Dehcho Process Ministerial Special Representative Report to Premier McLeod and Minister Bennett

January 20, 2017

Overview

Over the period August 2016 to mid-January 2017, I visited all but one of the Dehcho First Nation (DFN) communities that are still party to the Dehcho Process negotiationsFootnote 1. I met separately with the Fort Providence Metis and jointly with the Metis and DFN communites in Fort Simpson. At their request, I also met with the Katl'odeeche First Nation in their community just outside Hay River. In addition, I attended two sessions with the DFN and Metis leadership.

Some community meetings were well attended. At others, the attendance was sparse. Moreover, it was clear that those who did attend did not always have a firm grasp or detailed knowledge of the issues, much less of the state of play in the negotiations. In most communities, attendees raised some issues that are not directly germane to the negotiations and, as a general rule, community elders tended to dominate the discussions even when there were younger people in attendance (which was not always the case).

The discussion with the Katl'odeeche Chief and elders focused on their take on the history of the file. The bottom line of their message was that they were prepared to return to the fold in the negotiating process if they could retain their status as a reserve and be granted self-government. I was subsequently advised that if the Katl'odeeche First nation (KFN) retained their status as a reserve, it would make it impossible for them to be part of the Dehcho First Nation negotiation because, inter alia there would then be two categories of people.

While there were certainly some common themes that emerged, there were also differences of emphasis among the communities, particularly with respect to the desire to see development projects undertaken.

I will set out in this report the main themes that emerged in the discussions and drawing on that, I will make some observations and draw some conclusions.

Main Themes

Comments/Observations

  1. It was clear that most people in the various communities had limited knowledge of the draft agreement and its main issues.  This may be because people lost their focus on the issues during what was a break in meaningful Main Table discussions during the various elections in 2015 and before that, as a result of the "misunderstanding" over the bilateral GNWT/DFN negotiation. In any event, there were quite a few complaints from community members about the lack of information on the negotiations as well as on other issues. One person in Fort Simpson talked about apathy in the Dehcho communities and the need for educated Dehcho members to join the negotiating team. But whatever the reason(s), there will certainly have to be a major information initiative launched to ensure that community members who will vote on a draft agreement are in a position to do so. If they do not know or understand the main elements of a draft agreement, the temptation may be to vote against it. In this regard, the question of funding was raised and it was suggested that adequate resources would be needed for a major campaign involving monthly meetings of the leadership and frequent briefings in the communities to deal, inter alia, with land selection.
  2. Perhaps not surprisingly, it was clear that DFN positions are crafted by the leadership and presented to the membership as something they should support. It is a top down process. Hence on the issue of land quantum, for example, community members had no independent thoughts on what it should be (other than it should be "enough"). At several meetings, the Grand Chief referred to the Tlicho formula (which in his view yields a DFN quantum of 50,400 sq. kms.). Nor did they express detailed views on governance. If a compromise on land quantum and land selection can be reached at the Main Table, it seems likely that community members could be persuaded to accept it. The same goes for governance issues if the Grand Chief and the leadership assert that the interests of the Dehcho communities are protected.
  3. There is a clear difference in priorities from community to community. Some are deeply traditional, concerned mainly about conservation of the land and water and preservation of their way of life, while others are anxious to take advantage of the resources available to them. To some extent, these priorities are reflected/shaped by the individual Chiefs. That said, if the Grand Chief has what he considers to be the right package, it is likely that, with the support of a few of the leaders, he will be able to sell it.
  4. The influence of the elders in the communities is paramount. Indeed, at my second meeting with the leadership, it was pointed out that a conscious decision had been taken at the beginning of the process to allow for a DFN position that is "elder-centric". For the most part, the main aim of the elders is to conserve the land and preserve the past and what they perceive as "rights" they acquired in earlier days. To sell a package to the elders in the communites, the leadership will have to convince them that there are sufficient safeguards for the integrity of the land (and water). The Draft Interim Land Use Plan will go a long way to achieving this, but it will also be important to reassure them on the subject of Edehzhie. An action plan for designing and implementing the PAS would probably also be helpful, as would an early transition to National Park status for the Nahanni Park.
  5. One of the elements of the Dehcho Process that has perhaps complicated the ability of the Parties to move forward is the DFN insistence on a negotiating process that is open to all. This has made it difficult to explore possibilities before either side felt the need to adopt hard positions. It is for consideration whether it would be wise to meet privately with the Grand Chief (alone or with a couple of the Chiefs) to give him some idea of the parameters of a package that the Premier and Minister of INAC would be prepared to recommend to their Cabinet colleagues. It would have to be made clear that it would not be possible to alter the package once it has been agreed by the Cabinets in both governments. It would also have to be stressed that the elements of the package are linked and that it would not be possible to "cherry pick" items in the package and certainly not after it has been approved.

    If the Grand Chief indicates that the package is one that he can take to his membership and/or if he argues for additional elements in the package that can be accommodated, it could go a long way to advancing the negotiations towards a successful conclusion. If however he balks at the approach or at individual  elements of a package, decisions could then be made about whether to proceed with specific elements such as the Draft Interim Land Use Plan in advance of or even without an eventual Agreement-in-Principle (AIP).

    If a private meeting were to be offered to the Grand Chief, I think it will be important to remind him of his own request at the outset of the Ministerial Special Representative exercise exercise that the Parties should avoid any public rejection of each other's positions.
  6. It is important to bear in mind certain realities regarding the DFN ability to meet the exigencies of a rigorous negotiating time-line. I gather than the Grand Chief intends to continue in his role as DFN chief negotiator. This could be a huge job if an accelerated negotiating schedule is set and it is unclear if it would be manageable with all his other responsibilities. Moreover, for all practical purposes, the DFN now has only one outside advisor (i.e. their lawyer….whose advice that the DFN does not need to deal with the GNWT on land issues has, in my view, been extremely disruptive). I did not see any evidence that qualified members of the DFN were interested or available to support the Grand Chief at the negotiating table, but perhaps there is more going on behind the scenes than I was made aware of.

Elements of a possible package on outstanding issues:

I think it will be important to present any new offer to the DFN as a package of elements. The Grand Chief may argue that he needs something to take to the leadership that indicates that the GNWT and the Federal Government are ready to move. (This could be advance implementation of the Draft Interim Land Use Plan and agreement to protect the surface and sub-surface of Edehzhie.) 

It is my view however that concessions such as these would best be offered in the context of a package that would ensure the achievement of an AIP within the life of the current Federal and Territorial governments (and possibly within the mandate of the current Grand Chief).

Based on meetings with the leadership and the communities, a successful package would probably have to include:

Conclusion:

If the federal and territorial governments are willing and able to consider new offers, I got the very clear impression that there is a readiness to negotiate. Moreover, there is openness on the part of many in the communities to bring these negotiations to a close. Any new offer should ideally be presented as a package and should include the elements described above.

Consideration should be given to how a new package would be most effectively presented to the Grand Chief.

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