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JUSTICE AT LAST OR JUST MORE OF THE PAST? - AN EVALUATION OF THE BRITISH COLUMBIA TREATY COMMISSION

Author: Michael Begg
Issue: Volume 2, Number 1 (April 1995)

Introduction

 

If 1994 was the Year of Indigenous Peoples, recent events in Australasia and Canada suggest that the 1990s may come to be known as the Decade of Indigenous Peoples.

 

This suggestion may be too optimistic.  What is sure is that events of the past two decades in Australia, New Zealand, Canada and elsewhere have led to growing support of aboriginal rights in the law and in public opinion.  This support has led to negotiations between governments and indigenous peoples over title to land and other aboriginal rights.

 

These negotiations are more likely to succeed if the different jurisdictions share their experience.  To that end, this paper discusses a new agency intended to help create new, equitable treaties between the indigenous peoples of British Columbia and the governments of that Province and of Canada.  The history of land claims in British Columbia has its own peculiarities.  But the basic problem of coming to fair terms with the indigenous peoples in British Columbia is the same as in other countries.  This paper evaluates British Columbia's Treaty Commission in the hope that readers can draw ideas from the Canadian experience.

 

The British Columbia Treaty Commission: Justice at Last or Just More of the Past?

 

The British Columbia Treaty Commission (BCTC) is not very well understood by the Canadian public.[1] Yet to understand the BCTC is to understand the past and future of land claims in the Province.  There are 200 indigenous bands in British Columbia.  They have made land claims in every region of the province.[2] The BCTC will be involved with these claims.  Its involvement should provide us with valuable lessons about how to--or how not to--deal with indigenous land claims.

 

What, then, is the BCTC?  Why do we have it?  What are the alternatives?  How effective will it be?  Will it solve the native land question once and for all?  To answer these questions, one must first put the Treaty Commission into historical context.

 

A Brief History of the Land Question in British Columbia

 

In the 1800s and most of the 1900s, the government of British Columbia (BC) did not acknowledge indigenous (of "First Nations") rights or title to land.  The Province left aboriginal affairs to the federal government.[3] BC is unique in Canada in that there are almost no treaties in the province, aside from the 14 Douglas Treaties from the 1840s and '50s, which cover a few hundred acres of Vancouver Island, and the extension of Alberta's Treaty 8 into northern BC at the turn of the century.[4]

 

In 1973, the Supreme Court of Canada decided the Calder (5] case.  The Court's judgement, though equivocal, gave sufficient support to the principle of indigenous land title to prompt a response by the federal government.  That response was a comprehensive claims policy--a broad set of negotiations over indigenous rights and ownership of land.[6] BC refused to participate in the negotiations.  Although Canada began negotiations with the Nisga'a Nation in BC in 1976 (Calder was a member of that Nation), the federal position was that the province must participate.[7] It soon became clear that the federal government would negotiate no other land claims in BC unless the province joined the talks.[8]

 

In response to court decisions increasingly favourable to First Nations and the consequent economic costs and uncertainty in resource industries and provincial land management programs, British Columbia in 1988 formed the Ministry of Native Affairs, renamed Aboriginal Affairs in 1991.[9] In 1989 the Premier's Council on Native Affairs was convened to meet with First Nations to discuss aboriginal issues.  This Council recommended that the province negotiate.[10]

 

On 16 August 1990, in the wake of wide-ranging native protests and blockades inspired by the Oka incident in Quebec, the province announced that it would negotiate land claims.[11] However, the province still would not concede that the starting point for negotiations was the acknowledgement of indigenous title.[12] And the province accepted the federal government's negotiating policy, the so-called extinguishment-of-rights condition.[13] Under this policy, the indigenous claimant must agree to surrender all rights over the treaty lands that are inconsistent with the terms of the treaty.[14]

 

On 3 December, 1990, the federal government, British Columbia and some First Nations leaders agreed to establish a Task Force to create a framework for negotiations.  The members were appointed on 17 January 1991.[15] The Task Force had six months to complete its report.  During that time, it consulted a new group of indigenous leaders that became known as the First Nations Summit.  The first Summit meeting was held 4-6 February 1991.[16] The remaining four meetings were closed to the media, causing other First Nations groups, notably the Union of BC Indian Chiefs, to suggest that the Task Force process was an elitist, "'top-down' approach" and lacked grass-roots support among natives. [17] That Spring, British Columbia established a Third Party Advisory Committee "to provide policy and negotiating advice to ministers on matters relating to treaties."[18] The committee comprises leaders of resource industries, and representatives of small communities such as the Union of BC Municipalities.[19]

