Ministry of Aboriginal Affairs, Province of British Columbia


British Columbia's Approach
to Treaty Settlements


Foreword

This document was amended on October 8, 1996.
Amendments

References to recent court cases added (page 1).

References to First Nations citizens on pages 6, 10 and 11 of the document dated March 20, 1996, (pages 6 and 10 of this document) were amended to read "First Nations' members" to make the document consistent with the other public documents.

  1. INTRODUCTION British Columbia is committed to the negotiation of treaty settlements with the First Nations of our Province and with the Government of Canada. We have made this commitment because we can no longer afford to ignore issues that create uncertainty with respect to the exercise of the Province's jurisdiction over lands and resources. The objective of the Province is to negotiate modern treaties which will provide clear, certain and long-lasting definition of rights to lands and resources.

    First Nation government, under the Indian Act, has been costly and ineffective. Aboriginal people believe they can do better themselves and want the opportunity to create healthy, economically independent communities. In addition, treaties will provide aboriginal people with the opportunity to become part of the economy of British Columbia.

    Treaties will bring certainty to land and resource use, help attract new investment for resource development, create social stability and put an end to costly legal battles between First Nations and the Province. The growth and development of economic opportunities throughout the province is a major goal of the province to ensure treaty settlements are fair to all British Columbians.

    Under the Canadian Constitution, the Federal Government is responsible for "Indians, and Lands reserved for the Indians". Therefore, the Federal Government has the primary obligation to conclude treaties. However, the Provincial Government clearly has an interest in how the outstanding issues of aboriginal claims are resolved in British Columbia.

    Over the last 25 years, a number of court cases have assisted aboriginal peoples in the ongoing efforts to have their rights recognized. Beginning with the 1973 Calder case in the Supreme Court of Canada, there have been a number of landmark rulings that have recognized and, to a certain extent, defined aboriginal rights. These cases, without exception, have emphasized that the litigation of these ongoing disputes is time consuming and very expensive. The message has been consistent and clear from the courts: the solution can best be found through negotiation, not litigation.

    Aboriginal rights exist throughout the Province. As a result of Supreme Court of Canada decisions on aboriginal rights (Sparrow; Van der Peet et al; Cote and Adams) and the 1993 B.C. Court of Appeal decision on Delgamuukw, the Province has a legal obligation to consult with First Nations whenever a proposed land use infringes upon aboriginal rights. This legal obligation has created uncertainty for both the Government of British Columbia and First Nations who are being asked to respond to consultation requests from Government on a vast range of issues. To assist in reducing the uncertainty around the definition of aboriginal rights, the Province has instituted the "Crown Lands Activities Policy" to direct government personnel on what is required by consultation and when consultation is necessary. It is the expectation of all parties in the treaty process that final treaty settlements will define and clarify the nature of aboriginal rights in the Province.

    In 1990, the Province agreed to join the Federal Government in negotiations with the Nisga'a Tribal Council. In February of 1996, British Columbia, Canada and the Nisga'a Tribal Council reached consensus on an agreement in principle regarding B.C.'s first modern-day treaty. The agreement in principle contains provisions on fisheries, lands and resources, access to lands, environmental assessment and protection, Nisga'a government, taxation, financial transfers and cultural artifacts. Public meetings are being held in the Northwest region to outline details of the agreement, answer questions and listen to people's suggestions and concerns. As this is the first modern day treaty in British Columbia, public meetings are also being held throughout the Province to explain the agreement and to discuss its implications for the rest of the Province. This interactive consultation process allows the public to review critical issues and provide important comments regarding the agreement.

    The British Columbia Claims Task Force was created in 1990 by an agreement between representatives of First Nations in British Columbia ,the Government of British Columbia and the Government of Canada. The terms of reference asked the Task Force to recommend how the three parties could negotiate treaties in British Columbia. In 1991, the Province officially endorsed the Task Force's recommendations, and recognized the concept of aboriginal rights and self-government as a matter of policy. The Province also signalled to First Nations and the Federal Government its willingness to end decades of non-involvement and to share the costs of treaty settlements in British Columbia.

