Implementing a modern treaty in British Columbia: Lived experiences from Huu-ay-aht First Nations—Maa-nulth Treaty signatories

Huu-ay-aht First Nations, Vanessa Sloan Morgan, Marc Calabretta,
Becki Nookemis, Jon Aarssen, & Healther Castleden

Since the comprehensive land claim era began in 1973, only 26 final agreements have been reached. Negotiation of these agreements brought many challenges; the same is true for implementation. The few studies that have focused on implementing modern treaties have primarily looked north to Nunavut, the Northwest Territories, and Yukon as well as the Nisga’a Final Agreement. Of these, there is a dearth of critical scholarly analysis of the everyday lived experiences of the Indigenous individuals, families, and community members who are most affected by the implementation of modern treaties. These signatories are reporting challenges with having these agreements upheld and their authorities recognized by provincial and federal bodies. The cost of leaving the lived realities of modern treaty signatories unexplored is significant given the state’s push to settle the “Land Question.” Our research investigates how Huu-ay-aht signatories to the Maa-nulth Treaty (“Maa-nulth First Nations Final Agreement”) (effective as of 2011 in British Columbia) experienced the first six years of implementation (2011-2017), while exploring how their sacred principles – Hishuk ma-tsawaak (everything is one and is connected), ʔiisaak (respect with caring), and ʔuuʔałuk (caring for present and future generations) – continue to direct the Nation’s implementation process and relationships to their hạhuułi (chiefly territories).

Modern treaties: Canada’s latest answer to the “Land Question”
First Nations territories across what is now commonly known as the province of British Columbia (BC) remain largely untreatied. Despite a lack of treaties, the provincial and federal governments have laid claim to Indigenous lands and resources. Yet First Nations have long asserted their legal authorities to their homelands through both Indigenous and common law. For example, in 1859 on the west side of Vancouver Island, Huu-ay-aht First Nations’ Tayii Hạw̓ił (“head hereditary chief” in the Nuucaan̓uł language) Cliishin required William Eddy Banfield, who in 1861 would take up the role of Indian agent, to sign a land purchase agreement treaty for his proposed use of Rance Island. Signed with cedar bark to represent Huu-ay-aht’s sacred and unrelinquishable connection to their homelands, the treaty solidified Tayii Hạw̓ił Cliishin’s authority over the Huu-ay-aht hạhuułi (chiefly territories). The written agreement was also a means through which Huu-ay-aht leadership felt mamaałni (non-Indigenous peoples) could understand – a treaty outlining mamaałni use of Huu-ay-aht lands and waters and Huu-ay-aht authority over them (see Figure 1). This and many other historic and contemporary examples show a lack of colonial regard for Indigenous title across the province. In response, alliances of First Nations across BC, such as the Allied Tribes of BC and later, the Union of BC Indian Chiefs and the First Nations Summit, have relentlessly pressed for the “Land Question” to be addressed honourably (see, for example, Union of British Columbia Indian Chiefs, 2010).

Over a century after that cedar bark treaty, Canada’s legal system finally recognized that land in BC was unceded (e.g., Calder v. BC, 1973; Delgamuukw v. BC, 1997; Tsilhqot’in Nation v. BC, 2014). To seek “certainty” over land ownership and clearly delineate rights to lands and jurisdiction over resources (Manuel & Derrickson, 2017), the British Columbia Treaty Commission (BCTC) was formed in 1993. Since then, the BCTC’s goal has been to facilitate negotiations, support negotiation funding, and educate the public about treaty negotiations. Land and self-government are negotiated through the BCTC’s six-stage negotiation framework. Once final agreements go into effect, the 1876 Indian Act no longer applies, with self-government provisions enacted by First Nations, and certain lands (though certainly not all-encompassing traditional territories) are returned “as-is” (clear cut, etc.) in the form of fee simple property. That said, colonial dynamics persist not only during the six stages of negotiation (Mack, 2009), but also through implementation (Irbacher-Fox, 2009; Nadasdy, 2017; Sloan Morgan, Castleden, & Huu-ay-aht First Nations, 2018).

In response to this asymmetry, Indigenous treaty signatories and scholars are beginning to identify the need to assess how treaties affect signatories’ daily lives; to date, these studies have looked to Northern Canada (e.g., Irbacher-Fox, 2009; Kulchyski, 2005; Nadasdy, 2017) and the Nisga’a Final Agreement (e.g., Molloy, 2000). Less attention has been paid to the experiences of First Nations in BC with respect to the more recently implemented final agreements with Tsawwassen First Nation (2009), Tla’amin Nation (2016), and the five Maa-nulth Nations (2011). By virtue of these agreements, these nations joined the nation-wide Land Claims Agreement Coalition (formed in 2003), whose membership includes all modern treaty Indigenous signatories, which seeks to ensure these treaties are “respected, honoured, and fully implemented.” While this coalition was useful, in 2018 the BC-based signatories formed the Alliance of BC Modern Treaty Nations as a collective means of addressing provincially-specific issues.