 

The Task Force Report was released on 28 June 1991.[20] It contained 19 recommendations.  Its key features were the freedom of the three parties to introduce any issue into the negotiations; that the negotiations are to start as soon as the First Nations are ready; an independent treaty commission; a six-stage process for negotiating; and interim measures agreements available during the negotiations.[21]

 

The federal government accepted all of the recommendations on 13 November 1991.[22] British Columbia also accepted the recommendations.  It then remained to the governments to decide who would pay for what, and to set up the Treaty Commission.

 

The Treaty Commission was established on 21 September 1992 by a joint agreement of the governments of British Columbia and Canada and of the 19-month-old First Nations Summit,[23] which had become, in eyes of both levels of government, the official representative of the indigenous peoples of British Columbia for the purposes of land claims negotiations.  The commissioners were appointed in April 1993.[24] British Columbia passed the Treaty Commission Act[25] on 26 May 1993.[26] A month later, on June 21, 1993, British Columbia and Canada concluded more than a year of negotiations when they agreed to guidelines for sharing the costs of negotiations, including compensation of third parties (e.g. forestry or mining companies), loans to First Nations to enable them to negotiate, and the costs of the Treaty Commission and of public consultation[27].  So the stage was set.  The first two steps had been taken.  British Columbia had agreed to join Canada and First Nations in negotiations, and the negotiating process was established, with a cost-sharing agreement, a special interests consultation group, and a Commission. And in December 1993, the claims begam to pour in to British Columbia Treaty Commissions office.

 

A Facilitative Agency

 

The Treaty Commission is not a commission as that word is often meant.  It has no power to investigate, make conclusions, or submit recommendations.  Rather, it is a "facilitative" agency whose duty is to keep negotiations organised and whose power is primarily persuasive.[28]

 

Neither the BCTC Agreement(29] nor the Treaty Commission Act(30] gives the BCTC power over the negotiations,[31] but they do list the Commission's duties.  The BCTC must assess the readiness of the parties to negotiate;[32] distribute funds to First Nations so they can negotiate;[33] encourage timely negotiations;[34] arrange mediation or arbitration if all parties request it; [35] and keep a public record of the status of negotiations[36]. Its primary function, then, is to impartially keep the negotiations on track by arranging timetables and managing expenses.  Secondarily, it reports to government on the negotiations.

 

The nature of the duties amounts to an unofficial power:  The six-stage structure of the negotiations, as monitored, reported on[37] and assisted by the BCTC, should prevent negotiations from bogging down as they would in a more random, unguided process.[38] The Commission cannot, however, order the parties to talk, nor can it settle a debated question for the parties.  Land claims talks are complex and highly charged.  This unofficial power may be inadequate.[39]

 

Catalyst for Consensus

 

The Commission is meant to be a catalyst, a coordinator for three-way, complex negotiations.  But its particular design has an ideological basis.  That basis is the new political panacea: Consensus.  BC and Canada deliberately created a commission opposite in design from a judicial body, because "costly litigation" is seen as an inadequate way to resolve the complex social and economic issues of a comprehensive land claim.[40] A judicial body is one thing.  But can the Commission be granted some powers to make it a more effective catalyst?

 

Alternatives: Court, Masseuse, or Middle Ground?

 

Aside from choosing between the Courts and an agency to massage negotiations, what can be done?  Two examples are instructive.  The first is the U.S. Indian Claims Commission.  The other is the new Canadian commission of the same name.