    Through the treaty negotiation process, the Province and Canada are forging a new and positive relationship with the aboriginal people and First Nations in the Province. The Province sees this process as an opportunity to build the foundation for a better future for all British Columbians. The Province's general mandate for negotiations is clear: it will work to achieve fair, affordable, long-term solutions that respect the rights and reflect the interests of all British Columbians.

  2. PURPOSEThis paper describes the overall provincial approach to treaty negotiations. Three additional documents provide the broad guidelines to negotiations: British Columbia's Approach To Treaty Settlements: Lands And Resources, Fiscal Arrangements For Treaties and Self-Government.

    As additional negotiation mandates are developed, these documents will be updated to reflect the general guidelines on these topics. As negotiations proceed, mandates that reflect local circumstances and requirements will be developed. . This will provide consistency in settlements while allowing for flexibility in individual negotiations to respond to local issues.

  3. NEGOTIATION PROCESS

    British Columbia Treaty Commission

    The British Columbia Treaty Commission is an independent body of five commissioners appointed by the Federal Government, the Provincial Government and the First Nations Summit, an umbrella organization of First Nations and Tribal Councils.

    The British Columbia Treaty Commission (BCTC) oversees and facilitates the six-stage process for negotiating treaties:

    Stage 1:
    A First Nation sends a Statement of Intent to negotiate a treaty to the BCTC. The Statement of Intent includes basic information with respect to the First Nation and the general geographic area of the First Nation's traditional territory (area that the First Nation traditionally used and occupied).

    Stage 2:
    The BCTC calls a meeting of the three parties - First Nation, the Federal Government and the Provincial Government - to exchange information, to discuss the readiness of the respective parties to negotiate and to prepare for the first framework agreement negotiating meeting.

    Stage 3:
    The three parties negotiate a framework agreement, which identifies the topics and the objectives of the negotiations, and establishes a timetable and any special procedural arrangements for the negotiations.

    Stage 4:
    The three parties negotiate an agreement in principle, which contains the major points of agreement between the parties.

    Stage 5:
    The three parties negotiate a final agreement which embodies the principles and agreements reached in the agreement in principle. At this time the parties also plan how the treaty will be implemented; this requires three-party agreement on how best to give effect to the treaty.

    Stage 6:
    This is the stage during which the new relationship forged between the parties becomes reality -- the actual implementation of the treaty provisions.

    Public Participation and Consultation

    The Government of British Columbia represents all the citizens of British Columbia at the table. To assist in public understanding of the process, the Government of British Columbia has opened up the negotiating process to the public. Each set of local treaty talks begins with negotiation of an "openness protocol" which spells out public access to negotiation sessions, how documents are made available to the public, media access and other openness measures.

    As part of the consultation process, the Governments of British Columbia and Canada have established the Treaty Negotiations Advisory Committee (TNAC), a committee made up of 31 representatives from all major provincial interest and industry groups: organized labour, the business community, fish, wildlife and environmental groups and the Union of British Columbia Municipalities

    As a result of the Protocol Agreement between the Province and the Union of B.C. Municipalities, signed in September 1994, each municipality in a treaty region is represented on a Treaty Advisory Committee. This group appoints one person to sit at the negotiating table as a member of the provincial negotiating team.

    In addition, local or regional advisory bodies have been and will continue to be established in the areas where treaties are being negotiated to provide advice to provincial and federal treaty negotiators. Input from these advisory bodies during all negotiating stages will ensure that local interests and issues are represented at the table by the negotiators.

    The general public throughout a treaty region will also have the opportunity to provide input to provincial negotiators. Public forums will be scheduled regularly, summaries of the agreement in principle will be distributed to individual households, and final agreement negotiations will be scheduled to allow time for public input after the distribution of an agreement in principle. Similarly, First Nations will be responsible for ensuring a public information process exists within their communities and that agreements will be available for their First Nation members to review and provide comments.

  4. PRINCIPLES TO GUIDE TREATY NEGOTIATIONSThe long-term vision for modern treaties in British Columbia will be based on the following principles:

    Treaties will ensure the Province's ability to manage public lands and resources through efficient and effective processes, in accordance with principles of sustainability and environmental protection.

