In one of his first official pronouncements as the new chief commissioner of the B.C. Treaty Commission, Miles Richardson said three months ago that B.C.'s modern treaty process faced "two major challenges...keeping the public informed and invigorating the treaty tables." Little did most British Columbians know that at the same time as Mr. Richardson was delivering this statement, he was withholding information about the existence of a secret Treaty Commission document that calls into question a central pillar supporting the entire treaty process.

Mr. Richardson spoke about openness, but he has kept the document from the public for almost four months, possibly out of fear of derailing the Nisgaa treaty, which received final approval of the B.C. Legislature last week (see story, page 26). And while Mr. Richardson was urging an invigoration of the treaty talks, the document describes the potential for a mammoth legal entanglement that could shatter much of what the Treaty Commission and the NDP government hope to accomplish. Observers agree the political implications of this would be enormous.

Classified "confidential," the B.C. Treaty Commission (BCTC) document obtained by BC Report is called "Interim Report: Strengthening First Nations for Treaty Purposes." Despite the benign title, the report contains the portentous suggestion that the 51 "First Nations" with which the provincial and federal governments are currently negotiating may not be legally constituted.

This means that any agreements Indians reach with government might not stand up to a court challenge. Indeed, the document suggests that all treaties could be open to legal action, not only by non-Indian opponents, but more probably by the many native Indians now boycotting the talks. Those Indians comprise anywhere between 30% (BCTC's estimate) and 40% (the estimate of the Union of B.C. Indian Chiefs) of B.C.'s 165,000 status and non-status aboriginals and at least 38% of the province's Indian Act bands—a huge pool of potential litigants.

With Premier Glen Clark and Aboriginal Affairs Minister Gordon Wilson continuing to say that an important reason—perhaps the central reason—for signing treaties with B.C.'s aboriginal people is to bring "certainty" to land use in the province, the disclosure that the BCTC itself has grave doubts about the certainty of something so fundamental as the legal status of the key party in the tripartite talks means "we have a huge problem," observes B.C. Liberal Aboriginal Affairs critic Mike de Jong. "It means we could be failing, in so far as achieving the principal objective of certainty and finality," he says. "It means there are going to be challenges in the future from First Nations who say, 'That group that purported to represent me had no right to do so.'"

The recent lawsuit filed by the Gitanyow against the Nisgaa ("Uncertainty rules," BCR, April 19) is not only an indication of the sort of legal challenge the 51 other treaties might face, but also of the depth of emotion felt over disputed land—the same sort of emotion that is sure to fire other lawsuits as well. The Gitanyow say the Nisgaa have seized up 84% of their traditional territory in the Nass Valley. "This is not an overlap the Nisgaa are talking about," Gitanyow president Peter Williams said last year. "This is an act of aggression. It's invading our territory and we will be forced to defend it." Former Gitksan-Wetsuweten leader Neil Sterritt pointed out in an April 14 Vancouver Sun article that the Nisgaa overlap question involves land claimed by the Tahltan and Gitksan too.

Legal experts say the peril posed to the treaty process by such suits as the Gitanyow's is real. But Premier Clark and other Nisgaa treaty supporters have consistently failed to acknowledge the uncertainty when boosting the Nisgaa deal in public. The premier himself wrote last August, "Right now, uncertainty over unresolved aboriginal land claims is slowing development. Ratifying the Nisgaa treaty will send a strong signal to the world that our province is open for investment." In other words, if the deal is approved, certainty will follow.

Similarly, a controversial government newspaper advertisement, entitled "The Facts About the Nisgaa Treaty," claimed the following month that "economic certainty" would flow from ratification of the deal. Also in September, federal Indian Affairs Minister Jane Stewart condemned treaty opponents Mel Smith, a constitutional expert, and David Black, a newspaper publisher, on the grounds their policies would lead to uncertainty, thereby implying that the government's course would create the opposite. "If what they see as being appropriate is continued chaos, continued frustration, continued uncertainty, I won't have it," she declared.

In speeches to such groups as the Union of B.C. Municipalities and the B.C. Chamber of Commerce, Premier Clark continued banging the "certainty" drum throughout the fall. And he was referring to more than just the Nisgaa deal. "Leaving aside the moral, legal and historical imperatives to negotiate—each of which is reason enough on their own—we have a compelling economic incentive to settle through negotiations," he told a gathering of the First Nations Summit. "More than a billion dollars in potential investment in this province is being withheld because of the uncertainty caused by land claims. It is incumbent on us as a society to unite and settle these issues now."

