FAQ - BC Treaty Process
1. WHAT ARE TREATIES?
Treaties are constitutionally protected, government-to-government agreements creating long-term, mutually binding commitments. Treaties negotiated through the BC treaty process will identify, define and implement a range of rights and obligations, including existing and future interests in land, sea and resources, structures and authorities of governments, regulatory processes, amending processes, dispute resolution, financial compensation and fiscal relations.
Treaties signed with aboriginal people in Canada between 1701 and 1923 are commonly referred to as historic treaties; treaties negotiated today are known as modern treaties. Modern treaties deal with areas of Canada where treaties were never signed with aboriginal peoples, like most parts of British Columbia.
2. WHAT IS THE BC TREATY PROCESS?
The BC treaty process is a voluntary process of political negotiations among First Nations, Canada and BC. 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.
The main goal of the treaty process is to provide certainty of jurisdiction over land and resources. Through a treaty, the rights and obligations of all parties are set out, thereby resolving conflicting land ownership between the Crown (BC) and aboriginal peoples.
The BC treaty process, open to all BC First Nations, currently has 58 First Nations at 47 sets of negotiations. BC treaty negotiations are arguably the most complex set of negotiations Canada has ever undertaken and the most complex treaty negotiations ever undertaken in the world.
3. WHAT IS THE ROLE OF THE TREATY COMMISSION?
The Treaty Commission's primary role is to oversee the negotiation process and to ensure the parties are being effective and making progress in the negotiations. In carrying out this role, the Treaty Commission:
1. Accepts First Nations into the treaty process and assesses when the parties are ready to start negotiations;
2. Monitors compliance with the fundamental principles of treaty making as set out in the Treaty Commission's Mission Statement;
3. Monitors and reports on the progress of negotiations and encourages timely negotiations by helping the parties to set meeting schedules and monitor deadlines;
4. Chairs key meetings at tables and offers advice to the parties, where requested;
5. Assists the parties in developing solutions and in resolving disputes;
6. Identifies, engages with the Principals on and reports publicly on, opportunities for progress and key overarching obstacles to progress (e.g., mandates, resources, capacity, etc.);
7. Supports pilot projects with the potential to promote progress in negotiations (e.g., community planning); and
8. Develops and applies policies and procedures for the six-stage treaty process.
In addition to facilitation duties, the Treaty Commission is responsible for allocating negotiation support funding to First Nations and providing public information and education.
4. WHAT ARE ABORIGINAL RIGHTS AND TREATY RIGHTS?
Aboriginal rights refer to practices, traditions and customs that distinguish the unique culture of each First Nation and were practiced prior to European contact. Aboriginal title is an aboriginal property right to land.
Treaty rights refer to aboriginal rights that are set out in a treaty. For example, the Nisga'a Lisims government is an expression of the aboriginal right to self government. Aboriginal rights and treaty rights are protected under section 35 of the Constitution Act, 1982.
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." One of the key challenges of the treaty process is to achieve certainty of land ownership and jurisdiction, while not extinguishing aboriginal title.
5. WHY, IN THIS DAY AND AGE, ARE TREATIES NEGOTIATED IN BC?
Before Canada was a country Britain recognized that aboriginal people 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 had been signed, and aboriginal title to the rest of the province was left unresolved. It wasn't until 1970 that Canada's aboriginal peoples 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 had to wait until 1993 to pursue their aboriginal rights through the BC treaty 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. Continued uncertainty about how and where these rights apply discourages investment and economic development in BC. Through the give and take of negotiations, treaties will clearly define aboriginal rights and title, thereby clarifying ownership of BC's land and resources.
6. WHY HAVEN'T ANY TREATIES BEEN SIGNED YET?
The first sign that treaties are achievable is the agreements, yet to be ratified, involving the Lheidli T'enneh of the Prince George region, the Tsawwassen First Nation in the Lower Mainland, and the Maa-nulth First Nation on Vancouver Island.
Chief negotiators for each of these First Nations and the governments of Canada and British Columbia have concluded final treaty negotiations and have agreed to take the necessary steps to seek approval of the agreements from their respective Principals.
Once the negotiators reach agreement on the terms of the treaties, the parties will then put all their efforts into the ratification process. First, the First Nation members will review the details of the treaty, at which point a vote will be held. If the membership votes in favour of the treaty, there will be a vote in the provincial legislature and then the federal parliament.
The Lheidli T'enneh members will vote on their treaty in March 2007. If they vote in favour of their treaty, there is the possibility we will have the first treaty signed under the BC treaty process this fall.
7. WHAT'S HAPPENING IN THE TREATY PROCESS?
The BC government has shown all Canadians a new attitude towards First Nations: some would say there has been a complete turnaround since its highly controversial referendum on treaty issues in 2002. Premier Gordon Campbell has led the way, both at home and throughout the country. There is a sense the BC government has reshaped its bargaining position to complete treaties.
