BC's new ‘final’ treaties are anything but — and private landowners will pay the price for decades
Three new indigenous agreements include a 10-year renewal clause and UNDRIP language that lawyers warn strips the legal certainty previous treaties guaranteed — leaving property owners exposed to future claims.
As mentioned in last week’s column, three new treaties have suddenly begun to emerge from BC’s 35-year-long project to complete the Crown’s historic obligation to indigenous people.
That used to mean a measure of certainty and finality, with financial settlements and defined areas of Crown land set aside as traditional territory, or purchased from willing sellers to add to the treaty lands. But these agreements have a new addition that wasn’t seen in the first eight modern treaties signed in BC since 2000.
“Final agreements” with the Kitselas and Kitsumkalum First Nations in northwestern BC and the K’omoks First Nation on Vancouver Island include the usual array of land and cash, including ongoing support payments. And in the preamble of each of these three is the statement that the federal and provincial governments agree that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is the “authoritative source for interpretation of this agreement.”
Scott McInnis, the BC Conservative critic for indigenous relations, said he wants to support the BC Treaty Commission’s work of more than 30 years that led to these three agreements.
“But this NDP government has totally lost it,” McInnis said on X this week.
He noted that while Premier David Eby is desperately looking for ways to amend or at least suspend its own provincial law, the Declaration on the Rights of Indigenous Peoples Act (DRIPA), and trying to protect his government from the recent BC Court of Appeal decision in Gitxaala that would force the province to immediately conform all of its laws to DRIPA, BC, and Canada are putting the UN language into treaties.
“With the premier saying DRIPA and Gitxaala are causing legal chaos, what is he doing enshrining UNDRIP into a constitutional document?” McInnis asked.
A more detailed look is provided by lawyer Robin Junger, a former deputy minister and chief treaty negotiator for BC, now in private practice defending private property owners against the erosion of their property rights. He and other lawyers at his national firm, McMillan LLP, have done a preliminary analysis of the three new treaties.
“UNDRIP appears to have influenced the language used in the new treaty agreements,” the lawyers write. “As a result — and in contrast to other modern-era treaties — the new treaty agreements do not appear to provide the certainty found in prior modern-era treaty agreements.”
The three new agreements “provide processes that may allow for further exercisable rights to be asserted, including through binding arbitration. Private land owners, industrial users of public land, and private owners who use public land are not shielded from such claims.”
As Alex Zoltan reported for the Western Standard this week, the K’omoks treaty is “a living agreement” that requires “periodic renewal” every 10 years to review new court rulings, changes in legislation or policy, innovations from other treaties, and any “unforeseen circumstances” that significantly affect rights or benefits.
It’s called a final agreement at this stage, but final it clearly is not. Even if it is passed by the BC legislature, the House of Commons, and a vote of K’omoks members, it will continue to add more burdens and costs to taxpayers.
Here’s a brief look at what has already been offered to K’omoks First Nation, which has 351 members, 102 of whom live on reserves that will be converted to fee-simple ownership.
The K’omoks will own and govern land parcels totalling 34.42 square kilometres (8,505 acres). They will also have the opportunity to purchase and add up to 15.92 square kilometres (3,934 acres) of pre-approved additional Crown land over time. In terms of financial support, the federal government will provide a one-time capital transfer of $56.5 million.
Additionally, the K’omoks will receive $6.2 million per year from the federal government to support their self-government efforts. The province will contribute one-time funding of $20 million, which will be allocated for forestry, sewer services, economic development, and to advance K’omoks community priorities.
Furthermore, there will be one-time funding of $5.7 million dedicated to fisheries reconciliation and implementation.
Those are the main items, but the addition of UNDRIP creates the likelihood that there will be more to come in the future.
As mentioned in last week’s column, three new treaties have suddenly begun to emerge from BC’s 35-year-long project to complete the Crown’s historic obligation to indigenous people.
www.westernstandard.news
