Ministry of Aboriginal Affairs, Province of British Columbia

British Columbia's Approach to
Treaty Settlements Lands and Resources

June 12, 1996

  1. Purpose
  2. This paper outlines the framework within which the Province is approaching the land and resource component of treaty negotiations with First Nations. This framework will inform ongoing mandate development and provide a foundation for further work by identifying the topics that will be addressed, clarifying the links among topics and providing a background against which negotiating options can be evaluated

    This paper does not address issues related to self-government or fiscal arrangements. These issues are addressed in separate documents.

  3. Background
  4. At the time sovereignty was asserted in British Columbia, title to land in the Province became vested in the Crown. A number of court cases in recent years have held that the Crown's title is burdened by unextinguished aboriginal rights to lands and resources. Aboriginal rights have been defined by the courts as rights to use and benefit in various ways from lands and resources. Together, the set of rights held by an aboriginal group is also sometimes referred to as "aboriginal title" (for example, the Supreme Court of Canada in Guerin recognized "pre-existing aboriginal title" as a legal right other than one of ownership).

    The Crown's underlying title to land in British Columbia has never been questioned by the courts or by government. Aboriginal rights do not supersede either Crown title or the "beneficial ownership" conveyed to the Province through the Constitution. The fact that aboriginal rights exist in British Columbia does not call into question the title of the Crown, but does create a legal burden on Crown ownership and management activities. The Province believes that fair and honourable treaty negotiations are necessary if these long-standing issues are to be resolved in a way that benefits all British Columbians.

    The objective of treaty negotiations is to replace the broad-based sustenance rights recognized by the courts -- and currently covering much of British Columbia -- with clearly-defined contemporary rights. Because aboriginal rights revolve primarily around the historic use and occupation of lands and reources, in many cases the most logical and effective way of expressing these rights in modern terms will be to negotiate with respect to the ownership and management of certain lands and resources.

    Land and resources will therefore be a key component of most treaty negotiations. The Province will negotiate with respect to lands and resources on the following basis:

    In addition to resolving the uncertainty that can arise when historic rights conflict with current interests in lands and resources, negotiations regarding lands and resources will ensure that treaties are tailored to local circumstances so that all communities in a region -- aboriginal and non-aboriginal -- have access to economic opportunities in that region.

  5. Approach to Lands And Resources
    1. Land Ownership
    2. As in other modern 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 defined by negotiation and will vary depending on the interests of individual First Nations and non-aboriginal communities as well as on local circumstances. Ownership of Treaty Settlement Land will also include ownership of subsurface resources by First Nations.

      Treaty Settlement Land will remain part of the land base of British Columbia and Canada: treaties will not create separate countries. The Province expects that Treaty Settlement Lands will be held communally by a First Nation, in a manner equivalent to fee simple. Just as with fee simple lands, First Nations' ownership will not be absolute or unconditional. Treaties will define the areas of specific First Nation jurisdiction on these lands, and will ensure that areas of provincial interest -- such as environmental management ( assessment and protection) -- will be subject to provincial standards. The Province will not negotiate sovereignty.

      Crown lands outside Treaty Settlement land will continue to be owned and managed by the Crown. Treaties may include some clearly-defined rights that apply on Crown lands, such as rights to practice certain traditional activities, a role in some planning and development decisions or involvement in the management of resources. Treaties will also ensure that the rights of non-aboriginal British Columbians to lands and resources are respected.

    3. Amount of Land
    4. The amount of land defined as Treaty Settlement Land will vary from treaty to treaty. In some other treaties negotiated in other parts of Canada the amount of land was determined by a per capita formula, but this approach is not appropriate in British Columbia due to the very wide range of market values and natural resource values in different areas of the Province. Treaties must take into account the difference in land values in different locations.

      In addition, for treaties to meet the objective of promoting economic partnerships and enabling First Nations to participate more effectively in the economy of British Columbia, the economic base of aboriginal communities must be comparable to that of other neighbouring communities. This means that a different size and type of land base will be appropriate in different treaties, depending on local economic opportunities. Finally, the federal-provincial cost-sharing agreement recognizes that the amount of land will vary with the cash component of a treaty.

      Negotiations with respect to the amount of land thus will consider factors such as:

      It is the Province's objective that existing Indian Reserves will be incorporated within Treaty Settlement Lands. Overall, the total land held by First Nations -- including the area of present Indian Reserve lands -- will be less than five percent of the Province's land base.

