Whose law is it anyway? Part 3: Negotiating a good deal

TVO.org speaks with a former chief federal negotiator about earning goodwill, “outrageous expectations,” and why First Nations currently have leverage
By Matt Gurney - Published on Feb 21, 2020
Supporters of the Wetʼsuwetʼen hereditary chiefs block a CN rail line west of Edmonton on February 19. (Jason Franson/CP)

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This is the third instalment in a five-part series looking at Wetʼsuwetʼen and the law. Read Part 2 here; read Part 4 here.

On February 6, RCMP units moved to arrest protesters in British Columbia on the traditional land of the Wetʼsuwetʼen people, where protesters were blocking construction of the court-approved Coastal GasLink pipeline. The RCMP raid was authorized by a court. But whose court? As the controversy continues and solidarity protests pop up elsewhere in Canada, there is increasing talk of Indigenous law. TVO.org is interviewing five experts about what that is and what it means for Wetʼsuwetʼen. Today: a former chief federal negotiator with direct experience negotiating during disputes with First Nations. (Because this individual remains engaged in related work, TVO.org has agreed to withhold their name.) While they are familiar with some of the issues currently unfolding, they have not been directly involved in any of the ongoing processes.

Matt Gurney: I guess we just start with a basic explanation — what does a CFN do?

Former CFN: We go in when negotiations between the federal government and a First Nation are in some way proving to be a problem. Maybe they’re stalled; maybe they’re slow. Maybe they’ve boiled over some way, with a blockade or a threat of a blockade or a danger of violence or “infrastructure disruption,” which is what we seem to call it now. Public servants with the federal ministry for Indigenous affairs — and we keep reorganizing and renaming that, so it can get confusing, but whatever the department is at the time  — handle the normal negotiations with First Nations. Those happen all the time, and many of them go smoothly. But, if there’s a problem, the government can send in a CFN. If they feel vulnerable, or think they are not getting appropriate information, or don’t like how the negotiations are going, they appoint a CFN. They don’t do it lightly. They need to maintain a good working relationship with the public service. But both sides understand that sometimes it's in the interests of both sides to bring in a CFN.

And I should add that some First Nations, due to the specifics of their relationship with the government, may see a CFN appointed more often than others. Maybe it’s particularly complicated. Or maybe there’s just an established history of using CFNs. The Tyendinaga Mohawk, for instance, where the blockade is, they have a history of having CFNs appointed. As a CFN, I did very complex, challenging, high-conflict files. Blockades are not new. They’re threatened. Some negotiations are nice: Everyone gets along well. There’s a good rapport. They make progress. The public servants get those. Some are hard. I got those!

Gurney: Is sending in a CFN solely the government’s job? Is it a unilateral decision, or is it something both sides would agree to, as when two parties to a dispute appeal to an arbitrator?

Former CFN: I’m the government’s representative. They choose me. The First Nations choose their own. That’s standard. So when things are routine, the government just sends their own public servants. When there’s a crisis, they send in a CFN, and that’s at their discretion. The First Nation chooses what representatives they’d want to send.

Gurney: What does the Indigenous delegation normally look like? Do you deal directly with Indigenous people, or do they just go hire some downtown Toronto lawyer?

Former CFN: Both! We almost always would be dealing with an elected chief, and, normally, some elected representatives of the band council. But they’d also bring a lawyer. Maybe the lawyer was also Indigenous. But they’d bring in some hired legal expert. And we had our own lawyers go — Crown lawyers. Often CFNs are themselves lawyers, but we wouldn’t be acting in that capacity, so we’d have a government lawyer with us. Hereditary elders sometimes played a part, but not often. And they would be there as a moral leader to emphasize what was important for the community.

Gurney: So what does that first phone call look like, when you’re being sent in?

Former CFN: Typically, what happens is there’s a degree of political frustration with how things are proceeding, or not, so the ministry staff works with the prime minister’s office to select a negotiator candidate. They select one. Sometimes that was me. I’d get called and come in and get a briefing by the political people. I’d get up to speed on what their concerns and issues were. We’d get our own briefings and communication figured out. The advantage of a CFN, a negotiator from outside, is that they have a direct channel. A direct communication link to the senior political leadership. There is tension there. The public servants think that they are in charge of the negotiations. So do the political staff. So the CFN has to go in and work with both. You’ve got to be quite deft to work through this squeeze.

Gurney: I want to ask you a simple question — probably too simple, but I want to boil this down to basic terms so we can understand. You’re a CFN. You’ve been sent into a tough negotiation. Maybe there’s a blockade or a threat of one. Every negotiation comes down to carrots and sticks, to good cops and bad cops. What’s a carrot for you? What’s something you can bring to the table to earn goodwill?

