News

Excerpts from the workplan, May 11, 2004 by Elmer Derrick, Bev Clifton-Percival and Gordon Sebastian

The board of directors of the Gitxsan Treaty Society (GTS) has refocused the organization’s activities to cope with the lack of progress at the treaty table. The lack of progress is due to the provincial and federal government’s conduct of business as usual – no policies or legislation to guide their negotiators which we interpret as a lack of mandate on the part of the two levels of government.

The GTS focus now is to activate four of the nine Gitxsan watersheds: Gitsegukla, Middle Skeena, Kispiox and Babine. This process will assist Canada and BC in developing policies of reconciliation and accommodation of Gitxsan interests, including rights and title. The two levels of government will have to negotiate access to the territories of the Gitxsan Huwilp.

From the negotiating table standpoint, activation of the watersheds involves three main principles: reconciliation, accommodation and implementation.

Reconciliation

Canada and BC must reconcile the prior existence of the Gitxsan Wilp and their lax yip, including fishing sites, with the government’s assertion of Crown sovereignty. This is part of the BC Treaty Commission’s Stage 4 process in working towards an Agreement-In-Principle.

In the past, BC left the Gitxsan treaty table on Groundhog Day – Feb. 2 – 1996. The provincial mandate is extinguishment of aboriginal rights and imposing the land selection model. In the first set of treaty negotiations (1994-96), these government policies were in total conflict with the Gitxsan wilp and lax yip. The province pleaded a “fundamental difference” and walked from the Gitxsan table. The BC Treaty Commission (BCTC), still in its infancy, proved to be inept as “keepers of the process” and those negotiations died.

After the Supreme Court of Canada’s Delgamuukw decision on Dec. 11, 1997, the Gitxsan persuaded BC to resume bilateral talks on the terms of reconciliation. One item of those talks was to reconcile issues in the Bear Lake area (Xsu Wii Ax). The BCTC began to understand the issues and supported these bilateral talks.

Canada and the Province returned to the Gitxsan treaty table in 2001. The BC Liberals indicated they would develop a policy on negotiations after their provincial referendum on land claims. As “keepers of the process” the BCTC is failing to keep the government to its word to develop such policies. The province has not developed any new policies on reconciliation or accommodation of Gitxsan interests.

In the meantime, BC and Canada agreed to four topics of discussion with the Gitxsan at the treaty table: language and culture; human services (education, justice, health); fish and economic opportunities. Then in April, 2004, the province indicated they had no instructions or mandate to discuss these topics. BC and Canada have also established new negotiators at the Gitxsan table creating uncertainty and the requirement for new relationship building.

The Gitxsan will continue reconciliation work connected to activation of the watersheds in the hope that BC and Canada will come up with viable mandates to enter into the “give and take” process of negotiations. The Gitxsan know what they can live with and what hill (issue) they will chose to die on at the negotiating table.

Accommodation

BC has a duty to consult and seek workable accommodation of Gitxsan interests in all government decisions. The province views this duty of consultation as being strictly linked to rights proved in court and existing only in relation to those proven rights. This is a narrow posiition and is inconsistent with the purpose of s. 35 of the Constitution Act (1982).

The issue of accommodation at the watershed level is currently being pursued in connection to forestry activities. When Justice Tysoe made his ruling in the Yal case on Dec. 11, 2002, the province appointed a special Ministry of Forests staff member to seek workable accommodations of Gitxsan interests. Discussions finally began in March, 2003, and, three months later, the parties signed the Interim Forest Agreement on June 1, 2003. That agreement expired on Dec. 31, 2003 but some important points were won in negotiating the document including, for the first time, the acknowledgement by the province of the Gitxsan Simgigyet representing the Huwilp and the historic and current role the Wilp play in land and resource stewardship issues.

The Gitxsan negotiators are focusing on drafting a Short Term Forest Agreement (SFTA) that will expand upon what was won in the now expired Interim Forest Agreement. The draft SFTA includes specific sections on consultation and accommodation around administrative-level decisions (i.e. allowable annual cut levels) and operational plans (i.e. forest development plans) on the Gitxsan traditional territories. The draft SFTA also includes a section on forest stewardship and planning. It outlines a process for sustainable watershed planning by proposing the Gitsegukla Watershed Pilot Project which would put details as to how a consensus-based management plan could be achieved between the Ministry of Forests and the Simgigyet of the Gitsegukla Huwilp. This is an example of the specifics of accommodation in action at the watershed level.

Implementation

Activation means implementing the Gitxsan watershed administrative units in order to encourage BC and Canada to develop mandates for negotiators that result in policies and legislation that accommodates and implements the interests of the Gitxsan on the land (anyusxw).

This means the Gitxsan must be prepared to implement any new arrangements made with the province. The most urgent of these new arrangements appearing on the horizon will be revenue sharing and forest tenure. All decisions regarding these arrangements will be made according to ayokim Gitxsan. This requires the Gitxsan to spell out the role of the Simgigyet in making decisions. It is this ancient process that must be recognized in government policies and legislation.

The province has recognized the Wilp and its link to the land. The Simgigyet have been recognized as representing the Huwilp. The function of the Wilp on the anyusxw must be accommodated in order to give effect to the provincial recognition.

There are two very important processes that would give proper effect to the Wilp, the Simgigyet and the anyusxw: the Gimlitxwit and the nine watersheds.

The Gimlitxwit coordinator will be working directly with the Simogyet of each Wilp. She will be providing a central office that assists in keeping the Simgigyet involved in all decisions affecting their traditional territories (anyusxw). The Gimlitxwit is expected to meet regularly, every 6-8 weeks, to ensure they are involved in all decisions affecting their lands. Each watershed will be accountable to their Simgigyet. As well, there will be further accounting to the Gimlitxwit to ensure all Gitxsan are benefiting from all activities on Gitxsan land.