BarTalk February 2003
Volume 15, Number 1

The provincial government’s perspective

by Philip Steenkamp

Treaty negotiations in B.C. always seem to be at a critical juncture. In 2003 this is as true as ever. This will be the year that we either succeed by reaching agreement at one or more of the dozens of treaty tables, or that we fail and are forced to re-examine the very basis of treaty making in this province. All the ingredients are in place for agreement, but there are significant challenges.

One of the most significant challenges facing treaty negotiations is the gap in expectations. At many tables, the parties started with different visions of what treaty making would deliver and what a treaty would look like; at some this difference remains and is widening. Successive court decisions, in particular Delgamuukw, Haida and Taku, expanded the interpretation of Aboriginal rights and title, and significantly raised First Nations expectations about the realization of those rights through negotiations. On the government side, the feeling is that the goalposts keep shifting mid-game, or, to use another metaphor, that the bar is raised each time it is nearly in grasp. For First Nations, government mandates appear out-of-step with legal developments, and a serious question arises as to whether they are being asked to give up too much in negotiations.

Treaty negotiations are also mired in process. The multiple stages, initially designed to help build trust and understanding incrementally, predispose the parties to defer the resolution of difficult issues and delay the conclusion of binding agreements on treaty components. There are other challenges. Many First Nations, through no fault of their own, lack the capacity to engage in treaty negotiations. When the time comes to ratify agreements, community support is not always in place. First Nations leaders are aware of these problems and are working on them.

On the plus side, all the negotiating principals – B.C., Canada and the First Nations Summit – are highly motivated to get agreements. It is time to demonstrate that this huge investment in time (10 years) and money ($500 million and counting) will deliver results. B.C. – the provincial partner – is better positioned to negotiate settlements than at any time in the past. Notwithstanding the controversy of the referendum on treaty principles, that exercise confirmed, beyond a doubt, the provincial government’s commitment to treaty-making and provided a set of principles to guide its participation in negotiations. Other issues critical to progress have also been addressed. The province formally rejected extinguishment and the legal technique known as “cede, release and surrender” as a means of achieving certainty in treaties. On governance, the province is exploring with its negotiating partners the inclusion of land-based authorities and matters central to culture in the treaty itself, while giving effect to a wide range of authorities through a separate agreement. There is a willingness to be more flexible on tax arrangements. Issues hitherto off the treaty table, such as compensation, revenue-sharing and cooperative management, are now on the table for exploration.

While this does not guarantee reaching agreement on these subjects, it does indicate that the province is listening to First Nations and understands that these important interests need to be discussed in order to move negotiations forward. With respect to process, the province is interested in expediting negotiations by reducing the time spent negotiating agreements-in-principle and focusing energy on concluding final agreements. Finally, treaties are about relationships and for treaties to succeed we need to begin and continue a dialogue with First Nations about mutual recognition and reconciliation.

So this is truly a critical year. At half-a-dozen negotiations there is the very real prospect of a breakthrough in the next few months. B.C. is committed to reaching fair and affordable treaty settlements: the health and prosperity of the province depend upon it.

Philip Steenkamp is the Deputy Minister of the provincial government Treaty Negotiations Office. He has been involved in treaty negotiations since 1993, holds an MA and Ph.D. from Queen’s University and taught at Queen’s University and at the University of Victoria for a number of years.

This article was published in the February 2003 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.