What’s the deal with treaties? A lay person’s guide to treaty making in British Columbia 1763 1850s 1860s 1876 1880 1884 1887 1899 1913 1927 1931 1949 1951 1960 1973 1982 1991 1992 1994 1996 1997 1998 1999 2000 2003 2004 2005 2006 CONTENTS 1 3 7 10 11 14 29 33 Introduction Why are we What is What is the Role The The A brief history Appendices negotiating the BC treaty of the Treaty negotiations issues of aboriginal treaties? process? Commission? relations Introduction Before Canada was a country Britain recognized When BC joined Confederation in 1871, only 14 that aboriginal people living here had title to land: treaties on Vancouver Island had been signed, and the Royal Proclamation, 1763 declared that only the land title to the rest of the province was left unresolved. British Crown could acquire land from First Nations, It wasn’t until 1970 that Canada’s aboriginal peoples and that was typically done through treaties. In most could pursue aboriginal rights in the Supreme Court parts of Canada, the British Crown established treaties of Canada. With the exception of Treaty 8 in the with First Nations before Confederation. The new northeastern corner of the province and negotiations Dominion of Canada continued this policy of making with the Nisga’a Nation, most First Nations had treaties before the west was opened for settlement, to wait until ¯1993 to pursue their aboriginal rights but in BC this process was never completed. through a made-in-BC treaty process. 1 3 7 10 11 14 29 33 Introduction Why are we What is What is the Role The The A brief history Appendices negotiating the BC treaty of the Treaty negotiations issues of aboriginal treaties? process? Commission? relations Cover: Waiting for the Lieutenant Governor on the BC Packers Dock at ‘Yalis (Alert Bay), 934. Royal British Columbia Museum, PN 1865-B Following page: Shuswap people drying Salmon, circa 870s. BC Archives, A-08313 Why are we negotiating treaties? POLITIcaL FacTORS aspirations. As a result, the BC Government made 3 By 1990, there was both a political need and appetite the decision to join First Nations and Canada in for beginning treaty negotiations with First Nations. resolving long-standing issues through negotiations. Direct action by First Nations was prominent EcONOMIC facTORS throughout the 1970s and 1980s, with sit-ins, blockades By 1990 the economic cost of the province’s refusal to and rallies. In the 1980s these actions were aimed at participate in negotiations was beginning to tell. asserting aboriginal title and halting specific resource development projects. Direct action and court rulings had delayed resource development projects pending the outcome of disputes First Nations political organizations evolved and over aboriginal rights and title. Economic activity was consolidated during these two decades. Various bodies disrupted and investment in the province was down. became active at provincial and national levels, and In 1990, Price Waterhouse calculated the cost to tribal councils began to take root. Demands for British Columbia of not settling land claims to be recognition of an inherent right to self government $1 billion in lost investment and 1,500 jobs a year in became more forceful. the mining and forestry sectors alone. By the late 1980s, political support for the resolution of First Nation issues had grown, in part because of the activities of First Nation organizations and several court judgments favourable to First Nations’ 4 LEGAL facTORS by a decision of the court. The rulings reaffirm the Since 1973 a series of landmark judgments have Report of the BC Claims Task Force, which stated in addressed the issues of aboriginal rights and title. 1991 that “to protect interests prior to the beginning of negotiations, the federal and provincial governments The Delgamuukw case is widely seen as a turning point must provide notice to First Nations of proposed for negotiations. In 1997, the Supreme Court developments in their traditional territories, and of Canada ruled in the Delgamuukw case that where required, initiate negotiations for an interim aboriginal title is a right to the land itself — not just measures agreement.” the right to hunt, fish and gather. Crown title refers to the provincial or the federal government’s interest in On the one hand, court rulings have confirmed land. The province holds almost all Crown land in BC. aboriginal rights and title and deepened our Delgamuukw confirmed that aboriginal title was never understanding of their content — not ‘giving’ extinguished in BC and therefore still exists; it is a rights to First Nations, but recognizing and burden on Crown title; and when dealing with Crown protecting continuing rights. land the government must consult with and may have to compensate First Nations whose rights are affected. On the other hand, major questions remain unanswered. Although the Supreme Court of Canada Two Supreme Court decisions in 2005 — Haida confirmed that aboriginal title still exists in BC, it and Taku — confirm the provincial