Instead of negotiating treaties, governments are fuelling fear and uncertainty
“It’s time for all citizens of this province to shout ‘Enough!'”
Even before British Columbians have come to terms with a BC Supreme Court finding of Cowichan Aboriginal title over private properties in Richmond, along comes Mark Carney to deliver another sucker punch to landowners.
How much more can we take?
Under three “deals” initiated by the prior federal Liberal administration in 2017, Prime Minister Carney’s government recently announced its intention to negotiate with Musqueam Indian Band to share governance authority, confer control over resources, and recognize an as-yet-unknown portion of their vast claimed territory as Aboriginal title land.
That the area up for grabs encompasses much of Greater Vancouver is another staggering blow.
These three bilateral agreements, negotiated entirely in secret between Ottawa and the Musqueam, will have profound effects on the province and the Lower Mainland, and yet were quietly posted on a low-traffic Government of Canada webpage on Feb. 20, only hitting the public consciousness a week later.
Seven months after the Cowichan Tribes decision rocked property rights certainty, with still no protections in place by governments for landowners, the agreement has generated a firestorm of controversy for British Columbians, particularly Vancouverites. Musqueam’s Aboriginal neighbours—Squamish, Tseil-Waututh and Tswwassen—which have overlapping land claims, have said they are reviewing the agreement, while Kwikwetlem is pursuing its Coquitlam-area land claim through the court.
British Columbians get ambushed by secret deals
British Columbians at large have come to know only too well what it means to be subjected to secretly negotiated agreements between Aboriginal communities and their own David Eby government. In some cases, these resulted in recognizing Aboriginal title over vast land areas that could never have been proven in court.
Witness the “negotiated” debacle that has taken place in the name of reconciliation and the Declaration on the Rights of Indigenous Peoples Act (DRIPA) under secret agreements involving both the BC NDP and federal Liberal governments on Haida Gwaii. These were so carelessly done, that private landowners on the archipelago, being accorded no input whatsoever into these negotiations, found their private land interests suddenly subject to Haida Aboriginal title.
Worse, Ottawa and the Eby government then secretly supported the Haida application to have their Aboriginal title enshrined in constitutional concrete one month after the Cowichan Tribes decision ruled that a declaration of title would remove Land Title Act protections of private property. So, the governments of B.C. and Canada supported Haida to do exactly that, quite literally robbing Haida Gwaii landowners of their indefeasible protections, leaving them “protected” only by likely unconstitutional legislation and a breachable civil contract between the province and Haida, to which landowners aren’t even a party.
It is against this alarming backdrop of the secret Haida deals, and the Cowichan ruling recognizing Aboriginal title over private property, that Vancouverites must now be wondering if Prime Minister Carney will similarly sign off on declarations of Aboriginal title for the Musqueam as well.
Governments, First Nations covertly change treaty process
Speaking of secret manoeuvres, these same two upper levels of government recently conspired with the First Nations Summit to alter the terms of the BC Treaty Commission process. Set up in the early 1990s, the process was designed to oversee modern-day treaty negotiations.
But the following edits can now be found on the Treaty Commission website:
“First Nations can negotiate treaties, agreements and other constructive arrangements with the governments of Canada and British Columbia through the made-in-BC negotiations framework. Some First Nations prefer to negotiate incremental approaches to the recognition of their title and rights.” [emphasis added]
Thanks to these changes, B.C. First Nations can now choose not to negotiate treaties at all and instead seek outcomes at the Aboriginal title negotiations table in the name of DRIPA, under so-called reconciliation agreements and “other constructive arrangements.”
This is the path the Haida took. It yielded the Indigenous community one million hectares of Aboriginal title over the Haida Gwaii archipelago, well beyond what a treaty process would have yielded. And it left the provincial and federal governments, and private landowners with virtually no legal certainty in return for the massive transfer of land.
Instead, our governments will likely get handed a very large bill for damages from the Haida, for which neither the province nor Canada even sought a release. Given those all around generous terms, it should surprise no one if Musqueam and other Indigenous groups pursue a similar model.
Reconciliation agreements are not treaties
So how might this inform our expectations of federal negotiations with the Musqueam?
