Background: History of Treaties and Treaty Negotiation

Historical Treaties treaties paid the a token amount for settlers to take over their land and created In 1774, the Spanish navigator Juan certain areas or reserves, where the First Perez landed in the Queen Charlotte Nations could live. The treaties did not recog- Islands in the territory of the Haida nize the existing self-government of the First First Nations. This was the first Nations. The “Douglas Treaties” were the only recorded contact between treaties signed before BC joined Confederation Europeans and First (1871). In 1899, Canada signed that Nations. At that time, includes First Nations in northeastern BC, it’s estimated that northern Alberta, northeastern Saskatchewan throughout BC there were and the Northwest Territories. Again these did 250,000 First Nations living in complete com- not recognize the First Nations interest in self- munities with their own traditions, cultures, government. It would be 100 years before economies and governments. Over the next 25 another treaty was signed in BC. years, explorers from England, Spain, Russia and France visited BC and dramatically The governor that followed was changed the lives of First Nations. Joseph Trutch (1864). He actively supported efforts to regulate First Nations on reserves with The European visitors successfully engaged the the objective that the First Nations culture and First Nations in the fur trade. Furs were traded practices would disappear and they would for iron, copper, chisels, knives, pots, muskets, eventually be assimilated into mainstream soci- ammunition and alcohol. The fur trade altered ety. Trutch became BC’s first Lieutenant-Gov- the focus of the traditional economies of First ernor and this approach continued under the Nations and exposed them to new and lethal federal government. European diseases such as measles, influenza, scarlet fever and smallpox and to the devastat- (1876) ing effect of alcohol. By 1885, it’s estimated the First Nations population in BC had dwindled to Assimilation was enshrined in the Indian Act 28,000. Today there are about 175,000 First (1876). The Act abolished traditional First Nations in BC - about 50,000 of them live on Nations government practices, such as the pot- reserve lands. latch. The Act imposed European rules for how Indian Bands should be run and made the European contact also had a profound impact reserve residents wards of the state. The Act also on how First Nations were governed. In 1763, imposed requirements that First Nations were the King of England issued a Royal Proclama- to be registered as “Band members” and they tion that recognized that First Nations had title, were to elect a Band council and chief to make or owned, their land and the King established decisions for them. Traditional forms of First a system to buy that land by signing treaties. Nations governance often included more cor- th In the 19 century, many treaties were signed porate or consensus based decision-making, throughout Canada. which the federal government prohibited. In the 1850s, the King’s governor in the Colony This federal philosophy of assimilation was of BC, James Douglas, signed 14 treaties with shared by missionaries who promoted agrari- First Nations on Vancouver Island. These

1 History of Treaties and Treaty Negotiation an lifestyles that were in opposition to many of Band governments and elected chiefs and First Nations traditional economic practices councils. They operated under the supervi- (hunting, fishing, trading goods and services). sion of an Indian Agent who could author- Assimilation was also reinforced through the ize new elections if they did not like who was introduction of “residential schools.” These elected. The Band council was responsible boarding schools were paid for by the federal for public health, maintaining roads, schools, government and operated by various Christian bridges and public buildings. denominations. First Nations children were • Reserve Lands: Reserve lands are land held forcibly taken from their homes and communi- in trust for the use of First Nations by the ties and segregated according to sex and age. Canadian government. The land cannot be The objective was to educate them in things sold, mortgaged or leased without the con- that were important to Europeans and eliminate sent of the Canadian government. their knowledge of their culture and language. • Cultural Ceremonies: From 1884 to 1951, In 2008, the Canadian government apologized the Indian Act banned Indians from partici- for the policy of residential schools and provid- pating in cultural ceremonies across Cana- ed a nationwide compensation package for sur- da, that included the potlatch and vivors who had suffered abuse while at the Sundance. schools. • Land Claims: From 1925 -1951, the Indian The 1876 Indian Act has received relatively mod- Act required Indians to obtain the Minister’s est amendments over the past 130 years. approval to spend money on land claims The Act determines: activity, effectively making it illegal for any- one to pursue outstanding Aboriginal land • The definition of an “Indian”: It defines claims. Canada’s indigenous people as being “sta- tus” or “registered” Indians if they are of First The Indian Act has been amended to remove Nations origin or a child born to a male or some of the more controversial provisions, such female of a First Nations person. Prior to as prohibitions on voting and legal action to 1985, First Nations women were deemed no regain land as well as the section on status longer Indian if they married a man who did where women no longer lose their status when not have Indian status or they left the coun- they marry non-status men. try for more than five years. • Voting: Prior to 1948, Aboriginal Peoples Band Councils could not vote in provincial elections. Prior Most of BC’s First Nations communities still to 1949, Aboriginal Peoples could not vote operate under the Indian Act. It has been in municipal elections. Prior to 1960, Abo- amended to remove some of the more contro- riginal Peoples could not vote in federal elec- versial provisions but essentially it remains the tions. Exceptions were made if an individual same. Under the Canadian Constitution, the fed- learned English or French or earned a uni- eral government has “fiduciary” responsibility versity degree such as doctors, lawyers, for Indians and transfers money to the Band priests or teachers. governments to provide housing, education, • The set up of the “Band Governments”: health services and local services such as water, Before the Indian Act, First Nations govern- sewer and fire protection. The Band council has ments were based on traditional governance a lot of say in what people can and cannot do practices. The Indian Act mandated western on reserve. Many First Nations are suspicious of style democracy through the establishment this form of government as it has resulted in

