Mr. Petter got it half right; the land claims juggernaut has undoubtedly boosted native fortunes. For example, analysts have estimated the total price tag of the Nisgaa Agreement in Principle, the first of 51 treaties now under negotiation in B.C., could top $2.5 billion when timber reserves are considered. Any illusions that the NDP's "settle at any cost" strategy would deliver economic certainty were doused, however, by a stunning January 31 declaration by the First Nations Summit, which represents the 70% of B.C. bands involved in the treaty process. Citing new land rights created by the Supreme Court of Canada in overturning Delgamuukw last December, the natives asserted title to all of B.C. and demanded an immediate freeze on any resource development, including all licences, leases and permits, until a new treaty process is developed.
Interior chiefs who are boycotting the treaty process quickly supported the freeze. The 3,500-member Chilcotin tribal council, for example, said it considered any new provincial programs, licences or land sales granted in its traditional territory since the Delgamuukw ruling void, including even a recent $7,000 grant to local ranchers.
Although B.C. Aboriginal Affairs Minister John Cashore rejected the call for a freeze, dismissing it as a "negotiating tactic," he joined federal counterpart Jane Stewart in pledging to revamp the treaty process, but did not disclose how. Spokesmen for industries affected by land claims made no secret of how they want the process revised, however. At a meeting with Premier Glen Clark last week, they said it was time for the NDP to play hardball. "If there is any feeling around this table, and I know there is, it is that governments have been pretending to appease native interests, and I would suggest the time for that is over," said Mike Hunter, president of the Fisheries Council of B.C.
The opposition Liberals have since reiterated their demand for surrender of title as a prerequisite for claim settlements. Other critics say even more forceful policies are now necessary, and are calling on Victoria to: "infringe" on native title to the fullest extent permissible; demand federal legislation prescribing guidelines for compensation negotiations; and withdraw from its treaty cost- sharing agreement with Ottawa.
"The cards are all on the table now," says Reform Party of Canada Indian affairs critic Mike Scott. "This is a huge wake-up call for B.C." Mr. Scott predicts that as British Columbians come to understand the implications of Delgamuukw, calls for secession from Canada will increase.
On the other hand, some analysts say the January 31 native declaration was a tactical blunder that could costs claimants dearly in public sympathy. Indeed, an unscientific Global News phone-in poll, conducted two days after the chiefs issued their statement, ended with 69% of callers saying "No" to the question: "Should governments now agree to settle land claims in B.C.?"
One of the Indians' greatest assets is public remorse over their historic ill-treatment, says Gordon Gibson, a senior fellow in Canadian Studies at the Fraser Institute. As evidenced by the Global survey, however, aboriginal extremism puts that sympathy in jeopardy. "They will still have a legal base, but not a political base," Mr. Gibson says.
That "legal base" is stronger than ever as a result of Delgamuukw. In overturning two lower court rulings against a claim by the Gitksan and Wetsuweten tribes to 23,200 square kilometres of northwestern B.C., the Supreme Court judges unanimously declared that native title was never extinguished in the province, and entails an exclusive right to the use of traditional lands. Although the provincial Crown still technically owns the lands, it must "co-manage" the resources with native title-holders. Because the federal government has constitutional jurisdiction over native affairs, title may be surrendered only to the federal Crown.
As a result of that latter provision, the court also held that compensation is required for any crown land the province has converted fee-simple to private owners, and to which natives can prove title—including expensive real estate in such areas as Vancouver. Even if compensation is assessed using land values at the time of infringement, compounded to today's levels, analysts say the price tag will be astronomical.
At the same time, the judges enhanced natives' ability to prove title by ruling their oral histories must be given "independent weighting," exempt from the usual common-law evidentiary rules against hearsay. In doing so, the court disregarded B.C. Chief Justice Allan McEachern's conclusion in the original 1990 ruling that the aboriginal oral testimony he had admitted was too contradictory to be legitimate.
In the two months since the Supreme Court delivered its Delgamuukw decision, both the province and feds have yet to release policy responses to the ruling, or analyses of how it will affect treaty talks. A Federal Treaty Office insider told B.C. Report last week that no policy response has been issued because none exists. "[The ruling] has created chaos," says the man, who asked to remain anonymous. "Nobody knows what to do with it."
That "chaos" highlights the recklessness of the federal and provincial governments in recognizing native title without knowing what it would entail, says Reform critic Scott. "That policy predated the Supreme Court's ruling. Without wanting to let off the Supreme Court entirely, I think it needs to be said that this ruling came out of this milieu created by both governments."
The NDP's current dithering in response to Delgamuukw is further bolstering the natives' hand, says B.C. Liberal aboriginal affairs critic Bill Barisoff. "If the government's not going to respond, aboriginals will take it upon themselves say, 'Well, I guess we got everything we wanted,'" he says.
As a start, the province must insist on a policy of "cede, surrender and release" as a prerequisite for treaty settlements, says Mr. Barisoff. He notes that the Nisgaa AIP, still being finalized, contains no such provision, leaving the door open for the treaty to be reopened in the future. "What's been created by Delgamuukw is more uncertainty than ever," he says. "The most important word in the B.C. treaty negotiation process is extinguishment. Until that's there, the uncertainty will drag on for years and years."