Aboriginal Affairs Minister Wilson boosted that estimate in late March when he released a government-commissioned report by Grant Thornton Management Consultants that found that successful completion of treaties will lead to a net financial benefit to B.C. of between $3.8 billion and $4.7 billion over the next 40 years. "The numbers in this report should give both the average British Columbian [and] those people involved in the resource sector and the industrial sector some comfort," Mr. Wilson told reporters.

But how reliable are those numbers, considering the uncertainty clouding the treaty-bargaining system? Even without the Gitanyow challenge, the Nisgaa Final Agreement—the showpiece treaty in the whole process—is rife with uncertainty. Last October, for instance, Forest Minister Dave Zirnhelt confirmed that if another Indian group signs a better deal than the Nisgaa's, the Nisgaa may reopen their agreement. "It does say something like what you say," the minister told a questioner at a public meeting in Quesnel.

In January, Attorney General Ujjal Dosanjh agreed during debate in the Legislature that the Nisgaa treaty does not even establish the final dimensions of Nisgaa Lands (the territory in which the Nisgaa will have crown-like ownership). The Nisgaa can, he said, add to Nisgaa Land, but Nisgaa Land can never be diminished. "That's not the understanding of finality that most British Columbians have," Mr. de Jong responded.

Furthermore, representatives of the mining and forestry industries have complained that uncertainties surrounding the huge Nass Wildlife Area, over which the Nisgaa will have co-management powers, are so great as to deter investment. One mining industry concern centres on the establishment of Commercial Recreation Tenures—some up to 200 square kilometres in size—within the wildlife area. "Mark my words, if these eco-tourist corridors become part of every native land claim, it will be the kiss of death for mining in B.C.," one experienced Vancouver-based mining engineer said last year. The Council of Forest Industries has identified four major areas of uncertainty in the treaty, involving such things as compensation for expropriation of forest tenure and imposition of native-based environmental laws outside treaty lands.

In addition, constitutional expert Smith wrote in this magazine last November that he had "counted at least 50 explicit instances in the Nisgaa agreement where there must in future be 'consultation,' 'agreement,' 'discussion' or 'approval' between the Nisgaa government and the provincial or federal governments. Many of these require side agreements that, in turn, will require renegotiations after a term of years. No one can predict what the outcomes of these many sets of negotiations will be." He concluded, "To that extent, therefore, there is a clear element of uncertainty on many key aspects of this treaty...Certainty and finality with this treaty-making process? Not very likely."

Such criticisms are linked mainly to uncertainty about what is in a treaty. The Treaty Commission's confidential document, on the other hand, centres on what is not in treaties—a legally defensible definition of what constitutes a First Nation.

The commission explains that when the treaty process began in 1991, it asked aboriginal groups to "self-identify" themselves in preparation for negotiations. Officials expected about 30 groups to do so but were taken aback when 51 ended up asking to negotiate. Adding to the surprise was that these groups represented less than two-thirds of B.C.'s 197 bands as identified in the Indian Act.

The Treaty Commission appears to have recognized early on that the self-identification of First Nations created some confusion. For example, its 1998 annual report contains a passage acknowledging, "There may be as few as 10 or as many as 200 First Nations in B.C., depending on the definition used."

The commission notes that an Indian community wanting to begin treaty talks as a First Nation "must have a traditional territory that is neither wholly shared nor wholly disputed." (The commission expects conflict over segments of claimed territory to be worked out between the feuding Indian groups themselves, without the government's intervention.) The commission admits it has "few tools for establishing whether the governing body and aboriginal group [that a First Nation] represents are appropriate to the task of negotiating and implementing a comprehensive, government-to-government treaty."

What the annual report does not say, however, is that the uncertainty over what constitutes a First Nation has drastic legal implications. While commission officials such as communications manager Brian Mitchell say publicly that the treaties are "political" documents and thus do not have to withstand legal scrutiny over the definition, the BCTC's confidential January document tells a far different story.

Mr. Richardson admits in a January 5 covering letter* that the report is only an interim one because the BCTC "has not yet undertaken its own exhaustive analysis of the legal issues pertaining to the definition of First Nation in the wake of the Delgamuukw decision." This is crucial. The Supreme Court of Canada's December 1997 Delgamuukw ruling found that aboriginal title (which confers upon native Indians the right to exploit resources on land they can show was their traditional territory) has not been extinguished in Canada. The court did not make any determination about which Indian groups hold aboriginal title to which areas, however.

The Treaty Commission's interim report correctly points out that for a claim of aboriginal title to succeed under Delgamuukw, a claimant Indian group must show that it is the successor to the Indian group that held the title in 1846. But this criterion was not part of the First Nations' self-identification process.