 

The U.S. I.C.C. was created to achieve final settlement of indigenous land claims.[41] It had judicial power, but was meant to hear moral as well as legal claims[42] and be free from the delays of the Courts.  It also had the power to investigate claims independently.[43] Despite granting awards totalling more than $800 million dollars during its existence,[44] the Commission failed because of its final design and conservative interpretation of its role.[45] First, it could only grant money awards, not land.[46] Second, indigenous peoples were not involved in its creation, so it lacked legitimacy.[47] Third, the Commission behaved too much like a court.  Its proceedings were slow, it interpreted moral claims narrowly, and it rarely exercised its powers of investigation.[48]

 

Yet the U.S. I.C.C., in concept and in its final design, provides valuable lessons for Canada.  First, one of its original conceptions was as "a fact-finding body to investigate 'every conceivable' Indian claim and make 'recommendations to Congress for action or nonaction."[49] Perhaps regrettably, its final design was much different than this conception.  Second, it warns that the negotiation process will be more arduous than expected.[50] Third, that First Nations must be involved in the process from the start, and that the involvement and consultation must be broad, including as many natives as possible.[51] Fourth, that a broad range of remedies must be available.[52] Fifth, that information-gathering is valuable, since it provides a historical record useful not only for negotiations but for raising the consciousness of the public about the problem.[53] And fifth, that a commission should not shrink from its role, but rather be proactive.

 

The U.S. Indian Claims Commission failed more because of its constraints, not its concept.  Reformulated with indigenous input and more proactive, it might have been more successful.  It is not a realistic model for British Columbia, with the lack of treaties to interpret and the political rejection of an adjudicatory body, but there must be an intermediate position.

 

The Canadian Indian Claims Commission may occupy this middle position.  Created under the  Inquiries Act ,[54] it has full investigatory powers. [55] Its role is limited to specific claims.[56] But it has the power to review a rejection of a claim by the Minister or a government decision about compensation criteria.[57] It can also mediate disputes between the government and the claimant. [58]. Upon its review, it holds an inquiry and writes a report.  Although the report's recommendations do not bind the government, [59] the reports both educate the public about indigenous claims and rights, and bring pressure upon the government to comply.  Two reports have been issued so far.[60] In one, the Commission finds that the Athabasca Denesuline Nation (northern Saskatchewan) has the right to hunt, fish and trap throughout their territories.[61]

 

The Canadian Indian Claims Commission is similar to one of the early conceptions of the U.S. Commission: an impartial body, holding fact-finding inquiries and assessing claims.  Could the BC Treaty Commission not benefit from the power to investigate a particularly thorny issue that is holding up negotiations, and issue a report?  Some such decision-making or advisory power would reduce stalemates.[62]

 

  Solving the land question

 

BC's Treaty Commission cannot on its own solve the land question.  Its role is important, but it is up to BC, Canada and the First Nations to settle the claims.

 

The most important hurdle to settlement is the need for a consistent provincial negotiating position, or "mandate."[63] Without a mandate, squabbling among ministries will nullify BC's success at the table and doom the negotiations to prolonged disarray and eventual failure.  Part of the mandate must include a compensation policy for non-indigenous peoples directly affected by the treaties.  Such a policy has proven elusive in the past.[64]

 

A second obstacle is legitimacy.  The province's mandate must be acceptable to the public--if it is not, the outcome of any treaty will be rejected by many non-indigenous peoples.[65] Similarly, for the BCTC to maintain its impartiality, the Summit should reflect the views of the "grass roots" in indigenous communities, and avoid the danger of appearing to be a "top-down" group of leaders sympathetic to the government.[66] BC relies on the Third Party Advisory Committee for input to the treaty mandate process from the resource industries and municipalities.  But no public consultation process feeds the mandate, nor is one planned during the confidential negotiations. [67] It seems that each treaty is to be sprung upon the public like a jack-in-the-box.[68]

 

Applying the lessons of the U.S. Indian Claims Commission, the BCTC must be able to address legitimacy.  With its information gathering and reporting duties, the Treaty Commission may be able to foster an environment for general public acceptance of the treaties, or at least prepare the public for them.  The BCTC may have no choice but to adopt an educational role, a role more important than that of facilitator.

 

  Conclusion

 

The BCTC is not a panacea.  It is not a powerful commission that will swiftly resolve aboriginal land claims in British Columbia.  It is unlikely to receive investigatory powers from its makers, but the commissioners could and should zealously do all they can to promote the treaty-making process among British Columbians.

 

So, the question:  Justice at last or just more of the past?  Well, neither, really.  Just a step, one taken with confidence but not enough nerve.  We shall see whether the British Columbia Treaty Commission can help make the difference in the resolution of the land question.  It may do so, but the greatest steps have yet to be taken.