Figure 1: Land purchase treaty signed in 1859 by Tayii Hạw̓ił Cliishin and William Eddy Banfield for Huu-ay-aht territories on Rance Island (Picture taken at Huu-ay-aht First Nations’ repatriation event during the 2016 Peoples’ Assembly; see Huu-ay-aht First Nations [2016] for more on the event).

Figure 1: Land purchase treaty signed in 1859 by Tayii Hạw̓ił Cliishin and William Eddy Banfield for Huu-ay-aht territories on Rance Island (Picture taken at Huu-ay-aht First Nations’ repatriation event during the 2016 Peoples’ Assembly; see Huu-ay-aht First Nations [2016] for more on the event).

Each of these BC-based First Nations has had unique experiences with implementation; not only in the context of intergovernmental relationships but also within their respective communities. Exploring these relationships is important, especially as the federal and provincial governments push to settle claims within a treaty structure in need of improvement. For these reasons, although there are five Nuu-chah-nulth Nation signatories to the Maa-nulth Treaty, we focus on insights from Huu-ay-aht First Nations, with particular interest in how the Nuu-chah-nulth sacred principles – Hishuk ma-tsawaak (everything is one and is connected), ʔiisaak (respect with caring), and ʔuuʔałuk (caring for present and future generations) – guided treaty negotiations and the process of replacing the Indian Act with Huu-ay-aht First Nations’ Constitution and a modern treaty. Our community-academic research partnership has engaged Huu-ay-aht musčim (citizens) and leaders to investigate how Huu-ay-aht signatories to the Maa-nulth Treaty experienced the first six years of implementation. We engaged with youth, Elders, urban, and off-grid rural musčim, as well as Huu-ay-aht leadership, staff, negotiators, and those supporting implementation.

Our research is governed by a Huu-ay-aht Research Advisory Committee that is, at the request of Huu-ay-aht First Nations’ Executive Council, arms-length from the government itself. Membership includes: Tayii Ḥaw̓ił ƛiišin (the head hereditary chief, representing the Ha’wiih Council), Simon Dennis (an Elder representing the Lower Mainland), Mercedes Williams (a youth representative from the Lower Mainland), Stella Peters and Jane Peters (both knowledge-keepers representing the Treaty Settlement Lands including the village of Anacla), and Edward Johnson Jr. (a cultural advisor representing Nanaimo and Port Alberni). We also collected information from Huu-ay-aht archival documents, semi-structured interviews, photovoice, paper-based surveys, and multiple community engagement sessions with musčim across five geographic locations. Updates were given in Huu-ay-aht’s quarterly newsletter Uyaqhmis, and at the annual Peoples’ Assembly, which is open to all Huu-ay-aht musčim and is itself an arm of Huu-ay-aht First Nations’ four-pronged self-governance structure (see Figure 2). Our general findings are detailed below.

The first six years of Maa-nulth Treaty implementation (2011-2017)
The legal premise of modern treaties is asymmetrical (see Mack, 2009). This dynamic permeated the initial years of Huu-ay-aht implementation, specifically concerning federal and provincial representatives’ lack of understanding about how implementation is operationalized, making effective nation-to-nation relationships difficult. Interpersonal, not just professional relationships, matter; they are fundamental to working together in a good way. An unsettling moment for Huu-ay-aht leaders that demonstrated this lack of state awareness took place immediately after the treaty went into effect. After nearly two decades of active engagement and relationship-building at the negotiation table, the federal and provincial negotiating personnel were replaced with implementation personnel. Little protocol was outlined for this transition, leaving Huu-ay-aht feeling “divorced” from a relationship that was purportedly based on mutual respect, not at all what was much-anticipated in the new “nation-to-nation” relationship.

Figure 2: Huu-ay-aht First Nations self-governance structure under the Maa-nulth Treaty

Figure 2: Huu-ay-aht First Nations self-governance structure under the Maa-nulth Treaty

The provincial and federal governments also recognized they were struggling internally to ensure a whole-of-government approach to implementation. In 2015, and after a shift from a Conservative to a Liberal majority, the federal government issued a cabinet directive in an attempt to foster more effective treaty relations with BC First Nations and all holders of comprehensive land claims (Indigenous and Northern Affairs Canada, 2015). Additionally, a Treaty Obligations Monitoring System and a Deputy Minister’s Oversight Committee were instituted to ensure treaty responsibilities across Federal Departments were upheld. In 2016, the provincial government was piloting an Automated Treaty Obligation System and First Nations Secretariat to ensure treaty responsibilities were implemented as a whole-of-government approach.

