and became a blueprint for it), required the Nisga’a to conform to Canadian standards of governance, thus imposing foreign rule over a nation whose inherent right to self-governance means that they can govern themselves on their territory however they choose. While this deal might remind some of the International Monetary Fund’s strings-attached loans, there are key differences here. Though First Nations in many instances resemble developing countries, it is uniquely audacious of the Canadian government to dictate how the people whose natural resources have enriched Canada for centuries ought to govern themselves. Given the centrality of natural resource extraction to the Canadian economy, in a more equitable world, current Canadian-Indian policy would reflect and respond to the history of First Nations’ gracious sharing of their lands—the generosity at the foundation of current Canadian prosperity. However, the unfortunate reality is that natural resource extraction in Canada and elsewhere is attached to a long history of twisted facts and cultural denial.

What’s particularly unsettling about recent treaty negotiations is that rights to broader geographic territories come with the stipulation that all First Nations land becomes “fee simple”—a form of private property that can be bought, sold, leased or dispossessed. While geographic span of control may increase in the short-term, there is for the first time a longer-term possibility that First Nations could become landless. Thus this fee simple stipulation—although it allows First Nations to use land as collateral for the loans they need to make capital investments—sets the stage for undermining sovereignty and fully assimilating First Nations into Canada at some future time. What appears to be a repatriation policy is in fact a slow-boil termination policy.

What current treaties set out to do is reduce uncertainty so as to better facilitate the broader natural resource marketplace. The risks associated with dubious title to the real estate that BC corporations and private interests depend on are obvious. Theoretically, both sides stand to benefit from a clear delineation of where First Nations’ territories end and private or Canadian public property begins. The economic basis for favoring such clarity is well understood. However the certainty sought here is not merely one of property boundaries, but rather the expectation that finalized property lines will put an end to indigenous land claims and the resulting protests, litigation, and political unrest that slows the Canadian economic machine, causing it to lose ground in an increasingly competitive global economy. Production does not have time for justice. Production relies upon a cost-benefit analysis that looks almost exclusively at money saved and money earned over time.

It may be that, in some cases, the land question is just too difficult to solve, and giving First Nations full title to their traditional territories may be no more than a social justice pipedream. However, there have been some effective policies implemented with BC First Nations creating land-sharing agreements. While land-sharing agreements do not resolve the land question as emphatically and permanently as some parties on both sides of the table might prefer, they can allow some First Nations to continue cultural subsistence practices while others grow industries. This value-based decision should be left up to each First Nation, which can make its own decisions as well (or poorly) like any other sovereign state. An example of one of these innovative land-sharing solutions is woodland licenses—two have been issued to date—which allow First Nations’ forestry companies to log some portion of their traditional territory (i.e. land beyond the reserve), employ more of their people, and increase economic autonomy. This, in turn, could help First Nations escape their supposed “welfare dependency,” which inhibits the public discourse and distracts from the more important issues at hand. Meanwhile, other First Nations could choose to reprise their roles as stewards of the land, working with the province on ecosystem-based management—environmental management that doesn’t exclude humans from the ecosystem. Similar policies should be pursued in the future—expanding First Nations’ land-use options, while building mutually beneficial relationships between First Nations, their neighbors, and the province.

With respect to the cultural sovereignty issue, a number of options could be pursued—all of which would require Canada and BC to sit down at the table with First Nations as partners, rather than as adversaries. It will be the First Nations themselves who will know what is best for the survival and growth of their indigenous cultures, knowledge, and history. One too often overlooked point—if only it could have been made a century ago—is that Canada stands to benefit economically from indigenous cultural vitality. Frankly, Canada is nearly culturally bankrupt without its indigenous heritage. If the successes of the 2010 Vancouver Olympic Games and BC’s burgeoning tourism industry are any indication, there is potential in the aboriginal tourism industry—a fact that has been acknowledged throughout the Pacific Northwest for decades, but which has been ignored by policy makers in most if not all discussions. Now, in the midst of the Idle No More resurgence, it is time for the civilizations and people who first owned and took care of the BC landscape, and matched its grandeur with their own unique beauty, to be honored as not only an integral part of Canada’s past, but also its present and future.

Thus, with respect to these modern treaties, it seems best to shelve any “final solutions” to the land question in favor of working relationships based on innovative land-sharing agreements. Because if Idle No More demonstrates one thing, it is that indigenous issues in Canada will not disappear. It may be that some years down the road, Canada will look back at the Idle No More movement, as BC will look back at the treaty process—in shame.  All parties may breathe a collective sigh of relief that policies of assimilation ultimately failed, and that, when Canada and BC's hands were forced, they listened. Despite the painful track record of history to date, there is an opportunity for real long-lasting relationships between BC, Canada, and First Nations—agreements between brothers, that First Nations and their ancestors have wanted all along. In the meantime, British Columbia’s First Nations must step back from the crossroads—neither peace nor prosperity resides there.