Bertha Williams has sent me this letter and given her permission to post it. This is an important document and an effective criticism of the approach taken to this treaty vote by the BC and federal governments.
July 23, 2007
Dr. Rodolfo Stavenhagen
Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People of the United Nations Commission on Human Rights
Office of the High Commissioner for Human Rights
1211 Geneva 10 - Switzerland
Tsawwassen Traditional Territory
Dear UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, Dr. Rodolfo Stavenhagen:
My name is Bertha Williams and I am a member of the Tsawwassen First Nation and we are located just south of Vancouver and at the Tsawwassen Ferry Terminal to Vancouver Island.
We have Aboriginal Title to our traditional territory and waters, which cover much of what is now Vancouver and reach all the way to Vancouver Island.
Our elected Chief and Council have been negotiating with the Canadian and British Columbia governments and have arrived at a Final Agreement.
This Final Agreement is based upon the Nisga’a Final Agreement and will extinguish the Aboriginal Title of the Tsawwassen peoples according to the Modified Rights Model.
I do not agree with the extinguishing our Aboriginal Title. My people are faced with a vote that could have a terrible impact on our Aboriginal Title and Rights and on our future generations.
I am writing you this letter to take issue both with the substance and with the procedure followed in this vote, since it does not even meet basic international legal standards.
As for the substantial aspect, I am sure you are aware of the negotiations ongoing under the British Columbia Treaty Process that aim at the extinguishment of our Aboriginal Title and Rights and their modification into very limited treaty rights.
It means that we will lose our inherent Title and rights and become assimilated into the mainstream legal system and our lands will fall under the jurisdiction and administration of the provincial and federal government.
As much as the Indian Act system was an instrument of segregation and economic marginalization of our people, at least the Indian Reserve lands were inalienable and could not be alienated by non-natives.
Under the proposed Tsawwassen Final Agreement all lands will then be registered in the provincial land registry and subject to property taxes and if our people are unable to pay the tax they will lose their family plots.
Supposedly a small amount of additional lands will be added to the Tsawwassen Land Base under the Final Agreement, but it is easy to foresee that within the first few years of the treaty a lot of the lands will be bought by non-natives, because the lands will now be on the open market.
Our people remain the poorest people in our territory, because we have not been given access to our territory and resources. The Tsawwassen Final Agreement will further enshrine this poverty because in it we will be forced to give up our inherent rights to our traditional territory and its resources, although these rights are all recognized and protected as indigenous and human rights under international law.
Now let me please address the very urgent procedural concerns to do with the way this vote is being conducted and forced on our people.
Firstly, not every Tsawwassen Indian Band Member will automatically be entitled to vote. Rather, we have to sign on to the so-called “treaty roll” or enroll as a Tsawwassen Member to vote regarding the ratification of the final agreement and constitution.
Many people feel that by enrolling they are indirectly underwriting a process many of them do not agree with. It is already being predicted that the government will use the fact that people have enrolled, as meeting the requirement of “free prior informed consent”.
Yet the majority of the people who sign on, have never read the agreement, nor do they understand the fundamental issues they will be voting on.
Also many of us feel pressured to get enrolled, so that our vote will be counted. It is not our “free” decision to get on the roll, but only those that get enrolled, will vote on the future of our entire nation.
I know there will be people who will take the principled, moral decision not to enroll, because they do not want to give any legitimacy to this illegitimate process.
There are no minimum enrolment numbers for the vote on the final agreement to take place and the agreement can be ratified by a simple majority.
Given that the vote will be on such a fundamental issue, namely our land rights and the provision for our future generations, and on our constitution, it is absolutely unacceptable to have such non-existent/low thresholds.
Usually constitutional votes require a minimum 2/3 threshold, both in terms of voter participation and approval by 2/3 majority. Even for our Indian Band to make a decision on transfer of one simple lot of land, we usually require such minimum participation in a general band meeting and approval by 2/3 majority.
In Canada in order to change the constitution, the requirements are even higher, in terms of the formula that requires participation of most of the provinces and qualified majorities within them. Of course this formula will not come into play when the federal and provincial governments will vote on the final agreement, because they treat it like a simple law and not like a constitutional law, although they will pretend that it takes away both our land rights and our sovereignty.
If we ever wanted to change the constitution of the Tsawwassen First Nation again after the initial approval it would also require a 2/3 majority of members voting in a referendum. The same applies to the guarantees that have been set out by the band council to try to get people to sign on to the agreement.
The guarantees have to do with social services and monies that will be paid out to members on the basis of the final agreement, but it is clear that they are not rights and simply promises that will be abandoned once they run out of money.
Right now a lot of additional money is being put on the table, because the Canadian and British Columbian governments are extremely nervous about the out come of the vote on the Tsawwassen Final Agreement which will take place on July 25th, 2007 at the Tsawwassen First Nation.
The provincial government just allocated millions of dollars to first nations to promote the final agreements and engage in PR work.
With some of these monies the Tsawwassen First Nation has published a “Survival Guide to the Tsawwassen First Nation Final Agreement 2007”.
This Survival Guide is supposed to be a quick compilation of what is contained in the extensive Final Agreement. I am providing a full copy of this document.
I would like to reference some very key items that raise very serious question about the legitimacy of this vote. Under “Members Benefits” two cash incentives to voters are stated.
In particular it states that “each elder over 60 will receive $15,000, shortly after ratification day” and “approximately $1,000 per member on Effective Date”.
I feel that these cash incentive are a bribe to vote YES to the Final Agreement. These are the cash guarantees that are written right into the agreement and that are openly promoted, but I know that there are additional monies paid out just to get people to vote on this agreement.
As already set out above, the vote will take place without meeting basic requirements for such a fundamental, constitutional vote.
People are not informed about the real content of the agreement they are voting on, but rather the provincial government is paying for the preparation of propaganda material that points to the few mainly cash incentives of the agreement, but fails to point out all the downfalls, such as the extinguishment of our Aboriginal Title to our territories, the loss of the tax exemption and the long-term loss of programs and services that will all result in the further impoverishment of our people.
Such an important vote should be held following basic principles for constitutional votes and should be monitored independently.
After all, our people are the poorest people in our traditional territories and poverty can be and in this process is being used to manipulate our people to give up their most valuable goods: their land and their resources.
Our people continue and will continue to live under third world conditions. Taking into account the potential for manipulation under these circumstances, a similar vote in a developing country would be subject to election monitoring and international scrutiny to ensure that minimum procedural guarantees are met, no cash incentives are offered, no threats are made and that there is no election fraud.
None of these international standards and principles are met in the context of the Tsawwassen vote, actually the governments are providing the cash incentives and additional sums through PR campaigns.
I therefore implore you, as the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, to closely monitor and scrutinize this vote and to raise concerns regarding the failure to meet basic international standards for constitutional votes and for dealing with indigenous rights, with the government of Canada and at the international level.
Please feel free to contact me if you require any further information.
I will also take the liberty to keep informing you about the process as it will unfold in the next days that are so crucial to my people.
Tsawwassen First Nation Member
CC: Luis Rodríguez-Piñero Royo, Human Rights Officer
The Right Honourable Steven Harper, Government of Canada
The Honourable Gordon Campbell, Government of British Columbia