Government-to-government relationships support modern treaty implementation

Angela Wesley, Lakshmi Lochan, Odette Wilson, & Stephanie Gustin

 

Strong relationships between modern treaty nations and federal, provincial, territorial, and local governments are critical to the successful implementation of modern treaties in Canada. Modern treaties recognize and protect Indigenous rights and title. They also provide a vehicle to operationalize the United Nation Declaration on the Rights of Indigenous Peoples (UN Declaration) by formalizing government-to-government-government relationships. These relationships establish a robust foundation for the implementation of Indigenous rights by ensuring modern treaty nations have a voice at decision-making tables. Decision-making is critical to self-government within a context of free, prior and informed consent (FPIC), which is a core element of the UN Declaration. As Grand Chief Edward John, from the Tl’azt’en Nation, former North American Representative to the United Nations Permanent Forum on Indigenous Issues, stated:

“Free, prior and informed consent is about decision-making. The right to make decisions. You exercise that authority in many ways, but it’s a decision-making right. The ability to make decisions really underscores free, prior and informed consent.”1

This paper draws attention to multiple levels of intergovernmental relationships forged by modern treaty nations in British Columbia. Two case studies examine how pre- and post-treaty relationship building at the local level positively contributes to modern treaty implementation and regional prosperity.2 A third case study discusses how modern treaty First Nations in BC created the Alliance of British Columbia Modern Treaty Nations (the Alliance), a joint advocacy body that collaborates on areas of mutual interests related to treaty implementation issues unique in the province.

Building relationships at the local level
Tla’amin Nation and the City of Powell River, located on the Sunshine Coast of British Columbia, have not always shared a collaborative relationship. In 2002, tensions rose when the city began constructing a sea walk without sharing their plans with Tla’amin, unknowingly disturbing, destroying, and burying significant cultural sites. This incident, while negative, became the starting point of a new relationship and way of working together. Powell River entered into a $1.6M contract with Tla’amin to build the sea walk. Tla’amin had a direct role in the decision-making for the protection of its cultural heritage sites. Through its involvement in infrastructure development it provided employment and training for Tla’amin citizens.3

The positive response by both the city and First Nation to address infrastructure goals in a mutually beneficial manner was the start of deeper conversations and tangible steps toward reconciliation. The two communities rallied around a common future and less than a year later they signed the Community Accord.4 Through the Accord, the two governments now share a relationship that exemplifies how government-to-government collaboration leads to vibrant communities and shared regional prosperity. The agreement solidifies mutual recognition, cooperation, continuity, openness and inclusion, and a means to resolve disputes.

This strong relationship also proved beneficial when the Tla’amin treaty negotiations stalled. Together Powell River and Tla’amin leaderships engaged and lobbied governments for the completion of the treaty, with the shared message that the treaty benefits the entire region. This advocacy by local government for First Nations self-determination demonstrates how communities can support reconciliation and implement the UN Declaration at the local level. On April 5, 2016, the Tla’amin treaty took effect, and the relationship between Tla’amin Nation and Powell River evolved – at the same time, Tla’amin’s relationship with Canada and British Columbia became a true government-to-government-to-government partnership.

All levels of leadership in Tla’amin and Powell River take pride in their relationship. In 2018, 15 years after Tla’amin and Powell River first signed their Community Accord, the two communities renewed the Accord and their commitments to mutual recognition and cooperation. That same year, Powell River Regional District, in consultation with Tla’amin, formally changed its name to qathet (pronounced KA-thet) Regional District (qRD), which means “working together” in the Tla’amin language.

Today, Tla’amin Nation, the City of Powell River and the qRD meet quarterly at their Three Community Forum (3C), where all elected officials from their respective jurisdictions come together to discuss issues of common concern. Though not a decision-making body, numerous initiatives have come out of the 3C discussions. These include the creation of regional emergency disaster plans and response committees, a social planning committee, and a working group on transportation for the region. The 3C forum is hosted by each community on a rotating basis.

Building relationships at the regional level
In British Columbia, regional districts are a unique form of local governance established under the provincial Local Government Act. They operate as federations of municipalities and electoral areas. They are governed by a board of directors to coordinate services and resources across a region. These boards adopt zoning by-laws and create official community plans and regional growth strategies to manage important local matters, such as environmental protection, transportation, resource preservation, and economic development.

First Nations can be involved in regional districts as observers or through consultation, however Indian Act bands cannot formally join regional district boards as voting members. This can result in a lack of formal information sharing and service delivery coverage for the region. Treaties include provisions for full and effective participation of First Nations – if the First Nation chooses – with an equal seat and vote on regional district boards, resulting in stronger Indigenous voices in local politics and decision-making. The participation of First Nations in regional governments broadens local representation, empowers Indigenous governments, and is an example of how reconciliation can begin. However, there are currently only four modern treaties in British Columbia, representing 11 former Indian Act bands. For the other approximately 190 Indian Act bands in BC, the colonial restrictions of the Indian Act continue to prohibit First Nations from fully participating in local decision-making.