Significantly, however, the summit chiefs' declaration clearly rejects any title surrender. Moreover, Delgamuukw is unclear on whether surrender must be voluntary, and on what grounds it may be forced. Says Mr. Barisoff: "I suspect it's inevitable that we will end up back in the courts with this entire process."
Indeed, given the many such grey areas in Delgamuukw, the province must be willing to aggressively exploit all avenues provided in the ruling, and to defend these against inevitable future court challenges by natives, says Mel Smith, an author and constitutional lawyer. In particular, the Supreme Court has left a door open to the provincial and federal governments, stating that either may "infringe" native title where it "furthers a compelling and substantial legislative objective, and is consistent with the special fiduciary relationship between the Crown and aboriginal peoples." Among the objectives permitted by the court were, "the development of agriculture, forestry, mining and hydroelectric power," and "the general economic development of the interior of British Columbia."
The judges did not specify the extent to which title could be extinguished; moreover, their use of the term "infringe" implies that total extinguishment is not permissible. They also reiterated that such infringements were permissible only upon "substantial" consultation with the title holders, and that compensation would be required. Still, Mr. Smith argues that the natives' demand for a freeze on all resource development could very well constitute a "compelling and substantial legislative objective" for widespread title infringements. "It seems to me the natives may have given the province the ammunition to proceed," he says.
It is possible that the natives could mount a legal challenge, arguing that the federal Crown's fiduciary responsibility obliges it to bar such infringements. Again, B.C.'s willingness to fight in court is critical, says Mr. Smith. "The courts have so hog-tied governments on this, that the province must just press ahead as a matter of public interest," he says. As for determining appropriate compensation for infringements, Mr. Smith says the province must push Ottawa to introduce guidelines for negotiating settlements.
In response to a similar ruling affirming native title, the government of Australia immediately passed its Native Title Act in 1993. Among other things, it provides for treaties to be negotiated before state-appointed tribunals and requires that senior tribunal members be sitting judges, ensuring common-law rules of evidence are followed. Amendments to the act, proposed by Liberal Prime Minister John Howard in December, go even further. These include a guarantee of non-native licence-holders' right to participate in treaty negotiations affecting their lands, provision for binding arbitration in cases where aboriginal negotiators are intransigent, and imposition of a six-year "sunset clause" on the filing of any new treaty applications.
In contrast, says Mr. Smith, B.C.'s treaties are being negotiated behind closed doors, with no transparency surrounding compensation criteria, if any even exist.
Finally, says Mr. Smith, the NDP must reconsider its ill-conceived 1993 treaty cost-sharing agreement with Ottawa, which commits the province to providing 20% of the cash, and 100% of the land, the far more costly component of settlements, if independent valuations of the Nisgaa AIP's timber base are any indicator. Important historical reasons exist to support such a new provincial position, Mr. Smith says. Under Article 13 of the 1871 Terms of Union, under which B.C. entered confederation, the province was obliged to set aside crown lands for the establishment of Indian reserves. In 1924, the federal government passed an order-in-council declaring that B.C. had fulfilled all such obligations. As such, the province could mount a lawsuit against the federal government, to confirm it has no obligation to participate in the treaty process, Mr. Smith says.
The Social Credit government was preparing just such a suit before it was defeated in 1991. Should the NDP resurrect the suit and win, B.C. would then be in a position to demand that Ottawa first purchase crown lands from the province at fair market value before including these in treaty settlements. The move would encourage federal negotiators to take a tougher stance at the bargaining table, and ensure that the rest of Canada paid its share to fund Ottawa's native-title liabilities, says Mr. Smith.
Reform critic Scott supports this so-called withdrawal policy on the grounds that Delgamuukw clearly jeopardizes B.C.'s sovereignty over its land. "The only response open for the provincial government is to say to the feds, 'You created this problem, you told us we had jurisdiction over our lands, and this ruling now changes that—you solve it.'"
Delgamuukw also confirms the need for Reform's call for appointments to the Supreme Court to be reviewed by Parliament, says Mr. Scott. He says the ruling is an exercise in social engineering that will benefit the native elites, and will do little for the upcountry Indian rank-and-file. "What really pisses me off as a British Columbian," MP Scott says, "is that the Supreme Court, dominated by justices from central Canada, politically appointed by partisan prime ministers, is once again determining our fate and future." Analyst Gibson argues that as the final arbiter of questions of constitutional jurisdiction, the Supreme Court justices ought to include provincial appointments.
The remoteness of the court is already fuelling feelings of alienation in B.C. Moreover, many British Columbians are losing faith in confederation altogether, says Chris Graf, president of Vancouver's Ecstall Mining Corp. Based on previous unsuccessful attempts to secure badly needed Senate reform, Mr. Graf places little hope in constitutional remedies to B.C.'s native-title crisis. Ecstall's $5-million worth of zinc claims in northern B.C. are in native claim territories, and Mr. Graf is planning to shift developments to Mexico. He believes B.C.'s only remaining option to resolve land claims is secession from Canada. "I've thought about it a lot, and I really don't see any other way," says Mr. Graf.
Mr. Scott does not support B.C. secession, but predicts that in the wake of Delgamuukw, the idea will gain momentum. He warns, "It's just around the corner and coming at us like a freight train."
—Dave Cunningham
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