Ministry of Aboriginal Affairs, Province of British Columbia

British Columbia's Approach to
Treaty Settlements Self-Government


1. PURPOSE

This paper outlines the issues associated with negotiating self-government through the present treaty process. The paper will review issues relating to: The paper provides a framework for the Province's approach to self-government negotiations and outlines the critical legal and policy issues which will determine the parameters of aboriginal government authority. As such, it provides a foundation for further work by identifying the topics that will be addressed, clarifying linkages between topics, and providing a context within which self-government mandate options can be evaluated.

This paper does not address issues related to lands and resources or fiscal arrangements. These issues are discussed in two separate context papers entitled British Columbia's Approach to Treaty Settlements: Lands and Resources, and British Columbia's Approach to Treaty Settlements: Fiscal Arrangements for Treaties.

2. BACKGROUND

The Province of British Columbia has entered into the treaty-making process with First Nations and the federal government in order to resolve the uncertainty with respect to land, resources and interests in self-government.

The Government of British Columbia has politically recognized the inherent right to self-government and this recognition is one of the cornerstones to the developing relationship between the Province and aboriginal peoples.

Self-government means different things to different aboriginal groups. As over 60 First Nations could potentially file statements of intent to enter the B.C. Treaty process, it is important that the framework for aboriginal self-government maintain a level of consistency throughout the province. This framework will define the legal and policy parameters for self-government negotiations.

The challenge of the treaty process will be to negotiate self-government arrangements which allow First Nations to participate more actively in the existing institutions of public government at the federal, provincial, regional and local levels, and at the same time maintain the flexibility to address the diversity of circumstances among aboriginal peoples. In doing so, the overarching objective is to increase aboriginal government authority without creating a myriad of new government structures and institutions throughout the province. A related objective is to ensure that the laws affecting aboriginal and non-aboriginal people are stated clearly.

Self-government is the right of First Nations to manage their own affairs and exercise authority within the limits of their jurisdiction. This may include the right to administer taxes, pass laws in negotiated areas, manage land and natural resources, and negotiate with other governments. An aboriginal government's authority may include education, health, safety and welfare services for the community. The extent of aboriginal government powers and the application of self-government within Canada will be negotiated with First Nations, British Columbia and the federal government.

Self-government will not:

Some First Nations already administer services within their communities through agreements with the Department of Indian and Northern Affairs and the Government of British Columbia. These agreements represent administrative arrangements rather than actual assumption of power by an aboriginal government. The programs or services currently administered by First Nations are likely to reflect areas of interest over which aboriginal governments may exercise some form of authority through self-government agreements.

The primary constitutional authority with regard to aboriginal peoples and self-government rests with the federal government. The policies and activities of the federal government will therefore have an effect on the Province's approach to self-government.

3. PROVINCIAL INTERESTS IN SELF-GOVERNMENT

Self-government is a key component of treaty negotiations. Provincial interests in aboriginal governance issues relate primarily to legitimacy, structural clarity and jurisdictional certainty with respect to the allocation of powers and exercise of authority.

The following principles will form the basis of the Province's negotiations with respect to self-government:

4. THE SOURCE OF SELF-GOVERNMENT RIGHTS

The Province of British Columbia has politically recognized the inherent right to self-government and has stated that it intends to define the meaning of self-government within the current treaty negotiation process. The issue of inherent versus delegated rights originates out of questions arising from the origin of the aboriginal right to self-government. First Nations, the courts and governments all have differing interpretations of self-government. These interpretations of self-government, outlined below, will have an effect on the Province's approach to treaty negotiations.

A. Aboriginal Perspective

First Nations maintain that the jurisdiction of their governments is inherent, original and existed prior to Confederation. The source of this authority is claimed to flow from the exercise of government authority from time immemorial. Conceptually, aboriginal governments may agree to be bound by certain laws for reasons of self-interest, but need not be bound by provision of any statutes which are inconsistent with the First Nation's concept of self-government. Under this approach, aboriginal governments would have far-reaching power which would not be limited by federal or provincial governments. Aboriginal people are seeking real and legitimate authority and protection of that authority over time.

B. Legal Context

In the Delgamuukw decision, the majority of the Court of Appeal held that aboriginal self-government has been superseded by sovereignty and the exhaustive distribution of legislative powers in sections 91 and 92 of the Constitution Act, 1867. The Court acknowledged the ability of internal self-regulation in accordance with aboriginal traditions, assuming the consent of members of the aboriginal community and so long as there is no conflict with federal or provincial legislation. The courts have also encouraged governments to resolve aboriginal issues through negotiation.

