Treaties and Negotiations
Treaties constitutionally entrench reconciliation between: First Nations, Canada and British Columbia. Treaties are constitutionally protected, government-to-government agreements that identify, define and implement a range of rights and obligations, creating long-term, mutually binding commitments. Treaties negotiated through the BC treaty negotiations process are tripartite agreements between the governments of Canada, British Columbia, and a First Nation. The goal of treaties is reconciliation. The establishment of a new relationship based on mutual trust, respect, and understanding. Certainty of this relationship is another goal.
Treaties signed with First Nations in Canada between 1701 and 1923 are commonly referred to as historic treaties. In BC, there are Douglas treaties, signed with First Nations on Vancouver Island, and Treaty 8 covering a portion of northeastern BC. Treaties signed today are called modern treaties, and cover where there are no historic treaties, and can also deal with matters not addressed in historic treaties.
Treaties address the unresolved land question in British Columbia.
Before Canada was a country, Britain recognized that Indigenous Peoples living here had title to land. The Royal Proclamation of 1763 declared that only the British Crown could acquire land from First Nations, and that was typically done through treaties. In most parts of Canada, the British Crown established treaties with First Nations before Confederation. The new Dominion of Canada continued this policy of making treaties before the west was opened for settlement, but in BC this process was never completed.
When BC joined Confederation in 1871, only 14 treaties on Vancouver Island (Douglas treaties) had been signed, and aboriginal title to the rest of the province was left unresolved. It wasn't until 1970 that First Nations in Canada were able to pursue aboriginal rights in the Supreme Court of Canada. With the exception of Treaty 8 and negotiations with the Nisga'a Nation, most First Nations in BC had to wait until 1993 to pursue their aboriginal rights through the BC treaty negotiations process.
Section 35 of the Constitution Act, 1982, affirmed that aboriginal title, and the rights that go along with it, exist whether or not there is a treaty. However, Section 35 does not define those rights, and uncertainty about how and where these rights apply can discourage investment and economic development in BC. Treaties provide certainty and will clarify aboriginal rights and title, ownership of BC's land and resources.
The BC treaty negotiations process is a process of reconciliation. It is a tripartite negotiations process, among First Nations, Canada and BC, who are collectively negotiating a treaty. It is a voluntary process of political negotiations. In treaty negotiations, a First Nation does not have to prove aboriginal rights and title – these rights are already recognized and protected by the Canadian Constitution. This is the basis of the negotiations.
The Principals of the BC treaty negotiations process are the Government of Canada, as represented by the Prime Minster of Canada and the Minister of Indigenous and Northern Affairs Canada and the Government of British Columbia, as represented by the Premier of British Columbia and the Minister of Aboriginal Relations and Reconciliation, and the First Nations Summit. The Parties to each negotiation table are the Government of Canada, the Government of British Columbia, and the individual First Nation.
For more information, see Principals and Parties.
The three roles of the Treaty Commission are:
Facilitation: Assist the parties in making progress;
Public Information and Education: Inform and increase awareness of treaty making; and
Funding: Allocate funds to First Nations to support negotiations.
The Treaty Commission is the only tripartite statutory body in the country whose mandate is to support reconciliation. The BCTC Agreement and associated legislation states that the primary role of the Treaty Commission is to assist the Parties and the Principals as an independent facilitator of the negotiations.
The BCTC assists in advancing reconciliation through the made-in-BC treaty negotiations process by ensuring the work of the Parties is effective and is making progress.
To do this, the Treaty Commission:
• assists the Parties in developing solutions and in resolving disputes
• observes and reports on negotiations progress and encourages timely negotiations
• chairs key meetings at negotiating tables
• reports publicly on key opportunities and obstacles
• works with the Principals on improving the treaty negotiations process
• monitors and reports on progress and encourages timely negotiations
65 First Nations, representing 105 current and former Indian Act Bands out of all 200 Indian Act Bands in BC, are participating in, or have completed treaties through, the treaty negotiations process. This is 52.5% of all BC Indian Act Bands.
There are seven First Nations implementing modern treaties that were negotiated in the made-in-BC treaty negotiations process: the five Maa-nulth First Nations, Tla’amin Nation, and Tsawwassen First Nation. Maa-nulth is structured as five independent governments, and is counted as such by the Treaty Commission.
The Nisga’a treaty was concluded as the BC treaty negotiations process was unfolding. There are eight constitutionally entrenched modern treaties in BC when the Nisga’a treaty is included.
The Yale Final Agreement is ratified by all three Parties, but the effective date has been postponed.
Funding for treaty negotiations is provided by Canada and BC. The Treaty Commission allocates this funding to First Nations; the Treaty Commission does not fund treaty negotiations.
Allocations are made up of a maximum of 80% loans advanced by Canada, and a minimum of 20% non-repayable contribution funding. Canada provides 60% of contribution funding, and BC provides 40%.
Typically for every $100 of negotiation support funding allocated, $80 is a loan from Canada, $12 is a contribution from Canada, and $8 is a contribution from BC.
A 2009 report by PricewaterhouseCoopers concluded that the benefit of completing treaties will outweigh the costs, and deliver more than $10 billion in benefits to British Columbia's economy over the next 15 years.
Read the Treaty Commission’s latest annual report for the most recent information about the total funding allocated to First Nations in the BC treaty negotiations process, and BCTC’s operating budget.
Treaty making cannot be done in isolation. Everyone has a role in reconciliation, including the public. It requires the will of communities to initiate change, to embrace the process of moving forward as British Columbians in a new relationship.