Thus, the report states, Delgamuukw "has raised the spectre of negotiations being carried out with a First Nation that is not coterminous [having a common boundary] with the nation that holds title to a particular territory." In other words, under the auspices of the Treaty Commission umbrella, the federal and provincial governments may this very moment be negotiating treaties with Indians claiming territory to which they have no legal right.

"The Treaty Commission recognizes the potential seriousness of the Delgamuukw challenge to the definition of First Nation," the report declares. "It further recognizes the potential of the judgment to alter the very political foundations on which the treaty process rests."

The report goes on to list several important questions this raises: "Whether the definition of First Nation will have to be revisited? Can this be done without seriously disrupting the treaty process? If the definition is revised, how will the interests of self-defining groups that are already in the process and have incurred significant debts be met?"

Especially noteworthy to those concerned about the certainty of treaties is the report's conclusion: "Most critically, the definition of First Nations will affect certainty in a final agreement and the parties' capacity to negotiate and implement treaties." Similarly, Mr. Richardson's covering letter echoes the gravity of the situation by saying the report's contents outline "the serious process and legal implications of [the current] definition [of First Nation] for treaty negotiators in B.C."

But that's not all. Even without the shadow of Delgamuukw, the report finds that self-definition led to "significant process implications" for treaty negotiators: "It stretches the negotiating capacity of Canada and especially British Columbia, thereby slowing negotiations; It multiplies the number of overlaps, including potentially serious overlaps; It raises questions about the capacity of some First Nations to negotiate and implement modern comprehensive government-to-government treaties; and, Internal political cohesion has sometimes proven to be elusive." On the latter point, the report reveals that the commission has seen internal fights erupt over which governing body of a certain Indian group should carry out negotiations—the band, the tribal council or the hereditary leaders.

Such feuding between Indian groups is virtually guaranteed to multiply once more First Nations sign agreements in principle, as the Sechelt did amid much fanfare two weeks ago. Under the AIP, the 900-member band will receive $42 million in cash, 933 hectares of land and extensive self-government rights.

That is just a taste of what is to come. Aboriginal Affairs Minister Wilson told the Williams Lake Tribune in late March that the total cost of treaty settlements in B.C. will be "around the $9-billion range." He said this includes from $6 billion to $6.3 billion for cash transfers to First Nations, payments to third parties and the costs of transferring land and resources. He also said that crown land with a residual value of between $2.8 billion and $4.5 billion would be transferred as part of the settlements.

All that money and land may well be the spark that ignites an inferno of lawsuits from the dozens of bands who are boycotting the treaty process, most of whom belong to either the Interior Alliance or the Union of B.C. Indian Chiefs (UBCIC). Penticton band Chief Stewart Phillip, president of the UBCIC, says the confidential Treaty Commission document proves that his people have a strong case, and the provincial government has only itself to blame if it loses.

He says the NDP has been "highly reckless and irresponsible...It seems that most of the policies flow from some grandiose vision on the part of Premier Clark and that there just simply isn't enough policy research and policy development that goes into this before it's announced. And everything is based on political expediency."

Chief Phillip says the problems pinpointed by the BCTC "were issues that those of us who chose not to be a part of the treaty process raised four or five years ago, yet we were ignored. I think at the end of the day all our concerns have been validated by this document and demonstrated that the entire B.C. treaty process is not viable and is wide open to many legal challenges."

Rather than going to the courts, however, Mr. Phillips says he would prefer to see all negotiations start anew. "My point is this—we simply can't repeat the same mistakes that were made in the BCTC process, that there has to be an adequate amount of time to develop the process itself, and it has to be an inclusive process." Where he hopes that process will lead is simple: "It's Delgamuukw. We have a right to share in the resources on the land." And that means the UBCIC will never agree to the extinguishment of aboriginal title.

For now, the future of land claims in B.C. is murky. The B.C. and federal governments are committed to press ahead with treaties under the troubled BCTC framework. Despite frequent requests, Mr. Richardson did not agree to an interview. Similarly, Aboriginal Affairs Minister Wilson was not available for comment. Ministry spokesman Peter Smith says only, "We haven't responded to it yet. And we're still in the process of reviewing it." Left unexplained, then, was how treaty participants can continue to claim that the signing of treaties will bring any certainty to B.C. when the BCTC's own confidential document says the opposite.

Vancouver lawyer Harry Bell-Irving, co-founder of the Citizens' Voice on Native Claims, says the prospect for any success under the system is bleak (see story, page 18, printed edition). What is ironic about that, says federal Reform Indian Affair critic Mike Scott, is that if and when the system collapses, "The people who are responsible for this mess will have disappeared from the scene. And it will be the taxpayers and citizens of British Columbia who are left standing there, looking bewildered, holding an empty bag." BCR

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