Author: Jessica Harry

Hello, everyone.  In this little article I’ll try to summarize the major progress we’ve made in treaty negotiations recently and emphasize why the future looks so much more promising than it did just a few years ago.  I’ve broken it into topics so you can flip through, if you like, to the issues you’re most interested in.  Remember, this is just a short summary of only some of the treaty topics.  There are many other important ones—e.g. hunting, water, foreshore management, consultation, shared decision-making, etc. I’ll have to leave them for a future article. If you have any question please contact me at davefern@temexw.org and I would be happy to schedule a home visit with you or a meeting at one of the nation’s buildings.

Timing

• After 28 years it can be hard to believe we’re getting close to the end.  But we are.  Canada, BC and TTA are all committed to reaching a Negotiators’ Understanding by the end of 2023.  That is the point where the Negotiators agree they’ve gone as far as they can and it’s time to take the treaty package to you, the members, to vote on.  Each TTA Nation will vote on its own treaty.
• There will be many community meetings and we’ll be sharing as much information as we can in the lead-up to the vote.  Judging from the timelines in earlier treaties it’s likely we would hold the vote late in 2024 or early 2025.  Members 18 or older would vote on both the draft Constitution and the treaty itself.
• If you approve the treaty, it would then have to be approved by the provincial legislature and the federal Parliament.  There would still be work to do but if all goes smoothly the treaty would probably come into effect in 2027 or 2028. 

S. 87 Tax Exemption

• In earlier treaties, Nation Citizens with status had to start paying transaction taxes (GST and PST) on their own former reserve lands and on all other reserve lands 8 years after the treaty came into effect.  They also had to start paying income tax on income earned on former reserve lands and all other reserve lands 12 years after the treaty came into effect.
• Last summer Canada changed its policy on this.  So long as the s. 87 tax exemption remains in the Indian Act –and it’s been there for over 150 years so it’s very unlikely to change now – status Citizens of a treaty Nation will be able to continue to enjoy their tax exemptions on their former reserve lands and on the reserve lands of other Nations.  The exemptions will no longer be phased out after treaty Effective Date.

Land Package

• If you approve the treaty, the future Malahat treaty land package would contain a total of about 1280 ha:
• 240 ha of the current reserve
• 658 ha of current provincial Crown lands
• 381 ha of the Bamberton lands and Malahat Mountain Village lands that Malahat owns now
• Note that Malahat would set and collect any property tax charged on these lands.
• If the treaty is not approved by the members, Malahat would still have the current reserve, of course, and the Malahat Mountain Village and Bamberton lands that it currently owns in fee simple.  However, it would continue to pay property tax to the Province for the Bamberton and Malahat Mountain Village lands.

Fisheries

• Until now, DFO has always insisted that the fisheries rights arrangements be included in the treaty itself.  Now, for the first time, DFO is allowing Malahat and the other TTA Nations to negotiate fisheries arrangements in a side agreement.  As noted above, this side agreement will not replace or change the Douglas Treaty fishing rights in any way.  The two documents will exist side by side.
• As part of the agreement DFO will be providing Malahat with annual funding to run a Fisheries Management Office, and one-time funding to purchase licences, vessels or gear (at Malahat’s choice).
• Note that the fisheries side agreement is not dependent on the treaty.  It can come into effect whether or not the treaty is approved.

Fiscal Funding Arrangements

• These are funding agreements treaty Nations enter into with Canada to ensure treaty governments have the necessary funds to take on their new responsibilities under the treaty.  
• In the past these have been largely based on whatever funding the Nation received from Canada as an Indian Act band.  Basically, you got what you’d always gotten with some modest increases in certain areas.
• Over the past several years Canada has been meeting with Nations that already have a treaty or self-government agreement to develop a realistic funding model that captures the true costs of running a treaty government, managing its lands and waters, and delivering programs and services to its Citizens.
• This group has identified 11 expenditure areas and finalized a funding template for core governance costs, which is arguably one of the most important areas of any government’s expenditures.  Canada has shared how this template would work for the TTA Nations and I can confirm that it would provide much, much more generous levels of funding that what you get now for band core governance.  As the remaining expenditure areas are negotiated, we expect that they, too, will be substantially more generous and realistic than the funding templates used for the earlier treaties. 

Law-making Powers

• If you approve the treaty, the new Malahat treaty government will have far more extensive law-making powers than the current band council has under the Indian Act.  They will be able to pass legislation in areas such as lands and resource management, child and family services, child protection, culture and heritage, health services, adoption, and environmental management, to name a few. 
• All of these law-making powers will apply on treaty lands, of course, but some will apply throughout the traditional territory and a couple will actually be enforceable throughout the province. 

Rights Recognition and Douglas Treaty Rights

• In earlier treaties Nations had to agree to “cede, release and surrender” all pre-existing Indigenous rights, and these were replaced by whatever rights were set out in the treaty.  Later, the language was changed so that pre-existing Indigenous rights were “modified” into treaty rights.
• The current treaty language does not affect your pre-existing rights.  They will continue to exist alongside the new treaty rights.  What this means is that your Douglas Treaty rights will not be changed or replaced in any way by the modern treaty.  And we have language to that effect in the treaty itself and in the Fisheries side agreement.

Goldstream Reserve

• Normally, all reserve lands are converted to treaty settlement lands on treaty Effective Date.  That can’t happen in our case because Canada is holding Goldstream on behalf of the four W̱SÁNEĆ Nations, as well as Malahat.
• So, for the first time, Canada has agreed to allow a potential treaty Nation (Malahat) to continue to have access and rights on a parcel of reserve land after treaty Effective Date.  Malahat members will be able to continue to fish and gather shellfish on the Goldstream Reserve and use it in the same way you do now.  W̱SÁNEĆ members will be able to do the same, of course.  So, if you approve the treaty no one should notice any changes to Goldstream.

Periodic Renewal

• In the past, treaties could be changed but it was a difficult process and there was no obligation on the part of the governments to seriously consider any changes.
• We now have periodic renewal language in the draft treaty.  This sets out a schedule of dates (for instance, every 10 years) at which time the Parties will review the treaty and consider possible changes arising from new court decisions, changes to government legislation or policy, or developments in other treaties. 
• The treaty language also obligates each Party to discuss and negotiate “in good faith” any changes proposed by another Party “Good faith” has a defined meaning in the legal system and cannot be lightly disregarded by the governments.  What this means is that if Malahat proposes a change to the treaty, the governments have to consider it seriously.  They’re not compelled to agree but they also can’t refuse it outright without making an effort to come to some form of agreement with Malahat.
• Instead of being frozen in time, treaties will now be living documents that can accommodate changing circumstances and developments.

Loan Forgiveness

• Previously, Nations in the treaty process had to borrow most of the money they needed for the negotiations and then repay it when the treaty came into effect.  In essence, you had to borrow money to negotiate to get your traditional lands back.  Canada has now forgiven all treaty loans.  Negotiation expenses going forward will all be covered by grants that don’t have to be repaid.

Please see the attached post for important information for the Nominees of the Malahat Nation 2023 Election.

If you have questions, please contact Lauren Krull, Director of Finance, at 250-743-3231 or Lauren.Krull@malahatnation.com

If you would like to read the Malahat Election Code 2015, it is available here: https://malahatnation.com/governance/laws/election-code/