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Flawed process for BC treaty negotiations costing billions of dollars with no end in sight

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Release Date: July 28, 2008

VANCOUVER, BC-Government efforts to negotiate treaties with BC Indian bands to date have cost more than $1.1 billion and are in danger of creating a burgeoning bureaucracy with little incentive to reach final agreements, concludes a new report released today by the Fraser Institute, an independent think tank.

"After 15 years of negotiation with BC Indian bands at a cost of more than $1.1 billion, the province has only eight treaties that have either been passed, initialled or are in the final negotiating stage," said Mark Milke, author of Incomplete, Illiberal, and Expensive: A Review of 15 Years of Treaty Negotiations in British Columbia and Proposals for Reform.

"Even more worrying, government representatives have taken negotiating positions that will lead to never-ending discussions and the creation of massive legal and regulatory bodies to support ongoing consultation. Effectively, this means the treaty process never ends."

Milke's report reviews the treaty process in British Columbia since 1993, its assumptions, costs, and outcomes as evidenced in signed treaties, final agreements, and agreements in principle. It analyzes the current federal and British Columbia government approaches to land claims and the initial hopes: signed treaties, finality, fairness, and a desirable liberal approach to relationships between peoples.

Milke concludes that the BC treaty process suffers from three main flaws:

• The process is incomplete and is creating a "bureaucratic Leviathan" that will ensure chronic, on-going consultation and negotiation, and substantial funding;

• The process and negotiating positions are often illiberal, pitting individual Canadians against other Canadians, in a manner not required by the Charter of Rights and Freedoms;

• The true cost of negotiations and settlements have been understated or omitted.

Milke found that even the small number of treaties reached to date contain extensive requirements for further consultation and negotiation and in a manner unlike regular municipal-provincial consultation. For example, the Tsawwassen treaty has 38 sections with explicit requirements for one or all parties to consult or negotiate agreements in the future-for just 271 Tsawwassen members who live on Tsawwassen land. The Maa-Nulth treaty has 62 areas with explicit requirements for one or all parties to consult or negotiate agreements in the future.

"Governments are signing treaties without requiring aboriginal groups to relinquish rights to certain claims. This is like an insurance company agreeing to pay out settlement claims without requiring the driver to give up their claim against the company," he said.

Milke also notes that governments are endorsing positions that discriminate against non-aboriginal people, the most well-known being the endorsement of a race-based commercial fishery on the West Coast that gives preference to aboriginal fishermen.

A double-standard also occurs in local governance where aboriginal governments are being given preferential tax treatment.

"No other municipal entity in the country-which federal and BC governments claim aboriginal governments are akin to-are given such generous financing arrangements. Municipal financing in the rest of British Columbia and Canada is almost the exact reverse of the Tsawwassen deal," Milke said.

Despite this criticism of the process, the report notes some positive aspects to the treaties that have been signed or are in the pipeline. These include fee simple property ownership of reserve land, an end to Indian Act authority, and acceptance of the principle that on-reserve status Indians will be subject to taxation.

"This is all a step in the direction of accountability by linking government services with taxes paid," Milke said.

The report concludes by recommending that governments incorporate greater disclosure, fairness, and fiscal responsibility in their negotiating positions. Among the key recommendations:

• Continue transfers of land and conversion of existing land to fee simple ownership;

• Ensure aboriginal governments have the same taxing powers as other BC municipalities;

• Taxation and voting rights should apply equally to all aboriginals and non-aboriginals living on aboriginal land;

• Governments should provide a full accounting of estimated expenditures for all aspects of treaty settlement, including land transfers;

• Outstanding claims against BC and Canada should be forsworn as a condition of federal and provincial agreement to treaties;

• Overlap between aboriginal claimants should be settled before the federal or BC government agrees to any treaties; and

• Governments should move away from the Indian Act and provide more direct funding to individual aboriginals.

"More than $9,500 per BC status Indian has already been spent on negotiations since 1993. This money could have been better spent in direct payments to individual aboriginals, or placed in a trust account for health care, higher education, or part of a down payment on a home," Milke said.

"The current approach where negotiations are dragged out for years and where a large percentage of BC aboriginal governments do not participate is unlikely to change if the incentives do not change."