The Gitxsan Alternative is a new approach to Aboriginal treaty making in British Columbia, with implications for the rest of Canada as well. It is different in very significant ways from the Standard Treaty Model under which treaty negotiations are currently carried out. It is important to say at the outset that while for the past two years I have been acting as an adviser to the Gitxsan Hereditary Chiefs who are negotiating with the Crown, this essay does not claim to speak for them. Rather, what follows is my personal perception of the context, history and possibilities of this new approach.

Briefly put, the Gitxsan Alternative would totally end the sway of the Indian Act over the Gitxsan people, a nation of about 13,000 members based in northwestern B.C., making them ordinary Canadians in every way. The Gitxsan would vote, pay taxes and be governed by the usual federal, provincial and local authorities just like everyone else in the province. At the same time, the Gitxsan Alternative would allow them to retain their culture and internal relationships, and would explicitly recognize their very considerable property and cultural rights stemming from the common law as articulated by the Supreme Court of Canada in its Delgamuukw decision.

Indians and the Standard Treaty Model

In my 2009 book A New Look at Canadian Indian Policy, I explored some of the context for the Gitxsan Alternative. I canvassed the two traditional options open to Canadian Indians: on the one hand, the Reserve system and rule by Indian governments (for however modified by treaties, that remains the essence of the current approach), and on the other, “going to town” and integrating with mainstream Canada. In using the term Indians (I reject First Nation as a term that implies a particular political agenda of “nation-to-nation” treaties to the exclusion of alternatives), I am referring to the roughly three quarters of a million individuals who are known to our laws and policies as “registered Indians,” those granted historical collective rights dating to the Royal Proclamation of 1763, rights reconfirmed by the 1867 BNA Act and the Indian Act that followed within a decade.

In A New Look I pointed out many of the drawbacks of the existing Indian System (the more commonly used term Indian Industry is too harsh) and proposed many reforms and policies that would increase the choices realistically available to these individuals. I argued that our current approach puts too much emphasis on the collective and gives insufficient support to the individual. At the same time, I argued that with all its drawbacks, the Reserve system (however modified by treaties) has been in effect a contract with the Indian people for more than a hundred years, and Canada does not have the right to unilaterally cancel that contract. The Reserve system must remain open as an option if we are to be honest about offering genuine choice. Indeed, the proposed unilateral cancellation of the contract was the precise reason for the failure of Pierre Trudeau’s White Paper of 40 years ago.

Most readers will be aware, at least in general terms, of the unsatisfactory state of the average Canadian Indian as compared to other Canadians in terms of those things that can be measured by statistics – shorter lives, much lower incomes, much higher welfare use rates, only 60 per cent high school completion rates among the young, family violence, very high substance abuse and suicide rates and so on. These outcomes are at their worst on Reserves where about half of registered Indians live. Among Indians living in mainstream towns and cities, outcomes are markedly better, but still unacceptable. These facts make better Indian policy a moral imperative for us all. Progress has been made, but it is too slow. Alas, mere morality hasn’t advanced us quickly enough.

Most readers will also probably be somewhat aware of the “B.C. land question,” which has given a strong economic push to resolve relationships with registered Indians in British Columbia. Because proper treaties were never concluded in most of the land area of the province, resource development in particular is significantly constrained by the undefined but important shadow cast by “Aboriginal title” as outlined by the courts. Resource development requires permits and financing, which require good title, and in most of the province such title is at least clouded by Indian claims.

This became sufficiently clear 20 years ago to convince politicians to enter into a process of seeking certainty of title (and addressing moral questions as well) by negotiating modern treaties with the current holders of the undefined Aboriginal title. No court has as yet specified the existence of Aboriginal title anywhere, but the claimants infer it to exist everywhere. The quantum, or extent of land on which title would apply, is a central issue of negotiations.

Through this process there has gradually evolved what I will refer to as the Standard Treaty Model. The Nisga’a Treaty of 2001, while born of an older set of negotiations, set the main parameters of this model:

• Governments recognize certain lands as belonging to the claimants, usually represented by a Band or multi-Band government. These Indian Act governments are often the only contemporary proxies for the traditional title holders. The quantum in the few cases settled has tended to be a small fraction – 5 per cent in the case of the Nisga’a – of lands actually claimed.

• Governments provide cash which they call a “Capital Transfer.” The recipients often see such funds as compensation for past wrongs but for legal reasons the Crown vehemently denies this. The per capita Nisga’a value was somewhere between $60,000 and $100,000 depending on the valuation of noncash asset transfers. Subsequent values have been much higher, especially in the case of the Tsawwassen Nation.

