The federal government should write off loans made to First Nations in treaty negotiations that are going nowhere, and only fund those talks that are making progress.
Those are among the recommendations being made in a new report by Doug Eyford, a special adviser appointed by the federal government to address the inertia that has turned aboriginal rights into an industry that produces little more than debt for First Nations.
Eyford’s report, A New Direction: Advancing Aboriginal and Treaty Rights, is based on consultation with 104 aboriginal groups, 11 aboriginal organizations, eight provincial and territorial governments, 16 stakeholders and several federal departments and agencies.
Eyford concludes the current comprehensive claims approach, including the BC Treaty process, is not producing the results that they should be.
“There is substance to the assertion that modern treaty-making has contributed to the rise of an aboriginal rights industry,” the report states. “The current funding model is not sustainable and the already high debt burden will escalate if nothing is done.”
Since 1973, the federal government has spent more than $1 billion on loans and contributions to First Nations across Canada to negotiate claims – a full half of which went to First Nations in B.C. to fund negotiations through the BC Treaty process.
Of the 75 claims at various stages of negotiation across Canada, 53 of them are in B.C., which never extinguished native rights through treaties in a comprehensive way. And even in other parts of Canada, where treaties were signed, there remain a number of outstanding claims that suffer from the same inertia as B.C.’s treaty talks.
Eyford found “a conspicuous lack of urgency” in many of the negotiations. When the BC Treaty process was established in 1993, for example, it was expected that treaty-making would be completed by 2000.
“After more than 20 years of negotiations, it is clear those expectations were overly ambitious if not unrealistic,” Eyford concludes.
Only four treaties to date have been concluded in B.C. (not counting the Nisga’a agreement, which had started prior to the BC Treaty process), and only four others are at the final agreement stage.
In B.C., one of the problems is that all First Nations who wished to enter treaty talks were allowed to do so without any kind of proof of title or rights to the territory claimed, and this has resulted in serious problems with overlapping claims and legal disputes.
First Nations have essentially been left to fight it out themselves to try to resolve those overlap issues. Eyford suggests governments step in to help resolve some of those conflicts with overlapping territories and claims.
“The non-rights based approach should be revisited, given legal developments,” Eyford concludes. “One option would be the acceptance of new claims only if the aboriginal group can demonstrate it is the proper rights-holding collective over a specified territory.”
A major problem with the negotiation process is that it is funded largely through loans but without any strict requirements that progress be made. Even when it’s clear that negotiations have failed, many First Nations remain at the table in writing only, for fear that a formal withdrawal from the negotiation process will trigger debt repayment.
“Some aboriginal groups are no longer in active negotiations but have not formally withdrawn from the process because of concerns that Canada will seek repayment of their loans,” Eyford said.
“Debt remains on the balance sheets of aboriginal groups and can affect their credit worthiness, potentially interfering with non-treaty activities.”
Conversely, for those First Nations that are ready and willing to negotiate, the fear of incurring huge debts may be keeping them away from the treaty table.
Eyford also said funding intended for treaty negotiations may end up being used for other purposes.
“Although aboriginal leaders are ultimately accountable to their members for the amount of debt accumulated during negotiations, some are of the opinion that Canada will never collect. This has resulted in a lack of disciplined spending and the use of loan funding for non-treaty purposes.”
Eyford recommends that the federal government forgive the debts incurred for negotiations, abandon those tables that are making no progress, and put reporting criteria in place that will tie future funding to progress.
The First Nations Summit said in a press release that it welcomes Eyford’s report.
“While the current negotiations process in B.C .has taken much longer than originally anticipated, this report clearly indicates we have a collective opportunity to work together to find the necessary and appropriate solutions to move forward.”
