First Nations alliance launches court challenge over agreement between Ktunaxa, Province

The seven-members Okanagan National Alliance has filed a civil claim in B.C. Supreme Court disputing the B.C. Treaty Process

  • Aug. 12, 2014 6:00 p.m.

Tamsyn Burgmann/Canadian Press

VANCOUVER — A stack of overlapping land claims by First Nations is a ”cancer” within British Columbia’s treaty process, says a prominent provincial chief spearheading a court challenge of the decades-old method of negotiating aboriginal rights and title in the province.

The seven-members Okanagan National Alliance has filed a civil claim in B.C. Supreme Court in Vancouver disputing the B.C. Treaty Process, and centres it legal action around an agreement between the province and Ktunaxa Nation Council.

The incremental treaty agreement was signed in March 2013 and gives the Cranbrook, B.C., nation and its adjoining bands 242 hectares of land in the West Kootenay. The deal is the first stage of forging a broader treaty.

But the alliance argues the majority of nine parcels of property being signed over actually falls within its own members’ traditional territory.

Alliance chairman and Grand Chief Stewart Phillip argues a ”fundamentally flawed” B.C. Treaty Process is hampering fair resolution of the dispute.

”This process has been around now for approximately 23 years. It has cost billions of dollars with very little result,” Phillip said in an interview on Monday.

Phillip said he believes the government is signing so many of these incremental agreements because of the criticism around the glacial pace of treaty talks.

”The overlap issue is the cancer of the B.C. Treaty Process.”

British Columbia is the only province that didn’t sign agreements with its First Nations in the 1800s. There are only a couple modern-day treaties.

The process for negotiating aboriginal land rights was established in 1992 by agreement of the province, the federal government and the First Nations Summit.

Those efforts created the B.C. Treaty Commission, an independent body devised to facilitate the treaty negotiations.

The lawsuit seeks a declaration by the provincial government, under the minister of aboriginal relations, that it failed to consult with the alliance before unilaterally moving ahead with the Ktunaxa deal. It’s also seeking an injunction stopping the province from taking further steps to transfer the lands, known as the Wensley Bench.

A spokesman for the province declined comment on the lawsuit, but noted the goal of instituting incremental agreements is to speed up the process.

A request for comment by the Ktunaxa nation was not immediately returned.

The alliance contends the land signed away includes village sites, hunting grounds and other cultural heritage sites important to its own members. The legal action was filed after the group attempted for more than a year to resolve the issue with the province directly, Phillip said.

He said many swaths of land are in dispute across the province, but it’s only when a claimant group is at the point of signing off on an agreement that it triggers the concern of the adjacent community.

”It’s like your neighbour talking ad nauseam about what they want to do in terms of improving their property,” he said, ”and you don’t really pay much attention to it until the guy starts knocking your fence down and encroaching on half of your property to complete his renovation of his house.”

B.C. Treaty Chief Commissioner Sophie Pierre declined to comment on the suit because the case is targeting the province.

But the commission will always encourage First Nations to work out protocols on shared territory, she said.

”This business about running off to court every time we run into an obstacle, I mean, eventually we have to sit down and figure it out amongst ourselves,” she said. ”That’s been the position of the Treaty Commission since day one, and that’s always going to be our position.”

Another overlapping treaty agreement that’s caused a stir in recent weeks has occurred near Terrace, B.C.

The Gitxsan First Nation threatened evictions of the railway, foresters and fishermen in a dispute over land it claims, but was handed to two neighbouring First Nations in a treaty agreement.

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