Former CFN: It really depends on the circumstances. Because sometimes these disputes are with a band where a lot of the issues are already settled. There’s a treaty or an agreement already in place. In that case, my negotiating latitude is limited. Land title isn’t an issue in Ontario, mostly — that’s been largely settled. Sometimes, like out in British Columbia, very little has been settled, so we have a lot more room to negotiate. You want a strong, professional relationship at the table and trust. That’s true of every negotiation. There are the same issues and resistance. There’s anger at the federal government. Anger at delays. Some of these problems have developed over a long time, and there’s a lot of hurt over broken promises and government failures. So you first want to show that you’re serious. That takes a lot of work. I’ve spent a lot of time working on just that. You have to establish mutual respect. They need to understand that you have access to the decision-makers. And you can’t mislead them or string them along. That happens a lot in negotiations, not just in this context. But it’s really bad here.

But in terms of carrots? What can I offer that you haven’t been offered before? There’s a lot. It comes down to supporting them working with third parties and private-sector resource developers. Supporting local community issues. Quantifying historical grievances. We always have some money available but not, like, billions. And we often face outrageous expectations that we have to manage — and I just mean outrageous compared to any market comparable. If there’s a resource project and we’re determining profit-sharing, well, the company has to make a profit or there’s no project. Sometimes we have to say, this is what we can do for you now, or we can let this drag out another 300 years. Or we can make a good deal now. But we have to make sure that their expectations are aligned with what even a generous market can bear. If the enterprise doesn’t make a profit, there’s no enterprise. So our best carrot was a good deal.

Gurney: When things are going badly — maybe there’s a blockade or a threat of a blockade — short of showing up with the Mounties or a battalion of tanks, what can you offer as a stick, if the carrots don’t work?

Former CFN: Everything is a continuum. It’s not always hardball. But I tried not to bring in new factors or threats. I tried to just stick to whatever was on the table. And to adjust. We’d lay down redlines — that’s negotiations in any context. We’d make clear what our parameters are, where there’s wiggle room. That’s the art of negotiation. We’d have to be clear what we weren’t going to do. You had to read the people across the table and their sincerity. Did they really want to make a deal? Or do they want to just grind the wheels and hold out for something better later? But, in fairness, that’s on both sides. We all ragged the puck some days.

Gurney: What would happen in the case of an overt or implicit threat of a blockade? “Hey, nice rail line — it would be a shame if someone camped out on it.” How do you react to that?

Former CFN: Those were the situations I was often brought in. And the most effective stick I had was when the First Nations assessed us and our resolve and knew we meant business. And if we’re clear with them, even if they didn’t like what we had to say, if we were open and transparent, they’d respect that. You never want to be seen as dishonest. They don’t have to like your position, but they respect resolve. And we’d make clear that there would be consequences for illegal conduct. I’m not involved in the current crisis, but I’d be really interested to know, over the last couple of years, have First Nations concluded there are no consequences coming from Ottawa? How did we get to this level of crisis? Blockade threats aren’t rare, or threats to shut down a mine or something … these happen. Injunctions have been sought and enforced in the past. They’re not now.

Why? We might never find out, but I suggest that the First Nations know exactly what they’re doing, and they don’t think injunctions will be enforced or consequences imposed. So they’ve created a situation where they’ll have the leverage. I don’t mean this in a partisan way. But just as basic negotiation, there are no consequences coming from Ottawa. The First Nations know that, and they’re being very clever in how they act. This crisis suits their interests.

Gurney: I want to ask you a question that might sound weird. But what do these negotiations look like? Describe them to me as if I’m standing in the room. What am I seeing?

Forner CFN: They’ve very civilized. We often would rotate venues. Sometimes we’d host in Ottawa; sometimes we’d be on a reserve. If travel times were a big issue, everyone could meet somewhere else, in a major city. But it’s very civilized. It’s a boardroom. There’s coffee and doughnuts. We’d break bread and usually all eat lunch together and just talk. Because of the travel, we’d normally negotiate for a few straight days. Maybe two days, intense days. When we were on reserves, the hospitality was incredible. They treated us generously. It was really lovely. But it would be a lot like any business negotiation in a hotel or office. It sure beat doing it in a motel.

Gurney: I know you did a lot of these, but, in general terms, what did you learn about the First Nations? They were taking your measure, and you, theirs. What did you see?

Former CFN: Like I said, there was enormous generosity and hospitality. Sometimes the people we were negotiating with were very smart, very shrewd. And sometimes not. But the hospitality was constant. But there was also enormous anger. Tremendous, entrenched frustration on their part. Resentment. Alienation from the broader society and Canadian institutions, particularly the justice system and the federal government. Fury is not too strong a word when we talk about the Indian Act and how Indigenous peoples were treated for a long time. Sometimes the anger would be more intense than others, but, fundamentally, that’s what I saw. And you know what? It’s not unjustified.

There was also frustration with our political turnover. There were real, genuine efforts being made by Canadian governments. Truly and sincerely. But then we’d have an election, and the priorities would change. Or there’d be a cabinet shuffle, and a new minister would take over.

And I think with this particular government, I think there’s a sense of betrayal. A lot of promises were made. Very robust commitments, on day one, on reconciliation. And there’s frustration that they weren’t lived up to. And a sense of betrayal. That’s not too strong a word. Indigeneous leaders are still accountable to their people. And the people are angry. They feel like they were hoodwinked by Prime Minister Trudeau, that their leaders fell for his false promises. And they’re angry.

This interview has been condensed and edited for length and clarity.

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