 

NOTES

 

1.  See, for example, Greg Joyce, "Supreme Court to hear native claim" (11 March 1994)  Times-Colonist A3.  Here, the Commission is said to be "designed to deal with the dozens of unsettled land claims throughout B.C."  Such statements, though not wrong, may give the impression that the Commission has the power to resolve the claims by itself.

 

2.  Ministry of Native Affairs, "A New Native Land Claims Policy for British Columbia" [advertisement] (September 1990) 8(20)  Kahtou 25.  At that time, the federal government had accepted 19 land claims in BC.  Three more are under review, with 8 more expected.  In 1991 the Sechelt claim became the twentieth comprehensive claim accepted: Lloyd Dolha, "Sechelt Claim Accepted for Negotiation" (May 1991) 9(4)  Kahtou 3.

 

3.  For a lucid account of the Province's relationship to aboriginal peoples, see the British Columbia Claims Task Force,  Report of the British Columbia Claims Task Force (Vancouver: 1991) [hereinafter Task Force Report] at 5-14.

 

4.  Id .

 

5 Calder v British Columbia (Attorney General), [1973] SCR 313

 

6.  Indian Affairs and Northern Development,  Comprehensive Land Claims Policy (Ottawa: 1987) at 5, and Indian and Northern Affairs Canada,  Federal Policy for the Settlement of Native Claims (Ottawa: 1993) [hereinafter 1993 Policy] at 5.  Like the uncertain judgement, however, the federal government's policy was less than revolutionary.  See below, note 13, and accompanying text on the extinguishment of rights.

 

7.  1993 Policy,  ibid ., at 6.     8.  The inconvenience to the province of this policy became acute as the aboriginal land question began to hamper investment in resource industries and interfere with the management of provincial Crown land, which comprises 93% of British Columbia.  This point was noted in the Meares Island case: [1985] 3 W.W.R. 577, 61 B.C.L.R. 145 at 149-50 (BCLR).  As shall be seen, these economic considerations, made more serious by decisions such as  Sioui ,  Guerin and  Sparrow (Lloyd Dolha, "Province Agrees to Negotiate Land Claims" (Sept 1990) 8(10)  Kahtou News 1 at 3), which made land management and resource exploitation all the more difficult, were a primary impetus behind British Columbia's decision to negotiate land claims.

 

9.  On the importance of the economic impacts, see Lloyd Dolha,  ibid . at 3, at the reference to the report to the Ministry of Native Affairs titled,  Public Attitudes Toward Native Issues . 10.  Task Force Report, above, note 3, at 14.

 

11.  Lloyd Dolha, "Province Agrees to Negotiate Land Claims" (September 1990) 8(10) Kahtou  1.

 

12.  This position sparked protest.  Id . and Lloyd Dolha, "Socred stance dictates resignation:  Commissioner cites Premier's non-recognition of title as reason" (September 1990) 8(10)  Kahtou 10.

 

13.  Lloyd Dolha, "Provincial Cabinet Face Native Leaders" (November 1990) 8(12)  Kahtou 1, and Lloyd Dolha, "Extinguishment Agenda Exposed" (December 1991) 9(11)  Kahtou 1.

 

14.  Indian and Northern Affairs Canada,  Federal Policy for the Settlement of Native Claims (Ottawa: 1993).

 

15.  Lloyd Dolha, "First Nations Task Force Members Appointed" (February 1991) 9(1)  Kahtou 1.  The Union of BC Indian Chiefs (UBCIC) declined to put a representative on the Task Force, claiming that the process was redundant.  The previous summer, UBCIC had submitted a  Comprehensive Framework Treaty Proposal to the government.  As far as the chiefs were concerned, the Task Force was redundant.  Further, UBCIC maintained that the province should not be a party to negotiations; the negotiations must be nation-to-nation.  Lloyd Dolha, "Cracks appear between B.C.'s native groups" (October 1990) 8(12)  Kahtou 2.

 

16.  Lloyd Dolha, "Task Force Seeks Direction from First Nations" (March 1991) 9(2)  Kahtou 1.

 

17.  Union of B.C. Indian Chiefs,  Buffalo Stampede of the 1990s: The Report of the B.C. Claims Task Force at 9, and UBCIC, Press Release: "Chiefs Union Questions Legitimacy of Treaty Commission" (May 15, 1992).