      The size of the First Nations' traditional territory, as identified in its Statement of Intent to Negotiate, will not be a factor in negotiating the area of Treaty Settlement Land (for example, Treaty Settlement Land will not be calculated as a percentage of the traditional territory).

      Relationship to Traditional Territories
      As part of the Treaty Commission process, First Nations are asked to identify their traditional territories. The area of land identified by a First Nation in response to this requirement serves as an initial indication of the territory in which that First Nation carried out traditional activities. The area of Treaty Settlement Land included in a treaty will represent only a small part of the traditional territory.

      Early in the negotiation process, the Province's resources are not usefully spent in a lengthy exploration of historical and archaeological evidence -- much of which will be inconclusive -- in an attempt to determine the precise historical boundaries of traditional territories. The Province is not interested in recreating the past. Substantive negotiations will focus instead on the current and future interests of the parties. As negotiations reach the point where the parties are coming to agreement on the boundaries of the Treaty Settlement Land, more rigorous analysis will be necessary to ensure that these boundaries are appropriate to represent a translation of historic rights of the First Nation into contemporary terms.

      If treaties are to be meaningful in a contemporary world, they cannot be based solely on evidence from the past. The current and future interests of all parties will determine the final land area of each treaty.

    5. Negotiation of Treaty Settlement Land
    6. The parcels of land to be defined as Treaty Settlement Land will be negotiated by the parties. The following framework will guide provincial negotiators in negotiating specific areas of Settlement Land.

      Fee Simple lands
      Lands held in fee simple are not on the table. The Province will not expropriate or interfere with fee simple lands to conclude a treaty. Fee simple lands will not be subject to compulsory acquisition but owners may choose to transfer lands as a regular market transaction on a "willing seller/willing buyer" basis. This includes fee simple land held by Ministries, Crown corporations, individuals, private companies or corporations, Crown-granted subsurface rights and fee simple lands purchased with government funds.

      The courts have held that, in some cases, aboriginal rights can co-exist with other interests and may apply on private property. A key objective of treaty negotiations, therefore, will be to ensure that the property interests of private land-owners are secured.

      Private Interests on Crown Land: Leases, Licences and Tenures
      The Province will respect the terms of all legal interests in Crown land and resources, including leases and licences. Disruption to existing interests, including interests held by individuals, corporations or local governments, will be avoided wherever possible.

      Private interests on Crown land fall into two general categories:

      Because the land on which these tenures apply is Crown land it may be the subject of treaty negotiations. Treaty negotiators will consult with holders of both exclusive and non-exclusive tenures to ensure that the terms and conditions of these tenures are met.

      Land Use Planning Provincial land use planning activities are undertaken without prejudice to aboriginal rights and treaty negotiations. Land use plans -- including designations for integrated management and working forest -- which have been developed as part of a public process will form the basis for the Province's position in negotiations on land and resources in that region. The Province will negotiate to maintain land use plans and to uphold the opportunities for sustainable economic development represented in these plans.

      Treaties may include negotiated provisions for ensuring First Nations' participation in the Province's land use planning activities, as well as provisions for Provincial and public participation in First Nations' land use planning processes where these might affect interests off Treaty Settlement Lands.

      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. Standards of management, ecological protection, public safety (in trails etc.), recreation areas and access must be consistent with Provincial objectives, regardless of who owns or manages the parks and protected areas.

      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 recreational values, as well as conservation requirements.

      Local Government
      Local governments operate as independent governing bodies with a legislated set of powers that includes responsibilities for local land use planning, zoning, regulation, standards and codes. Treaties will protect the ability of municipalities and communities to grow and develop, and will ensure that development is coordinated between neighbouring aboriginal and non-aboriginal communities.

      In certain circumstances Crown lands located within municipal boundaries may be the subject of negotiations. Where this is the case, discussions will take place in keeping with the terms of the UBCM Protocol Agreement that provides that the Province will work with local governments. Local government representatives will participate as members of provincial negotiating caucuses and will sit at the negotiating table as a member of the provincial negotiating team.

      Lands required for public purposes (for example, significant access routes or community water supplies) will not be on the table. In discussions with local governments regarding other land parcels, the following will be considered:

      If Treaty Settlement Lands will be adjacent to municipal lands, arrangements will be established between municipalities and First Nations to ensure compatibility of land use planning and zoning processes in the adjoining areas. Treaties will clarify relationships between First Nations and local governments.

