Three treaties have been implemented under the BCTP.[1] The Nisgaʼa Treaty is considered separate from the Treaty Process because those negotiations began before the BC treaty process was started, and it has been called a blueprint for the current process. To represent the interests of First Nations involved with the process, the First Nations Summit was created. There are officially 60% of First Nations bands in the process, but only 20% are said to be making progress. About 40% of First Nations are not involved in the treaty process.
History
Previous negotiations
Because the Royal Proclamation of 1763 stated that the Crown must negotiate and sign treaties with the Indigenous people before land could be ceded to a colony, the Numbered Treaties were negotiated in most parts of the Prairie Provinces. The Government of the Colony of British Columbia, however, failed to negotiate many treaties and as a result, most of the province's land is not covered by treaties. The few exceptions are the 14 Douglas Treaties on Vancouver Island, Treaty 8 (1899) in the Northeast of B.C., and the 2000 Nisgaʼa Final Agreement.
Relations between Indigenous peoples and the B.C. government worsened over time, as the McKenna–McBride Royal Commission led to the redistribution of reserve lands and the Allied Tribes of British Columbia was essentially dissolved by an amendment to the Indian Act. First Nations were not allowed to organize or raise money to pursue land claims. In the second half of the 20th century, demands for the recognition of Aboriginal title were buoyed by various court decisions in B.C., including Calder v British Columbia (AG) and R v Sparrow.
In 1990, the governments of Canada, B.C. and First Nations established the B.C. Claims Task Force to investigate how treaty negotiations might begin and what they should cover. The following year, the provincial government accepted the concept of Aboriginal rights (including the inherent right to self-government) as official policy. The Claims Task Force made 19 recommendations and suggested a six-stage process for negotiating new treaties.
Treaty Commission and process
The British Columbia Treaty Commission is the independent body which oversees the treaty process. B.C. treaty commissioners were first appointed in April 1993, and the treaty process officially began in December 1993. By 1996, 47 First Nations, representing more than 60% of status Indians in B.C., had decided to participate. After a few years of negotiations, the Treaty Commission released the 1997 Systems Overload Report which argued that the provincial and federal governments needed to increase their financial resources and the capacity level of First Nations for the negotiation of treaties in BC.
The following year, the Supreme Court of Canada rendered its decision on Delgamuukw v British Columbia, recognizing Aboriginal title as "a right to the land itself", which derives from First Nations original occupation and possession at the time the Crown asserted sovereignty. The court also stated that the federal and provincial governments may infringe upon Aboriginal title under conditions for justification but that fair compensation would be due at the time of such an infringement.
Sechelt First Nation was the first community to sign an agreement-in-principle (AIP) in 1999. Members of the Sliammon First Nation (Tlaʼamin First Nation) voted to reject their negotiated AIP in 2001, but then approved the AiP in June 2003. Tlaʼamin Nation later ratified a final agreement with BC & Canada in 2012, which is in effect as of 2016.[2] Six of 12 member nations of the Nuu-chah-nulth Tribal Council likewise rejected their AIP. The five Maa-nulth First Nations of the Nuu-chah-nulth ratified their treaty in October 2007. The BC government has ratified the final agreement which is yet to be ratified in the federal parliament. Ditidaht First Nation has subsequently taken legal action against the Maa-nulth in a dispute over land and resource ownership.
In 2002, the governing BC Liberal Party mailed out ballots for a provincial referendum on principles for treaty negotiations. However, the referendum failed due to controversy over is phrasing and logistics, which generated protests and a boycott.[3]
In May 1993 the Treaty Commission allocated approximately $432 million in negotiation support funding to more than 50 First Nations: $345.6 million in the form of loans and $86.4 million in the form of contributions.[4] Of that money the Treaty Commission's total operating costs from 1993 to March 31, 2009, spent $34.2 million.[4] One successfully negotiated treaty was rejected, by the Lheidli Tʼenneh First Nation, in 2007.
In July 2007, the Tsawwassen First Nation members voted 70% in favour of the treaty. The treaty more than doubled the size of the Tsawwassen reserve, provided a one-time capital transfer of $13.9 million, $2 million for relinquishing mineral rights under English Bluff, $13.5 million for startup and transition costs, $7.3 million for a number of funds for the purposes of resource management and economic development and $2.6 annually for ongoing programs and services, and reserves a portion of the Fraser River salmon catch to the Tsawwassen. In return, the Tsawwassen abandoned other land claims and will eventually[when?] pay taxes.
The Temexw Treaty Association, whose members are signatories to the Douglas Treaties, is also attempting to negotiate within the BC Treaty Process.