 

18.  Ministry of Aboriginal Affairs, Press Release: "Treaty Negotiations in British Columbia: A Chronology" (1993).

 

19.  Gordon Hamilton, "Third-party advisory group believes talks on right track" (2 June 1993)  Vancouver Sun D3.

 

20.  Task Force Report, above, note 3.

 

21.  Lloyd Dolha, "Task Force Awaits Province" (August 1991) 9(7)  Kahtou 1.

 

22.  Lloyd Dolha, "Extinguishment Agenda Exposed" (December 1991) 9(11)  Kahtou 1.  Then Minister of Indian Affairs and Northern Development Tom Siddon said the government would negotiate self-government agreements, but would maintain its extinguishment policy.  He also claimed that the uncertainty surrounding land claims affected at least 1,500 jobs and $1 billion of investment in the forestry and mining sector, indicating the economic incentive for making treaties. Agreement Between the First Nations Summit and Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of the Province of British Columbia

 

23.  Agreement Between the First Nations Summit and Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of the Province of British Columbia (21 September 1992).

 

24.  Tom Siddon, "Minister Siddon Appoints BC Treaty Commissioners" [text of Minister's speech] (5 May 1993) 2(7) Kahtou News  10.

 

25.  S.B.C. 1993, c.4.

 

26.  See "Treaty Commission Act introduced May 26, 1993" and accompanying articles (8 June 1993) 2(9) Kahtou 8, and Justine Hunter, "Native official attacks commission" (27 May 1993) Vancouver Sun  A3.

 

27.   Memorandum of Understanding Between Canada and British Columbia Respecting the Sharing of Pre-treaty Costs, Settlement Costs, Implementation Costs and the Costs of Self-Government  (June 21, 1993).

 

28.  Minister Siddon emphasised this point at the introduction of the commissioners in April 1993.  Tom Siddon, "Minister Siddon Appoints BC Treaty Commissioners" [text of Minister's speech] (5 May 1993) 2(7)  Kahtou News  10.

 

29. Agreement Between the First Nations Summit and Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of the Province of British Columbia  (21 September 1992) [hereinafter BCTC Agreement].

 

30. Treaty Commission Act , S.B.C. 1993, c.4.

 

31.  Its only power is that of a natural person, i.e. to make contracts, sue and be sued.  Act, s. 5(2).

 

32.  Agreement, s. 7.1(f) (with a set of criteria); Act, s. 5(2)(a).

 

33.  Agreement, s. 7.1(e); Act, s. 5(2)(b).

 

34.  Agreement, s. 7.1(g); Act, s. 5(2)(c).

 

35.  Agreement, 7.1(h); Act, s. 5(2)(d).

 

37.  Agreement, s. 7.1(m).

 

38.  Interview with Mike Price, Senior Policy Analyst, Corporate Land Policy Branch, Corporate Policy Department, Ministry of Environment, Lands and Parks, 15 March 1994.  The Commission's busy schedule at present, with 45-day meetings to set up and attend, demonstrates the point.  For each claim (there were 38 as of 7 January 1994), the BCTC must set up a meeting between the parties within 45 days.  The parties confirm their intent to negotiate, and set out the criteria for readiness.  The BCTC then must monitor the parties to see whether the criteria have been met.  Once the criteria have been met, the Commission will set the timetable, deciding who goes first and who waits.  The province's plan is to start 6 negotiations this year, and 4 to 6 the next year, and so on.  The negotiations are expected (hopefully) to last an average of 3 years, so in three years there could be 18 sets of talks running simultaneously.  Interview with Marlyn Simpson, Manager, Native Affairs and Land Tenure, Land Programs Branch, BC Lands, Ministry of Environment, Lands and Parks, 8 April 1994.  Rumours, however, abound that the federal government wants to proceed even more cautiously.

 

39.  That was the case in the United States with its Indian Claims Commission (Harvey D. Rosenthal,  Their Day in Court: A History of the Indian Claims Commission  (New York: Garland, 1990) at 113), and this has been the Canadian government's experience:  See Indian and Northern Affairs Canada,  Federal Policy for the Settlement of Native Claims  (Ottawa: 1993), at 20ff.  An extreme example is the Nisga'a Nation negotiation with Canada and (since 1991) British Columbia.  The federal government, in 1976, began the negotiations, expecting to conclude them within two years.  The negotiations have still not reached agreement in principle.  Conversation with Lynn Kennedy, Director, Land Programs Branch, Ministry of Environment, Lands and Parks, 7 April 1994.