C. Provincial Approach

The Province is taking a practical approach to the negotiation of self-government. The authority of aboriginal governments will be defined in treaty negotiations with First Nations and the federal government and will fit within the current constitutional framework of Canada.

The type and scope of authorities exercised by aboriginal governments will be a topic of negotiations. As outlined below, options will include a transfer of authority to First Nations without conditions but within the current constitutional framework, transfer of authority with conditions (including concurrent authority), and delegated authority.

The fundamental interest of the provincial government in the treaty making process is that it maintain the ability to govern the province to the limits of its constitutional jurisdiction. The Province will balance this interest with the interests of First Nations in a self-government structure that reflects the individual circumstances of particular First Nations.

D. Federal Approach

In August 1995, the federal government released The Government of Canada's Approach to the Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. The Government of Canada's recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have a right to govern themselves in relation to matters that are internal to their communities and integral to their unique cultures.

While the federal policy recognizes the premise that there is an inherent right to self-government, the central objective of the policy is to reach negotiated agreements on self-government as opposed to legal definitions of the inherent right.

5. PROVINCIAL APPROACH TO SELF-GOVERNMENT

The concept of governance embraces two elements: the structure of government and the government's substantive powers. Structural elements determine what form government will take. The substantive element embraces what powers First Nations will exercise through their governance structure.

In addition, treaty settlements will define and clarify the nature of relationships among governments. The Province will ensure that First Nations develop governance structures that establish efficient linkages between all governments.

A. Government Structures

Aboriginal governments will develop structures which will allow them to deal effectively with residents of settlement lands to the extent of their jurisdiction.1 First Nations will determine the most appropriate governing structure for their members including areas such as administration, financial management, membership codes and the selection of government leaders/representatives.

The Province's interests in the core government structures of First Nations are with respect to:

B. Substantive Powers

Treaties will define the nature and extent of aboriginal interests in the management of settlement lands and the provision of services to their membership through self-government arrangements.

This paper provides a framework for negotiating self-government which recognizes that:

These concepts are outlined below.

i) Manageability (Regional Approach to Treaty Negotiations)

The regional negotiation of governance issues could benefit First Nations, the federal government and the province by:

Regional negotiations will help to ensure that treaties result in a consistent and equitable approach to self-government throughout the province.

ii) Nature of Aboriginal Authority

The nature and scope of First Nation authority will be negotiated through treaties. The following three categories represent the range of potential aboriginal government authority that will be used in developing self-government mandates:

In summary, First Nations may exercise authority through the delegated administration of that authority, or through the actual transfer of a law-making authority within the constitutional framework. In some specific sectors, such as Gaming or Labour law, the Province will retain law-making authority in order to promote economies of scale and legal uniformity. In other areas of jurisdiction -- for example, child welfare -- the Province may want to share authority with a First Nation.

iii) Extent of Aboriginal Authority

The Province has stated that after treaty settlements the Constitution and the Charter of Rights and Freedoms will continue to apply to all British Columbians. The Province intends that the extent of aboriginal government authority will be limited to its land base and circumscribed by provincial standards. In limited instances -- for example, regulation of the fishery or environmental assessment -- federal standards will also have an impact on aboriginal government authority.

a) Land-based jurisdictional model

The provincial approach to land settlements in treaties is that treaty agreements will include an area of land -- Treaty Settlement land -- that will be owned and managed by First Nations. Under this approach, self-government powers which an aboriginal government exercises will be limited to Treaty Settlement lands. Aboriginal governments will have the authority to apply laws to both aboriginal and non-aboriginal residents on Treaty Settlement lands. However, authorities of a culturally specific nature will not be applied to non-aboriginal residents.

Non-aboriginal residents living on, or moving onto Treaty Settlement lands, will have a clear understanding of how the laws affect them and will have access to dispute resolution mechanisms. In addition, non-aboriginal residents will have mechanisms available to them to be able to influence decisions that will affect them.

The protection of the rights of non-aboriginal residents on settlement lands will be of critical importance for the Province in treaty negotiations. In the Sechelt model of self-government, an Advisory Council was created to provide an opportunity for non-aboriginal residents occupying Sechelt lands to be heard and given consideration. The Sechelt example, however, is not necessarily the only approach to be negotiated through the current treaty process.

