October 29th, 2020

Goal should be win-win agreements


By Lethbridge Herald Opinon on March 17, 2020.

Recent cases show First Nations,

Canada disputes

can produce

fair decisions

Owen Holmes

PROFESSOR EMERITUS, UNIVERSITY OF LETHBRIDGE

Last spring Canadians celebrated when the Toronto Raptors defeated the Golden State Warriors to win the NBA championship. The teams had agreed in advance that rule violations would be called by neutral referees. But if the Warriors had appointed the referees, guess who would have won.

When nations enter into agreements or treaties, they include fair procedures to settle disagreements. For example, in 1909 Canada and the U.S. agreed upon the Boundary Water Treaty that included a fair procedure to settle disputes over waters bordering the two nations.

For each of the 1987 Canada-U.S. Free Trade Agreement, the 1994 North American FTA, and the current Canada-U.S.-Mexico FTA, Canada insisted upon a fair procedure to settle disputes. Otherwise the larger, more powerful U.S. would likely have sent disputes for decision by the U.S. Congress and courts. Guess who would have won.

In his Herald letter Feb. 26, Dave Sheppard described how, over the last two and a half centuries, the colonization of the territory now known as Canada evolved through a succession of government-to-government agreements between the Indigenous peoples, now called the First Nations, and the newcomers in the British North America colonies. Those agreements were confirmed by Canada in the 1867 British North America Act, in the 1982 Constitution Act, and yet again in the endorsement of the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

But no fair procedure was included in those government-to-government constitutional agreements. So for 150 years the larger, more powerful Canada sent disputes for decision by the Canadian parliament and courts. Guess who won there. The First Nations have been on the receiving end of a succession of unfair decisions and members of First Nations thrown into jail for protesting. It’s now becoming increasingly evident that that’s lose-lose for both sides.

Fortunately, fair decisions on disputes between First Nations and Canada are possible with win-win results. That requires the same mutual goodwill displayed when Canada was being established. Here’s some hard evidence.

After 14 years of negotiation, in 2009 the governments of Canada and British Columbia and the Tsawwassen First Nation (TFN) reached agreement on the expansion of the Roberts Bank Superport on Tsawwassen land south of Vancouver. That deal involved the exchange of rights to other nearby lands, for the TFN a cash settlement plus rights to a portion of the Fraser River salmon catch, and a schedule for the TFN to begin to pay taxes. The Roberts Bank Superport was expanded. The TFN opened the Tsawwassen Mills mega-mall in 2016. The TFN became a full member of Metro Vancouver. Win-win!

On Feb. 17, 2020, the governments of Quebec and Cree First Nation announced a $5-billion Grand Alliance for economic development of the Cree James Bay Territory. The Grand Alliance provides for a range of social and economic projects consistent with Indigenous values and rights respecting land, environment and resources. Funds for the Grand Alliance come from the Cree, Quebec and Canadian governments as well as the private sector. Projects include mining, rail expansion, industrial electrification and infrastructure sharing. Win-win!

In 1899 the Lubicon people of northern Alberta were missed out during negotiation of Treaty 8. In 1939 the government of Canada agreed that the Lubicon deserved legal title to their land. But nothing was done.

The Lubicon people were reduced to squalor when the land that had sustained them for millenia was ripped and ravaged during the extraction of billions of dollars from oil, gas and lumber. So in 1988 the Lubicon staged a protest at the Calgary Olympics viewed around the world. Outraged Canadians demanded they cease until after the Olympics when their complaints would be heard. But nothing was done.

After a series of blockades and arrests, Premier Getty agreed to set aside land for the Lubicon people. But nothing was done.

Finally, after decades of broken promises, shameful neglect, disgraceful abuse and global condemnation, in 2014 Premier Prentice arranged a landmark agreement between the Lubicon First Nation and the governments of Canada and Alberta. That deal for Lubicon land rights and financial compensation was enacted into law by Premier Notley. Belated and tainted, nevertheless in the end a win-win!

It can be done. The formula is simple. The work is hard. Win-win.

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