Indigenous-Crown Diplomacy Success: Negotiating with the Feds and Provinces In & Out of Normal Channels - The Multi-Pronged Approach
/I was lunching on delectable half-smoked salmon with the Gitxsan Hereditary Chiefs on the rocky banks of the Skeena River in northern BC where two million sockeye used to make the annual upriver run, wondering how I had gotten through life without ever knowing there was a wondrous middle ground between smoked and not smoked.
We’d just left a Gitxsan smokehouse where the proprietor had explained she already put in a concrete floor and stainless sinks at the insistence of government inspectors, but despaired they were now insisting she could no longer use the wooden poles the Gitxsan had used for millennia to dry their fish, which gave it its distinctive flavour. The Crown had threatened to shut her down if she didn’t switch to stainless steel rods, claiming wood was unhygienic.
It got me to thinking of how frustrating any Indigenous-Crown negotiation could be - no matter how big or seemingly small the issue - as Indigenous peoples' lives could be so changed by intractable Crown thinking. And on how many years it could take to incrementally make progress with federal and provincial Crowns on issues that should be simple to solve.
Do Active Negotiations Really Take a Generation to Conclude or Implement Agreements?
Fairly put, it’s taken some Indigenous peoples centuries to get legitimate issues into active Crown-Indigenous formal negotiations. But it’s easier to precisely quantify how long those formal negotiations have taken to arrive at a successful conclusion or fully implement those conclusions.
While some negotiations like the James Bay and Northern Quebec Agreement might seem like they were able to be initially concluded within a few years, in reality, decades of implementation and amending negotiations were required after the fact. Even negotiations that endured for a couple of decades like the Nunavut Land Claims Agreement have been rife with ongoing implementation issues due to their complexity.
I’ve always thought Indigenous-Crown relations could be considered domestic diplomacy, as they’re built on nation-to-nation relationships. But international treaties involving 200 signatories may have significantly shorter negotiation timeframes than modern Crown-Indigenous treaties. For example, the British Columbia Treaty Commission (BCTC) process to settle modern Comprehensive Claims in BC (with 65 sets of negotiations) is now at 28 years of negotiations and counting, with only seven claims settled.
I became involved in the BCTC process on its tenth anniversary, which in my naïveté I thought a long time in. There are other Indigenous treaty processes continuing outside BC as well, at varying paces.
My experience with all manner of Indigenous-Crown diplomacy in Canada is that one can get trapped by 30-year generational delay (GD) in reaching or implementing agreements. And we’re not just talking Comprehensive Claim modern treaties, but sometimes issues as simple as working out an Addition to Reserve (ATR). Imagine starting your career on whichever side of the negotiation table, and if you’re lucky you’ll wrap up your career seeing whatever you were negotiating at the start finally being implemented. Interplanetary space missions take less time.
Why a Generation? (There’s No Single Cause)
I couldn’t believe the numbers on time to negotiate and implement when I first became involved in Crown-Indigenous negotiations. I thought I was hearing about aberrations. Or exaggerations. But alas, no.
Why a generation? At least for the negotiations I’ve been involved with, the Top 6 Problems (T6P) explanation is actually pretty consistent regardless of what the issue might be:
not enough money in the pot to go around in specific budget cycles;
not enough bureaucrats to do the work necessary for the approvals;
changes in bureaucrats during the approvals process due to transfers, retirements, and new hires leading to a loss of corporate memory and drift in work plans;
too bureaucratic of an approval process to begin with;
too many governments involved in the approvals;
changes in government during elections stalling final approvals leading to a lack of political will at the Ministerial or Cabinet level.
True, politics on all sides can play a part, but I’ve seen lots of consistent political will on the side of Indigenous peoples all go to waste because the Crowns can’t address all of the foregoing T6P.
What’s to Be Done? (The Solution Isn’t Simply More Money)
While provincial Crown budgets can be a bit tight (if they’re at the table), I’ve never found that of the Federal Crown who it seems (and I was in on the inside for 17 years) can always source significant sums if enough federal political will exists. However, after 25 years in the business, I’ve found that decision delay logjams can suddenly, almost miraculously, disappear at both federal and provincial Crown levels. Not all of them, but more than I would have expected. But I’ve also found that the freeing up of the jam might not come from the anticipated direction, meaning that a multi-pronged strategy is required to get the logs flowing downstream.
