Backgrounder - Canada Takes Action to Support Progress in the BC Treaty Process

Overview

Canada is committed to reconciling Aboriginal and Crown interests through the negotiation of modern treaties which balance the rights and interests of First Nations and all Canadians.

Comprehensive treaties provide significant benefits to First Nations, the Crown and all Canadians. They establish certainty of ownership and control of lands and resources, and encourage economic activity. They establish a relationship based on mutual recognition and respect, and they encourage good governance and improved outcomes for First Nations.

The BC treaty process is producing results. We made history in 2009 with the Tsawwassen and Maa-nulth First Nation treaties. Progress in 2010 began with the initialing of the Yale Final Agreement.

While recent progress has been encouraging, all parties to the BC treaty process agree that the conclusion of more treaties is both possible and necessary. This is why Canada is taking action to facilitate progress under the BC treaty process and enhance our flexibility at negotiation tables.

The action we are taking addresses some of the major challenges at B.C. treaty negotiation tables, such as recognition of rights and certainty issues. It also takes into consideration the pressures facing the Fraser River salmon fishery.

The steps we are taking to support the conclusion of final agreements under the BC treaty process were informed by the work of the Common Table process, which brought together Canada, B.C. and more than 50 B.C. First Nations in 2008, to discuss ways to reduce obstacles to concluding treaties. 

We continue to believe that negotiations under the BC treaty process are the best method of resolving outstanding rights and title issues and arriving at fair, affordable and honourable treaties that balance the interests of First Nations and all Canadians. The successful conclusion of treaties requires all parties to demonstrate commitment and flexibility and we look forward to continuing with partners toward that goal.

The key elements of our action plan are outlined below.

Allow the negotiation of language in treaties that recognizes that a First Nation has existing Aboriginal rights and acknowledges that these rights have not always been respected

Canadian courts recognize that Aboriginal people have constitutionally protected rights based on their prior occupation of traditional territories. Section 35 of the Constitution Act, 1982, recognizes and affirms Aboriginal and treaty rights; however, the nature, scope and content of these rights are left undefined. It is this lack of definition that creates uncertainty over land and resources in Canada. The primary vehicle Canada uses to reconcile pre-existing Aboriginal rights is the negotiation of modern treaties.

Canada has heard the views of Aboriginal groups in the BC treaty process, such as the Common Table First Nations, who have raised concerns that the BC treaty process does not adequately acknowledge existing rights and acknowledge the realities of the past.

New Approach:

Canada's new approach is an opportunity for parties to the BC treaty process to move forward with new relationships based on mutual recognition and respect.  It will provide federal negotiators across Canada with the ability to include more respectful language related to recognition of Aboriginal rights as well as language that acknowledges the realities of the past, or reconciliation language.

This approach provides a more respectful basis for negotiations and within the BC treaty process, the reconciliation and recognition language can be undertaken at the Agreement-in-Principle and Final Agreement stages of negotiations. Canada has also made provisions for the recognition and reconciliation language to be applied at negotiation tables outside of the BC treaty process.

These arrangements to include more respectful language in treaties fit into a broader theme of recognition and reconciliation adopted by the federal government as the basis for renewing relationships with Aboriginal people. This is demonstrated by the June 11, 2008 Apology to former students of Indian Residential Schools as well as the June, 2007 announcement of a new action plan to improve and speed up the resolution of specific claims.

Introduce a method of achieving certainty in treaties that addresses First Nations' concerns with the extinguishment of rights

In setting out the treaty rights of a First Nation, treaties achieve certainty by ensuring all parties and stakeholders can rely on the terms of the treaty. One of the goals of modern treaty negotiations is that they will deliver certainty, or ensure that all parties and stakeholders can rely on the terms of the treaty. Ensuring this dual function is accomplished through treaty agreements is challenging and in some cases this issue has been a barrier at B.C. treaty negotiation tables.