  5. WHAT WILL BE INCLUDED IN TREATIES?Treaties may include provisions relating to:

    Land

    As in other treaties, the Province believes that most 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 and needs of individual First Nations and non-aboriginal communities as well as on local circumstances. It is the Province's objective to ensure that existing Indian Reserves are incorporated within Treaty Settlement lands. Overall, the total land held by First Nations, after treaty settlements are completed in British Columbia, will be less than five percent of the Province's land base.

    These lands will be part of Canada and British Columbia; treaties will not create separate countries. Treaties will define the areas of specific First Nation jurisdiction on these lands, and will ensure that these lands are subject to provincial standards - e.g. environmental protection. Currently Indian Reserves are under federal jurisdiction and are not subject to provincial environmental protection laws; the Province intends to ensure that, after treaties, reserve lands will be the same as Treaty Settlement lands.

    There will be considerable differences between urban and rural treaties. For example, urban treaties may include less land due to limited amount of land available and the higher cash value of urban land.

    Negotiations with respect to the amount of land for First Nations will consider factors such as:

    In some cases, it may be possible to meet First Nation objectives without transferring land ownership. In all cases, the Province will have the land it needs to respond to new and emerging development, conservation, residential and recreation needs. All communities and local governments will be able to plan for the future and have land for growth and development.

    Private land held in fee simple is not on the negotiating table.

    Land outside the Treaty Settlement land will remain Crown land, owned and managed by the Provincial Government. There may be some clearly defined treaty rights, such as hunting and fishing for food purposes, that may apply on Crown land.

    Parks and Protected Areas

    The Province is committed to the establishment of parks and protected areas in order to preserve significant recreational and ecological values. Work will continue towards the goal of protecting 12 percent of British Columbia's land base. Parks and protected areas in British Columbia reflect important public and natural values, and the designation of these areas will form the basis for the Province's negotiating position. The Province will negotiate to maintain parks and protected areas for the use and benefit of all British Columbians.

    Treaties may establish a specific role for First Nations in the management of a park, or provide for First Nations' traditional activities and sustenance use in a manner compatible with public safety and enjoyment, as well as conservation requirements.

    Land Use Planning Processes

    The Province has undertaken a number of land-use planning processes as part of its commitments to sustainable development and public involvement in land-use decisions. The approved land-use plans will form the basis of the Provincial Government's position in treaty negotiations. The Province will uphold the opportunities for sustainable economic development represented in these plans.

    Where Settlement lands may be located within or adjacent to municipal lands, arrangements will be in place to ensure compatibility of land-use planning and zoning processes in the adjoining areas.

    Fishing and Hunting by Aboriginal People

    The courts have said that aboriginal people have the right to hunt and fish for traditional and subsistence purposes. Treaties will clearly define those rights so that all parties understand exactly how and where they apply. Treaties will also ensure that requirements for conservation and sound management can be met throughout the Province by providing that public resources will continue to be managed by the Crown.

    Access to and across Treaty Settlement Land

    The Province guarantees reasonable access to recreational uses of Treaty Settlement land. Hunting, fishing, hiking and other related activities by non-aboriginal people will continue over unoccupied Treaty Settlement land.

    Treaties will ensure that the Province's transportation, utility and communications networks are maintained. Highways, rights of way and sites integral to the maintenance and development of these networks will remain within Crown jurisdiction. Access through Treaty Settlement lands required by third-party interests to get to their resource tenures will also be maintained through treaty settlements.

    Management of Land and Resources

    The importance of lands and resources to the economy, society and culture of all British Columbians will be recognized. Treaties will also recognize the important role that land and resources play in supporting First Nations' traditional economic and cultural activities and in ensuring a sustainable economy for their future.

    All public lands and resources will be subject to clear and effective management processes under the authority of the Provincial Government. However, treaties will recognize the importance of including First Nations in some of the decision-making with respect to public lands and resources. For example, involving First Nations in a public government environmental assessment process that would advise both First Nations and the Province may be the best way to protect Treaty Settlement and Crown lands from the impacts of adjacent land-use activities.

    Treaties will provide for the maintenance of comparable standards across Crown land and Treaty Settlement land. For more detailed information see the public documents entitled: British Columbia's Approach To Treaty Settlements: Lands And Resources and British Columbia's Approach to Treaty Settlements: Self-Government.