Although the three parties conduct negotiations, the public has a number of important roles and ways to be involved in the BC treaty negotiations process. Learning about the BC treaty negotiations process — and becoming informed about important local issues and our shared history — is a responsibility that must be taken seriously by all British Columbians and Canadians.
Non-aboriginal interests are represented at the negotiation table by British Columbia and Canada. Another important feature of negotiations is the participation of Municipalities and Regional Districts. Intergovernmental relationship between Municipalities/ Regional Districts and First Nations will be an important part of treaties.
Governance and What is Being Negotiated
First Nations were self-governing long before Europeans arrived in Canada. In 1876, the Indian Act dismantled traditional governance systems and imposed strict regulations on Indigenous peoples' lives. Section 35 of the Constitution Act, 1982, recognizes that Indigenous Peoples have an inherent, constitutionally-protected right to self-government – a right to manage their own affairs.
Self-determination is a core principal of self-government, the BC treaty negotiations process and is also reflected in the United Nations Declaration of the Rights of Indigenous Peoples (PDF).
Under the BC treaty negotiations process, self-government will be established, and administered through the treaty. Self-government provisions may include education, language, culture, police services, health care, social services, housing, property rights, child welfare, and other provisions agreed to by the three parties. A First Nation implementing a modern treaty will be self-governing and will have a constitution and law-making authority over treaty land and provisions of public services. Treaty sets out how the First Nations governance interacts with the Canadian Constitution and the Charter of Rights and Freedoms will apply to First Nations’ governments as it does to all other governments in Canada.
For more on self-government, see Why Treaties.
Under the BC treaty process, the parties-each First, Canada and BC-may introduce any issue at the negotiation table which it views as significant to the new relationship. Although each treaty negotiation is unique, there will be some commonalities among final treaties:
♣ First Nations government structures and related financial arrangements
♣ jurisdiction and ownership of lands, waters and resources
♣ cash settlements
Treaties will also establish processes for resolving disputes and making changes to the treaty. To get an idea of the kinds of provisions that may be included in a final treaty.
For more information, see Treaties.
The BC treaty negotiations process has always been guided by the principle that private property (fee simple land) is not on the negotiation table, except on a willing-buyer, willing-seller basis.
In urban areas where Crown land is limited, private property available from willing sellers will be critical to achieving treaties.
Impacts of Treaty
Treaties will replace Indian Act-imposed band governments with a government authority for all citizens of a Nation. Each treaty will define who is eligible and who can be enrolled. Most First Nations will have broader eligibility criteria than current status and non-status designations under the Indian Act. Eligibility criteria will likely require that an individual be of Frist Nation ancestry connected to the Nation or accepted as a citizen of the particular nation. All citizens of a First Nation can vote on a treaty.
Self-government strives to provide better opportunities for Indigenous people living within their traditional territory, while not excluding those Indigenous people who choose to live elsewhere.
One of the main principles of the treaty negotiations process is to balance the interests of non-First Nation residents with First Nations’ right to self-government. Provisions for self-government will vary from treaty to treaty, guided by these principles:
• Self-government will be exercised within the existing Canadian Constitution. Indigenous peoples will continue to be citizens of Canada and the province or territory where they live, but they may exercise varying degrees of jurisdiction and/or authority.
• The Canadian Charter of Rights and Freedoms and the Criminal Code of Canada will apply fully to Indigenous governments as it does to all other governments in Canada.
• First Nations will have the ability to make laws pertaining to treaty land and the provision of public service for their people, including health care, education and social services.
• Some local laws like zoning and transportation will apply to all residents on treaty lands, but the majority of treaty laws will apply only to treaty citizens.
• First Nations laws will prevail over certain core jurisdictions and core lands. Otherwise federal, provincial and territorial laws will be harmonized.
• First Nations will be required to consult with local residents on decisions that directly affect them (for example, health, school and police boards).
It's important to clarify that First Nations only receive tax exemptions when on reserves; most Indigenous people pay the same taxes as other Canadians.
Through treaties, First Nations will acquire a land base and establish a government with powers to access revenues, borrow, receive transfers from other governments and levy taxes. The governments of Canada and BC will seek to gradually eliminate tax exemptions as First Nations move towards greater economic self-sufficiency. For example, the current modern treaty tax exemptions to transaction taxes such as sales tax will be eliminated eight years after the effective date. Exemptions for all other taxes, including income tax, will be eliminated twelve years after its effective date.
Certainty, as it relates to treaty making, refers to the need for all parties – each First Nation, Canada and BC – to have clearly defined land ownership and jurisdiction. Achieving certainty is a primary goal of the BC treaty negotiations process. Modern treaties establish clearly defined land ownership and jurisdiction, and foster a new relationship based on mutual respect, trust, and understanding. By improving this relationship and increasing certainty, many of the causes of conflicts over land and resources will be resolved.
What certainty really means is "predictability" – the familiarity that develops from a history of working together. Through interim measures agreements, aboriginal and non-aboriginal communities can start building mutually beneficial governance arrangements, business relationships, land management processes, and other cooperative relationships today. Treaties are not final in the sense that they are meant to signify an ongoing relationship between the parties.
In the past, the Government of Canada required First Nations to “cede, release and surrender” their aboriginal rights in exchange for treaty rights. This is referred to as an “extinguishment model". The idea of extinguishing aboriginal rights and title, that form the essence of aboriginal culture and identity, is repulsive to aboriginal people and unacceptable to First Nations in the treaty process. It was also rejected by the architects of the Treaty Negotiations process, see the Report of the British Columbia Claims Task Force.