The Common Table provided useful insight into First Nations perspectives on certainty and recognition. Canada heard at the Common Table that it is important that treaty settlement lands and rights flowing from the treaty be linked, in some fashion, to their Aboriginal rights. During the Common Table discussions Canada agreed to explore more flexible certainty arrangements for treaties. 

New Approach:

Under the new approach, federal negotiators now have additional tools to address recognition of Aboriginal rights and legal certainty matters. Canada has also made provisions that would allow this approach to be applied at modern treaty negotiation tables across Canada, outside of the BC treaty process.

Canada has provided greater options for First Nations to meet their interest in maintaining the connection between the modern treaty and historic rights.  This new and balanced framework for certainty and recognition will better meet the need of individual treaty tables. At the same time, it ensures the negotiated settlements achieved through the BC treaty process meet Canada's need for certainty.

Strengthen and streamline Treaty-Related Measures, which are government-funded projects, undertaken by First Nations, on topics such as land and resource studies, to help move treaties forward

Treaty-Related Measures (TRMs)  are tools the parties involved in the BC treaty process - Canada, First Nations and the province - use to remove obstacles at treaty negotiation tables in B.C. so that treaties can be concluded more quickly. They include a wide range of measures including:

• Treaty-related land and resource studies to answer questions required to move negotiations forward
• Preserve negotiating options by protecting Crown land or by purchasing private land for treaty settlement purposes
• Measures to support First Nations governance
• Accelerated access to anticipated treaty benefits

Established in 2000 by Canada and B.C., TRMs, have been, up until now, cost-shared by the provincial and federal governments.  Nearly 200 TRMs have been implemented at treaty negotiation tables in B.C., valued at approximately $30 million (federal cost only), since their introduction.

TRMs have assisted First Nations in completing a wide range of studies related to land and economic development, funded key projects of importance to First Nation communities, and provided support for economic development and governance activities. B.C. and Canada have also protected 233,354 hectares of provincial Crown land and acquired 655 hectares of land through the use of TRMs for treaty settlement purposes.

In 2009, an INAC evaluation report concluded that treaty-related measures have had a positive impact on the BC treaty process and helped maintain momentum at treaty negotiation tables. However, the report also recommended updating the program to adapt to current realities. For example, the evaluation found that the TRM initiative has not met its full potential due to ineffective cost-sharing arrangements with B.C. and an overly complex administrative process.

New Approach:

The changes Canada is bringing forward address concerns identified in the evaluation report and will streamline and strengthen these tools. Specifically, Canada is removing cost-sharing provisions for some treaty-related measures. This will reduce administrative costs, streamline the process and allow Canada to invest more strategically in projects that benefit negotiations.

Canada will continue to work with B.C. to leverage investments that help conclude treaties more quickly and help First Nations to implement them more effectively. Canada has also increased the range of TRMs available and will increase the degree of First Nation involvement in the selection and design of TRM activities.

Improvements to the TRM program will better support the momentum at treaty tables.

Provide modern treaty First Nations in B.C. with power to establish fines and administrative penalties on treaty settlement lands that are comparable to those that provincial and federal governments have in place for similar regulatory offences

Federal negotiators' instructions currently provide for the negotiation of provisions in treaties that allow First Nations to pass laws and to create offences and establish penalties, to be imposed by the courts, for violations of those First Nations' laws. However, these instructions have historically not kept pace with changes to provincial and federal laws. For example, negotiation instructions limited the maximum fines that could be established under First Nations law for environmental offences to $300,000, which is three times less than fines (up to $1 million) which may be imposed under provincial law in B.C. Concerns have also been raised about First Nations laws being ineffective if they cannot be harmonized with provincial environmental and heritage conservation laws.

New Approach:

Under the new approach, Canada can negotiate treaty provisions that provide B.C. First Nations with jurisdiction to establish sanctions up to, but not greater than, those established for comparable regulatory offences and for breaches of comparable regulatory requirements under federal and provincial laws.

