Protocol agreement

🕔Jan 30, 2007

It’s simple—but complicated, said Haida president Guujaaw of a unique document that’s being touted as a model for British Columbia, and possibly the world.

Some have likened the four-page Protocol Agreement, now signed between the Haida and most of the non-Haida communities on Haida Gwaii, to a prenuptial agreement or even a marriage certificate.

Sweet nothings—words like unity and cooperation—are bandied
about, but the real commitment in the Protocol Agreement is that islanders vow to work together to create a sustainable future for the islands. For richer or for poorer, communities are promising to discuss development through community forests, access to timber for local mills, a reestablishment of the local marine economy and the need for a system of all-islands governance.

But first nations and non-first nations communities on the islands have already been in a long-term relationship. Can a few pieces of paper lead the way to an exciting new future?

Mayor Carol Kulesha of the Village of Queen Charlotte, the most recent signatory to the agreement, made it seem simple when she described the reason 350 neighbours, along with hereditary and elected leaders, had gathered for the signing ceremony held at the Queen Charlotte Community Hall in November, 2006.

“We all have a vested interest in the land. And we are all seeking security for family and homes. This is the basis for the accord,” she said.

But, Guujaaw reminded everyone that this simple document was a long time coming. The complicated part, he explained, is that his people had to work so long to have a say in the way their homeland is managed.

From bad to worse

The tale is similar for first nations across BC. Before contact in the 18th century, lands were ruled by strong tribal nations. Then came years of trade, where the Haida and other peoples maintained great power and trading networks. When the colony was first created in the mid-19th century, British law recognized that Indian nations owned their land. From its lofty perch in England, the Crown expected governors of the far-flung colonies to negotiate treaties and pay compensation for land.

James Douglas, the first governor of what is now BC, did a passable job, paying some aboriginals for lands, but any good intentions he had were overshadowed by lack of funding. When more and more settlers came, his successor, Joseph Trutch, threw any notions of compensation aside and became the first of many provincial officials to deny aboriginal title ever existed.

Things went from bad to worse. The right of aboriginals to vote in BC elections, and then federal elections, was taken away. Later the economic, social and political system of coastal peoples, the potlatch, was outlawed. Meanwhile, Christian missionaries were doggedly ensuring aboriginal children were forced into faraway residential schools where they were forbidden to speak their language or practice their traditions.

When the first settlers started arriving on Haida Gwaii in the early 1900s, they found a native population ravaged by smallpox and gathered mostly into two of the many formerly thriving village sites.

Commercial fishing, logging and mining quickly became mainstays of the local economy. A strong sense of attachment to the islands grew in the hard-working settler communities, but small business interests turned into huge corporate interests, and disputes over land use continued to grow.

So how did such a complicated history result in such a feel-good document?

Gitkun, the 82-year-old hereditary chief of the ancient village of Tanu, has watched the Haida and non-Haida communities interact over the years and offered these comments at the recent Protocol signing.

“Sometimes we think there is trouble between our communities, but it generally washes over. Both sides do not want trouble. They look at their own thoughts and decide they would be friends again.”

Port Clements and Masset were the first communities to sign the Protocol Agreement in 2004, and many believe it was this support that helped the Haida win the 2004 Supreme Court of Canada appeal against the Province of BC and Weyerhauser, contesting the province’s right to transfer the biggest logging tenure on the islands without consultation.

The Haida Title case, which is awaiting a start date in the BC Courts, will also likely be served by the non-Haida communities’ commitment to the Protocol.

Rights strengthened

Recognizing the co-existence of Crown and Haida aboriginal title is key to the power of the unique document, but this line has also been the sticking point for many would-be signers. Just what Haida title means for private property, and how non-Haida residents will be represented in a future Haida-controlled homeland, are questions that often arise.

Guujaaw and other Haida leaders have been consistent for 30 years with their answers. When title is established, islanders will not be dispossessed of their homes. But as for private land held by large corporations, Guujaaw is not making any promises.

One could say that recognition of aboriginal title has been a sticking point in provincial relations since Trutch deemed it non-existent in the late 1800s. But thanks to the hard work of the Gitxsan and Wet’suwet’en, who pushed the Delgamuukw case through years of courtroom proceedings, aboriginal title received some legal recognition in 1997. Many cases since then have further strengthened the definition of aboriginal rights.

Will Horter, the executive director of the Dogwood Initiative, an organization which exists to support communities looking to take control of their future, says that whispers of what has started on Haida Gwaii are happening across BC.

“Before, there were company towns,” he says, referring to the logging and mining communities dotted throughout the rugged landscape of BC. “But that is breaking down.” People are learning that they trust their neighbours and that they have more shared interests with them than with the corporate head honchos of huge forestry companies like West Fraser and Canfor.

Formidable force

Agreements similar to the Protocol have been popping up across the province. A community forest in Likely is jointly managed through a partnership between the first nations and the community, as is one on Cortes Island. Private agreements are being made between first nations and businesses or organizations as well.

Horter says first nations and communities partnering together creates a formidable political force, one that cannot be ignored by either governments or industry. He already sees the power of communities coming together over raw log exports on the coast and coal bed methane extraction in the north.