      It should be noted that many communities in the Province are not incorporated as municipalities. The spirit and intent of the UBCM Protocol Agreement will apply equally to unincorporated settlements. Treaty negotiators will work with these communities to ensure that their interests are represented.

      Transportation/Utility Corridors
      Treaties will ensure that the Province's transportation, utility and communications networks are maintained. Highways, resource roads, rights of way for both public and private utilities and sites integral to the operation, maintenance and development of these networks will remain within Crown jurisdiction (See section 4 below).

      Crown Corporation Interests in Crown Land
      Crown corporations, as some of British Columbia's largest commercial corporate entities, provide a wide range of essential services to the public throughout the province. Fee simple land owned by Crown corporations is not on the table but owners may choose to transfer lands as a regular market transaction on a "willing seller/willing buyer" basis.

      Representative Land
      In other treaty negotiations, including those in the Yukon, land negotiations have included a requirement that Treaty Settlement Land be representative of the terrain and resource values in the area. These requirements are less applicable in British Columbia because the cost-sharing agreement between Canada and the Province contains a mechanism for balancing land values to ensure consistency. However, in order to ensure that settlements are fair to First Nations and to non-aboriginal British Columbians, some balancing of terrain and land values will be required to ensure that all interested parties have an opportunity to benefit from the range of resources and opportunities in any given area.

      It should be noted that many different kinds of values are associated with lands and resources, including economic, social, environmental and cultural values. Some of these values are extremely difficult to quantify. Negotiations will seek to identify and consider all values associated with lands and resources.

      Crown Land Within the Agricultural Land Reserve
      The Agricultural Land Reserve (ALR) is intended to preserve and protect lands for agricultural purposes including farming, ranching and range. Treaty settlements will support the Province's commitment to the long term sustainability and development of the ranching, farming and food industries in British Columbia, and to maintain the Province's food production capacity. Negotiations will also consider local government and community development objectives with respect to lands within the ALR.

      Approximately 55% of land in the ALR is Crown land. If areas within these lands are the subject of negotiations, negotiators will work with the Agricultural Land Commission, local governments and third parties to ensure that community and stakeholder interests are considered along with Provincial objectives.

    7. Access To and Across Treaty Settlement Land
    8. In a number of areas in B.C., the validity of rights-of-way for Provincial roads that pass through Indian Reserve lands has been called into question. This has occasionally resulted in disputes and uncertainty regarding the public use of some roads. Treaties will address these disputes and will ensure free public access to all public roads.

      Provincial agreement to any land package will be subject to acceptable access provisions. All British Columbians will continue to have reasonable access to land and resources for hunting, fishing and recreational opportunities. Appropriate access will also be ensured for transportation, communication, public works and government services.

      In some cases restrictions may apply on public access to particular Treaty Settlement Lands, for example to protect First Nations' heritage sites or to respect occupied areas. However, the Province will ensure that fair and reasonable provisions exist for access both to and through Settlement Land as required to ensure the following:

      All treaties must include provisions that ensure the Crown's ability to acquire, on reasonable terms and at reasonable costs, new rights of way on or through First Nations' settlement lands for public purposes, including Crown corporation operations.

    9. Co-operative Management and Land Use Planning
    10. Cooperative land use planning and resource management arrangements may be established in treaties. Rather than adding new structures to current planning and management regimes, treaties will clarify the participation and roles of First Nations in existing or modified provincial processes. Roles for stakeholders and local interests will be assured.

      Treaties will support cooperative planning and management activities between First Nations and regional or local governments to ensure that local zoning or development decisions consider the interests of adjacent communities.

    11. Environmental Assessment and Protection
    12. Currently the Province has no legal ability to regulate development taking place on Indian Reserve lands -- this is a matter of federal jurisdiction. Treaties will enable the Province to ensure that provincial environmental standards are applied consistently in all areas of British Columbia, including Treaty Settlement Lands.

      First Nations will have the opportunity to assess environmental effects of projects on Treaty Settlement Lands and to determine whether they should proceed. However, First Nation environmental assessment requirements must be consistent with Provincial requirements. Treaties will clarify the roles and responsibilities of First Nations, the Province and Canada in environmental assessment on Crown lands and on Treaty Settlement Lands, and will ensure that processes are flexible enough to meet the particular needs of individual communities. Certain basic standards will apply:

    13. Compensation
    14. Compensation to Third Parties
      Disruption to existing commercial interests will be avoided wherever possible. Where adverse impacts are unavoidable, consistent provincial guidelines will be applied to ensure fair and timely compensation.