Some may perceive there to be only two paths or approaches to freeing up the jam: the bureaucratic and the political. I’ve witnessed the best successes in a truly multi-pronged approach, where you might have a dozen paths forward to choose from, and it’s necessary to nurture every one, nudging each gently along to success, because it’s impossible to accurately predict the direction by which success can be achieved. No matter the issue, that winning multi-pronged approach might involve targeting efforts on multiple appropriate Ministries and elsewhere (listed in order of where you should probably start on Indigenous issues having a legal/political aspect):
REGIONAL FED OFFICE - engage with Federal Regional Office Bureaucrats, as most Federal ministries have at least a few regional offices in addition to HQ staff, and the regional offices have a lot more power than you might think - they’re often the pointy end of the project implementation stick, with far greater knowledge of local communities that HQ;
NHQ FED OFFICE - engage with Federal HQ Bureaucrats (usually in Ottawa or Gatineau), they may have better internal issues processing resources, political connections, or superior access to funding, than the regions;
SPECIAL FED OFFICE - stopping at the regional and HQ offices may still not have you fully covered with the Feds, you might need to also engage with Federal specialized Bureaucrats because the Government of Canada is so vast, so there may be a special office somewhere which operates beyond the normal regional office/HQ command structure, which is devoted to fixing the kind of problem you have (after all my years in government, I’m amazed by the offices I still learn about which have been around for decades but are new to me);
PROVINCIAL OFFICE - engage with Provincial Bureaucrats, the correct ones can be harder to identify than federal bureaucrats if they wear several hats because they are more thinly spread than the feds, but they may have longer tenure in their positions than the feds (because the vast number of positions and geography provides more opportunity to internally transfer around for the feds), and thus be more capable of personally seeing initiatives through to a conclusion;
FED MINISTER POLITICAL - engage with the Federal Minister’s Office, even if direct political engagement is no panacea given there may be hundreds (or even thousands) of other groups regularly lobbying the same Minister’s office about their own issues, so this Ministerial engagement might best be viewed as a top-down push to encourage pulling the bottom up, meaning dragging regional office and HQ bureaucratic engagement a bit out of any rut it might be in, as everyone gets excited when the Minister’s office calls a Director downstairs; Ministerial engagement will be a must where there is a specific Ministerial or Cabinet decision that is a precondition to an issue being solved but (in my experience direct PMO engagement probably won’t help due too their being too much competition, but getting on a Minister’s radar is doable);
FED MP POLITICAL - engage with the Federal Local MP as part of a complimentary feds approach, where the MP might reach out to the Minister, who might, in turn, reach out to his bureaucrats;
PROVINCIAL MINISTER POLITICAL - engage with the responsible Provincial Minister’s office, which contrary to my views on the PMO could actually involve parallel attempts to engage with the Premier’s office where it will still be very hard to get anyone’s attention at a Premier’s level (at least in the larger provinces), but as provincial Ministers generally have fewer resources than federal ministers, the Premier’s intervention might be more needed for a larger resource ask;
PROVINCIAL MLA POLITICAL - engage with the Provincial Local MLA, while similar to federal MP engagement, this is part of a complementary approach that might enhance your Ministerial engagement, but definitely won’t replace it and should not be counted upon as a direct conduit to the Minister;
INDIGENOUS ORGS - engage with other Indigenous Peoples and Organizations, at the very least costs of engaged (and maybe later litigation) might be shared, and sometimes an agreement with more than one Indigenous people at the same time may solve a federal or provincial logjam;
MUNICIPAL - engage with municipal governments, even though municipalities won’t have independent status at Crown-Indigenous negotiations tables, for the municipalities wise enough to realize that Indigenous peoples of Canada are economic drivers, coopting their support could unjam provincial government ambivalence to a negotiated solution;
INDUSTRY - engage with industry, as while all Indigenous rights consultations need to be run through the Crown and not directly by industry, coopting industry as a supporter of a particular solution could have its benefits to encouraging Crown agreement;
MEDIA - engage with media as a useful conduit to direct political or public engagement;
PUBLIC - engage with a targeted geography or demographic of “the public,” as attempting to engage the public at large without a targeting strategy may lead to any message being lost in all the competition for public attention.
There are far more than 13 paths to success, I’m just naming the most common ones that I’ve seen work - usually in combination. Greater efforts - and resources - might be required to pursue some paths than others. Thus a cost-benefit exercise needs to be conducted prior to commencing engagement to avoid wasting excess resources on inapplicable or low-value paths, although my message favours spreading resources among as many paths as possible.
My experience has been that brainstorming is needed from the get-go on engagement strategy in order to escape from bureaucratic ruts that can kill agreement and implementation success on Indigenous negotiations for any topic.
Gordon Scott Campbell has served throughout Canada as a negotiator of Comprehensive and Specific Claims, litigator of Aboriginal rights and treaties up to the level of the Supreme Court of Canada, and advisor on Indigenous governance including constitutions. Learn more at www.acmlawfirm.ca.