Battle over land, resource rights made tougher by NAFTA

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Our battle over land and resource rights got a little harder last month.

The United States' House of Representatives passed the North American Free Trade Act in late November, effectively eliminating all the trade barriers and laws that could have helped the First Nations get back on their economic feet. With the passage of the deal, we are no longer just fighting Ottawa for the land. We'll also be competing with powerful foreign investors.

NAFTA promoters say the deal opens the three North American economies to the "challenges and opportunites" of a continental marketplace. The free flow of goods and services would supposedly make the economies of Canada, the U.S. and Mexico stronger by capitalizing on their individual strengths. Mexico has a lot of labor and Canada has a lot of resources.

The U.S. also has a lot of ambitious multinational companies just dying to get access to formerly inaccessible markets in Canada, markets that until now might have been reserved only for the First Nations.

For the moment, it is perfectly legal for bands in Canada to give their business to companies that they already own. In fact, it's one of the few ways that the money Native governments get from Ottawa circulates within their bands. A council can vote to let a band company dig a hole, do a survey, or mine for diamonds rather than have an off-reserve non-Native company do the same work. Theoretically, at least, the money remains on the reserve.

NAFTA doesn't recognize First Nations councils as "governments." The document only acknowledges states, provinces and unspecified "local" governments. That could or could not include band councils, depending on how the advantages play. For instance, the deal says it's illegal for any government in North America to make a law that discriminates in trading practices. Right now, a band council can pick its own business to dig for diamonds if it want. But NAFTA says that's illegal.

Band councils cannot do much about that. If they refuse to offer tenders to companies off the reserve, they can be sued by those same companies for breaching NAFTA.

The other problem with the deal is how it affects Crown land in Canada. All

land occupied by Indians without a land claim is under no obligation to keep the U.S. multinationals off of unclaimed Crown Land.

It's uncertain how NAFTA will affect "trust" or reserve lands because they are not mentioned in the deal. Under Sections 91 and 24 of the Indian Act, land can be transferred between Indians with the permission of the Indian Affairs minister. NAFTA might affect those sales if Natives try to keep investors from Canada, Mexico or America out of the deal.

There's not a whole lot that bands can do about the deal right now. Jack Forbes a professor of Native Studies in California who has studied the deal extensively, suggests bands adopt their own legislation outlawing NAFTA. If taken seriously by any outsider government, anti-NAFTA laws would nullify any affects the deal may have on Indian land. But that solution only works for bands with land claim settlements. Most of the bands in resource-rich B.C. have no land claims and that's where NAFTA's impact will be most acutely felt.

So we're no longer dealing only with the Canadian government to get what is ours - we're fighting three national governments and new international business interests to simply try to keep what's already ours.