The Lheidli T’enneh First Nation, along with the negotiators from the Canadian and British Columbian government initialed the Lheidli T’enneh Treaty earlier this month with a ratification vote takes to take place on the Lheidli T’enneh First Nation in June.
Dominic Frederick, the Chief of the First Nation said that the treaty was a positive step forward.
“To the Lheidli T’enneh the treaty means we’re moving ahead and building our future for the next generation,” Frederick said at the time of the signing.
“I am hoping for a yes vote so our community can come together and I hope people realize we can’t stay with Indian Affairs and the Indian Act and we have to start somewhere. People are saying ‘it’s not the right time’ - there never is going to be a right time but I’m saying it’s the right time now.”
But Chief Alexander McKinnon of the Nak’azdli Whut’en First Nation has urged the Lheidli T’ennehto to delay the vote to allow time to work through some of the ramifications of the treaty process.
“Honestly, treaties like this are a divide and conquer technique,” said McKenzie.
“And this treaty is particularly troubling given the recent B.C. Supreme Court decision that said that treaty rights trump aboriginal rights. That’s very concerning since it puts a situation in play where First Nations can be put at odds with one another.”
The case in question has been in play since 2006.
The BC Supreme Court in 2009 recognized the Nuu-chah-nulth nations’ right to catch and sell fish, and in May 2011 the BC Court of Appeal upheld the Supreme Court decision.
Five First Nations (the Ahousaht, Ehattesaht/ Chinehkint, Hesquiaht, Mowachaht/ Muchalaht and Tla-o-qui-aht) went back to court in 2015 in what became known as the “justification trial” in which the federal government failed to justify its infringement of these five nations’ Aboriginal right to catch and sell fish from their territories.
While lauded by the BC Assembly of First Nations, the decision has some serious consequences for the Nak’azdli given that the court decision does not adequately address the situation where one treaty, in isolation of agreement of other First Nations with claims on the same land, can benefit one band at the expense of others.
In fact, the agreement between Lheidli T’enneh and the provincial and federal governments does not state any provisions regarding overlapping land claims and, instead, puts some 4,300 hectares of land under Lheidli T’enneh ownership. The band would also maintain traditional hunting and fishing rights and have the right to pursue economic initiatives in forestry, agriculture, and resource extraction.
“These lands have traditionally been shared between our peoples and there are overlapping claims,” said McKinnon.
“By entering into this treaty first and in isolation of the other bands with claims on this land, the treaty will impact us as well.”
By way of example, McKinnon points to one impact of the treaty in terms of hunting rights.
“When it comes to hunting moose, for example, they will be given the bulk of the hunting allotment and we, who have always hunted here and have had the rights as First Nations to do so, will be lumped in with sport hunters and other non-native groups. How does that make any sense when we have a population of 2,100 and they have 470 and our two bands have always shared the land that they now will claim to have jurisdiction over.”
McKinnon said that he has approached the Lheidli T’enneh First Nation with a request that they delay their June ratification vote so that these issues could be discussed.
“They said that wasn’t going to happen,” said McKinnon. “We then asked them to push back their hunting and fishing boundaries (to better reflect an equitable sharing of resources) and they said that wouldn’t happen either.”
McKinnon said that this sort of divide and conquer approach is a negative development that should concern all First Nations.
“We’ve been told that all these concerns can be addressed through MOU’s (memorandums of understanding) but that isn’t the answer . MOU’s are only as good as the leadership that agrees to abide by that agreement. If there’s a change in leadership, those MOU’s can disappear or change very quickly.”