government did not indicate where it exists. That will either be must consult with, and if necessary, accommodate determined through a treaty process or decided by First Nations before proceeding with development the courts case by case. The courts have also raised that may have an impact on their traditional territory. serious doubts about whether provincial laws relating The duty to consult and accommodate arises from to mining, forestry and other land uses can directly the need to deal with aboriginal rights in the interim apply to aboriginal title lands. until the rights have been dealt with in a treaty or Broadly speaking, the courts have over time n aboriginal rights and title cannot be extinguished confirmed that: by simple legislation because they are constitutionally protected. Any such legislation would have to meet n aboriginal rights exist in law; strict legal tests and would be unlikely to succeed. n they are distinct and different from the rights n The Crown must properly consult with and of other Canadians; accommodate the interests of First Nations, pre-treaty, before proceeding with development on their n they include unique property rights (aboriginal traditional territory. title), which are communally held rights; In the Supreme Courts’ view, the challenge facing n they take priority over the rights of others subject aboriginal and non-aboriginal governments is to only to conservation needs; “reconcile the pre-existence of aboriginal societies with the sovereignty of the Crown.” Good-faith n the legal and constitutional status of aboriginal negotiations, with give and take on all sides, are the people derives not from their race but from the fact way the Supreme Court of Canada has suggested they are the descendants of the peoples and societies this be done. that existed in North America long before settlers arrived; and Following page: Members of a Nlaka’pamux community, circa 94. Canadian Museum of Civilization, 27000 What is the BC treaty process? The current BC treaty process began in 1990 The BC treaty process is a voluntary process of 7 when Canada, British Columbia and First Nations political negotiations among First Nations, Canada established the BC Claims Task Force to make and British Columbia. It is intended as a constructive recommendations on the scope of treaty negotiations, alternative to litigation and direct action. the organization and processes to be used, interim measures and public education. In its report the task Through political negotiations, the parties are force made 19 recommendations, which the three attempting to “establish a new relationship based parties accepted.1 on mutual respect, trust, and understanding.” This is a key recommendation of the BC Claims Subsequently, First Nations, Canada and British Task Force Report. Columbia signed an agreement in September 1992 to establish the BC Treaty Commission. The BC Treaty In December 1993 the Treaty Commission began Commission Agreement is supported by federal and receiving statements of intent from First Nations provincial legislation and by a resolution of the wanting to negotiate a treaty with Canada and First Nations Summit. British Columbia. 1 See Appendix I, Recommendations of the BC Claims Task Force, number 1. 8 HOW MANY FIRST NaTIONS ARE The BC treaty process is open to all First Nations in IN THE BC TREATY PROCESS? BC but not all First Nation groups have chosen to There are 58 First Nations currently engaged in the engage in treaty negotiations with Canada and BC. BC treaty process, representing a majority of the Some First Nations prefer instead to negotiate province’s aboriginal people. separately and directly with the federal and provincial governments. Other First Nations will enter the It is up to First Nations to decide how they will organize process as they become organized to do so. Still themselves for the purposes of treaty negotiations. others will wait and see what can be achieved before The BC Treaty Commission Agreement defines a committing themselves. First Nation for treaty purposes as: An aboriginal governing body, however organized and established by aboriginal people within their traditional territory in British Columbia, which has been mandated by its constituents to enter into treaty negotiations on their behalf with Canada and British Columbia. WhaT WILL TREATIES accOMPLISH? the Constitution Act, 1982. Changes to the treaty 9 Reconciliation: Treaties are intended to reconcile would have to be agreed upon by the First Nation the interests of First Nations, Canada and BC by and the governments of Canada and BC. establishing new relationships based on mutual trust, respect and understanding through political Economic Development: Treaties will pump billions negotiations. of dollars into the BC economy making the biggest impact where the investment is needed most — in Cer tainty: If economic and community development the hands of First Nations and their neighbours in is to take place, people need to know who owns a small-town British Columbia.