Our own experience in attempting to gather archival data from all sides of the treaty table demonstrated this. After multiple requests to and meetings with the federal government to access federal government their archives in August 2016, November 2016, and April 2017, we were asked to provide a Band Council Resolution (BCR). Yet BCRs were no longer part of the Huu-ay-aht governance structure. Thus, we responded with a letter attesting to this fact; the letter was signed by all levels of Huu-ay-aht leadership. We never received a revised federal response to our letter, nor did we gain access to the data. This simple but significant incident is but one example that demonstrates a common experience amongst Huu-ay-aht musčim and Nation staff in the early years of implementing the Maa-nulth Treaty.

In sum, relationship problems have not been limited to a fragmented “INAC-to-nation” (rather than “whole of government-to-nation” approach). Huu-ay-aht leadership has continuously expressed the need for the governments of BC and Canada to recognize how ineffective treaty implementation can affect the daily lives of musčim. This sentiment was even echoed by a portion of the federal and provincial representatives who participated in our study. An example illustrates this impact. Huu-ay-aht First Nations’ sockeye salmon allocation could not be met two years in a row because salmon runs in Huu-ay-aht’s domestic fishing areas were low; the federal Minister of the Department of Fisheries and Oceans had to authorize salmon being caught in other waters, with procedures to do so outlined in the Maa-nulth Treaty. The extensive delays in gaining the federal approval, despite the treaty provision for such operational guidelines, affected musčim livelihoods, diets, and cultural practices. In response, Huu-ay-aht leadership suggested that all government officials working on treaty files be educated on the fine details of treaty relationships and the importance of enacting their responsibilities in a timely fashion.

On multiple occasions, research participants also expressed frustration with communicating to federal representatives in Ottawa about the remoteness of Huu-ay-aht’s Treaty Settlement Lands and how many musčim reside outside of these territories. They recommended that government representatives whose work involves implementation develop a relational understanding of the territories (including lands, waters, and sockeye) as well as the basic geography of where Treaty Settlement Lands are located and where treaty signatories live. Frequent turnover in federal and provincial employees on treaty files further hindered efficient implementation since having to develop relationships and educate new staff detracted from community-level priorities. Two potentially positive changes were initiated in 2018. The first was Maa-nulth Nations and BC signed a “government-to-government” agreement affirming their commitment to work in treaty partnership on topics of mutual interest, such as land and resource management, and a regular forum to discuss economic opportunities. The second was the signing of the Principals’ Accord on Transforming Treaty Negotiations in British Columbia. In this accord, Canada, BC, and the First Nations Summit (one of the principals representing First Nations interests and modern treaty negotiations across BC) agreed to implement the United Nations Declaration on the Rights of Indigenous Peoples and the 94 Calls to Action by the Truth and Reconciliation Commission of Canada in treaty negotiation and implementation, as well as to work to recognize, rather than extinguish and modify, Aboriginal title and rights. The level to which these agreements will improve modern treaty relations remains to be seen.

ʔuuʔałuk, ʔiisaak, and Hishuk ma-tsawaak: Inextinguishable sacred principles
While critiques of modern treaties and the need to revisit the framework for both negotiation (e.g., Mack, 2009) and implementation (e.g., Sloan Morgan et al., 2018) exist, on the whole Huu-ay-aht First Nations view the Maa-nulth Final Agreement as a tool for advancing the Nation’s self-determining goals. These goals, envisioned through Huu-ay-aht’s sacred principles of ʔuuʔałuk, ʔiisaak, and hishuk ma-tsawaak, are advanced by the Huu-ay-aht Constitution (2012). Here, we provide select examples of how these sacred principles are embodied in Huu-ay-aht’s post-treaty, self-governance context. For instance, Huu-ay-aht First Nations is advancing community priorities by taking care of future generations through self-governance provisions that direct programs and services. In many cases, these programs and services exceed those available through federal and provincial governments. Of note in 2017, Huu-ay-aht commissioned an independent social services study, which resulted in 30 recommendations to support Huu-ay-aht children in care, work towards bringing them home, and wrap around services for entire families and the community. The Huu-ay-aht Government has already implemented all of these recommendations (see Huu-ay-aht First Nations, 2017).