Horter makes an analogy with an underdog football team. Green Bay, Wisconsin may be a small city of just 20,000, but its football team, the Green Bay Packers, has won more Superbowl championships than any other team in the National Football League. No other football team has held the same moniker in the same location for longer (since 1919) and has a season-ticket waiting list with 71,500 names.

What’s the secret to their success? Horter explains that the team is owned by the community, meaning the players aren’t running touchdowns in order to create profits for some multi-millionaire owner, but the players are helping drive any and all profits back into the team and the community.

He says small communities have a similar opportunity for long-term success. The secret is in understanding that a community doesn’t need to create profits. “They need to create wealth,” he says. Projects that break even create a lot of jobs and economic activity, and that is what a community, in the long term, wants.

The implications are enormous, says Horter. “The economy of Canada is based on taking resources from rural areas and moving them to the central elite.” The people in rural communities have been losers in this equation, he says. “Maybe we can reverse that.”

And this is why the world is starting to watch the way things unfold in British Columbia. “It’s not going to happen in Vancouver or Victoria. It’s going to happen in Skidegate and Masset or in Telkwa and Smithers,” he says.
[Side bar]

A Brief History of Government-Aboriginal Relations in BC

1760 The future BC is home to several hundred thousand people in some 30 tribal nations and many hundreds of communities.

1763 British Royal Proclamation of 1763 recognizes Indian “Nations or Tribes” as owning their lands in North America.

1849-58 Vancouver Island and later the mainland are made a colony under James Douglas and the Hudson Bay Company. He recognizes pre-existing ownership and buys title from 14 Indian groups.

1860-64 Instead of treaties, Douglas implements his “system” which seeks Indian assimilation, but with dignity and equality.
1864 Douglas retires. Joseph Trutch assumes control of Indian policy; in contrast to Douglas, he regards Indians as inferior savages.

1870 Trutch becomes first official to deny existence of aboriginal land title in BC; he revises BC history to have the Douglas treaties as mere friendship pacts. Whites now view Indians as having been primitive nomads and assume BC to have been an empty land until discovered by Whites. Official BC policy henceforward assumes that unencumbered crown title was created with British sovereignty.

1872 Right to vote in BC elections is withdrawn from Indians.
1880s Christian missions and Department of Indian Afairs (DIA) are now well-established in BC. Removal of Indian children from home and family for education and “civilization” begins.1884 Parliament outlaws the potlatch, the major social, economic, and political institution of the coastal peoples.

1887 Nisga’a and Tsimshian chiefs travel to Victoria to demand recognition of title, negotiation of treaties, and provision for self-government within Canada. Premier Smithe rejects any notion of original Indian title, saying, “When the whites first came among you, you were little better than the wild beasts of the field.”

1947 BC Indians get the provincial franchise, as a by-product of post-war enfranchisement of other racial minorities.

1949 Frank Calder is elected to the BC legislature.

1960 Indians are granted the federal franchise; phasing-out of Indian residential schools begins—to achieve faster assimilation.

1969 Federal “White Paper” presents final assimilation plan.

1973 Supreme Court of Canada rules that Nisga’a did hold title to their land before BC was created. The Court splits evenly on whether Nisga’a still have title.

1976 Federal government starts land claim negotiations with Nisga’a. Province of BC declines to participate.

1980s Social Credit government denies Indian title ever existed.

A recurrent pattern emerges: 1) After years of preparation, a tribal nation presents its formal land claim to the federal government, with a copy to BC. 2) Ottawa and BC do nothing. 3) BC allows new or continuing resource development on the claimed land. 4) Tribal nation mounts a protest blockade. 5) Group seeks an injunction. 6) BC courts grant the injunction, suspending provincial authority over development on the land in question.
Supreme Court of Canada, in Sparrow case, recognizes aboriginal food fishing rights, subject only to conservation requirements.

1991 In Gitksan-Wet’suwet’en case, Chief Justice Allan McEachern rejects present day aboriginal title and right to self-government. Endorsing traditional White views, he depicts the claimants as descendants of primitive peoples who had neither law nor government.

1992 The BC government finally and formally recognizes aboriginal title, and also the inherent right of aboriginal peoples to self-government. BC is for the first time ahead of the federal government in responding to aboriginal demands.

1994 The new federal Liberal government of Jean Chretien accepts section 35 of the Constitution as including the aboriginal right to self-government.

1997 The Gitksan and Wet’suwet’en win on appeal in the Supreme Court of Canada. The Delgamuukw decision was the first to recognize aboriginal title and the use of oral history to prove title.

1998 The Nisga’a final agreement is signed in New Aiyansh.

2004 The Haida win a Supreme Court of Canada appeal which challenged the Minister of Forests’ decision to replace a Tree Farm Licence (TFL 39), an exclusive forestry tenure that covers one quarter of the land base of Haida Gwaii, the homeland of the Haida Nation. The Court held that the Province has a legally enforceable duty to consult the Haida with respect to TFL 39 and that the Province failed to fulfill this duty.

Added to and adapted from: Tennant, Paul. Aboriginal Events and Issues in B.C.: A Chronology; 1994; at PaulTennantAboriginalEventsinBCAChronology.doc