June 25, 2012

BC Treaty Advocate Elected Chair of UN Permanent Forum on Indigenous Issues

Grand Chief Edward John has spent the past 20 years in the BC treaty process, which produces extinguishment Agreements

by Kerry Coast

The Dominion - http://www.dominionpaper.ca

The 11th Session of the United Nations Permanent Forum on Indigenous Issues, the top forum for Indigenous peoples in the world, began with a lurch. The sixteen-member Forum elected, by acclamation, Grand Chief Edward John to be their Chair. The announcement was made during a preliminary meeting, May 6, 2012, before the two-week meeting in New York City. Hailing from Tl'azt'en (northern BC), this Chief will be familiar to anyone who has followed the machinations of the BC treaty process over the last twenty years: John was the founding Chair of the First Nations Summit, an organization formed to “represent First Nations” involved with the BC Treaty Commission (BCTC).

Perhaps, in 1992, the election of a man affiliated with this Summit to Chair the Permanent Forum on Indigenous Issues—understood to be advancing the cause of self-determination, land rights and everything else contained in the Declaration on the Rights of Indigenous Peoples, would not be an obvious contradiction in terms. However, twenty years later, after the ratification of two extinguishment treaties in that process, this election must be a point of confusion.

When Nisga’a ratified an agreement with British Columbia and Canada in 2000, they released the Nisga’a claim to 100 per cent of their traditional territory in exchange for about 8 per cent of the land back, in Fee Simple Title and with BC holding the underlying title. There were no alarm bells rung by Chief John. Every First Nation in BC was watching that process very closely, as they believed, rightly, that future negotiations in the BC treaty process would follow the Nisga’a template.

When, in 2007, Tsawwassen became the first Indigenous people to ratify a Final Agreement produced in the BC Treaty Commission, the text of that document stated:

Tsawwassen First Nation releases Canada, British Columbia and all other persons from all claims, demands, actions, or proceedings, of whatever kind, and whether known or unknown, that the Tsawwassen First Nation ever had, now has or may have in the future, relating to or arising from any act, or omission, before the effective date that may have affected or infringed any aboriginal rights, including aboriginal title, in Canada of the Tsawwassen First Nation.

This clause is also to be found in the Nisga’a Agreement. It is a surrender, rather than the basis of continuing nation-to-nation relations. Tsawwassen made these concessions for a settlement of less than 1 per cent of their traditional territory, held in Fee Simple. The total cash value of the deal was $33.6 million plus self-government funding of $2.9 million annually over the first five years of the treaty—according to government press releases.

Perhaps Chief John takes a leaf out of then-Indian Affairs Minister Chuck Strahl’s book, who declared at the time, “Who am I to say if it’s a good deal or not?”

John is still the Chair of the First Nations Summit today.

Maa-nulth agreed to the same releases when it ratified a Final Agreement in this process later in 2007. Other identical provisions in all three Agreements include the release of Indian Status, including tax-free status; the “modification” (extinguishment) of their aboriginal rights to be only those rights exhaustively defined in the Agreements, the dissolution of the Indian Band and the termination of Indian Reserve lands. “Fee Simple Lands are not 'lands reserved for the Indians' within the meaning of the Constitution Act, 1867, and are not 'reserves' as defined in the Indian Act.”

The role of the First Nations Summit in these “negotiations” is, in part, to give advice to the federal government for the allocation of treaty negotiating loans to First Nations for the purpose of developing and ratifying Final Agreements under the BC Treaty Commission. These negotiating allowances average a million dollars a year and the 80 per cent which is a loan comes due the moment a First Nation leaves the process or begins implementation of their Final Agreement.

Staying at the table is an offer most First Nations cannot afford to refuse, especially for those who have been at it since 1993, but the only alternative is to ratify an Agreement and extinguish title. Treaty negotiating loans are not included in government audits of First Nations accounts—perhaps because such a loan would immediately place that community in third party remedial management.

Chief John has stayed with the process throughout and failed to take any meaningful action to indicate his disapproval of the situation, if he does indeed disapprove. He obviously hasn’t resigned in protest.

Self-determination, recently enshrined in the UN Declaration on the Rights of Indigenous Peoples, goes out with ratification of these Agreements as well, replaced by what the governments, the Treaty Commission and the First Nations Summit call “self-government”–powers which amount to little more than municipal business under the heavily qualified “Governance” chapters. The presence in each Final Agreement of identical chapters, which circumscribe any exercise of self-determination, betrays a theme, one which previous leaders dubbed “the BCTC Death Row.”

