Feb 2/98: Delgamuukw strengthens treaty negotiations


"The Delgamuukw decision points Native and non-Native alike down a path neither can afford. This is a time to talk, not walk."

Vancouver Sun
February 2, 1998, p. A10

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.]

The silence since the Delgamuukw decision is finally being broken. The significance of that decision in December by the Supreme Court of Canada is profound, but puzzling out what it means for the treaty process has kept normally garrulous politicians on all sides - in the provincial and federal governments and in the Indian community - quiet until last weekend. With its confirmation that aboriginals still have title to their land if they have not surrendered it in treaties, and that they have the right to exclusive use and occupation of the land, the court greatly strengthened the hand of the Indians in their negotiations with governments over land claims.

Title is not absolute. The federal and provincial governments may infringe on the Indians' title - to further economic development, for example. But they must consult with the Indians and compensate them fairly. What is the bill for all the trees that have been cut and ore mined since BC became a province and began exploiting these resources? It boggles the mind. Until the Indians and the governments agree to some ground rules for compensation, uncertainty and delays will debilitate the economy. The urgency of settling land claims is more apparent than ever.

The Delgamuukw decision also makes moot former premier Mike Harcourt's offer to transfer up to five per cent of BC to the Indians, assuming they amounted to five per cent of the population. There is now no ceiling, population-based or otherwise. But however emboldened Indians may be feeling, they have reason to act with restraint. Compensation claims that would beggar the governments will get nowhere. To prove aboriginal title to specific territory they would have to go to court, which is time consuming and costly. Negotiating a land and cash settlement might mean settling for less land, but assuming control over the resources sooner.

The Nisga'a tribal council, under the leadership of president Joe Gosnell, signed an agreement in principle nearly two years ago that would give them 1,930 square kilometres of land in the Nass River Valley northeast of Prince Rupert and $190 million in cash. Criticized for being too generous with land and authority, and for being undemocratic, the Nisga'a AIP appears moderate in light of the Delgamuukw decision. The Nisga'a who negotiated for 20 years, said they would accept less than 10 per cent of the land they viewed as their traditional territory. They agreed to manage their natural resources on a meet-or-beat basis - that is, they can impose tougher restrictions on loggers than the provincial government does, but they can't require anything less. If they set up a police force and courts, provincial standards apply. The Charter of Rights applies. Their tax-free status would disappear over time.

Over the last two years the negotiators have been working up to a final agreement. Government and Nisga'a negotiators had hoped to have an agreement by now. It would be no surprise to learn, however, that some Nisga'a, who thought from the beginning they were getting too little land, are pressuring band leaders to hold out for more, in view of the court decision on aboriginal title. The importance of completing a treaty with the Nisga'a cannot be overstated. It would show we can negotiate treaties with Indians that recognize their property rights as the people who were here first and their need for resources on which they can build economic independence - and treaties that respect their cultural heritage. But the status of the Nisga'a negotiations is now up in the air, and the treaty process, in which 51 First Nations are currently involved, has also been deeply shaken by the Delgamuukw decision. All parties need to arrive at some common ground on the decision's meaning if land claims treaties are to stay on track.

In the meantime, some bottom lines: The treaties must avoid terms that damage the economy. Clarity on the cost to the taxpayer is essential. There should be finality - no possibility of re-opening the deal to meet new land or money claims. An end to payments from Indian Affairs should be in sight. Finally, treaties are too complicated to be put to referendum. Authority to approve them should rest with the legislatures.

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Full text of December 11, 1997 ruling:

Index of Delgamuukw/Gitksan articles, analysis, and commentary:

Background information on Delgamuukw case:

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