Jurisdiction the obstacle that could derail treaty process


Stephen Hume

Special to the Sun

Friday, May 26, 2006



After more than a century of struggle by first nations, a decade of work by negotiators and millions of dollars spent on research, legal and administrative fees, might the whole treaty process be chugging slowly towards derailment?

A policy conference to be hosted by the Westbank First Nation next week hints that it could indeed.

Under discussion will be the legal status of treaty settlement lands, but organizers don't mince words in asserting that this conference addresses the "make it or break it treaty issue."

As many negotiations move into the home stretch, the question of whether newly acquired treaty lands will be subject to Ottawa's authority or to Victoria's is unresolved and increasingly contentious.

Don't get me wrong, everybody involved -- particularly Premier Gordon Campbell who is showing remarkable leadership on the file -- clearly wants resolution to the outstanding grievances of aboriginal people regarding the annexation during the colonial period of their lands, resources, right to self-government and, thus, their economic destinies.

First nations want to put a painful and oppressive past behind them and move on, joining mainstream Canadians in economic prosperity.

The federal government wants to close the chapter on a history of dysfunctional policies that wound up marginalizing the very people whose interests it was honour-bound to protect.

The provincial government and business leaders want the kind of certainty and local encouragement that will invite investment to everyone's benefit.

The people British Columbia want an end to what most perceive as a long injustice and to free leaders to concentrate on the looming challenges of the 21st century rather than dealing with political fallout from the 19th.

But even as the treaty train steams confidently toward the station, this conference draws attention to the inconvenient rockslide that sits astride the tracks.

The obstacle is created by the implications for first nations that are rooted in what to most of us might seem an arcane jurisdictional conflict between a two sections of the Constitution Act of 1867.

Here's the problem.

Section 91 (24) establishes stewardship of Canada's native Indian nations and "lands reserved for Indians" as a strictly federal responsibility. Indeed, some aboriginal leaders see the legitimacy of Canada's sovereignty as being conditional upon the carrying through in perpetuity of its constitutional obligations to first nations.

Section 92 sets out provincial jurisdictions over areas like land and natural resources within the boundaries of each province but not, because of 91 (24), over Indian lands which are a federal responsibility. So, Ottawa can bring cash to the treaty table, the province brings land.

Many first nations see control of their reserve and treaty lands, the right to levy taxes upon them and greater freedom to use them as development tools for the economic and social benefit of their communities, as an essential part of growing self-government.

However, as lands are transferred to first nations in treaty settlements, negotiators will have to decide whether these new lands offered by the province will fall under Section 91 (24) or remain under the authority of Section 92 in some new type of land tenure.

Federal and provincial negotiators have so far held out for treaty lands to come under Section 92. Some aboriginal leaders can live with that idea. But a significant number are alarmed at the prospect of changing the historical status of the "nation to nation" relationship between Indians and Canada.

What happens to the Crown's fiduciary obligations? Is there a possibility that newly acquired treaty lands, if they remained under the jurisdiction of the province that cedes them, could be subject to administrative tools like the agricultural land reserve?

More than a few chiefs are profoundly worried by the possibility of finally getting greater jurisdiction over treaty lands only to discover they have to beg for their release from the provincial ALR.

For some, this looks like a deal breaker in treaty negotiations.

What the Westbank conference hopes to do -- and it's an admirable goal -- is provide a neutral forum at which the positions taken by Canada, B.C. and first nations can be openly discussed, the pros and cons of alternatives honestly debated and some way around this impasse found.

For all our sakes, let's hope they make some real progress.