According to Chief Negotiator Robert Morales, Hul’qumi’num Treaty Group, in 2007, “there is one negotiation going on at 47 tables. These were to be government-to-government negotiations, but that’s not how it turned out.”

By 2006, the First Nations Unity Protocol Agreement included all but one of the treaty-going groups in the province, and had made clear the flaws in the process. Morales said, while Chair of the First Nations Summit Chief Negotiators’ table at the time, “The experience we’re having at the Tables and in meetings is that government comes to every table with the same language, with one approach, whether the Nation is small or large, urban or rural. We have realized that we can’t change those policies on our own, even at my table where 6,000 people are represented.”

Since Morales’ statements, letters and FNUPA actions—which included blockading a Nanaimo ferry sailing with canoes—the HTG has been in abeyance from the negotiating table and entered a petition describing the exhaustion of domestic remedies within Canada to resolve the outstanding land title issue. That petition was heard in Washington last year by the Organization of American States’ Inter-American Commission on Human Rights, the outcomes of which has not yet been announced.

At the Opening Ceremonies of the PFII 11th Session at UN Headquarters, Deputy Secretary-General of the United Nations Dr. Asha-Rose Migiro noted in her address, “…we don’t have to go far to see examples of Indigenous peoples facing discrimination, even extinguishment.” As she spoke, Chief John was sitting in front of her.

On the second day of the meeting, an intervention by the North American Indigenous Peoples Caucus delivered by Steven Newcomb claimed that, “Negotiations such as in Canada under the Comprehensive Claims Policy… lead to the extinguishment of Indigenous peoples.”

The CCP is the basic platform of the BC negotiations, in direct contrast with the 19 Recommendations by the BC Task Force forming the terms of reference or guidelines for the process in 1992. Those guidelines attracted people to the process because they said, in sum, that the government would be open to all types of discussion and conclusions that would lead to real, workable treaties.

Several independent members of First Nations involved in the treaty process have taken their concerns to an urgent action committee of the United Nations’ Committee for the Elimination of all forms of Racial Discrimination (CERD) in 2009. In reports on Canada’s human rights record regarding Indigenous peoples the CERD has criticized the process, such as in 2007, when they wrote:

While acknowledging the information that the “cede, release and surrender” approach to Aboriginal land titles has been abandoned by the State party (Canada) in favour of “modification” and “non-assertion” approaches, the Committee remains concerned about the lack of perceptible difference in results of these new approaches in comparison to the previous approach.

To date, only four Final Agreements have resulted from the negotiating process implemented by the BC Treaty Commission, one rejected in the community ratification vote, one awaiting federal approval and two in implementation—but all of them leading to the extinguishment of title of the Indigenous nations concerned.

Aside from these, the negotiation process in BC remains stalled largely due to the evident desire of the governments to pursue policies of extinguishment of Indigenous sovereignty rights and the equally evident desire of the BC Indigenous nations to resist this demand. But they cannot leave the process without triggering the maturation of the negotiating loan.

While Chief John and the Summit Executive exchange polite letters and press releases with Canadian government officials conducting studies on the BC treaty process and welcoming “recommendations which outline how the federal government can accelerate treaty negotiations in BC” (First Nations Summit Press Release: May 4, 2012) the cost of remaining in the process grows—and the process remains one of municipalization of Indigenous nations which currently have the internationally recognized right to self-determination and demonstrable title to their territories.

Sliammon First Nation is about to go to a ratification vote this summer.

Jackie MukSamma Timothy, a Sliammon Hereditary Chief, wrote of the situation:

So called "Canada's” ignorance of our existing and affirmed Title and Rights and the threat of limited financial support for non-participating Nations forced my people into entering the treaty process. And they keep us on the negotiation table, by threatening to demand all the negotiation funds back at once or to limit our financial support by the federal government accordingly. For my Nation it is impossible to pay the amount back or to forgo financial aid. Moreover, the longer the process takes the more power shifts to the benefit of so called “Canada” and “BC”, because in the end any agreement resulting in any kind of payment is better than none, given the fact that we have to pay the loans back. Loans that would not even be necessary without Canada's wrong-doings and their ignorance of our existing Title and Rights.

