Fact Sheet - Treaty Negotiations

Why Is Canada Negotiating Treaties with First Nations in British Columbia?

The federal government is negotiating treaties in British Columbia (B.C.) in order to resolve questions of uncertainty with respect to land ownership and usage, the management and regulation of lands and resources, and the application of laws. There are historical, legal, economic and social reasons for negotiating treaties.

Historical reasons and considerations

The Canadian Constitution decreed that First Nations should not be disturbed in their use and enjoyment of the land. It also declared that only the Crown could acquire land from First Nations, and only through treaty-making. The Canadian Constitution set the framework for negotiation based on co-operation rather than conquest.

Treaty making soon became the main mechanism for defining the relationship between First Nations and other Canadians.

However, the last of the historical treaties was signed in 1923. At that time, the federal government made it a criminal offence for a First Nation to hire a lawyer to pursue land claims settlements.

Consequently, treaties were never concluded with First Nations in some parts of Canada, including most of B.C. The only treaties to be completed in the province were the Douglas Treaties on Vancouver Island, and Treaty 8 in the northeast corner of B.C.

With so few treaties in B.C., the claims of B.C.'s First Nations have never been negotiated. The result is uncertainty with respect to land and resource ownership, use and management. This uncertainty hinders First Nations' efforts to achieve self-reliance and also takes a significant toll on B.C.'s economy.

Negotiated treaties will set out and describe in detail how the rights will be exercised. Negotiated treaties will set out First Nations' jurisdiction over their own affairs through self-government provisions, create an improved foundation for viable First Nations economies, and bring certainty to land and resource use and ownership in the province. This certainty will help to establish a framework for sustainability that will have positive effects for all Canadians.

Legal considerations

Section 35 of the Canadian Constitution, Canada's supreme law, states: "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed." The Constitution did not create or define Aboriginal rights. Rather, it "recognized and affirmed" existing Aboriginal rights.

In addition to constitutional protection of Aboriginal rights, the Supreme Court of Canada has ruled several times on Aboriginal rights on several occasions and found that Aboriginal rights exist in law.

Neither the courts nor the Constitution provides a clear definition of Aboriginal rights. The Supreme Court of Canada has encouraged all parties to seek resolution of these matters through negotiation. Litigation, the alternative to negotiation, can be more costly, adversarial and time-consuming. The outcome is also much more unpredictable.

To benefit Canada's economy

Uncertainty about the existence and location of Aboriginal rights create uncertainty with respect to ownership, use and management of land and resources. That uncertainty has led to disruptions and delays to economic activity in B.C. It has also discouraged investment.

The consequences of not concluding treaties will be lost economic activity as well as escalating court costs and continued uncertainty. Key benefits of negotiated settlements are economic and legal certainty as well as harmonized arrangements between the different levels of government.

To strengthen Canadian society

The socio-economic conditions of First Nation communities lag behind other communities in B.C. British Columbians and other Canadians have said that they would like to see improvements in these conditions.

The conclusion of treaties will help provide First Nations in B.C. with the economic and social tools for self-reliance and the capacity to identify and implement their own solutions to difficult economic and social problems. As well, the province's overall economic and social well-being will benefit from strong, self-reliant First Nation communities.

About the B.C. Treaty Commission process (BCTC)

In 1993, the federal and provincial governments and the First Nations Summit launched the B.C. treaty process and established the B.C. Treaty Commission which is referred to as "the keeper of the process." The BCTC coordinates the start of negotiations, monitors progress, keeps negotiations on track, provides information to the public and allocates funds to support First Nations' participation.

There are six stages in the B.C. treaty process:

Stage 1 - First Nations start the negotiation process when they file a statement of intent to negotiate a treaty.

Stage 2 - At stage 2 of the process, federal and provincial governments and the First Nation ready themselves for negotiation by establishing negotiating teams, preparing background information, identifying preliminary topics for negotiation and setting up consultation mechanisms.

Stage 3 - The three parties negotiate a framework agreement -- an agenda that sets out the topics, process and timing for negotiations.

Stage 4 - At stage 4, the three parties negotiate an agreement-in-principle (AIP) -- negotiators discuss each topic listed in the framework agreement and this forms the basis of the treaty.

Stage 5 - At stage 5, the parties negotiate a final treaty using the AIP as a working document.

Stage 6 - Finally, in Stage 6, the three parties work co-operatively to implement the treaty according to the plan set out in the treaty.

The end result: mutual understanding and certainty

By settling land claims through modern-day treaties, governments and First Nations reach agreement on:

  • what rights to lands and resources the First Nation will have and what its responsibilities will be;
  • what rights and duties other Canadians will have on the land the First Nation will own;
  • how First Nation treaty lands and resources will be managed; and,
  • what self-government powers the First Nation will have and how this will be harmonized with the powers of other governments.