There may be specific circumstances when aboriginal governments have an interest in exercising authority over their members off their Treaty Settlement lands. These authorities will likely be in areas that are important to the maintenance of aboriginal culture and society - for example in child welfare or health. The Province will want to ensure that the same laws will apply to all British Columbians off Treaty Settlement lands and therefore intends that aboriginal government authority off settlement lands will be exercised through administrative agreements with the Province for the provision of services. The extent and nature of authority exercised by First Nations over members off Settlement lands will be a subject of treaty negotiations.

b) Standards

After treaties, First Nations may exercise certain powers or administer programs and services through a transfer of authority. If authority over a program is transferred, the Province has an interest in maintaining basic standards throughout the province. The Province will ensure the maintenance of Province-wide standards in treaty settlements in areas such as education, social services, labour laws, consumer protection, health and safety, motor vehicle licensing and traffic regulation, housing, environmental protection and assessment, fish and wildlife management and land-use planning and zoning. Continuity of standards becomes most important to:

The interests of aboriginal governments in establishing new regimes and programs to meet their own goals will be balanced with the Province's obligation to maintain consistent standards that operate to the benefit of all British Columbians. The Province will ensure a minimum level of standards when provincial funding is provided to the aboriginal government for the delivery of programs.

The limited capacity of the provincial government to provide funding in support of program and service delivery will be recognized. The Province will make it clear that agreement to a First Nation's assumption of a power does not necessarily include a provincial obligation to fund the program. The primary federal responsibility for the funding and delivery of programs and services to aboriginal people will be recognized.

The application of provincial standards, or demands by the Province for comparable standards, will raise important funding issues with regard to capacity building. In the past, minimum standards may not have applied or may not have been enforced on reserve.

6. INTERGOVERNMENTAL RELATIONSHIPS

Intergovernmental structures provide linkages between governments and enable the development of an appropriate government-to-government relationship. The Province has specific interests with regard to how all levels of government will interact.

In the post-treaty environment, aboriginal governments may wish to influence public government policy and legislative processes. Treaties will clarify structures and processes that will serve as efficient forums for inter-governmental consultation and decision-making. For example, linkages will be necessary between aboriginal governments and local governments for the coordination of:

Treaty settlements will provide a process to ensure agreements between aboriginal governments and neighbouring communities are in place with regard to the delivery of services. This process will be designed to facilitate the exercise of self-government powers by First Nations. While service agreements with local governments regarding service delivery will not be included in treaty settlements, the objectives of the process for developing such protocol arrangements will be defined through treaties.

7. LINKAGES TO OTHER TREATY COMPONENTS

A) Fiscal Arrangements

One of the objectives of self-government agreements is to enhance the economic development and diversification potential of First Nation economies and communities. Support for new economic development opportunities for First Nations must be balanced with the provincial government's responsibility to support the sustainability of communities, businesses and enterprises across the province as a whole.

The Province has interests in ensuring that treaties resolve current uncertainties regarding rights to the lands and resources that are integral to the society and economy of British Columbia. Treaties must balance aboriginal rights with the rights and interests of all British Columbians, and provide the basis for sustainable economic and social development in the future.

The cost-sharing Memorandum of Understanding between Canada and British Columbia indicates that Canada will pay the costs of First Nations establishing and operating core institutions required for governance, including structures and procedures for decision-making, membership and ratification, law-making and land management powers currently exercised by the federal Minister of Indian Affairs and Northern Development.

It is the Province's view that the federal government has primary responsibility for the provision of programs and services to aboriginal people. Approaches to the transfer of funds to aboriginal governments and the provision of revenue-generating opportunities are examined more fully in British Columbia's Approach to Treaty Settlements: Fiscal Arrangements for Treaties.

B) Lands and Resources

Mandates on self-government issues are informed by the provincial approach to Lands and Resource issues, as identified in British Columbia's Approach to Treaty Settlements: Lands and Resources. The land-based jurisdictional model is of particular importance in determining the application of aboriginal government authorities. The Province may also consider alternative approaches to land settlements and self-government jurisdiction presented by First Nations. Links between land and resource and self-government components will be particularly evident in arrangements relating to resource management responsibilities and structures negotiated in treaties.

C) Implementation

The implementation plan represents a critical component of the treaty process. Experience in other jurisdictions indicates that there is a correlation between timely development of effective implementation plans and the overall success of the treaties. The Province wants to ensure that discussions surrounding implementation will occur at an early stage of the negotiation process. Implementation plans will ensure there is a smooth transition in the assumption of authority by aboriginal governments.


Footnote:
1 - As in other modern treaties, treaty agreements will include an area of land that will be owned and managed by the First Nation. This area of land -- Treaty Settlement land -- will be the subject of negotiation and will vary depending on the interests of individual First Nations and non-aboriginal communities as well as on local circumstances.


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