Crafty Liberals crafted rules early to cover land use and treaty talks

Vaughn Palmer

Vancouver Sun

Wednesday, June 07, 2006

VICTORIA - When the Tsawwassen First Nation applies to remove 200 hectares of proposed treaty land from the provincial agricultural reserve, it will do so under a law crafted with the band in mind.

The B.C. Liberals two years ago brought in an amendment to allow aboriginal bands to apply directly to the agricultural land commission. Previously, natives first had to obtain approval from local government before proceeding with their application.

The change, aimed at expediting the settlement of land claims, applies to any first nation. But the Liberals expected the Tsawwassen band would be one of the first to access the new procedure.

The band was even then nearing the final stage of treaty negotiations, and it had a difficult relationship with the Delta municipal council.

As well as taking local government out of the equation, the Liberals also supplied bands with the option of determining the status of any relevant agricultural land before agreeing to a treaty.

The amendment would allow bands to apply to remove a designated tract from the agricultural reserve while they were still at the agreement-in-principle stage of negotiations.

If the commission approved the application, the land would remain within the agricultural reserve until the treaty was final.

The goal was to bring "certainty" to negotiations, according to cabinet minister George Abbott, who shepherded the amendments through the house in the spring of 2004. "The land associated with a potential treaty -- that can be a very important issue for a first nation," he explained.

Band members would gain "some knowledge of what is going to be available to them, should they move to a final treaty."

Tsawwassen was the best example at hand. The province was proposing to hand over more than 400 hectares of land owned by the Crown and within the band's traditional territory.

The band, even then, made no secret of its goal to develop the land in conjunction with the nearby Roberts Bank superport.

But the land was then, as now, in the agricultural reserve. The expedited application process would allow the band to discover whether it could proceed with its development plans -- or not.

The "or not" was the catch. For, as Abbott explained how this change would reduce pressure at the negotiating table, others noted how it transferred the burden onto the land commission.

Greg Halsey-Brandt, then a government backbencher from Richmond, foresaw "tremendous expectations and pressure" on the members of the commission.

"Let's say they refuse the exclusion," he said. "They may send the whole treaty negotiation process back to square one . . . . Yet their responsibility is the preservation of quality agricultural land, which really has perhaps nothing to do with fish and money and land and all the other things on the negotiating table."

Abbott halfway acknowledged the point. "These won't be easy decisions for the commission, but I suspect the easy ones are few and far between."

He also offered a hypothetical example that may be relevant to the situation with Tsawwassen.

Suppose a band applied to remove 100 hectares from the agricultural reserve. The commission could turn thumbs up or down on the whole tract. Or it could exclude one part, retain another, and permit some uses and not others on a third part.

Depending on whether its expectations were satisfied or frustrated, the first nation could then go back to the negotiation table to seek offsetting benefits in another part of the treaty.

"Treaty-making is a dynamic process," the minister observed. "The elements involved in it do shift and change. Things are put on the table on a without prejudice basis."

Having completed other aspects of treaty negotiations over the past two years, the Tsawwassen band is now preparing to apply to remove about half of the proposed 400 hectares of settlement lands from the agricultural reserve.

"If we can't do that, I don't think we can have a treaty," says Chief Kim Baird. "That would be a deal-breaker."

But she's probably leaving herself some room to negotiate. If the commission agreed to remove, say, a third of the land, senior governments might find a way to make up the difference.

One last aspect of the changes brought in by the Liberals could also have relevance to the emerging public debate over the Tsawwassen First Nation's plans.

The law requires the band to hold some sort of public hearing on its application to remove the land from the reserve.

But the cabinet, mindful of the need for restraint where native rights are concerned, reserved for itself the power to set the rules for such a hearing. The B.C. Liberals are probably thinking about how to exclude broader, hotter concerns about treaty settlements from the process.

The fate of such a sizable tract of agricultural land will be controversial enough for one public hearing.

vpalmer@direct