      A number of mechanisms exist to avoid disruption to existing interests in the treaty process. These include maintaining tenures in accordance with their existing terms, negotiating fibre (or other resource) supply agreements, establishing transition programs and promoting joint economic ventures. Negotiators will work with stakeholders to avoid disruption.

      Treaties will not result in the division or transfer of existing economic and employment opportunities based on lands and resources in British Columbia, but rather in the expansion and diversification of these opportunities.

      Compensation for First Nations
      Some First Nations have indicated that they will seek compensation based on a calculation of damages arising from past use and alienation of the lands and resources within their traditional territories. The Province will not calculate the cash component of treaties on this basis, and provincial negotiators will not have a mandate to enter discussions on such calculations.

      (NOTE: this policy does not necessarily extend to First Nations' claims for compensation arising from trespass over Indian Reserve lands, or other specific claims pursuant to either British Columbia's or Canada's specific claims policy. In these circumstances, which are distinct from treaty negotiations, legal remedies may include financial compensation for damages.)

    15. Overlapping Traditional Territories
    16. The traditional territories of many First Nations overlap. In some cases, more than one First Nation may seek to negotiate with respect to the same parcel of land. These issues must be resolved for treaties to achieve administrative and jurisdictional clarity, and to ensure efficient management arrangements.

      Overlaps in traditional territories do not have to be resolved for treaty negotiations to begin. In accordance with the B.C. Treaty Commission process, however, a mechanism has to be in place for their resolution in order for a First Nation to be declared ready to start negotiations.

      In most cases, because the final area of Treaty Settlement Land will be only a small part of the traditional territory identified by the First Nation, overlapping territories may not, in the end, be a significant issue. Where these issues do arise, the Province's approach will be based on the following principles:

    17. Certainty
    18. Existing federal policy requires the surrender of certain aboriginal rights in exchange for the rights provided in the treaty, as a means of achieving legal certainty. Canada is currently reviewing this policy.

      The courts have held that the Province has no ability to extinguish or accept a surrender of aboriginal rights; this is an area of federal jurisdiction. The Province's role with respect to this matter is to ensure that the legal mechanism adopted by Canada for achieving certainty meets provincial objectives, respects the rights of all British Columbians and contributes to certainty in the relationships among governments, communities, businesses and individuals.

      The Province's primary objective in treaty negotiations is to resolve current legal uncertainties regarding rights to the lands and resources that are integral to the society and economy of British Columbia. This means that treaties will:

      Treaties will ensure that the Province can fulfil its responsibilities to all British Columbians through clear and effective processes for the management of lands and resources and the delivery of government programs and services.

      Certainty requires more than legal clarity regarding the parties' rights and responsibilities. Treaties must be fair, lasting agreements that stand the test of time. Once treaties have been concluded they should not be re-opened; however, if it becomes clear that components of treaties require modification to adapt to new circumstances, amendments will be possible on the agreement of all three parties (although treaty rights are protected by the Constitution, treaties themselves are not part of the Constitution and the Constitutional amendment formula does not apply to them).

      The parties will negotiate fair and effective provisions for resolving disputes that may arise regarding the interpretation or implementation of treaties.

    19. Links to Other Treaty Components
    20. This paper has focused on issues related to lands and resources; however, these topics will not be negotiated in isolation of other treaty components. The relationship of negotiations on land and resources to other topics is briefly outlined below. These topics are considered in more detail in separate documents.

      The development of mandates on land and resource issues will be informed by evolving federal and provincial approaches to First Nation governance, particularly with respect to options for First Nation jurisdiction, administrative structures and intergovernmental relationships. Links between land and resource and self-government components will be particularly evident in arrangements relating to the resource management structures and responsibilities negotiated in treaties. The nature of the relationship among First Nations, Canada and the Province will shape the nature and scope of treaty rights to lands and resources.

      Fiscal Arrangements
      The balance between the land and cash components of treaties will be integral both to the Province's efforts to ensure consistency and fairness in settlements in different areas of British Columbia, and to the overall affordability of treaties. The link between lands and resources and the fiscal arrangement and cash components will revolve primarily around the negotiation of Treaty Settlement land, and the values associated with this land. Other links will emerge with respect to funding for resource management structures, and the negotiation of arrangements dealing with resource revenues. Land and resource components will provide the basis for economic development opportunities, which in turn will affect the First Nation's ability to generate revenues and contribute to its funding framework.

      June 12, 1996

      This document will be updated periodically.

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