A draft agreement-in-principle (AIP) with the Snuneymuxw native band of Vancouver Island was recently released. In addition to providing $74.4 million in cash, land and other assets (including a federal building in downtown Nanaimo) the native band will see their land holdings increase from 300 hectares to 5,000 hectares, remove the band from the jurisdiction of the Indian Act, establish exclusive native commercial fishing, logging and mining, and will eventually see the elimination of the tax exemption for band members.

Based on the terms and conditions of the agreement-in-principle it would appear that the provincial and federal treaty negotiators have forgotten the Delgamuuxw decision. In this decision the Court ruled that a 'limited' Aboriginal title exists. Aboriginal title includes an activity that took place on land that must have been an integral part of the distinctive culture of a particular native band prior to European contact.

It is very difficult to illustrate how commercial activities, such as mining, fishing and logging, were integral to the Snuneymuxw society prior to European contact, since these commercial activities came with European contact. Yet the Snuneymuxw AIP grants an exclusive native commercial fishery, commercial logging, and due to the subsurface rights outlined in the agreement, paves the way for native commercial mining. Thus the AIP will create a two tier society where industries are based on race rather than equal opportunity to participate.

If native communities are to become economically self-sustaining, reserve land must be transferred to the native band. Fortunately, the AIP provides that reserve land from Crown ownership to the Snuneymuxw band. By having ownership and control over the land base, the Snuneymuxw will be able to develop the land as its 1,344 members see fit. Moreover, be transferring the land to the Snuneymuxw band, the native community will no longer by under the jurisdiction of the Indian Act. As a result, Snuneymuxw band members will no longer be exempt from taxation.

To date in British Columbia, no agreement-in-principle that phases out the tax exemption has been accepted by native band members. The tax exemption component in treaties is often said to be a "deal breaker." It is easy to understand British Columbia natives' reluctance to give away their tax exemptions when their counterparts east of the Rockies have them.

To eliminate the "deal breaker," the federal government must step-up-to the plate and eliminate Section 87 of the Indian Act. It is this section that provides the tax exemption to natives living and working on reserves. The removal of
Section 87 will put an end to the discussion of tax exemptions in the BC treaty negotiation process. This will no doubt help negotiations advance. Furthermore, the elimination of this section will create a tax system in Canada that is based on income rather than ethnicity.

For treaties to be successful in British Columbia, land claim agreements must be limited to the modest Aboriginal interest found in the Delgamuuxw decision, thereby excluding native only commercial activities. The removal of native lands from Crown possession and out from under the oppressive Indian Act, must be applied to all treaties. The federal government must eliminate Section 87 from the Indian Act to end to the tax exemption "deal breaker." It is only through such measures that finality and certainty will be established in British Columbian treaty negotiations.