Two decades later, back where we started: Yale First Nation and the failed treaty process

The treaty process in British Columbia recently received a major setback as Yale First Nation, a community in southern B.C., put its treaty implementation processes on hold. The  First Nation announced it would be unable to implement its final agreement by the April 2016 deadline due to “critical flaws” in the negotiated agreement, citing a fishing rights dispute with the Sto:lo First Nation. Given that more than 100 per cent of B.C. is currently under claim by First Nations it was only a matter of time before overlapping claims presented a major obstacle to finalizing treaty agreements.

After 20 years of negotiating, this is particularly discouraging since Yale was seen as an example of how the modern treaty process could be successfully implemented. However, the Yale treaty also serves as an example of the flaws within the modern treaty process. For example, by negotiating for more than 20 years the Yale First Nation has generated more than $6.5 million in loan repayments to the federal government and they are not alone. As of January 2013, the federal government was owed $466 million in loan payments from the 56 First Nations communities involved in the B.C. treaty process. With both the federal and provincial governments on the hook for operating and settlement costs, the amount spent on the treaty process is estimated to be much higher with only three successful treaties negotiated to date.

The failure to reach a final agreement has not only let down those who wished to see aboriginal rights protected by treaties but also those who hoped a treaty would bring land certainty to part of B.C. However, research has shown that modern agreements may in fact add uncertainty to regions. For example, Fraser Institute research in the Yukon has shown that when courts open up treaties and “[impose] additional, unforeseen obligations on governments” instead of respecting the terms laid out in the agreement, uncertainty increases. Originally, the 1990 Umbrella Final Agreement signed by 11 out of the 14 First Nations communities in the Yukon was viewed to be “a model that offered legal certainty” and led to a wave of mining development in 2003. However, the study notes that when the courts opened up the treaties beyond the scope of the written agreement, they undermined the very certainty they sought to establish, thus creating a climate of both legal and economic uncertainty.

The stalled Yale First Nation treaty reflects the broken nature of the treaty process that has taken decades to negotiate at a high financial cost for all those involved. Until the B.C. Treaty Commission finds a way to efficiently negotiate treaties in a timely and cost-effective way, more communities may succumb to the same fate as Yale First Nation.

Timeline of Yale First Nation Treaty

1994: Yale First Nation produces statement of intent for treaty process

1995: Readiness documents completed and accepted by BCTC

1997: Framework agreement signed

2006: Agreement in principle signed

2010: Yale First Nation Final Agreement initialed

2013: Final Agreement signed by all parties, implementation date set for April 1 2016

2016: Yale First Nation announces treaty implementation is currently on hold