The number of irregularities in the BC treaty process is staggering and climbing. It is not unusual for communities to fail to hold a vote annually in order to approve continued borrowing for negotiation funding, or to have votes against continuing the loans ignored, according to vocal Indigenous dissidents. Hereditary Chief Kakila, Tenas Lake, wrote in a letter to the BC Treaty Commission from 2007:

We are advised by the Honourable Minister of Indian and Northern Affairs Jim Prentice that these twelve people (the IN-SHUCK-ch Treaty Society) have since 1993 borrowed $9,717,059.00 to engage in these negotiations. We remind that those are the debts of those people alone. In fact, on October 15, 1994, at a duly convened Samahquam General Assembly, for said purpose, the membership specifically voted, by majority, “no” to any proposed Loan Agreements emanating from the British Columbia Treaty Commission.

Most of the original nineteen recommendations of the British Columbia Task Force, which were agreed on by the three negotiating parties forming the BC treaty process, have long since been abandoned. For example, every Final Agreement produced has been taken to court by neighbouring nations for failure to resolve “overlap” claims. Most negotiations currently underway were initiated by a small minority of community members, over whom the rest of the people in these communities cannot regain control. Court actions such as Spookw v.Gitxsan Treaty Society et al, 2011, and the recent blockade by members of the Gitxsan against the Gitxsan Treaty Society show how serious this flaw is. By insisting that the small, mostly isolated communities are “autonomous” in their dealings with the treaty process, the First Nations Summit has absolved itself of any responsibility for those First Nations, which it claims to represent.

Both the Tsawwassen and Maa-nulth Final Agreements were ratified in votes where "public relations crisis-management" firms were hired by the government to produce pro-treaty propaganda, and where treaty negotiating teams promoted only those prominent community members who endorsed the Final Agreement and where immediate fiscal rewards for a "yes" vote were offered to community members.

Bertha Williams, a Tsawwassen Member, wrote in a letter to Rudolfo Stavenhagen, Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People of the United Nations Commission on Human Rights, July 23, 2007:

I would like to reference some very key items that raise very serious question about the legitimacy of this vote. Under “Members Benefits” two cash incentives to voters are stated.“ In particular it states that “each elder over 60 will receive $15,000, shortly after ratification day” and “approximately $1,000 per member on Effective Date.” I feel that these cash incentive are a bribe to vote YES to the Final Agreement. These are the cash guarantees that are written right into the agreement and that are openly promoted, but I know that there are additional monies paid out just to get people to vote on this agreement. As already set out above, the vote will take place without meeting basic requirements for such a fundamental, constitutional vote.

People are not informed about the real content of the agreement they are voting on, but rather the provincial government is paying for the preparation of propaganda material that points to the few mainly cash incentives of the agreement, but fails to point out all the downfalls, such as the extinguishment of our Aboriginal Title to our territories, the loss of the tax exemption and the long-term loss of programs and services that will all result in the further impoverishment of our people.

Many feel that, as a lawyer whose organization gives advice on the allocation of negotiating loans, Chief John is and was aware of how the loan process itself would leave small and isolated communities trapped between descending into a deeper cycle of debt the longer they stuck to their negotiating claims, or acceding to the extinguishment terms offered by Canada, which can afford to wait the process out. This message has been clearly and repeatedly delivered to the Executive of the First Nations Summit by such groups as the First Nations Unity Protocol, starting as early as 2006.

Still Chief John is considered respectable. Earlier this year he received a National Aboriginal Achievement Award and is on the Board of Cultural Survival, an international agency which claims to, "publicize Indigenous Peoples' issues through our award-winning publications; mount letter-writing campaigns and other advocacy efforts to stop environmental destruction and abuses of Native Peoples' rights; and we work on the ground in Indigenous communities, always at their invitation."

Most of the Indigenous nations whose territories lie within the Canadian Province of British Columbia have no treaties with Canada.

The recent appearance of Edward John on the Aboriginal People’s Television Network to state that he does not support extinguishment is not an adequate gesture, when read together with his continued involvement, as Chair of the First Nations Summit, in this well-documented extinguishment process.

The Permanent Forum on Indigenous Issues sends the world a mixed message in its choice of Chair, when considering its stated mandate. Perhaps the message will become clear when the Permanent Forum reports its recommendations, which will be received by the UN Economic and Social Council to advise member states on Indigenous peoples’ rights the world over.

Kerry Coast is a writer and journalist with a special interest in gaining a legitimate passport. Born beyond the treaty frontier in what is now known as "British Columbia," Coast is first concerned with international recognition of the fact of indigenous title in some thirty indigenous nations which have been occupied by a renegade colony. This article was originally published by the Vancouver Media Co-op.

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