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Treaty Process Likely to Generate Huge Costs

The Indian industry must be one of the most lucrative in Canada for all its stakeholders except for the working stiffs who fund it but have no say in its dealings. And, oddly enough, for most natives who are supposed to benefit from it. Most aggrieved, however, are Canadians who pay for the cradle-to-grave entitlements natives have; a dependence which in turn perpetuates decay, for which Canadians are blamed, but must continue to pay, or so the chorus of taxpayer-funded lawyers, consultants, politicians, and native leaders tell them.  

Unlike other Canadians, Indians and Inuit are the recipients of approximately $7 billion doled out annually by government. It is from these fiscal transfers that aboriginal organizations derive their incomes, as well as from gas and oil royalties, land claim settlements and the taxation of non-Indians. A livelihood, notes Prof. Tom Flanagan, "that is not earned by working for it." This, together with an immobilizing culture of grievance and blame, forms part of the pathology. Witness the thousands of natives gathered of late to register for the class action residential school bonanza. Some have legitimate cases of sexual abuse to pursue; others have led unhappy lives and wish to make the schools the repository for issues better resolved on the therapist's sofa.  

Indeed, all roads for natives lead to the Courts, especially when it comes to land claims. Bands know that the supreme powers lie with the judges when it comes to aboriginal law. The Lamer Court, explains Fraser Institute scholar Gordon Gibson, "used Section 35 of the Constitution with abandon…plucking concepts out of academic text books or thin air, in order to build up a new and free standing doctrine of aboriginal law uninformed by precedent or reality". Section 35 entrenches special aboriginal treaty privileges, and is not subject to the balancing actions of Section 1 of the Constitution, nor the notwithstanding clause.  

One British columbian (BC) band, the Sechelt, is leading the litigious way. The band has walked away from a signed agreement in principle, hailed by all, including the opposition party, as an exemplar of what the treaty process should be like. Appetites whet doubtless by the introduction of the Nisga'a gold standard, Sechelt chief, Garry Feschuk, declared, "we were not getting enough". The Nisga'a treaty, which was ratified by Victoria and Ottawa without a say from Canadians, cost $490 million, a sum which does not include estimations of minerals, water, fisheries, third party compensation, or the extra $4oo million that taxpayers will transfer to the Nisga'a government over the next 15 years. A province that rejected the Charlottetown Accord by 70 percent has been forced to support a deal that arrogates federal and provincial powers to the band, and makes the rights of non-Nisga'a living on Nisga'a land subject to the goodness of the reigning Indian fiefdom. Like all treaties, this one is locked into the constitution by virtue of Section 35. In the wings await 50-60 BC native bands eager for the same, making an estimation by R.M. Richardson and Associates that pegged the cost of treaty making in BC at $40 billion seem fair.  

In Alberta, natives are restless as well. Five of the Treaty 7 bands have launched a lawsuit seeking to claim title over natural resources such as oil and gas, minerals and timber. One of these bands, the Siksika, has made a bid for Castle Mountain, a region in the Banff National Park. Before heading for the courts, the Siksika hastened to rekindle title by displaying their spiritual attachment to the place. For in the courts of the nation every bit of folklore-inspired evidence counts. Did not the Supreme Court of Canada in the landmark "Delgamuukw" confirm that evidence of continual occupancy can consist of myths, legends and other oral hand-me-downs?  

Title or ownership should have been conferred originally to the degree to which homesteading, or a transformation of material goods with native labor had occurred on contested land. But the willy-nilly transfer of wealth to natives has never followed the logic of homesteading. Instead, asserting some traditional affinity over vast stretches of land is legally accepted.  

Ultimately, the successful reinvigoration of a community's cultural identity must lie with that community alone. As it stands, Canadian society is entrusted with sustaining natives and their culture, and blamed for the inevitable atrophy such an arrangement breeds. Natives with survival instincts can still extricate themselves from tribal settings where property is held in common and powers rest with a central elite. But Canadians cannot escape the shakedown.  


 ©2000 Ilana Mercer
  The Calgary Herald
  July 13



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