June 2010

Ottawa never feels further away than when a herd of headlines bleat about “bilateral” “agreements” between indigenous nations and the province of British Columbia. Haida, Treaty 8, even St’át’imc, over the past month alone have caved over what they have none of, and what BC has in spades.

There’s no time. People are out of work. Ottawa doesn’t pay. If time is money, then there really is no time. BC has the both.

And how did they get it? They bought the one with the other, really, and they took the money from the land. But you can only have bilateral agreements between equal powers – nation to nation. Not nation to province.

When people can’t start businesses on Reserve, when Indian Bands don’t actually own any real property, and nor do their members, because that is under BC’s legislative lock and key, or actually Canada’s, if you read the fine print, communities do a lot of things to pay the bills, to keep people in houses, to pay for the health department.

While Ottawa cuts back on funding to community and economic hubs like Friendship Centers, BC jingles the change in its pockets flowing from mineral, forest and water tenures. As long as BC is paying for itself, welfare to the Reserves is comparatively cheap for the feds.

While First Nations require corporate partners to access their own land’s wealth, much of industry turns down partnership, preferring to pay some small levy in the form of a Benefits Sharing arrangement. (BS)

They don’t provide the BS because they are nice, they pay it because BC and Canada can no longer deny, after Delgamuukw identified aboriginal title as a property right to the land itself, that indigenous nations do own the land developers are interested in.

But aboriginal communities can’t afford court justice, and many of those cases are never followed up. And they can’t afford to wait for change. There’s no jobs. Maybe that’s why so many signed on to BC Forest and Range Agreements – admitting that a per-capita sum would suffice to compensate their economic interests in the land being logged for five years. And they didn’t have to prove title.

Would you like to go to court to prove title? That will be seventeen years, please. And $20m in legal fees.

You can see BC leveraging their time with money, their money with time. Site C is coming, and BC has the credit rating to hire all the consultants, lawyers and scientists it needs. And where did they get the credit rating? From the lands and resources they claim title to, which they use as collateral.

But how did they get title to the lands and resources? Well they didn’t, but they have a handy clause in their financial statements, which is that the BC Treaty Commission has identified and is paying off that title issue, one Final Agreement at a time. And, according to BC, two-thirds of BC First Nations are involved in the treaty process. Maybe 66% were involved at one time, but active treaty tables in BC are just 20% of First Nations, according to BCTC’s 2009 report. The others are still technically “involved,” because they can’t afford to formally withdraw and face the negotiating loan payments that would come due at that moment.

But then how did Ts’kwáylacw, Xaxl’íp and N’Quátqua do it? They left the treaty process, and they are not paying for those loans. The BCTC slipknot of “Stay in or pay up” is so illegal that the UN Committee for the Elimination of Racial Discrimination had only to glance at a complaint from Xaxl’íp, last summer, for Canada to produce a letter assuring the CERD that those loans were in abeyance. Xaxl’íp, incidentally, had never seen the letter before. Must have slipped off someone’s desk.

But that is how they buy that time, that credit rating, and keep the revenue streaming – and buy more time. And keep the legislative lock on the land: no bank loans to people who don’t own land. And you can’t own land unless you can prove it’s yours – 17 years, $20m and a 50/50 chance your lawyer got the claim right.

These “for the meantime” agreements with the nations add up to big time for the province. BC has wandered away from the St’át’imc Protocol Table and many other solution-oriented promises. It will just as easily wander away from Haida when they refuse to extinguish title, but, for the meantime, oil and gas investors will consider their tankers safe. BC can get a lot of work done while five years of Agreement ties up a cash-poor indigenous nation.

So maybe it’s time to change the locks. Put away the key. Aboriginal title is recognized by the World Trade Organization, Canada’s Supreme Court and its Constitution, and international law. Why deal with a province that spends billions to extinguish that title? Why add to their stack of customary law evidence, dealing under their legislation? Let’s see how much time and money, ie land, BC really has. How far away is Ottawa? Further than a few calls from BC’s Committee of Supply?

But who can afford to go without, in the meantime.