Opinion

Ktunaxa treaty negotiations clarified

Treaty negotiations between Canada, BC and the Ktunaxa were recently in the news and some citizens have made public statements that are partly true and partly wrong. In this short space, I will try to provide accurate information on treaty negotiations, as well as where I stand as MLA.

First off, there is no final treaty, we are years away from a final treaty and there may or may not be a final treaty.

Next, some history. A profound event happened in 1982 that influences how governments work with First Nations. Our Canadian Constitution was changed to recognize aboriginal rights and a unique aboriginal interest in crown land. Since 1982, in hundreds of legal cases, the courts have interpreted what those rights and title interests mean. This makes it difficult to know what government’s responsibilities are. Bottom line, BC is legally obligated to consult with First Nations on almost everything that is proposed for crown land.  And the theory is, treaties bring more certainty.

While it is true BC could leave the Canada-BC treaty process, the Supreme Court of Canada has said repeatedly, aboriginal rights and title issues are better resolved by negotiated treaties than court actions. And since BC loses most court actions, it makes more sense to try to negotiate treaties. Better these important matters are in the hands of democratically elected Canadian, BC and First Nations governments, than the courts.

Unlike all other provinces, BC has very few treaties.  In the 1700’s and 1800’s when other provinces were negotiating treaties, Canada and BC negotiated treaties only in the Peace and on southern Vancouver Island. This makes our situation in BC much more complex and challenging.

The treaty process in BC has not been particularly productive, with only 2 treaties negotiated since the Canada-BC process started. However, it took Canada and BC over 100 years to get into this situation and the job is incredibly complex and difficult.

The current status of the Ktunaxa negotiations is that the three governments have agreed tentatively on a 33,458 hectare package of land that represents less than ½% of the traditional territory once occupied by the Ktunaxa. No land has been transferred or will be any time soon. Approximately 22,000 hectares are located in three large rural blocks in the Goat, Flathead, and Madias-Tatley River watersheds. The remaining parcels are smaller and are distributed throughout the east and west Kootenays. The land scattered around Jimsmith Lake and New Lake, which has been controversial in Cranbrook, consists of 867 hectares.

The land portion of a treaty is negotiated by starting with the 6.6 million hectares of traditional territory, then removing chunks. All private land and forest roads are removed, as are critical wildlife habitat, parks, protected areas, transmission lines, and formalized recreation areas (example, Cranbrook Community Forest).  Local government and the forest, agriculture, mining and tourism industries have been consulted on the choice of land for the tentative package.

It is my longstanding view that the public should have more information about land being considered. However, when the NDP started the Ktunaxa process before I was MLA, the negotiators signed an agreement that the participants cannot disclose maps. This has been a source of frustration to me as MLA and to many in the public. I agree with my friend, former MP, Jim Abbott, who has long stood up for the public on this issue, that the public should have ample opportunity to understand what is being negotiated, including impacts on access to crown land.

I now have maps at my MLA office which show the tentative land package. I invite my constituents to come into my office in Cranbrook to view the maps. I strongly believe that maps should be put up on a web site for easier viewing, but the agreement cannot be arbitrarily changed. All 3 parties must agree.

If there is eventually a final treaty, Ktunaxa land will be of two types: public and private. I am told most land will be classified as public and will continue to be accessible for public recreation. This is obviously an important point and one that I will be focusing on in my endeavors on behalf of my constituents.

I support trying to make the treaty process more effective, because I don’t think we should be allowing the courts to make such important decisions and because BC needs the certainty over crown land use. The future of our economy and the frankly the future prosperity of First Nations people depends on effective access to crown land. Please contact me at bill.bennett.mla@leg.bc.ca if you have questions or comments.

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