The creation of a stand-alone Ministry of Aboriginal Relations and Reconciliation and the New Relationship initiative with three major First Nations organizations are tangible expressions of the BC government's new approach.
8. WHAT IS THE DIFFERENCE BETWEEN ABORIGINAL TITLE AND CROWN TITLE?
In 1997, the Supreme Court of Canada ruled in the Delgamuukw case that aboriginal title is a right to the land itself - not just the right to hunt, fish and gather. Crown title refers to the provincial or the federal government's interest in land. Almost all Crown land in BC is owned by the province.
Delgamuukw confirmed that aboriginal title was never extinguished in BC and therefore still exists; it is a burden on Crown title; and when dealing with Crown land the government must consult with and may have to compensate First Nations whose rights are affected
Who can own the land?
Aboriginal title is a communal right; an individual cannot hold aboriginal title.
What limits are there on land use?
Because aboriginal title is based on a First Nation's relationship with the land, these lands cannot be used for a purpose that may impair traditional use of the land by future generations.
Can the owner sell the land?
Aboriginal title land can only be given up to the federal government.
What laws protect aboriginal title?
Ordinary land ownership is protected by common law and provincial statutes. Aboriginal title has the additional protection of the Canadian Constitution, as do all aboriginal rights - those that exist now and those that may be acquired through a treaty.
9. WHAT IS THE DIFFERENCE BETWEEN A BAND AND A FIRST NATION?
The 1876 Indian Act divided aboriginal nations with a shared traditional territory, identity, culture, language and governing body into separate bands and separate land reserves. The "band" system of administration was imposed on First Nations and bands were made subject to detailed supervision by federal officials.
A 'First Nation', for the purposes of treaty negotiations, must demonstrate:
1. an aboriginal governing body organized and established by aboriginal people within their traditional territory in British Columbia; and
2. a mandate from the governing body's constituents to enter into treaty negotiations on their behalf with the governments of Canada and British Columbia.
10. WHAT IS BEING NEGOTIATED?
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:
1. First Nations government structures and related financial arrangements
2. jurisdiction and ownership of lands, waters and resources
3. 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, see:
1. Maa-nulth First Nations Agreement in Principle
2. Lheidli T'enneh Agreement in Principle
3. Tsawwassen First Nation Agreement in Principle
11. CAN THE PUBLIC ATTEND NEGOTIATION SESSIONS?
Every treaty table has an Openness Protocol that sets out times that the general public may attend negotiations. Open main table negotiation sessions are frequent and always advertised in local media and listed on the Treaty Commission's web site. Members of the public are invited to attend and observe these sessions. Many sessions include an open question and answer period.
12. WHAT IS SELF GOVERNMENT?
First Nations were self governing long before Europeans arrived in Canada. In 1876, The Indian Act came into effect, dismantling traditional governance systems and imposing regulations on aboriginal peoples' lives. Today, the Government of Canada recognizes that aboriginal people have an inherent, constitutionally-protected right to self government - a right to manage their own affairs.
Under the BC treaty process, self-government arrangements will be designed, established and administered by aboriginal peoples. There is no template for self government; each First Nation establishes their own unique self-government arrangement. Self-government provisions may include education, language and culture, police services, health care and social services, housing, property rights, child welfare and other provisions agreed to by the three parties.
The new governing structure will have a constitution and law-making authority over treaty land and provision of public services. Regardless of who has jurisdiction over any particular service after the treaty, the parties must agree on arrangements for its delivery. The Canadian Constitution and the Charter of Rights and Freedoms will apply to aboriginal governments as it does to all other governments in Canada.
13. WHAT IS THE DIFFERENCE BETWEEN CONSTITUTIONALLY-PROTECTED SELF GOVERNMENT AND MUNICIPAL-STYLE SELF GOVERNMENT?
In a municipal-style of self government, governance powers are delegated by an act of Parliament and an act of the BC Legislature and have no constitutional protection. The Westbank First Nation Self-Government Act (Bill C-11) is an example of a delegated self-government agreement.
Constitutionally-protected self government, like the Nisga'a Treaty, is actually passed as Canadian law, and cannot be changed unless all three parties - Canada, BC and the First Nation - agree. Constitutional protection ensures that self-governing powers established by the treaty cannot be taken away.
14. WILL SELF GOVERNMENT COMPROMISE THE RIGHTS OF NON-ABORIGINAL PEOPLE?
One of the main principles of the treaty process is to balance the interests of non-aboriginals residents with the aboriginal peoples right to self government. Provisions for self government will vary from treaty to treaty, guided by these principles:
1. Self government will be exercised within the existing Canadian Constitution. Aboriginal 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.