The Alberni Clayoquot Regional District (ACRD) operates on Vancouver Island, in the traditional territories of four of the five First Nation governments implementing the Maa-nulth treaty: Huu-ay-aht, Toquaht, Uchucklesaht, and Yuułuʔiłʔatḥ First Nations. In 2016, Huu-ay-aht Executive Councillor John Jack was elected chair of the ACRD, becoming its first Indigenous chair. In a 2017 interview with the Treaty Commission, Councillor Jack recalled how the ACRD’s first steps towards relationship building came when the former chair admitted to not knowing where to start. Steps towards better understanding included hiring a facilitator to discuss the Truth and Reconciliation Commission’s (TRC) Calls to Action and the UN Declaration. The ACRD has since adopted a resolution and made a commitment for the Board of Governors to become further engaged in reconciliation.

Prior to joining the ACRD, the regional district and local First Nations had a strained relationship. At the time, the five Maa-nulth First Nations were still under the Indian Act, only able to observe ACRD meetings and not legally entitled to vote or to participate in board decision-making. Councillor Jack says when you are a member of the board, “you have unfettered access to all the information that you might not have otherwise. That is what FPIC is all about – how do we include as many voices as possible in a way that benefits everyone.”5

Full participation on regional district boards can result in increased levels of information sharing (e.g. on proposed projects). First Nations’ meaningful participation in decision-making processes cultivates trust and the opportunity to address concerns and considerations. Early engagement from all community and government representatives can alleviate time pressures on projects, shifting discussions from time-sensitivities to solutions-oriented dialogue. These actions lead to effective implementation of FPIC and other rights in the UN Declaration. Today, the ACRD makes decisions that benefit all residents in the region by understanding the ways the different communities live and are linked to one another. The ACRD has spent time, money, and effort to understand how the UN Declaration and the TRC’s Calls to Action can be implemented at the regional level.

Emerging joint advocacy among BC modern treaty nations
Collaboration between modern treaty nations at the national level through the Land Claims Agreements Coalition (LCAC) assists with modern treaties and associated self-government agreements being respected, honoured, and implemented. Much of the focus of the LCAC is on federal treaty partners. To strengthen and unify their voices, seven modern treaty nations in BC signed a Memorandum of Cooperation (MOC) in July 2018 to jointly advocate shared concerns and to establish the Alliance of British Columbia Modern Treaty Nations (the Alliance). An eighth nation (Nisga’a) joined in November 2019. In addition to Nisga’a, the member nations include: Huu-ay-aht, Ka:’yu:’k’t’h’/Chek’tles7et’h’, Tla’amin, Toquaht, Tsawwassen, Uchucklesaht, and Yuułuʔiłʔath First Nations.

The Alliance began as informal conversations between modern treaty nations during larger collaborative forums on federal fiscal policies. Leadership from modern treaty nations in BC recognized the value of collaborating on shared interests at the provincial level. Subsequent organic, issues-driven conversations laid the early foundations for the Alliance.

One of the Alliance’s guiding principles is that modern treaty nations are stronger when they work together. In sharing information and experiences related to modern treaty development amongst themselves and other nations, Alliance members are more easily able to hold governments accountable. These nations urge the recognition, protection and implementation of Indigenous rights, and more broadly, the implementation of the UN Declaration. Priority issues identified by the Alliance for joint advocacy work include: the future of government-to-government relations; policing; fiscal relations; and co-management of fisheries, lands, and resources. The Alliance provides an avenue through which modern treaty nations can pool their resources and collaboratively work to resolve these issues, many of which were not anticipated during their treaty negotiations. Membership is open to all First Nations governments in British Columbia who have ratified a modern treaty with Canada and BC.

The Alliance has already demonstrated early work on collaborative initiatives by submitting two discussion papers to Canada and BC, titled “The Need to Transform the Fiscal Relationship,” and “Position Paper in Response to BC’s Proposed Approach to Treaty Transformation.” The focus of the papers is on both treaty implementation issues specific to BC and on broader constitutional, legislative, and policy developments. These include fiscal relations, policing, and co-management of lands and resources. At the time of writing, the Alliance is waiting for a response to both papers.