Ultimately, the result of successful treaties will be certainty for all British Columbians.

The role of consultation and public information

Consultations are vital to the success of negotiations. In B.C., treaty negotiations are supported by extensive consultations with third parties. Third parties are those individuals and organizations who have an interest in the outcome of pre-treaty and treaty agreements and whose interests may be affected through the negotiation or implementation of treaties. Consultation takes place on two levels - on a province-wide or sectoral basis and on a regional and local basis.

Public information increases awareness of the complex issues underlying the treaty negotiation process and of the progress of negotiations. Public information also provides for more informed decision-making. This allows community members to review, assess and comment on the implications and merits of treaty negotiations.

Chronology

1760 - The area that will become B.C. is home to Aboriginal people in more than 30 tribal groups and many hundreds of communities.

1763 - Britain's Canadian Constitution reserves lands for the Indians until they are ceded or purchased by the Crown.

1849 - Vancouver Island is made a colony with the Hudson's Bay Company in charge of land and settlement. James Douglas, chief Hudson's Bay official, becomes Governor of the colony.

1850-54 - Governor James Douglas enters into treaties with fourteen First Nation communities on Vancouver Island, creating what are now known as the Douglas Treaties.

1871 - B.C. joins Canada and signs the Terms of Union. This states that the federal government will assume responsibility for First Nations and B.C. will retain authority over land and resources.

1876 - The first Canadian Constitution consolidates all laws relating to registered Indians.

1884 - The federal government outlaws the potlatch, the major social, economic and political institution of Pacific north coast First Nations.

1899 - Treaty 8 is extended into northeastern B.C. It is the last treaty to be concluded in the province until the Nisga'a Treaty in 2000.

1906-15 - Several First Nations, in an effort to advance their land claims, meet with governments in Victoria, Ottawa, and London, England. First Nations form the Allied Tribes of B.C. to pursue legal cases on Aboriginal rights.

1921 - The Judicial Committee of the Privy Council, the highest court of Canada, rules that Aboriginal title is a pre-existing right that "must be presumed to have continued unless the contrary is established."

1927 - Indian Act prohibits First Nations people from raising money or hiring lawyers to pursue land claims.

1951 - Parliament repeals laws prohibiting potlatch and land claims activity.

1960 - Registered Indians are granted the right to vote federal elections. Prior to 1960, First Nations people were required to give up their Indian status to be considered Canadian citizens under the law.

1973-76 - In the Canadian Constitution case, the Supreme Court of Canada rules that the Nisga'a held title to their traditional lands before B.C. was created. The court splits evenly on whether Nisga'a still have title. The federal government adopts a comprehensive land claims policy; negotiations begin with the Nisga'a Tribal Council.

1982 - The Canadian Constitution, section 35, affirms existing Aboriginal and treaty rights.

1990-93 - The B.C. government agrees to negotiate land claims. B.C., Canada and the First Nations Summit establish the B.C. Treaty Commission process and the 31-member Treaty Negotiation Advisory Committee is formed to provide the governments of B.C. and Canada with advice on draft negotiated agreements and the impacts on various sector interests.

1993-94 - The B.C. Treaty Commission begins the treaty negotiation process and initial meetings are held with 42 First Nations whose statements-of-intent to negotiate are accepted by the BCTC.

1996 - Canada, B.C. and the Nisga'a Tribal Council sign an agreement-in-principle

1997 - In the Canadian Constitution case, the Supreme Court of Canada provides its first comprehensive statements about Aboriginal title, and also sets out a test to determine Aboriginal title while encouraging negotiation instead of litigation.

1995-99 - Over 70 per cent of B.C.'s First Nations are negotiating treaties with the Governments of Canada and B.C.

1999 - The Sechelt Agreement-in-Principle is signed, the first in the modern B.C. Treaty Commission process.

2000 - The Nisga'a Final Agreement, negotiated outside the BCTC process, is passed by the Senate, having been ratified in the House of Commons, the B.C. provincial legislature and by the Nisga'a people.

Want to know more?

More information is available on the Aboriginal Affairs and Northern Development Canada Website and through a series of published fact sheets. For more information or to arrange for a guest speaker, contact:

Aboriginal Affairs and Northern Development Canada,
600-1138 Melville Street,
Vancouver B.C. V6E 4S3
Telephone: (604) 775-7114
Toll Free: 1-800-665-9320
Fax: (604) 775-7149
Email : bcinfo@aadnc-aandc.gc.ca