2. The Canadian Charter of Rights and Freedoms and the Criminal Code of Canada will apply fully to aboriginal governments as it does to all other governments in Canada.
3. 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.
4. 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. Federal, provincial, territorial and aboriginal laws must work in harmony.
5. First Nations will be required to consult with local residents on decisions that directly affect them (for example, health, school and police boards).
15. HOW WILL FIRST NATIONS BECOME ECONOMICALLY SELF SUFFICIENT AFTER SO MANY YEARS OF DEPENDENCY UNDER THE INDIAN ACT?
The BC treaty process is designed to allow First Nations the opportunity to develop skills and build economic opportunities as they work towards a final treaty. Through interim measures agreements, First Nations may develop the human resources and economic infrastructure needed to become economically self sufficient. Under current Indian Act regulations, it's extremely difficult for First Nations to acquire business loans.
The Harvard Project on American Indian Economic Development, a 13-year study of indigenous nations in the United States, found economic success is closely linked to the power to make decisions.
Treaties will stimulate aboriginal business development, which will benefit all British Columbians. A 1996 KPMG Report estimated that concluding treaties in BC will create a net financial benefit of between $3.9 billion and $5.3 billion and between 7,000 and 17,000 jobs over the next 40 years.
16. ONCE TREATIES ARE SIGNED, WILL FIRST NATIONS PAY THE SAME TAXES AS OTHER CANADIANS?
It's important to clarify that only aboriginal people living on reserves receive tax exemptions; most aboriginal people pay the same taxes as other Canadians.
When the tax exemption came into effect under the 1876 Indian Act, First Nations did not have the right to vote, own property or practice many cultural traditions. First Nations did not gain the right to vote in federal elections until 1960.
The Indian Act has made economic development on reserves difficult. Reserve land is held in trust by the federal government for use by status Indians. Because the Indian Act stipulates that reserve lands cannot be seized to enforce payment of a debt, these lands have never been available for use as collateral. The same is true of all real and personal property of aboriginal people or bands on a reserve. Negotiated cash and land settlements will provide First Nations people with the capital they need to begin businesses and create jobs and industries.
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 seek to gradually eliminate tax exemptions as First Nations move towards greater economic self sufficiency. For example, under the Nisga'a Treaty transaction taxes such as sales tax will be eliminated eight years after the effective date and all other taxes, including incomes tax, after 12 years.
Many First Nations in the BC treaty process are reluctant to give up their tax exemption when most other First Nations in Canada will continue to have these exemptions - including those that have signed treaties in the past. Canada, BC and the First Nations Summit are working together to find creative solutions to taxation and other fiscal issues.
17. WHAT PROVISIONS WILL ENSURE SELF GOVERNMENTS ARE FISCALLY RESPONSIBLE?
Each First Nation will develop a constitution and a government structure with greater accountability for allocation of funding than is currently provided by the Indian Act. For example, the Nisga'a Lisims government is required to prepare and provide audited accounts and financial statements to its members and to Canada and/or British Columbia.
18. WON'T TREATIES ONLY BENEFIT STATUS INDIANS AND FIRST NATIONS LIVING WITHIN THEIR TRADITIONAL TERRITORY?
Treaties will replace Indian Act-imposed band governments with a government authority for all members of a nation. Each treaty will define who can be enrolled under the agreement. 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 aboriginal ancestry or accepted as a member of the particular nation. All members of a First Nation can vote on a treaty.
Self-government arrangements strive to provide better opportunities for aboriginal people living within their traditional territory, while not excluding those aboriginal people who choose to live elsewhere. For example, several First Nation peoples living in urban areas have been enrolled as Nisga'a citizens, and three urban locals have been established.
19. HOW MUCH LAND IN BC IS UP FOR NEGOTIATION?
When a First Nation enters the BC treaty process they submit a statement of intent outlining their traditional territory-land occupied historically. This traditional territory establishes the parameters for land to be included in a final treaty.
For most First Nations, treaty settlement lands - area of land that will be owned and managed by First Nations pursuant to a treaty - will likely comprise only a percentage of their traditional territory. For example, land included within the Nisga'a Treaty comprises approximately eight per cent of the nation's traditional territory. Because First Nations culture and spiritually is intrinsically tied to their traditional territory, treaties will likely also include co-management rights on traditional territory outside of treaty settlement land. Many First Nations are already participating in collaborative land-use planning processes like the Central Coast Land Resource Management Plan.
For a visual overview of First Nations' traditional territory in BC, please see Negotiations and First Nations. SOI maps are available under each First Nation. You may also contact the Federal Treaty Negotiation Office at 800 665 9320 to request a copy of the map Treaty Negotiations in British Columbia.
20. IS PRIVATE PROPERTY ON THE NEGOTIATION TABLE?
The BC treaty 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 final treaties.