    Benefits to Local Economies

    Local communities will benefit from improved economic and social conditions of their neighbouring aboriginal communities. The financial package that will form part of all treaty settlements will also benefit local economies. An expanded and diversified economy will create new jobs and new opportunities for all British Columbians. Treaties will assist First Nations to join, or integrate their economy with the provincial economy as a whole.

    Treaties will promote province-wide, regional and local benefits from resource development, both direct and indirect. The continuation of the development of sustainable resource-based industries is an important goal throughout the treaty process.

    Disruption to existing commercial interests in lands and resources will be avoided wherever possible. Where impacts cannot be avoided, fair and consistent province-wide standards will be applied to determine reasonable and timely compensation.

    Economic Opportunities for First Nations

    Restrictions in the Indian Act with respect to use of reserve lands have severely limited Indian bands from accessing loans or mortgages from financial institutions in order to promote economic opportunities on their lands. It is expected that treaties will assist First Nations to become part of the B.C. economy and will enable them to access opportunities that are available to all landowners.

    Treaty settlements will not result in the division of existing economic and employment opportunities but rather in the expansion and diversification of those opportunities.

    First Nations Government

    The Constitution, including the Charter of Rights and Freedoms, will continue to apply to all Canadians, including First Nation members.

    For well over a century, the ability of First Nations to manage their own affairs has been limited by the federal Indian Act. The Indian Act restricts aboriginal peoples' opportunities for community development and economic growth -- opportunities that are available to non-aboriginal citizens. First Nations have said that they want to be equal partners with all other British Columbians. They want to negotiate their way into Canada . . . not out of it.

    All parties expect treaty negotiations to replace the Indian Act with new and more effective self-government provisions. Through treaties and the self-government provisions, the social and economic conditions in aboriginal communities will improve for men, women and children.

    The Province recognizes the importance of First Nations taking control over certain areas of interest in their aboriginal communities and designing programs to meet the particular needs of their communities. The jurisdiction of First Nations for their members on Treaty Settlement land is likely to include such areas as family and child services, education, health and culture.

    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.

    It will be up to First Nations to determine the most effective governing structure for their Treaty Settlement land and their members. This could involve such things as administration, financial management, and selection of their leaders. The Province will ensure that all citizens of British Columbia have an opportunity to be heard by any government if and when issues affect them and that citizens have an opportunity to influence the decision-making of any government which may affect their lives.

    Treaties will define the jurisdiction of First Nations and their relationships to the Province, the Federal government and municipalities. Administrative and management procedures among the parties will be clarified, including land-use planning and zoning, economic development, transportation, infrastructure requirements and service delivery.

    For more detailed information on Self-Government Authority, see the public document entitled: British Columbia's Approach To Treaty Settlements: Self-Government.

    Taxation and Fiscal Arrangements

    Under federal legislation, the Indian Act, some status Indians do not pay taxes. Aboriginal people who are not registered under the Indian Act pay the same taxes as other British Columbians. The exemption from taxation for some status Indians can only be changed by the federal government. However, the Provincial Government's position is that, after treaties are completed, aboriginal people in B.C. will pay taxes the same as other Canadians. There may be a transition period which will allow for the necessary fiscal and administrative adjustments to be in place by the time the exemption is removed.

    The Province will not support any taxation arrangements with First Nations that provide for 'tax havens' that attract investment away from other parts of the Province or promote unfair competition between communities for economic development.

    Some First Nations currently have the right under the Indian Act to collect property taxes on reserves. When this happens, the Indian band is required to enter into service agreements with neighbouring municipalities that provide the services to the reserve lands. Treaty settlements will ensure a process for First Nations and municipalities to enter into similar agreements in which they will pay a fee in exchange for the provision of services.

    Treaty settlements will also ensure that any taxation of non-aboriginal people on Treaty Settlement land will be compatible with the provincial taxation system and will not discriminate between aboriginal and non-aboriginal people. Non-aboriginal people who reside on Treaty Settlement land will be provided with an opportunity to be heard and to influence the decision-making of a First Nations government through processes such as advisory councils.

