Ministry of Aboriginal Affairs, Province of British Columbia
British Columbia's Approach to
1. PURPOSEThis paper outlines the issues associated with negotiating
self-government through the present treaty process. The paper will review issues
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.
- the structure of aboriginal governments;
- substantive powers that aboriginal governments may administer
- the scope of aboriginal government authority;
territory over which this authority will be exercised; and,
- intergovernmental relations.
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
2. BACKGROUNDThe 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
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
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
- create a myriad of overlapping governing structures and decision-making
bodies throughout the province;
- result in uncertainty in jurisdiction;
- adversely affect non-aboriginal residents on Treaty Settlement lands;
- impose a financial burden on taxpayers;
- result in sovereign governments operating outside of the Constitution;
- create additional justice systems;
- result in inconsistent taxation regimes.
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-GOVERNMENTSelf-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:
- the Constitution and the Charter of Rights and Freedoms will continue to
apply to all British Columbians;
- treaties will ensure clear, equitable and compatible policies among all
- all British Columbians will have access to comparable justice services and
will be subject to one justice system;
- the Criminal Code will apply equally to all British Columbians;
- all British Columbians will have access to decision-making structures and
to mechanisms for dispute resolution;
- treaties will result in clear jurisdictions with effective
intergovernmental linkages and efficient administrative and management
- efficient administrative structures will be created that avoid the
potential for federal off-loading of programs, services or costs;
- implementation of self-government arrangements will occur with minimal
disruption in programs and services and will result in comparable levels of
service for all British Columbians;
- clear and consistent standards will continue to apply throughout the
province in areas such as health and safety, consumer protection,
environmental protection, labour and product quality and social well-being;
- all parties will have a clear understanding of their rights,
responsibilities and accountabilities;
- consistent emergency response provisions provided by governments will be
4. THE SOURCE OF SELF-GOVERNMENT RIGHTSThe 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
A. Aboriginal PerspectiveFirst 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 ContextIn 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 ApproachThe 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 ApproachIn 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
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
5. PROVINCIAL APPROACH TO SELF-GOVERNMENTThe 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
A. Government StructuresAboriginal 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
The Province's interests in the core government structures of First Nations
are with respect to:
- the compatibility of aboriginal government structures with the existing
framework of provincial
- laws and the Constitution;
- linkages to existing provincial decision-making structures;
- mechanisms for the resolution of disputes; and,
- means of representation for all those who are affected by the decisions of
B. Substantive PowersTreaties 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
These concepts are outlined below.
- the negotiation of aboriginal government authority will take into
consideration the concept of
- regional treaty negotiations; and,
- the exercise of aboriginal government authority will be:
- within the
current constitutional framework;
- over Treaty Settlement lands; and,
subject to comparable standards.
i) Manageability (Regional Approach to Treaty Negotiations)
The regional negotiation of governance issues could benefit First Nations,
the federal government and the province by:
will help to ensure that treaties result in a consistent and equitable approach
to self-government throughout the province.
- increasing efficiencies and decreasing duplications in service delivery;
- reducing service delivery costs by minimizing overlaps;
- integrating certain government functions to increase efficiency and reduce
- increasing capacity to deliver specialized services;
- providing equitable access to services across a region;
- encouraging economic development through complementary and compatible
revenue generating activities;
- preventing transboundary spillover effects in areas such as environmental
management (consistency in application of regulations);
- serving a larger population base; and,
- clarifying intergovernmental jurisdictions.
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
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.
- Unconditional Aboriginal Government Authority: In this option, the
Province would not require aboriginal laws to comply with any substantive or
procedural requirements. Aboriginal laws would, however, be exercised within
the current constitutional framework. Examples would be in culturally-specific
areas such as language.
- Limited Aboriginal Government Authority: This option would recognize
aboriginal legislative authority, subject to conditions. For example, the
Province is willing to recognize limited aboriginal authority over the
regulation and licensing of business activity on Treaty Settlement lands that
is equivalent to that currently exercised by municipalities. The Province
would require aboriginal laws to meet equivalent standards. Alternatively, the
Province could recognize concurrent aboriginal authority over a subject, but
specify that provincial laws will prevail in the event of a conflict.
- Delegated Aboriginal Government Authority: Under this model, the Province
would delegate governmental authority to First Nations, thereby retaining
ultimate control over the subject area. For example, the Province is willing
to delegate policing to aboriginal governments under the existing Police Act.
Pursuant to such authority, a First Nation could contract with existing
Municipal or R.C.M. Police for police services. Alternately, a First Nation
could establish a police service, whose authority on Treaty Settlement lands
would be equivalent to that of a municipal police force within a municipality
in British Columbia.
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 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
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.
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:
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.
- ensure the health, safety and well-being of all residents;
- ensure comparable levels of service;
- address existing inequities in social and economic circumstances;
- provide all parties with a clear understanding of their rights,
responsibilities and accountabilities;
- prevent potential negative transboundary effects (for example,
environmental assessment); and,
- to ensure a consistent emergency response mechanism.
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 RELATIONSHIPSIntergovernmental 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
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.
- regional planning, zoning and growth management initiatives;
- planning and construction of infrastructure;
- local service delivery;
- property taxation; and,
- standards with respect to health and safety.
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.
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.
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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Last Update: 1996 Dec 10