21. WILL TREATIES BE FINAL OR WILL THERE BE CONTINUED CONFLICT OVER LAND AND RESOURCES?
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 the primary goal of the BC treaty process.
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 cooperatives relationships today.
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.
A great deal of time and expertise was spent on all sides of the Nisga'a table to develop what has been referred to as a "modification model." Under this model, aboriginal rights are not extinguished but are modified into those rights that are defined in the treaty. The Treaty Commission is working with the parties to find creative solutions to achieve certainty without extinguishing aboriginal title rights.
22. WHAT DOES CERTAINTY MEAN?
The primary purpose of treaty making is to provide certainty for land ownership and jurisdiction in British Columbia.
Treaties are agreements between three parties. As such, they can establish structures and mechanisms to deal with disputes and changing circumstances. This is somewhat analogous to the flexibility built into municipal financial arrangements. A treaty cannot be changed unless all three parties - Canada, BC and the First Nation - agree.
To demand that treaties provide a level of certainty so that they could never be challenged would set the bar impossibly high; higher than Canadians demand of their own laws and Constitution.
History has proven that court actions do not resolve these issues. In fact, the court has left more questions open than answered and has often implored the parties to resolve their disputes through good faith negotiations.
23. HOW MUCH WILL TREATY NEGOTIATIONS COST?
The cost of not settling treaties is far greater than the cost of treaty making.
A study conducted by Price Waterhouse estimated that uncertainty surrounding unresolved aboriginal rights and land title could cost B.C. $1 billion in lost investment; independent consultant Grant Thorton estimated that completing treaties will bring a net financial benefit of between $3.8 billion and $4.7 billion to British Columbia over the next 40 years.
The Treaty Commission allocates negotiation support funding so that First Nations can prepare for and carry out negotiations on equal footing with the provincial and federal governments. Since opening its doors in May 1993 the Treaty Commission has allocated approximately $362 million in negotiation support funding to more than 50 First Nations - $289 million in the form of loans and $73 million in the form of contributions.
Contrary to popular belief, the Commission is not a big bureaucracy. We have 13 full-time staff in addition to the five commissioners - four of who are part-time and regularly travel throughout the province. The Treaty Commission's operating budget for 2006/07 is $2.52 million. Canada funds 60 per cent of the Treaty Commission's operating costs and BC funds 40 per cent. The Treaty Commission's total operating costs from 1993 to March 31, 2007 are $26.41 million.
24. WHO PAYS FOR TREATY MAKING - THE FEDERAL GOVERNMENT OR THE PROVINCIAL GOVERNMENT?
Funding for administering the treaty process and the cash settlement costs are borne jointly by the provincial and federal governments. The federal government is responsible for 72 per cent of the total cost of treaties and the provincial government is responsible for 28 per cent.
Canada funds 60 per cent of the Treaty Commission's operating budget, and BC funds 40 per cent. Eighty per cent of negotiation support funding to First Nations is provided as loans from the federal government, and 20 per cent as contributions from the federal and provincial governments. The federal government provides 60 per cent of the contribution funding and the provincial government provides 40 per cent.
The BC government's share of the overall cost is estimated at $2 billion, or $50 million annually over 40 years, plus rural Crown land with a estimated value of $2.8 billion to $3.5 billion.
25. WHAT ARE INTERIM MEASURES AGREEMENTS?
Interim measures agreements (IMAs) provide for the protection, management or use of land and resources before treaties are concluded. The agreements are designed to deliver immediate benefits to First Nations; serve as building blocks for final treaties; and provide a greater degree of certainty for land management and for business development.
Interim measures agreements may provide funding for land protection, economic development studies and joint venture development, land-use planning, governance development and cultural heritage initiatives.
Treaty related measures (TRMs), a type of interim measures agreement, must be directly linked to a treaty and signed by all three parties: Canada, BC and a First Nation. TRMs address matters critical to the resolution of final treaties and are cost shared by BC and Canada. For example, land protection agreements set aside important parcels of land for inclusion in a potential treaty settlement.
The Central Coast Land Management Plan, endorsed by First Nations, forestry companies, community groups, environmentalists and truck loggers, protects 600,000 hectares of Crown land ranging from Knight Inlet to Princess Royal Island and defers logging on an additional 900,000 hectares of Crown land.
Katzie Indian Band used interim measures funding to facilitate a series of workshops to develop their governance in preparation for a final treaty. Kaska Nation used interim measures funding to develop joint venture and job shadowing opportunities with local forestry companies.
More than 90 interim measures agreements have been signed under the BC treaty process.
This FAQ was published by the BC Treaty Commission, if you have a question that is not addressed here, contact firstname.lastname@example.org or call toll free 1 800 665 8330.