The Alliance advocates a “whole of government” approach to implementation of modern treaties. The Alliance has recommended a shift of Crown signing authority from the BC Minister of Indigenous Relations and Reconciliation to the Premier of British Columbia. This would demonstrate that the level of commitment to modern treaty implementation is not only made by a single ministry, but by the provincial Crown as a whole. This means that all ministries, including those that are more directly involved in implementation (e.g. the Ministry of Forest, Lands, Natural Resource Operations and Rural Development), will more clearly understand the direct obligation they have as a part of the larger Crown to implement and uphold the treaty. The goal is that these other departments will make greater efforts to educate their own officials to ensure they are working on behalf of the Crown to implement modern treaties.

Conclusion
The opening of the Summary of the Final Report of the Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future states, “For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.”

Overcoming this colonial legacy and moving to more positive relationships between First Nation governments and other governments in Canada will take time. Dedicated leadership supporting the recognition of First Nations rights and self-determination can begin this change. Modern treaties are one tool for reconciliation. They legislate and formalize government-to-government-to-government relationships at all levels in Canada: national, provincial or territorial, regional, and local. First Nations’ effective participation in decision-making processes as demonstrated by Tla’amin, the City of Powell River and qRD, and Huu-ay-aht and ACRD, are examples of how to operationalize the UN Declaration, FPIC, and the TRC’s Calls to Action.

The Alliance demonstrates joint advocacy initiatives, and emerging government-to-government-to-government engagement specific to BC modern treaty nations. Collaboration among modern treaty nations is intended to strengthen relationships with Canada, BC and local governments, in the context of modern treaty implementation.

As the examples above highlight, strong relationships result from partnerships based on respect and equality, and on that basis result in better decision-making and regional prosperity. When First Nations regain control of their governance, get out from under the constraints of the Indian Act, and re-build their nationhood, economic success also follows. This benefits the entire region.

Both the current federal government and the provincial government in British Columbia are committed to implementing the UN Declaration.6 Recently the Principals of the BC treaty negotiations process, the governments of Canada, British Columbia, and the First Nations Summit, signed the Principals’ Accord on Transforming Treaty Negotiations in British Columbia. This accord further strengthens the goals of treaty negotiations: recognition and protection of Aboriginal title and rights, nation-building, and establishing a government-to-government relationship. The Accord also acknowledges that treaty negotiations must reflect the UN Declaration. As other provinces and territories pursue similar efforts, governments can consider some of these BC initiatives with First Nations, when considering how to operationalize the UN Declaration in their regions. ◉

 

Authors
Angela Wesley is citizen of Huu-ay-aht First Nations, one of five First Nations implementing the Maa-nulth Treaty on the west coast of Vancouver Island. She is an active participant in implementing the treaty and was appointed as a Commissioner to the BC Treaty Commission in 2018.

Lakshmi Lochan was born in Burnaby, BC. Lakshmi has a BA in Anthropology/Sociology from Simon Fraser University. She works as a Process Advisor at the BC Treaty Commission.

Odette Wilson was born in Delta, BC. Odette is xʷməθkʷəy̓əm (Musqueam), Mamalilikulla, and Irish. She is working on an MA in Intercultural and International Communication at Royal Roads University. She works as the Communications Advisor at the BC Treaty Commission.

Stephanie Gustin was born in Vancouver, BC. She has an MA in Dispute Resolution from the University of Victoria. She works as a Process Analyst at the BC Treaty Commission.

 

Notes
1. BC Treaty Commission, ”UNPFII Expert Member Edward John,” Annual Report (2016), 16. Retrieved from http://www.bctreaty.ca/sites/default/files/BCTC-AR2016-WEB.pdf.
2. Portions of this paper were previously published in the Treaty Commission’s 2017 annual report. Retrieved from http://www.bctreaty.ca/sites/default/files/BCTreatyCommission-AR2017.pdf
3. BC Treaty Commission, Ayjoomixw, (nd). Retrieved from http://www.bctreaty.ca/sites/default/files/Powell-River-Sliammon-Experience.pdf
4. Community Accord (May 10, 2003). Retrieved from https://www.civicinfo.bc.ca/Library/First_Nations_Service_Agreements/Community_Accord–Sliammon_First_Nation_and_Powell_River–2003.pdf
5. BC Treaty Commission, Annual Report (2017), 18. Retrieved from http://www.bctreaty.ca/sites/default/files/BCTreatyCommission-AR2017.pdf
6. See for example Bill C-262, United Nations Declaration on the Rights of Indigenous Peoples Act; see also the BC government’s February 12, 2019 Throne Speech: “This year … B.C. will be the first province in Canada to introduce legislation to implement the [UN Declaration], legislation co-developed with the First Nations Leadership Council and other Indigenous organizations.” (the Honourable Judith Guichon, OBC Lieutenant-Governor) https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/3rd-session/throne-speech


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