Reconciliation: First Nations Treaty Making in British Columbia

Reconciliation: First Nations Treaty Making in British Columbia
Tony Penikett
Vancouver: Douglas and McIntyre
2006, 303 pages.

The Supreme Court of Canada issued judgment in 1973 on the land rights of the Nisga’a Indians of the Nass Valley in British Columbia. Named after Frank Calder, a well-known Nisga’a chief and former member of the provincial legislature who initiated the suit, the Calder vs. BC judgment prompted Ottawa to negotiate comprehensive land claims – modern treaties – with Aboriginal peoples whose title to land had not been “extinguished” through historic treaties, or superseded by law.

In the ensuing years, negotiated settlements have been concluded in Northern Quebec, the three territories and, most recently, Labrador. The Nisga’a Nation and the governments of Canada and British Columbia concluded a final agreement in 1998. As a result of a 1983 amendment to Canada’s constitution, rights defined in modern treaties receive constitutional protection. The political map of Canada has been changed, and changed for the better, as a result of Frank Calder.

Reconciliation, by Vancouver-based consultant and former premier of Yukon, Tony Penikett, was published only weeks before Frank Calder’s widely eulogized death and, in my mind, will always be linked with his name and legacy. This is not an easy book, but it is important and should be read widely, particularly by those still to be convinced of the advisability of Aboriginal self-determination and self-government. The book is timely with the government of Canada’s opposition to the United Nations Declaration on the Rights of Indigenous Peoples. Don’t be put off by the out-of-character, “growling” photograph of the author on the inside back cover.

This book is a political practitioner’s contribution to a field crowded with legal, theoretical and polemical writings. It addresses a myriad of questions including: Why does it take so long to negotiate modern treaties? What can be done to improve the negotiating process? How can the required political will to negotiate, conclude and implement agreements be generated and applied? What is the best response for the likes of Mel Smith, for 13 years deputy minister in various agencies of the government of BC, and Rafe Mair, former provincial cabinet minister and radio personality, who condemn modern treaties as racist, divisive and the result of an “Indian industry” of lawyers, consultants, and compliant civil servants and politicians?

British Columbia is the focus of this book, but the questions raised and the answers offered are of national and, indeed, international importance. In an era of sound bites, power lunches and question period theatrics, Penikett has an acute sense of history, something he shares with many Aboriginal peoples. This book contextualizes visions of the future preferred by BC’s Aboriginal leaders in two key historical events: Pontiac’s 1763 “rebellion” against the Crown and the resulting Royal Proclamation by George III to protect the rights of Indians; and the mid-16th century debate in Valladolid, Spain between Dominican Friar Bartolome? de la Casas and lay jurist Juan Gine?s de Sepu?lveda as to the standing of Aboriginal peoples “discovered” in the new world – human beings with rights or natural slaves? Penikett knows full well that Yann Martel’s characterization of Canada as a “hotel” is entirely inapt to Aboriginal peoples to whom Canada is, and has always been, “home.”

The second half of this book reports on technical issues addressed in land claims negotiations: Should “interim measures” be used to implement portions of agreements before complete packages are finalized? Should mediators be used to bridge the sometimes yawning gaps between parties? These chapters draw heavily upon workshops organized by the author through his involvement in Simon Fraser University’s Dialogue and Master of Public Policy programs.

Some of this text is hard going. Reflecting the applied nature of this book and the author’s personal involvement in land claims negotiations in Yukon and BC, the final chapter suggests how to “retool” treaty making. For example, governments should use professional negotiators armed with mandates to “close” deals and be prepared to use mediation to “get to yes.”

This book is a well-written, serious addition to the burgeoning literature of Aboriginal rights, but its most significant contribution lies in the practical advice it offers to those negotiating and implementing Aboriginal self-government arrangements to the benefit of Aboriginal and non-Aboriginal Canadians alike.

Terry Fenge is an Ottawa-based consultant with more than 20 years of experience working with Northern Aboriginal peoples. From 1986 to 1992, he was research director of the Tungavik Federation of Nunavut, the Inuit organization that negotiated the Nunavut Land Claims Agreement.