• A new form of Indian government is created and embedded in the Canadian constitution, with some local, social and educational heads of power that trump federal and provincial law. The new governments are required, at least nominally, to meet certain tests of representativeness, transparency, accountability and so on.

• Crown subsidies previously paid to the Bands are continued, and usually increased.

• Extensive ongoing rights of consultation are retained.

• In return, the former Band recognizes government rights and title over the rest of the claimed territory.

• In brief, the constitutionalized creation of a small parallel society is traded off to achieve certainty of title and end court battles.

The Standard Treaty Model cannot be said to be much of a success. No one knows how well the small Indian governments will perform, or whether they will be significantly different from the Band governments they are replacing. For example, there has been no independent and objective assessment of the Nisga’a experiment, although almost a decade has passed since the treaty was concluded. It can be hoped that things are better than under the former Reserve system, but we do not know that. It is strange that the parties to the treaties have not given any evidence that the governance pattern set by the Standard Treaty Model is actually working in practice.

Perhaps more important from the viewpoint of governments, the treaty process has been moving very slowly. Only a handful of settlements (out of 200 Bands) have been achieved so for. The Indian side of the table has been arguing – fairly, in my view – that the “mandates” given by governments to their negotiators are too constraining for true bargaining and site-specific needs. Governments in turn are terrified by precedent and a “ratchet effect” as each new and different sort of concession (as they see it) is used as a base for higher demands in the next negotiation.

There is an enormous future elephant in the room for all sides of the table. Much of the current negotiating context is set by a sort of “white guilt” due to past history. However, the growing nonwhite immigrant minority, to become a majority in B.C. within a few decades, naturally has no sense of historic guilt. This will in due course set a political deadline.

In these circumstances, Canada, and especially British Columbia, have attempted to define “new relationships” through a vague process of Aboriginal title recognition legislation (legislation withdrawn after massive political protest), mandate flexibility, economic development assistance and “interim arrangements” as to resource development. The Indian leadership has been markedly unimpressed, though massive cash transfers and other important status recognitions bought peace for short-term deals like the Winter Olympics.

In brief then, everyone has a problem here. The wheels haven’t fallen off the Standard Treaty Model, but they aren’t turning either. And this despite some remarkably good leadership and good will at all levels – federal, provincial and Indian organization. It may be that the system itself is the problem. In A New Look I argue exactly that, and point out several inherent flaws in the treaty process.

A weakened nation, a strong culture

After the experience of Gitxsan negotiations over the past two years, I have concluded that there is a viable third option between the Reserve system and the de facto forced integration of “going to town.” That third option is the Gitxsan Alternative.

The Gitxsan are based in northwestern B.C., in a 33,000-square-kilometre traditional territory along the Skeena River fanning out from the small town of Hazelton. The Gitxsan estimate their numbers at 13,000, which would make them the largest nation in B.C. Of these, 10,000 are on the traditional territories, and of those 10,000, about 5,000 live on a handful of official Indian Reserves constituting a tiny fraction of the territory.

“Civilization” did not really descend on the Gitxsan until about 1950 when Indian Act Bands were organized. Indeed, our senior negotiator, Elmer Derrick, was born a Gitxsan and a Canadian and only converted, against his will, into an Indian some years later. Until about 1970 the Gitxsan remained economically self-sufficient, the food chain depending on hunting and gathering, in-river fishing and commercial fishing based in Prince Rupert (the fleet being outside of their territory). Their trading and cash necessities were supplied by their own forestry operations.

The first Tree Farm Licence was issued in B.C. in Gitxsan territory around 1950. As the remit of the provincial government foresters expanded, the ability of the Gitxsan to take their own trees was truncated and then ended. By about 2000 the timber supply had been highgraded by commercial operators to the extent that it will take decades to recover (once the best wood is gone, it becomes uneconomic to go back for the marginal timber). The Gitxsan estimate that $4 billion in wood was removed from their territory over this time with no compensation and little employment for them.

The fishery declined (as for everyone), and beginning around 1970 the nation gradually slipped into poverty, increasingly supported by the welfare of the Crown with the concomitants of dependency, substance abuse, suicides and the like. Such Indian stories are unfortunately common. A strong nation has been weakened.