 

40.  See Jeffrey Simpson, "The delicate and crucial matter of balancing Canada's Native rights" (30 June 1993)  The [Toronto] Globe & Mail  A16, and Andrew Petter, "'Principled and pragmatic':  NDP Aboriginal Affairs Minister outlines government's policy" (24 April 1992)  Vancouver Sun  A21.  The B.C. Court of Appeal has joined the call for negotiation, not litigation: Delgamuukw v. B.C., [1993] 5 W.W.R. 97 (B.C.C.A.), judgements of Lambert J.A. at 246, 251-2; MacFarlane J.A. at 122, 179-80, and Wallace J.A. at 234.

 

41.  Rosenthal, above, note 39, at 3-5.  370 treaties for two billion acres, leaving the natives on two hundred reservations with 140 million acres (in 1868) and eventually only 50 million acres (1933).   42.  Indian Claims Commission Act of 1946 , 60 Stat. 1049 (1946), 25 U.S.C.A. '' 70-70v. (U.S. I.C.C. Act), s. 2(5) or ' 70a(5); Rosenthal, ibid. at 49-50.

 

43.  U.S. I.C.C. Act, s. 13(b) or ' 70l(b).

 

44.  Rosenthal, above, note 39, at 267.   45.  Ibid.  at 245.

 

46.  Ibid.  at 250ff.  At 255:  The awards were per capita and "often small and quickly squandered".

 

47.  Ibid.  at 246.  The Commission was seen by some as a measure by government for government.  The Union of BC Indian Chiefs has accused the province of self-serving motives in setting up the Task Force and Treaty Commission: "Union Condemns Principles" (February 1991) 9(1)  Kahtou  4.

 

48.  Rosenthal,  ibid.  at 114 and 249:  The "Commission-Court was improperly constituted and narrowly construed its jurisdiction".  On investigatory powers, see Kenneth Lysyk, "The United States Indian Claims Commission", in Indian-Eskimo Association of Canada,  Native Rights in Canada  (Toronto: 1970) at 20.  And Getches, David H. and Charles F. Wilkinson, eds.,  Federal Indian Law: Cases and Materials  (St. Paul: West, 1986) at 186-87.

 

49.  Ibid.  at 59.  And at 248: "the very purpose of the act was to relieve the tribes of the necessity of 'fighting tiresome battles through the intricate legal apparatus of the white world.'"

 

50.  The BCTC has already been swamped by claims.  "Treaty Commission swamped by anxious First Nations" (3 January 1994) 11(21)  Windspeaker  5.  As of January 7, there were 38 claims, for all of which meetings have to be held within 45 days.  The Nisga'a claim presents an intimidating demonstration that negotiation may not be cheaper or quicker than litigation.  For example, the Nisga'a comprehensive treaty negotiations started in 1976, and only in 1993 did they reach a framework agreement.  It will be at least a year before there is Agreement in Principle, and years before a final agreement.  Interview with Marlyn Simpson, above, note 38.

 

51.  Rosenthal, above, note 39, at 246.  They were not involved in the creation of the I.C.C.  Note that the BCTC may not have the support of a majority of natives in British Columbia.

 

52.  Ibid.  at 245.

 

53.  Ibid.  at 256.

 

54.  Inquiries Act , R.S.C. 1985, c. I-11, s. 3; created by O.I.C. P.C. 1991-1329 and P.C. 1992-1730.  It is interesting that section 3 seems to envision a temporary commission to deal with a specific problem, rather than a permanent body like the ICC.  Evidently, the Orders-in-Council create a batch of commissions for each of the commissioners.  (In addition to Harry LaForme, Chief Commissioner, there are six others, one of whom, Carole Corcoran, is also a BC Treaty Commissioner.)

 

55.  E.g. the power of subpoena.   Ibid. , ss. 4, 5 and 8.  The commissioners can also order the production of evidence (s. 4(b)) and enter any public office (s. 7(a)) to examine documents (s. 7(b)).