Financially, the Nation has expanded economic options in its Treaty Settlement Lands. An emphasis on sustainability, in combination with improved financial holdings and authorities, have supported efforts to restore Huu-ay-aht forestry and fisheries. The nation has significantly increased its land holdings (inclusive of forest tenure and purchased property) from the previous reserve system. It has also completed the first phase of a new housing subdivision, which is intended to relocate residents from the lower village of Anacla (originally located in a tsunami inundation zone), centralize community services, and encourage musčim living away to move home (Huu-ay-aht First Nations, 2019). One final example of the principles working together is embodied during the annual People’s Assembly where nation-wide decision-making occurs. All musčim have the opportunity to express their views, vote on, and propose motions that influence the future direction of the nation. In doing so, the principle of Hishuk ma-tsawaak (everything is connected, everything is one) (Atleo, 2004) is enacted as such decision-making enables musčim to consider the economic and cultural needs, and priorities of future generations and all lifeforms.

Waałsiʔƛin: Coming home
Implementing the Maa-nulth Treaty, like all modern treaties in Canada, has had untold challenges. Ultimately, we concur with critiques of scholars and community leaders, some cited here, that to honourably implement a nation-to-nation relationship, a fundamental review of the asymmetrical relationships inherent in modern treaty negotiation and implementation is necessary. With this in mind, we sought to focus on how Huu-ay-aht have embedded self-defined priorities and sacred principles in Maa-nulth Treaty negotiations and implementation despite the challenges experienced to date. In so doing, we highlight how Huu-ay-aht are working to improve the health of their hạhuułi, reinstate Ḥa’w̓iiḥ authority, uphold sacred relational and inextinguishable principles according to Naas (the creator), and advance the ultimate goal of supporting musčim who are wanting to come home – waałsiʔƛin. ◉

 

Huu-ay-aht First Nations is a self-governing, modern treaty nation whose lands are located in the Barclay Sound on Vancouver Island in British Columbia, Canada; they have occupied these lands and waters since time immemorial. It has a citizenry of 750 people who primarily reside in or near their treaty settlement lands.

Vanessa Sloan Morgan is a mamaałni Postdoctoral Fellow in the Geography Program at the University of Northern British Columbia and grew up on unceded Coast Salish territories. Vanessa has engaged in research with Huu-ay-aht First Nations for a decade.

Marc Calabretta is a first-generation mamaałni, and began studying in the Huu-ay-aht archives for his Master’s thesis research in 2015. After completing his MA degree in 2018, Marc has been the Health, Environment, and Communities Research Lab (HEC Lab) Manager.

Becki Nookemis is a member of Huu-ay-aht First Nations. She graduated from Vancouver Island University in 2018 with a BA degree in Psychology, First Nations Studies and a Certificate of Addiction Studies. Becki has engaged in this research for the past two and a half years.

Jon Aarssen is a mamaałni MA candidate in the Department of Geography and Planning at Queen’s University. For the past three years he has worked with Huu-ay-aht to gather and share personal experiences of negotiations and implementation of the Maa-nulth Treaty.

Heather Castleden (corresponding author) is a mamaałni Canada Research Chair in Reconciling Relations for Health, Environments, and Communities and Associate Professor at Queen’s University. The Director of the HEC Lab, Heather has worked in solidarity with Huu-ay-aht First Nations through a research partnership for the past 15 years.

 

Notes
1. The comprehensive land claims agreement process – the Canada wide process of negotiating land and self-government provisions – was initiated in 1973. The BC-specific process built off the larger land claims negotiation framework to create a distinctly BC framework directed by the independent and tripartite BC Treaty Commission.
2. The five Nuu-chah-nulth Nations of the Maa-nulth Treaty Society are: Huu-ay-aht First Nations; Toquaht Nation; Uchucklesaht Tribe; Ucluelet First Nations; and Ka:’yu:’k’t’h’/Chek’tle- s7et’h’ First Nations.
3. In March 2019, the federal government announced it would eliminate outstanding treaty negotiation loans, a decision that is long overdue and has been called for by modern treaty nations since the outset of negotiations (BCTC, 2019). Specifically, Budget 2019 announced $1.4 billion in reimbursements for loans to Indigenous groups for treaty negotiations and $4.5 million to settle land claims and to ‘advance reconciliation’.
4. For a comprehensive list of challenges implementing the Maa-nulth Treaty and recommendations during the first six years of implementation, see Sloan Morgan, Castleden & Huu-ay-aht First Nations, 2018, p. 325-327.
5. We recognize concerns that modern treaties are mechanisms used to translate Indigenous territories into property (e.g., Atleo, 2010; Mack, 2009) and thus territories into sites of capital accumulation.
6. In 2019 we (authors) received a new Insight Grant from the Social Sciences and Humanities Research Council of Canada to continue our research into the implementation of the Maa-nulth treaty.

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