Through all of this, the Gitxsan language and culture have remained strong and vital, all too rare in B.C. Key to the continuity is a traditional governance structure of Gitxsan Hereditary Chiefs, 61 of them, each heading a “Wilp” or house. Citizenship is matrilineal (supplemented by adoption, which is not uncommon); marriages and some other relationships are regulated by membership in one of four clans. The Gitxsan have an oral tradition including a comprehensive ayookim or set of laws which covers cultural, social and economic matters including property rights. The territory of each Chief is precisely delineated.

A key to the survival of the culture and the working of the internal governance system is the regular custom of feasts, which are held by each house or houses, frequently on events of importance such as major decisions, deaths, succession of Chiefs and so on. Feasts play more than a cultural role. They are social, in the sense of raising funds for social purposes, and economic in the sense of regulating the business of the Wilp.

It is important to note that the authority of each Chief is noncoercive. They have no enforceable laws, no police, no tax collectors, no prisons. Further, each Chief has around him or her (there are many female Chiefs) a number of associates of importance such as Wing Chiefs who in practical terms must agree with major decisions. It is a consensual system, and any Chief who fails to make that work will not last, for there are means of removal.

This is not the place for further description of traditional governance,¹ but what is important for our purposes, and for governments negotiating with the Gitxsan, is the degree to which the Chiefs represent and lead their people. To this observer, they seem to do so. Indeed, governments are properly concerned that any deal they make which confers ongoing authority on others under the laws of Canada should ensure that that authority is properly exercised. Under a new treaty or other final settlement, the Chiefs will continue to have no coercive power, but they will have administration of assets.

Our governments come to the table with the view that Western “democracy” based on elections is the test for legitimacy. “How,” they ask, “can a system based in part on inheritance be democratic?” For me, the answer is simple. The true test of democracy is the consent of the governed, and elections are only one mechanism for determining that. Indeed they are a rather imperfect mechanism. For many decades now, Canadian governments wielding 100 per cent of the immense power of the state during their time in office have in fact been based on the affirmative support of only about 40 per cent of the electorate.

By contrast, in the Gitxsan consensual system, a much stronger test for “consent” is routinely employed, and it is employed not only at election time but on a month-to-month basis. It is legitimate to argue that such a system would be difficult to use in a country of 35 million people, but it demonstrably works very well in a nation of 13,000 divided into 61 Huwilp (houses). In any event, the test for the representativeness and the ongoing responsibilities of the Chiefs will be measured with precision when the Gitxsan people are called upon to ratify a new final settlement – if we can negotiate one.

To complete this brief overview, reference should be made to the Indian Act governance system, which unlike the traditional one does have coercive powers. What we have here is the usual Chief and Council structure in the several Bands residing on the territories, receiving funds from the Canadian taxpayer and using these funds to provide certain social, cultural and economic services at a minimal level.

Bands are statutory creatures of the Indian Act of 1876, and did not exist before that time. They did not arise as natural Indian governments by any historical process, and indeed may in their current forms go against traditional, cultural and even linguistic realities. As I relate at length in A New Look, Indian Act Bands in general suffer from the usual syndrome of small governments with large powers (“large” in relation to their constituents). It is common in such situations for problems of accountability and transparency to arise, as well as capture of the Band government by extended families with consequent nepotism.

The tendencies are exacerbated by the fact that the money being deployed is not from the Band taxpayers (there are none) but rather from the government of Canada. The incentives are naturally to conspire to extract more money from the outside, and for the Band government to use the money it does control (via allocation of jobs, housing etc.) to encourage people who vote in the Indian Act elections to support those currently in power. It is a sick system that stands democracy on its head. The voters who should control the Band government may instead be controlled by the Band government.

This is a general description, all too common even if not applicable everywhere in Canada. As I have no connection with the Indian Act governments in Gitxsan territory, I cannot comment on their merits. What can be said for certain is that the Band governments in Gitxsan territory have been no more successful in dealing with the problems of their people (as measured by social, educational, health, economic and other outcomes) than the usual unhappy situation across the country.

Delgamuukw and Aboriginal title

For the past 25 years the Gitxsan Hereditary Chiefs have been seeking recognition of their rights and title from Canada and British Columbia. Frustrated during the 1980s, they launched the court case that became known as Delgamuukw, named after one of the Hereditary Chiefs as a representative plaintiff and joined in by the neighbouring Wet’suwet’en nation.² The claim was for Aboriginal title and governance over the entirety of their traditional territory.

The hearing at trial, over 360 days, was the longest in B.C. history to that date. The trial judge had little sympathy for the claim. The Court of Appeal found a bit more merit, but not much. A newly sympathetic NDP government attempted negotiations to settle matters out of court but in the end the Supreme Court of Canada pronounced in the case. It delivered what is probably the most important judgement in Aboriginal law to date.