Presumably the Musqueam are engaged in so-called bilateral reconciliation agreement negotiations, since they are very obviously not negotiating a treaty. Where treaties rely on strict guidelines and Constitutional law, these reconciliation agreements are strictly about giving “land back” to Indigenous groups and do not seem to “reconcile” anything.
Which lines up with the tenets of the “Land Back” movement. Adherents are unsatisfied with incremental progress or compromise, writes Michael Melanson. “They are all grievance, all the time. And they want it all.”
Where treaties are about the careful balancing rights, Indigenous and non-Indigenous alike, reconciliation agreements are one-way transfers of land, resources, and increasingly, unwarranted goverance authority, with no benefit to other citizens even, in terms of legal certainty going forward.
Of the three agreements announced by Canada, the most egregious is the one that deals with creation of a “framework” for Canada to bilaterally negotiate Aboriginal rights and title for the Musqueam. It also commits the federal government to the articles of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as the new “minimum standards” for dealing with Indigenous people. All of which allowed Musqueam to completely ignore the more onerous but balanced treaty process, and to avoid the requirement to prove their title claims in accordance with the law, as the Haida successfully did before them.
This time, the federal government appears to have led the charge, with the province claiming it was left out of the process. Unless the roles are simply being reversed from the Haida situation, and this time the province will tuck in behind the federal government to rubber stamp a mirror image of whatever Musqueam negotiates with Ottawa.
Still, it’s unclear why the federal government would lead on this “negotiation” and B.C.’s premier would passively let it happen, given the provincial government holds constitutional authority over virtually all of the land base described as “Musqueam territory.”
‘The most badly written agreement’
In all my many years practicing as a B.C. government legal counsel, this may be the most badly written agreement I have ever encountered. It is difficult to discern if legal counsel for the federal Department of Justice were even directly involved in the drafting of this so-called contract, it is such a legal embarrassment.
By trying to use too-clever-by-half wording such as Canada “recognizes that Musqueam has Aboriginal rights including title within their traditional territory,” the drafters seemed to deliberately eshew precision and muddy the language, unnecessarily fuelling fears and misinformation. Many commentators, including the Musqueam chief himself, initially interpreted those words as recognition by Canada of Musqueam Aboriginal title to the entirety of the group’s claimed territory, spanning most of Metro Vancouver.
Chief Wayne Sparrow’s early comments that Canada had in fact recognized Musqueam Aboriginal title to its territory were soon followed by Canadian government officials desperately backfilling to clarify what the word “within” actually means from Ottawa’s perspective.
This sort of vague drafting occurs in many government agreements with Aboriginal communities when the principles instruct legal counsel to find wording that will mollify signatories, and in this case, perhaps to allow both parties to save face and interpret the contract to their own advantage.
This is certainly not what the Supreme Court of Canada referred to as “hard bargaining.” Nor is it the precision of language we should expect of our public governments when drafting agreements of this significance.
The bottom line for British Columbians is a federal government that, like its provincial government counterpart, conducts secret negotiations with Aboriginal groups on matters that directly impact their economy and their personal financial security.
Even more alarming, neither the federal nor provincial governments have a mandate from the public to be doing any of this – particularly in total secrecy, and now, with one government not even knowing what the other is up to.
It’s time to rise up
It’s time for all citizens of this province to shout “Enough!” from the rooftops. And we must do so loudly our voices reach not just Victoria, but now Ottawa as well.
This will require action from across the regions and sectors; from business groups and owners to their customers; from neighbourhood groups, unions, city councils and professional associations to residents on radio call-in shows.
Maybe it’s time for a general strike.
Certainly, it’s long past time for a neutrally worded referendum on whether the public wants the Canadian constitution or a UN declaration to drive the reconciliation agenda in this province and country.
Whatever it takes, elected governments must stop defiling the democratic process and sucker punching already beleaguered Canadian citizens in the name of “reconciliation,” or the province will soon be buried under Aboriginal title.
Genuine reconciliation must engage Indigenous and non-Indigenous and it must have the overall public interest at heart. It is not the privileged purview of governments and elite Indigenous leaders—in singular pursuit of their own politically activist agendas—to secretly decide and force outcomes onto an unaware public.
British Columbians must rise up against this undemocratic, multi-government fiasco, because the collective will of the people may be the only force powerful enough to make it stop.