Furthermore, these instructions are written in a way to allow them to maintain parity with above-mentioned laws. As a result, this will provide modern treaty First Nations with the same tools that the provincial and federal government possess. Furthermore, this will result in more seamless enforcement regimes on treaty settlement lands and facilitate harmonization of enforcement regimes among federal, provincial and First Nations jurisdictions in B.C.

Develop a new approach for financing self-governing First Nations that is more transparent, fair and efficient. This approach will also take into account the unique circumstance of self-governing groups

Canada believes the effective implementation of self-government is an essential component of success for First Nations and the BC treaty process. Fostering effective, accountable First Nations' governments promotes healthy communities, increases investor confidence, and supports economic partnerships.

Canada's approach to financing of self-governing Aboriginal groups to date has been to commit to individual fiscal negotiations with each self-governing group. These negotiations can be time consuming and costly for all parties. Aboriginal groups have also expressed concerns about the costs of delays and that their funding may unfairly depend on the quality of the negotiators they hire.

With the prospect of more treaties and self-government agreements being reached through the BC treaty process, Canada believes that many concerns can be addressed by a new funding approach.

New Approach:

The main elements of a new approach will be set out in a public federal policy which will likely include:

• A transparent funding formula that takes into account each government's capacity to generate own-source revenues
• A formal mechanism for consulting with Aboriginal groups on matters related to federal financial support for self-government
• Accountability provisions to ensure financing arrangements are open and transparent
• New measures that take into account the unique circumstances of each self-governing group

The development of this new funding approach will take time. Over the next few months, Canada will outline this funding approach and will then engage with Aboriginal self-governments and representatives of groups in advance stages of negotiation to work out the details of the approach.

BC Treaty Process Fish Negotiations and Cohen Inquiry

Fish is a key element of almost all modern treaty negotiations in British Columbia.

Fish and fisheries management is extremely complex and as a result, the negotiation of First Nation fishing arrangements in B.C. treaties is challenging. Issues include:

• Concerns about approaches to fish allocations in treaties given uncertainty surrounding the status and management of certain fisheries resources
• Concerns about managing treaty fisheries arrangements that may involve numerous First Nations
• Concerns about implementing and managing Aboriginal fishing arrangements for First Nation outside treaties

In addition, the Government of Canada has established the Cohen inquiry to investigate the decline in sockeye salmon stocks in the Fraser River.  Canada committed to fully cooperate with the Cohen inquiry. Ensuring the long term viability of the Fraser River sockeye fishery and all salmon fisheries in B.C. is a primary concern. Canada has decided that it is necessary that the negotiation of fisheries components at treaty tables that involve salmon be deferred, pending the potential adoption of new policy approaches informed by the findings and recommendations of the Cohen Inquiry.  With the exception of the Yale, In-SHUCK-ch and Sliammon final agreement negotiations, Canada will defer discussions on fisheries at tables where the fisheries arrangements could involve salmon fisheries.

The Final Agreements with Yale, In-SHUCK-ch and Sliammon represent settlements reached after years of discussions between all parties in the BC treaty process. The Government of Canada is honouring its commitment to a Final Agreement in those instances where that milestone was reached at the negotiating table prior to the Inquiry.

These agreements are consistent with Fisheries and Oceans Canada's conservation goals. They provide for First Nations' access to food, social and ceremonial fisheries as well as the management of a sustainable fishery.

New Approach:

Considerable progress can still be made on the many other topics that remain to be negotiated at most tables. Agreements-in-Principle (AIP), for example, may be negotiated and concluded without fisheries chapters. In the event that a Final Agreement is close to completion before the fish deferral is lifted, Canada is prepared to consider other options to conclude treaties.

Alternatively, if the negotiating parties are in agreement, a treaty could be concluded on all other matters. This would enable Canada and willing partners to continue to make progress.

March 2, 2010