A November 2007 court ruling for the Xeni Gwetʼin First Nation called future participation in the process into question. The judge's ruling included a non-binding opinion that the Xeni Gwetʼin could demonstrate Aboriginal title to half of the Nemaiah Valley, and that the province had no power over these lands.[5] Under the BC treaty process, negotiating nations have received 5% of their claimed land recognized. Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, called the court ruling a "nail in the coffin" of the B.C. treaty process.[5] Notwithstanding such legal rulings (sustained later in the 2015 Supreme Court of Canada decision, Tsilhqotʼin Nation v British Columbia), the BC Treaty Process continues, as more than half of all First Nations in BC continue through the stages of the process. As of 2016, 4 Nations had completed and were implementing treaties; 7 were in Stage 5, and 42 were in Stage 4.[6]
Process
The treaty process is a six-stage negotiation between the federal government, the provincial government, and First Nations. A combination of contribution (grant) funding and loans are provided to First Nations on cost-share basis by the federal and provincial governments to support negotiation efforts.
The British Columbia Treaty Commission accepts First Nations into the process, allocates negotiation support funding and monitors the progress of negotiations.
The process:
Stage 1: statement of intent to negotiate
Stage 2: readiness to negotiate
Stage 3: negotiation of a framework agreement
Stage 4: negotiation of an agreement in principle
Stage 5: negotiation to finalize a treaty
Stage 6: implementation of the treaty
Criticisms
The voice of criticisms have come from different angles in Indigenous communities across British Columbia and Canada, and from the non-native society as well.[7] About two-thirds of First Nations are not involved with the Treaty Process; some have formed the "Unity Protocol", calling for an overhaul of the entire process.
Changing the Indigenous peoples from nations to municipal style government.
The Fraser Institute, a Canadian think tank, released a report in 2008 criticizing the B.C. Treaty Process as "incomplete, illiberal and expensive".[8]
Several assessments of why the treaty process have been made to attempt to more effectively conclude modern-day treaties:
a 2008 report by the Standing Senate Committee on Aboriginal Peoples, Honouring the Spirit of Modern Treaties: Closing the Loopholes[9]
former Campbell River Mayor, James Lornie's 2011 report, Final Report with Recommendations Regarding the Possibility of Accelerating Negotiations With Common Table First Nations that are in the BC Treaty Process, and Any Steps Required[10]
the Senate Standing Committee's 2012 final report, A Commitment Worth Preserving: Reviving the British Columbia Treaty Process[11]
the 2015 Doug Eyford report, commissioned by the federal Minister Bernard Valcourt, A New Direction: Advancing Aboriginal and Treaty Rights[12]
and the 2016 Multilateral Engagement Process to Improve and Expedite Treaty Negotiations in British Columbia, prepared jointly by the Governments of Canada, BC, and the BC First Nations Summit.[13]
All of these analyze chronic problems of the process such as lack of governmental commitment and the burden of loans taken out by First Nations to support their involvement in the unexpectedly long process of reaching final agreements.
Note: "Aboriginal law" refers to Canadian law dealing with Indigenous peoples; "Indigenous law" refers to the customary law of individual indigenous groups.
In Canada, an Indian reserve is defined by the Indian Act as a "tract of land, the legal title to which is vested in His Majesty, that has been set apart by His Majesty for the use and benefit of a band." Reserves are areas set aside for First Nations, one of the major groupings of Indigenous peoples in Canada, after a contract with the Canadian state, and are not to be confused with indigenous peoples' claims to ancestral lands under Aboriginal title.
Frank Arthur Calder, was a Nisga'a politician in Canada.
Delgamuukw v British Columbia, [1997] 3 SCR 1010, also known as Delgamuukw v The Queen, Delgamuukw-Gisday’wa, or simply Delgamuukw, is a ruling by the Supreme Court of Canada that contains its first comprehensive account of Aboriginal title in Canada. The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia. The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered a new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982, defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation.
The Numbered Treaties are a series of eleven treaties signed between the First Nations, one of three groups of Indigenous Peoples in Canada, and the reigning monarch of Canada from 1871 to 1921. These agreements were created to allow the Government of Canada to pursue settlement and resource extraction in the affected regions, which include modern-day Alberta, British Columbia, Manitoba, Ontario, Saskatchewan, and the Northwest Territories. These treaties expanded the Dominion of Canada with large tracts of land in exchange for promises made to the indigenous people of the area. These terms were dependent on individual negotiations and so specific terms differed with each treaty.
The Carrier Sekani Tribal Council is a tribal council representing six First Nations in the Central Interior of British Columbia. It was originally known as the Lakes District Tribal Council. The CSTC was incorporated in 1981 and is a registered non-profit society.
In Canada, an Indian band or band, sometimes referred to as a First Nation band or simply a First Nation, is the basic unit of government for those peoples subject to the Indian Act. Bands are typically small groups of people: the largest in the country, the Six Nations of the Grand River First Nation had 22,294 members in September 2005, and many have a membership below 100 people. Each First Nation is typically represented by a band council chaired by an elected chief, and sometimes also a hereditary chief. As of 2013, there were 614 bands in Canada. Membership in a band is controlled in one of two ways: for most bands, membership is obtained by becoming listed on the Indian Register maintained by the government. As of 2013, there were 253 First Nations which had their own membership criteria, so that not all status Indians are members of a band.
