Readiness Submission: Process and Assessment Criteria
Once each party has determined that it has completed its Stage 2 preparations, it should file written readiness submissions with the Commission. The Commission must assess these documents to determine the readiness of each party to commence negotiating a Framework Agreement. The Commission will notify the other parties when it receives a readiness submission.
Section 7.1(f) of the B.C. Treaty Commission Agreement sets out the readiness criteria that the parties must satisfy before they can begin these negotiations. The following are the Commission's policies for meeting those criteria.
THE INFORMATION REQUIRED IN CRITERIA 1 - 5 BELOW SHOULD BE PROVIDED RESPECTIVELY BY REPRESENTATIVES OF THE FIRST NATION'S GOVERNING BODY ON BEHALF OF THE FIRST NATION; THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT ON BEHALF OF CANADA; AND THE MINISTER OF ABORIGINAL AFFAIRS ON BEHALF OF BRITISH COLUMBIA.
1. The First Nation has made a formal commitment in writing to Canada and British Columbia to negotiate a treaty under the six-stage treaty process, and Canada and British Columbia have each made the same written commitment to the First Nation. These formal written commitments should be exchanged as soon as possible after the initial meeting. Copies of the letters must be sent to the Commission.
2. Each party must appoint a Chief Negotiator who has continuing responsibilities for conducting the negotiations. Each party should identify its Chief Negotiator and the members of its negotiating team. The Chief Negotiator will be the liaison person with the Commission. He or she must have the authority to negotiate effectively.
3. Each party must confirm in writing that it has a mandate to negotiate a treaty, a comprehensive and clear mandate to negotiate a framework agreement, and a timely, effective process to develop and modify its mandate throughout Stages 3, 4 and 5.
Each party must confirm that it has a comprehensive and clear mandate to negotiate a framework, describe how it received its mandate and describe its process for developing and revising this mandate during all stages of the negotiations.
Canada and British Columbia must be able to show that their negotiators have the ability to access government departments so that they are able to address cross-departmental issues and jurisdictions in a timely and effective way. They must also demonstrate that they have a timely, effective process in place to obtain a specific mandate necessary for progress to be made in treaty negotiations.
In accordance with the B.C. Treaty Commission Agreement, the First Nation's mandate must be received from its constituents. "Constituents" are all the members of the First Nation, on and off reserve or wherever they reside.
Confirming a mandate necessarily involves those constituents with capacity to make decisions (i.e. adult members). In determining whether the constituents of the First Nation have given the required mandate, the Commission will expect compliance with the same guidelines that apply in Stage 1:
- there must be clear notice given to all known constituents of the First Nation that informs them of the specific mandate being sought, and
- all known constituents should be given an opportunity to participate in the decision.
As a minimum standard, a majority of constituents who have participated in the decision must indicate their support for the mandate sought.
Examples of ways for constituents to participate in decision making include:
- attending meetings convened in the communities where a significant number of members reside;
- where members are unable to attend a meeting, they should have an opportunity to express their views in writing -- by mail-in ballot, by appointing a proxy to vote on their behalf or by sending written comments to be considered at the meeting;
- community petitions; and or
- consensus processes in combination with other examples described above. The First Nation should describe how it received its mandate, and how it allowed all known constituents the opportunity to participate. It should provide the Commission with copies of resolutions passed, decisions taken or minutes of all duly convened meetings, how it took into account any written comments received from members not in attendance, copies of signed petitions, or any other documentation available.
The First Nation should describe how it received its mandate, and how it allowed all known constituents the opportunity to participate. It should provide minutes of all duly convened meetings, how it took into account the Commission with copies of resolutions passed, decisions taken or any written comments received from members not in attendance, copies of signed petitions, or any other documentation available.
4. Each party must have both the human and financial resources to carry out and conclude Framework Agreement negotiations in a timely manner.
Canada and British Columbia must confirm that each has dedicated resources for the ongoing support of an effective negotiating team with cross-departmental support to carry out and conclude framework negotiations and proceed into agreement in principle negotiations. The Commission will allocate available funds to the First Nation for Stage 3 where such funds are requested.