 

56.  Indian Claims Commission,  Information Booklet  (Ottawa: Supply and Services Canada, 1992), and  Submission Guide  (Ottawa: Supply and Services Canada, 1992).  Specific claims arise "from alleged non-fulfillment of Indian treaties and other lawful obligations, or the improper administration of lands and other assets . . . ."

 

57.  Id.

 

59.  Consolidated Terms of Reference, pursuant to O.I.C. P.C. 1991-1329 and P.C. 1992-1730.

 

60. Indian Claims Commission, Athabasca Denesuline Inquiry Into the Claim of the Fond du Lac, Black Lake and Hatchet Lake First Nations (Ottawa: December 1993); and Primrose Lake Air Weapons Range Report On: Canoe Lake First Nations Rejected Claim Inquiry; Cold Lake Cree Nation Rejected Claim Inquiry (Ottawa: August 1993).

 

61.  "Indian Claims Commission supports hunting rights of Saskatchewan bands" (17 January 1994) 11(22)  Windspeaker  11.

 

62.  The possibility of arbitration or mediation depends upon unanimous agreement of all three parties.  The suggestion here is to give the BCTC the power to investigate and make a report on any dispute referred to it by any party.  As with the Canadian ICC, the recommendations would not be binding.  Such a report would be persuasive and would create a record of findings useful in the negotiations.

 

63.  The federal government already has a mandate.  Note that its extinguishment requirement has caused many aboriginal leaders to reject negotiation.  See Union of B.C. Indian Chiefs,  Buffalo Stampede of the 1990s: The Report of the B.C. Claims Task Force (Vancouver: 1991) at 7.

 

64.  The government is scrambling to develop a coherent mandate, with the tangle of interministry working groups and global and sectoral policy development dilemmas one expects for such an important policy.  Interview with Darcey Dobell, A/Manager of Policy Mandate Development, Treaty Group, Ministry of Aboriginal Affairs, 6 April 1994.  Inconsistent viewpoints among provincial ministries has been a recurrent problem at the Nisga'a talks since BC joined them in 1991.  Interview with Marlyn Simpson, above, note 38, 15 March 1994.

 

65.  The importance of this seemingly facile statement is evident from the hostile reaction to the Commission On Resources and Environment (C.O.R.E.) plan for Vancouver Island.  The C.O.R.E. process involved extensive, expensive attempts at public education along the way, and featured a consensus-building process that would be the envy of the Harvard ADR think-tanks.  The BCTC process has already proven to be much more closed than the C.O.R.E. efforts--even the Task Force conducted limited consultation--and the negotiations are likely to be even more so.  There are already signs of unrest.  Upon the signing of the federal-provincial cost-sharing agreement, reporters and opposition politicians were frustrated in the government's (understandable) refusal to disclose the possible costs.  See "Funding deal boosts BC land claims talks" (22 June 1993) 6(80) Financial Post Daily 3; Stewart Bell, "Government land-claim share pact should get us to table, Natives say" (22 June 1993)  Vancouver Sun  A3; Vaughn Palmer, "This landmark stands on shaky ground" (22 June 1993)  Vancouver Sun  A14; and "Land claims deal labelled liability for taxpayers" (22 June 1993)  Vancouver Sun  B6.

 

66.  See Union of B.C. Indian Chiefs (UBCIC),  Buffalo Stampede of the 1990s: The Report of the B.C. Claims Task Force  (Vancouver: 1991) at 9, and UBCIC, Press Release: "Chiefs Union Questions Legitimacy of Treaty Commission" (15 May 1992).

 

67.  Aboriginal Affairs is satisfied with the general polls commissioned by the Premier's Office.  Interview with Darcey Dobell, above, note 64.

 

68.  On the importance of prior consultation and openness in comprehensive land claims, see the following articles on the reaction of natives to Minister Irwin's announcement of the imminent native self-government and shutdown of Indian and Northern Affairs: D.B. Smith, "Irwin storms out of chiefs' meeting" and "Self-government definition elusive" (28 February 1994) 11(25)  Windspeaker  1 and 2, respectively; and D.B. Smith, "Self-government talks serve Ottawa's agenda - Mercredi" (14 March 1994) 11 (26) Windspeaker   


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