The Huu-ay-aht First Nations is a First Nations band government based on Pachena Bay about 300 km (190 mi) northwest of Victoria, British Columbia on the west coast of Vancouver Island, in Canada. The traditional territories of the Huu-ay-aht make up the watershed of the Sarita River. The Huu-ay-aht is a member of the Nuu-chah-nulth Tribal Council and is a member of the Maa-nulth Treaty Society. It completed and ratified its community constitution and ratified the Maa-nulth Treaty on 28 July 2007. The Legislative Assembly of British Columbia passed the Maa-nulth First Nations Final Agreement Act on Wednesday, 21 November 2007 and celebrated with the member-nations of the Maa-nulth Treaty Society that evening.
Canadian Aboriginal law is the body of law of Canada that concerns a variety of issues related to Indigenous peoples in Canada. Canadian Aboriginal Law is different from Canadian Indigenous law: In Canada, Indigenous Law refers to the legal traditions, customs, and practices of Indigenous peoples and groups. Aboriginal peoples as a collective noun is a specific term of art used in legal documents, including the Constitution Act, 1982, and includes First Nations, Inuit and Métis people. Canadian Aboriginal law provides certain constitutionally recognized rights to land and traditional practices. Canadian Aboriginal Law enforces and interprets certain treaties between the Crown and Indigenous people, and manages much of their interaction. A major area of Aboriginal law involves the duty to consult and accommodate.
The Tsawwassen First Nation is a First Nations government whose lands are located in the Greater Vancouver area of the Lower Mainland of British Columbia, Canada, close to the South Arm of the Fraser River and just north of the international boundary with the United States at Point Roberts, Washington. Tsawwassen First Nation lists its membership at 491 people, nearly half of whom live on the lands.
The Tla'amin First Nation, formerly Sliammon Indian Band or Sliammon First Nation, is a First Nations self governing nation whose lands and traditional territories are located on the upper Sunshine Coast in southwestern British Columbia, Canada. The Tla'amin are closely related to the Klahoose and Homalco peoples and have shared their adjoining territories; formerly all three as well as K'omoks were grouped collectively as the Mainland Comox due to their shared language. They have been part of the Coast Salish indigenous peoples of the western coast of Canada since ancient times.
The lack of treaties between the First Nations of British Columbia (BC) and the Canadian Crown, is a long-standing problem that has become a major issue in recent years. In 1763, the British Crown declared that only it could acquire land from First Nations through treaties. Historically only two treaties were signed with the First Nations of British Columbia. The first of which was the Douglas Treaties, negotiated by Sir James Douglas with the native people of southern Vancouver Island from 1850-1854. The second treaty, Treaty 8, signed in 1899 was part of the Numbered Treaties that were signed with First Nations across the Prairie regions. British Columbian Treaty 8 signatories are located in the Peace River Country or the far North East of BC. For over nine decades no more treaties were signed with First Nations of BC; many Native people wished to negotiate treaties, but successive BC provincial governments refused until the 1990s. A major development was the 1997 decision of the Supreme Court of Canada in the Delgamuukw v. British Columbia case that Aboriginal title still exists in British Columbia and that when dealing with Crown land, the government must consult with and may have to compensate First Nations whose rights are affected.
The following is an alphabetical list of topics related to Indigenous peoples in Canada, comprising the First Nations, Inuit and Métis peoples.
Indigenous or Aboriginal self-government refers to proposals to give governments representing the Indigenous peoples in Canada greater powers of government. These proposals range from giving Aboriginal governments powers similar to that of local governments in Canada to demands that Indigenous governments be recognized as sovereign, and capable of "nation-to-nation" negotiations as legal equals to the Crown, as well as many other variations.
Co-management, also known as community-based management, community-based resource management, cooperative management, joint management, and collaborative management, in the broadest terms refers to the administration of a particular place or resource being shared between multiple local and state management systems. Although co-management encompasses a spectrum of power-sharing arrangements, in the Canadian context it typically refers to agreements between government agencies and representatives of Indigenous peoples in Canada to jointly make land use and resource management decisions about a tract of government-controlled land or resource (e.g.fishery.).
Jack Woodward is a Canadian lawyer. He specializes in Canadian Aboriginal law and is the author of Aboriginal Law in Canada, which is considered the leading Canadian publication on Aboriginal Law.
Indigenous peoples in Canada demand to have their land rights and their Aboriginal titles respected by the Canadian government. These outstanding land claims are some of the main political issues facing Indigenous peoples today.
Indigenous specific land claims in Canada, also called specific claims, are long-standing land claims made by First Nations against the Government of Canada pertaining to Canada's legal obligations to indigenous communities.
Indigenous treaties in Australia are proposed binding legal agreements between Australian governments and Australian First Nations. A treaty could recognise First Nations as distinct political communities, acknowledge Indigenous Sovereignty, set out mutually recognised rights and responsibilities or provide for some degree of self-government. As of 2022, no such treaties are in force, however the Commonwealth and all States except Western Australia have committed to a treaty process. The rejection of the Voice in the 2023 referendum has caused governments in Australia to reassess their commitment to establishing race based institutions in government.
James Andrew Joseph McKenna is best known for participating in negotiations with a number of indigenous peoples on behalf of the Dominion of Canada, including during the creation of Treaty 8, and Treaty 10.
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