Briefly, the Supreme Court threw the case out on a couple of technicalities requiring a retrial. In the process, however, Chief Justice Antonio Lamer set out a series of guidelines making clear that “Aboriginal title” exists in the common law of Canada, as well as how it may be determined and what it looks like. The Court did not identify any specific Indian lands, and it did not speak to the claim to governmental authority at all, save to express a mild scepticism.

But the Gitxsan, properly, claimed the judgement as a major victory. Their Aboriginal title did exist, somewhere. The task now became to define exactly where, between the Gitxsan’s claim of all of the territory and British Columbia’s initial position of none.

The Delgamuukw decision dropped like a bombshell on all the treaty tables in the province and it took some time for all parties to wrap their heads around it. Arguably, governments have not yet done so. The decision was of no immediate use to the Gitxsan. It took years for negotiations to be restarted, and once they were they proceeded very, very slowly. One of the reasons at the centre of this was the Gitxsan’s rejection of much of the Standard Treaty Model, over two issues in particular:

1. They wanted no part of the “land selection” part of the Standard Treaty Model whereby Aboriginal title claimants had to choose just a small part of their traditional territories and renounce almost all control of the rest (some rights of consultation, in regard to wildlife in particular, remained). Rather, the Gitxsan wanted a voice in and benefits from the management of all of their territories.
2. The Gitxsan did not want the Standard Treaty Model version of Indian government. For whatever ongoing governance powers they might have, they wanted to continue with the Hereditary Chiefs system, so central to their cultural preservation.

Governments, for their part, were absolutely fixated on “democracy” in any Indian government, by which they meant elections. The parties tried to square these circles. Mediators of stature were called in. Mixed governance systems, partly elected and partly hereditary, were proposed. No one was happy with this and the land question remained unresolved.

Breaking the logjam

That was the situation at the beginning of 2008. At that point, to break the logjam, the Gitxsan proposed a solution of breathtaking simplicity in concept.

To deal with the governance issue, the Gitxsan said they wished no part of ongoing Indian government. Rather, they said, we will become ordinary Canadians, cease to be Indians (though very much remaining Gitxsan) and then be governed and taxed by the elected federal, provincial and local authorities just like any other Canadians. Thus, in terms of what is usually understood by political governance and the exercise of the coercive power of the state, the issue of democracy disappeared. The usual mechanisms, already democratic in nature, would run the ordinary citizen business of the Gitxsan as well. The Hereditary Chiefs, charged with protection of the ayookim (body of laws) and the culture, would run the internal affairs and assets of the Gitxsan, subject to the traditional checks and balances

To deal with the land question, the Gitxsan said in effect, first we will take some parcels of land in fee simple (normal land ownership) to be held by individuals sufficient for their residences, to be freely taxed, bought and sold like any other property. Many of these individual fee simple parcels would be on the previously existing Reserves, which would disappear along with the rest of the Indian Act. Second, we will take some other lands, also in fee simple, to be held collectively by the Chiefs for the Gitxsan, for cultural, social, economic and recreational purposes. All of this land, too, would pay property taxes. Finally, over the rest of the traditional territory, Crown title and management rights would be affirmed, subject to a Gitxsan voice and Gitxsan receipt of certain benefits such as a share of resource royalties. The exact quantum of lands, the meaning of “voice” and the size of royalty and other benefits all remain for negotiation, but the principle is clear.

These basic principles were set out in a Gitxsan document tabled with federal and provincial authorities on May 15, 2008.³ Governments were startled. This proposal was entirely outside the negotiating mandates of officials. For a time they could only listen to the Gitxsan, and that with difficulty.

Gradually they began to ask questions, but it took a couple of meetings with each of the federal and provincial ministers to gain authority for their negotiators to “explore” (not yet “negotiate”) the Gitxsan approach. Minsters agreed to this request and have remained interested and cooperative, notwithstanding the novelty of the proposal. In part this is no doubt because of the political attractiveness of the idea, from several points of view.

Explorations have continued in ever deepening detail. The current status is that governments are getting ready to consider seeking Cabinet mandates to actually “negotiate” with us – in other words to agree that the Gitxsan Alternative offers a potential agreement down this road.

Still Gitxsan, no longer Indians

There have been and will be many complexities, all of which are solvable in my view as long as attention is paid to the basic principles. Like any good agreement, this one must be based on an enduring sense and reality of “win/win.” There is enough good to come out of this that it will be no problem to ensure that. All parties will get certainty and the chance to get on with positive things and the future, rather than uncertainty and a focus on the past.