5. Each party must describe the ratification procedure it expects to follow to conclude a final treaty.
Each party should also describe the process by which the Framework Agreement and Agreement in Principle will be approved. As the B.C. Claims Task Force stated: Parties must understand each other's ratification procedure and be confident that agreements reached at each stage in the process have been fully considered and approved, and that the treaty will be binding once it is ratified. It would be unfortunate to reach the treaty stage only to find that the ratification of some earlier stage was incomplete, thus undermining support for the treaty. Individual First Nations may have different approval and ratification procedures reflecting their distinct political organization. In deciding on a process for approving a Framework Agreement or Agreement in Principle, the First Nation should be attempting to obtain approval from all known constituents.
THE INFORMATION REQUIRED IN CRITERIA 6 - 8 BELOW SHOULD BE PROVIDED BY THE CHIEF NEGOTIATOR OR DESIGNATE.
6. Each party has identified the substantive and procedural issues that it wishes to negotiate.
Each party must identify the major substantive matters to be discussed in the Framework Agreement stage. The Framework Agreement will contain the substantive issues that the parties agree to negotiate in the ensuing stages.
Before they enter Stage 3, the parties must write to the Commission confirming that they have agreed on the following procedural issues:
- frequency of meetings, locations and estimated time to complete Stage 3, and
- how they will share information during negotiations.
The Commission will facilitate discussion of these issues if required. Parties may agree on other procedural issues during Stage 2, such as openness protocols. While these are not requirements for readiness, the parties are encouraged to resolve these issues early in the process.
7. With respect to overlap issues, the First Nation must:
- identify, and
- begin to address any overlapping territorial issues with neighbouring First Nations.
Overlaps may involve First Nations both in and outside the treaty process. The Commission respects the principle that First Nations have the primary responsibility to resolve overlaps among themselves. The existence of an overlap is not an impediment to entering negotiations. However, the First Nation must clearly identify all known overlaps and begin to address these issues, in accordance with the following requirements:
a) Identifying overlaps
The First Nation must, in consultation with its neighbours wherever possible:
- identify all affected First Nations and notify them;
- prepare a map which shows
- the boundaries of its traditional territory,
- the areas that are considered to be shared territories,
- identifying the neighbour (s) affected,
- the areas that are disputed, identifying the neighbour (s) affected;
- send a copy of the map to the affected First Nations.
b) Begin to address overlaps
The First Nation must:
- make best efforts to establish an agreed process for resolving the overlaps with each of the affected neighbours, and
- describe the way in which the First Nation will report to the Commission on the progress of overlap discussions.
Where a First Nation does not have an established process, the Commission encourages it to consider adopting the First Nations Summit's Recognition Protocol. In accordance with its facilitation responsibilities, the Commission is available to provide advice and assist the parties to obtain dispute resolution services where requested.
The First Nation must provide the Commission with copies of its maps and correspondence with its affected neighbours.
8. Canada and British Columbia must:
- obtain background information on the communities, people and interests likely to be affected by negotiations, and
- establish mechanisms for consultation with non-aboriginal interests.
Canada and British Columbia represent non-aboriginal interests and the general public in the negotiation process. The Commission recognizes this as a major responsibility of these two parties. These governments must confirm in writing to the Commission that they have compiled profiles identifying local and community interests. It is expected that community profiles will be updated as negotiations and consultations proceed.
The federal and provincial governments must also confirm in writing that they have established mechanisms for consultation with non-aboriginal parties with a direct interest in the subject matter of the negotiations. The consultation mechanisms should ensure that those interests are heard and considered.
The Commission generally anticipates that Canada and British Columbia will, under normal circumstances, fulfil these requirements and file their readiness submissions with the Commission within 60 days after the Commission accepts the First Nation's readiness submission and declares the First Nation "ready". This policy requirement is based on the recommendation of the B.C. Claims Task Force that the federal and provincial governments start negotiations as soon as First Nations are ready.