2 History of Treaties and Treaty Negotiation deplorable conditions on reserve. Nisga’a citizens and their government is consti- tutionally recognized as a government in the Today, some Bands are seeking to incorporate same manner that federal and provincial gov- traditional governance practices by establishing ernments are recognized. As a comparison, local advisory committees that include traditional or governments in BC are not constitutionally rec- hereditary elders and chiefs, to provide advice ognized. Provinces have the authority to create and guidance to the elected Band council. In and dissolve local governments. The Nisga’a has response to Bands that want greater independ- concurrent authority with BC and Canada in a ence in decision-making the federal govern- number of areas, but not in others such as ment has passed special legislation establishing defense, Canadian citizenship and criminal jus- unique systems for individual Bands. Examples tice. include the Sechelt Indian Band (Sechelt Indian Band Self Government Act 1986) and the West- In 2007, two First Nations, Tsawwassen and bank First Nation (West Bank First Nation Self Maa-nulth signed Final Agreements through the Government Act 2004). This legislation gives the BC Treaty process. Like the Nisga’a these agree- Bands more control over their affairs, but does ments provide the First Nations with self-gov- not resolve their outstanding land claims or give ernment. them complete self-government. These can only be achieved through the negotiation of Conclusion treaties. While these are historic agreements, the fact BC Treaty Commission remains that the majority of First Nations in BC have not signed treaties and most of the In 1992, after many years of refusing to partic- province remains subject to outstanding Abo- ipate the BC provincial government agreed to riginal land claims. First Nations have success- a role in treaty negotiations with First Nations fully established in the Courts that they have in the province. The BC Treaty Commission was land ownership rights and the Courts have established to facilitate negotiations between encouraged government to negotiate treaties. Canada, BC and First Nations. There are 58 First This situation has resulted in uncertainty as to Nations (out of 203) that are currently in the the status of much of the province’s Crown land six-stage process to resolve outstanding land (85% of the province‘s land base), which has claims. These are complex negotiations that forced many development and resource proj- deal with a wide variety of issues including title ects to be put on hold. to land and self-government. Why are treaties being Modern Day Treaties and Self Government negotiated today? In 1998, the Nisga’a First Nation in northwest- Political Factors ern BC became the first to negotiate a modern day treaty. In addition to settling their outstand- • In the 1970s and 1980s, sit-ins, blockades ing land claim, they also negotiated self-gov- and rallies were held by First Nations people ernment. The Constitution of the Nisga’a to raise awareness about their rights and out- Nation provides for five main forms of govern- standing land claims. It was in the best inter- ment: a legislature; an executive; four village est of the governments to start negotiating governments; a council of elders; and a voice treaties in an effort to bring stability to the for Nisga’a members who live outside the juris- province. diction of the Nisga’a government. This means • A variety of First Nations political organiza- the Indian Act no longer applies to the 5,500 tions sprang up to fight for self- government.

3 History of Treaties and Treaty Negotiation

• In BC today there are three main First How did it Begin? Nations organizations: the First Nations Sum- • In the 1990’s, the BC Claims Task Force made mit (participates in the BC Treaty process), recommendations about the scope of treaty the Union of BC Indian chiefs (does not par- negotiations, the organization and process, ticipate in the BC Treaty process) and the BC and public education. Assembly of First Nations (BC chapter of the national Assembly of First Nations (AFN), • In 1992, the recommendations led to the which works on non-treaty issues). creation of the BC Treaty Commission which was established to facilitate negotiations • In 1992, the BC Treaty Commission was between Canada, BC and First Nations. established through a tripartite agreement between Canada, BC and the First Nations • It is a voluntary process of political negotia- Summit. This was the first time BC acknowl- tion between First Nations, Canada and BC. edged that it had a role to play in resolving It is supposed to be an alternative to litiga- outstanding Aboriginal land claims. tion. • There are 58 First Nations currently engaged Economic Factors in the BC Treaty process. • BC’s economy is largely based on the extrac- • All First Nations can be part of the process, tion of resources (forestry, mining) which but some have chosen to use the courts require the province to issue tenures and rather than the BC Treaty process to try to permits. resolve their outstanding disputes. • The province’s ability to do this has been suc- What is the purpose of Treaty Negotiation? cessfully challenged by First Nations who have argued in various court cases that their • Reconciliation, self-government, ownership outstanding land claims take precedence. of land and resources, certainty of econom- ic and community development, reduced • This situation has resulted in an uncertain cli- conflict between First Nations and others, mate for investment to take place. constitutional protection and economic development into the BC economy and the Legal Factors First Nations economy. • A variety of legal cases and landmark judg- ments such as the Sparrow Case and Delga- What is being negotiated? muukw Case set out that was • First Nations government structures and the right to the land itself not just the right related finances. to fish, hunt and gather. The problem was that the landmark cases said the rights exist- • Jurisdiction and ownership of land, waters ed but did not specify what those rights are. and resources. • Most Crown land in BC is managed by the • Cash settlements. provincial government. Because the province • A way of resolving disputes and making releases Crown land as part of the land com- changes. ponent of a treaty it is important for the BC government to participate with the federal government in treaty negotiations.

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