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British Columbia First Nations, B.C. seek new framework for land titles, resource development

British Columbia's First Nations communities owe roughly half a billion dollars for treaty negotiations that have, in 23 years, produced just five settlements. There is one more statistic that puts that crushing debt load into context: Only two aboriginal governments are in a position to start repaying their treaty loans.

To cut through the logjam, the B.C. government formally shifted direction four years ago, giving priority to seeking one-off economic agreements with First Nations. The idea had political appeal – why wait decades for treaties if you could sign deals that would quickly deliver benefits to impoverished communities and allow development to proceed?

"Your government will focus attention on establishing agreements with First Nations that will create certainty over our respective responsibilities," the 2011 Throne Speech stated. "And while treaties may be an option for some First Nations, there are many ways to reach agreements that can benefit all communities – aboriginal and non-aboriginal alike."

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The weakness of that approach is that is does not settle the land title question that has snarled resource development in every corner of the province.

Now, there is an effort to develop an alternative that aims to address aboriginal title without costly court battles or protracted treaty negotiations.

There are two driving forces behind the shift. One is the courts – the Supreme Court of Canada has forced the province to come to grips with the fact that aboriginal title does exist. The second is fiscal and close to the B.C. Liberal government's agenda. Resource revenues are taking a dive, and the province cannot continue to address the question of land title at a glacial pace if it wants to turn that around.

Premier Christy Clark framed the debate in a speech at a natural resource forum in Prince George last month.

She noted that seven years ago, her government's resource revenues were more than $2-billion. Today the taps have slowed to a trickle of roughly $470-million. In the budget coming later this month, it is likely the figure will be smaller yet.

Since last fall, discussions between the province and First Nations leaders have led to what could be a fresh framework for negotiations. It is not complete yet, but the objective is to find another path to reconciliation, where First Nations would be able to select from a menu of issues that they want resolved. It could be co-management of permits and programs, but it could also settle the boundaries of aboriginal title.

Grand Chief Ed John of the First Nations Summit said the current choices of treaty-making or litigation are often entrenched in outdated thinking. There are few paths that would lead to the resolution of even small matters. "In the village where I come from, the Ministry of Transportation's contractors clear the snow right up to the boundary of the reserve, and then stop." He hasn't been able to find someone who is willing to work out a sensible solution.

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To forge a new path, the government needs to abandon its "colonial mindset" that has always aimed to minimize aboriginal rights and title, he said. "We'll try to break new ground with the province in this. Leave the word 'treaty' out of it: It is about a process of negotiations." The result may be a treaty, but there are other kinds of agreements that can be based on aboriginal title.

Perhaps the biggest change is the question of revenue-sharing. Ms. Clark told the Prince George resource forum that far more of the benefits of resource extraction need to be distributed.

"In B.C., for 200 years we've done a good job of creating wealth from resources; we've done a lousy job of sharing it with First Nations," she said. "That's going to change."

She did not elaborate just how that will change. But former attorney-general Geoff Plant, speaking at the same forum, said the province needs to give up on its hope that industry can shoulder the burden alone.

"Random, ad hoc arrangements – one private deal at a time – are a recipe for uncertainty. Government simply must take the lead here," he said. "Government has to find the resources to support the provision of greater opportunity to the aboriginal owners of what we used to call Crown lands."

The price for reconciliation is now part of the cost of doing business in B.C. Ms. Clark's challenge is to use her considerable powers of persuasion to explain why B.C.'s economy cannot get by without it.

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