    Treaties must provide the means for First Nations to build healthy, financially viable and sustainable communities. That means they will have to have the fiscal capacity to meet their obligations to their own people in terms of programs and services which they will deliver. Most of the funding currently directed to First Nations by Canada will be transferred to the First Nation. Funding agreements will include provisions to ensure comparable standards are maintained in the provision of services. For more detailed information regarding Fiscal Arrangements, see the public document entitled: British Columbia's Approach To Treaty Settlements: Fiscal Arrangements For Treaties.

    Justice System

    Treaties will not create separate justice systems and will ensure the provision of consistent and comparable justice services to all people. There will be a single justice system for all British Columbians that is responsive to the needs of communities. Current justice services can be tailored to better meet the unique needs of aboriginal communities. The Province will continue to develop community-based policing/justice for non-aboriginal communities as well as aboriginal communities. Treaties will establish clear responsibilities and accountability for law enforcement and the administration of justice. For more detailed information, see the public document entitled: British Columbia's Approach To Treaty Settlements: Self-Government.

    Certainty and Stability

    Treaties will provide a clear understanding of the rights, responsibilities and accountability of all parties. Treaties will translate historic aboriginal rights into contemporary terms. They will define the scope and limits of these rights so that they fit with the legal, economic and social systems of the Province.

    All parties with interests in lands or resources in the Province will have those interests respected, regardless of the ownership of the land. Treaties will ensure that stakeholders have the security and stability they need to manage their businesses and plan for the future.

    Treaties will define the nature and extent of self-government powers on Treaty Settlement lands. They will ensure that laws and regulations across the Province are compatible and will provide for the efficient and cost-effective operation of governments.

    Treaties will include a dispute resolution process with fair, clear and timely procedures for settling disputes over interpretation or implementation of terms of the treaties.

    As a result, treaties will establish lasting agreements that promote stability and security in British Columbia.

    Eligibility for Treaty Benefits

    The Province realizes that individual First Nations can best identify who should be eligible to enrol under treaties in British Columbia . However, the Province has certain interests with respect to eligibility criteria, which include:

    The Province's interest in eligibility is to ensure that all people who may have aboriginal rights in British Columbia have an opportunity to enrol and to vote on a final treaty settlement.

    Ratification of Treaties

    First Nations will choose their own process for ratifying treaties. The Province, however, has certain interests with respect to how First Nations will ratify treaties. First Nation ratification processes must:

    The Province will ratify agreements in principle by Cabinet approval and final agreements by approval of the Legislature. This will only be done after extensive public consultation and review of the agreements. In addition, the ongoing consultation processes throughout the negotiation of the treaties will ensure public concerns and comments are heard early on in the negotiation stages and incorporated as much as possible into the final agreements.

    Cost of Treaty Settlements

    Negotiations will result in treaties that British Columbia can afford, that enhance the Province's overall economic strength and diversity and that maintain the quality of programs and services offered throughout British Columbia.

    Because the primary obligation for concluding treaties lies with the Federal Government, all Canadian taxpayers will share in the cost of treaty settlements in British Columbia.

    Under the cost-sharing memorandum of understanding between the Federal Government and the Province, the Provincial Government's share of treaty settlements will primarily be in the form of Crown land and the Federal Government's share will primarily be in the form of cash. Over the course of all treaties, the estimated Provincial share of cash and cash equivalents (including urban Crown land, exceptional forest land and the value of resource revenues) will be approximately 17% of treaty settlement costs.

  6. SUMMARYThe benefits and costs of treaties will be distributed fairly among resource sectors and across different sectors of the B.C. economy. New investment and additional economic opportunities will come to the Province as treaties will provide certainty with respect to lands and resources.

    Agreements may include incentives for job training programs and cooperative arrangements such as partnerships and joint ventures to contribute to the growth of the Province. Rather than promoting separate or isolated economies, treaties will assist First Nations to join, or integrate their economy with the provincial economy as a whole.

    The interests and rights set out in the treaties will create and support real economic opportunities that are comparable to other communities in the region, and give First Nations the means to achieve self-sufficiency. This will mean that First Nations can contribute to local and regional economies in a way that benefits all British Columbia.


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