Insofar as humanly possible, there should be no “losers.” Any change in arrangement as significant as moving out from under the Indian Act and cancelling old patterns of governance, however inadequate they may have been, presents challenges. There must be equitable treatment (by continuity of employment and/or recognition of one kind or another) of those who will no longer be running or working for the current Reserve governments.

Arrangements must be made for those registered Indians within the territory who are not Gitxsan, and for any Gitxsan who do not wish to give up their Indian status. Depending on their wishes, this may require the creation of a new Reserve for those who wish to remain under the Indian Act.

Equally, if the new agreement is ratified, we may be sure that most Gitxsan will be in favour of it, but it will be necessary that they do not at the same time suffer from the loss of certain benefits currently enjoyed as a result of the Act.

The provincial government, in assuming new responsibilities for the delivery of various social services such as education and health care, will expect to be and should be compensated by a transfer to Victoria of the federal funds currently going to Band administrations. The fiscal arrangements between the federal and provincial governments will be key to making this happen, but again, there is so much good to be achieved that a spirit of generosity (which characterized the finalization of the Nisga’a Treaty, for example) should overcome any difficulties. There is a lot of past to be paid for here, even if not explicitly, and a lot of good to come from a focus on the future.

Local government arrangements will have to be worked out. The Regional Districts involved are relatively small and the existing towns are very small. It will take imagination and creativity to ensure that local services are properly financed and delivered in a way superior to the current unacceptable norms.

As mentioned above, the questions of “voice” in management of provincial lands and resources within the territory and the sharing of benefits such as royalties will have to be resolved. Again, it is much better to share a part of something than to have all of nothing. And senior governments get most of their taxes from economic activity, of which there is too little at the moment, especially in view of the great resource potential of the area. While the highgrading of the territories’ forest resources by companies authorized by the province makes current exploitation of these resources very difficult, mineral resources are thought to be very large, and the Bowser Basin, part of the territories, is thought to have oil and gas. The Gitxsan have financed an exploration firm in this regard and are looking at mining joint ventures.

The Gitxsan will need the means for economic development, which will mean a Capital Transfer, as is standard in treaties. The economic development is essential because the Gitxsan do not expect to become “coupon clippers” out of this deal. They have always worked for a living, and want to do so in the future.

Certain legalities will have to be resolved. Some of the current Band governments are suing the Gitxsan Hereditary Chiefs, seeking a declaration that the Bands are the legitimate holders of the Delgamuukw rights, and that therefore the Crowns are negotiating with the wrong chiefs, who are proposing the wrong policies.

In my view this action is totally without merit. Aboriginal title was triggered by British sovereignty which, as the courts determined in the course of considering the Delgamuukw case, was conclusively established in British Columbia by the Oregon Boundary Treaty of 1846 – three decades before the Indian Act that gave rise to Band governments. Hence, traditional governance structures able to demonstrate continuity have a superior claim to title.

The rights are at common law, and (absent statutory interference) pass by inheritance. The holders of the 1846 rights were indisputably the Gitxsan Hereditary Chiefs, and they have maintained unbroken continuity of occupation since then. The Supreme Court of Canada, the B.C. Treaty Commission and the federal and provincial governments have always accepted the Hereditary Chiefs as the proper holders of Gitxsan rights and title. The only ground and rights the Band Chiefs have ever controlled is limited to the tiny Reserves, and even those are explicitly held as to title by the Crown. This case will be dismissed soon enough, assuming it is pressed by the litigants.

Finally, whatever deal is eventually negotiated will have to be clearly and strongly accepted by the Gitxsan people in a ratification process, which will have the effect of giving political (as well as legal) blessing to the Gitxsan Alternative.

If we can find our way through the difficulties, the result will be a constitutional advance. It will be the first full reconciliation of an Indian nation within mainstream Canada. It will be the first treaty arrangement to properly balance the opportunities of the individual with ongoing respect for the traditional collective. Unlike the Standard Treaty Model, it will fully leave the Indian Act behind. The Gitxsan will be guaranteed the future ability to continue being Gitxsan, with the economic and cultural structure needed to sustain that, and they will no longer be required to be “Indians” to do so.

Notes

¹ For those interested the Gitxsan Chiefs maintain a library which can be accessed on line at www.gitxsan.com/html/library.htm

²Delgamuukw v. British Columbia, 3 S.C.R. 1010

³ This document is available at www.gitxsan.com