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There is a long history of efforts by indigenous or First Nations peoples to gain recognition of their traditional rights and title to lands and resources.[1] In recent years, the negotiation of settlement of the claims of First Nations peoples against the Crown in Canada has been actively pursued, although there are many criticisms of the rate of progress and effectiveness of negotiations. The intention of this article is to review the development of the treaty-making process which was outlined in recommendations of the British Columbia Claims Task Force and accepted by the federal and the British Columbia provincial governments.[2]
The process of “treaty-making” in British Columbia is of relevance to New Zealanders because of the close parallels. There is a similar environment and population, considerable “third party interests” in the lands and resources under negotiation, and a large number of different tribal groups. There is also a similar time-frame of colonisation in the 19th century, and much that is comparable between complaints of First Nations and MŠori grievances put before the Waitangi Tribunal about the impact of colonisation, the loss of land and resources, and the desire to retain and nurture cultural identity. Although the British Columbia Treaty Commission does not function as a commission of inquiry (like the Waitangi Tribunal), there is much in the treaty-making process which it oversees that has parallels with the settlement of MŠori grievances here. There is one important difference in that the treaty-making process in British Columbia is now a tripartite one, involving both federal and provincial governments and a First Nation.
Until 1990, when the British Columbia provincial government decided to participate in the ongoing negotiations between the Nisga’a Tribal Council and the federal government, the province had denied the continuing existence of any aboriginal rights. It asserted that any aboriginal title or interest had been extinguished by the establishment of British colonies and British sovereignty in British Columbia before 1871, when the province joined the Canadian confederation. Apart from the so-called “Douglas Treaties” on Vancouver Island (which comprised 14 separate land purchase agreements negotiated between 1850 and 1854 that also recognised aboriginal hunting and fishing rights), and an extension of Treaty No 8 into the northeastern corner of the province, there were no other treaties with aboriginal peoples in British Columbia.
The decision of the British Columbia government in 1990 to participate in Nisga’a land claim negotiations with the federal government, and the establishment of the British Columbia Treaty Commission in 1993, led to a great deal of public discussion and debate in the media and elsewhere. Some deny any provincial government obligation to deal with aboriginal issues, citing this as a federal government responsibility. Many query the cost of treaty settlements and the impact on British Columbia taxpayers. Others are concerned about the economic and social impacts of Indian protests, road blocks, injunctions against logging, and aboriginal claims to the fisheries. There is a fear, a paranoia even, about the treaty-making process, born of uncertainty and ignorance of the issues, legal and historical, which have led to the current situation in British Columbia:
The public discussion has been given momentum by the expression of concern by those who perceive that their interests may be affected by treaty outcomes. These include the forestry, mining, and fishing industries, municipalities, and environmental groups. Among these interests there arises the demand, ostensibly made by the public, to openness in the process of treaty negotiation.[3]
It was to be expected that governments would respond politically to this sort of public debate. There was a change of government in British Columbia in 1996 but no change in treaty-making policy:
One possible answer is that a decision to pursue treaties is purely a matter of government policy, a policy which reflects a broad-based political platform. However, in British Columbia, the initiative toward a treaty-making process was taken by the former government then continued with a more substantial commitment by the incumbent government. It is difficult to imagine two more diametrically opposed political views than those represented by the former and present governments. Yet, both implemented policies directed at the settlements of aboriginal rights issues by treaties.[4]
These writers, both Vancouver lawyers, contended that “there is now emerging in the law of Canada a legal obligation which may require the Crown to make treaties with First Nations, as a condition of the use of territory subject to aboriginal title”.
However, another British Columbia lawyer, Melvin Smith QC, was very critical of British Columbia government policy, and questioned whether British Columbia should be involved at all, citing the terms under which the province joined the Canadian Confederation in 1871, which charged the federal government with responsibility for Indian affairs. Smith maintained that any provincial responsibility to provide land for reserves for Indians was discharged by 1924 when reserve boundaries were finalised:
Now the Court of Appeal in Delgamuukw has determined that there is a modest aboriginal interest that must be discharged. We must honour that finding because that is the law of the land based on the constitution. But the Court left open the question of which order of government - federal or provincial - has the obligation to discharge it. In my view, a good case can be made that it is the federal government and it alone that has that obligation.[5]
He also considered that, if the federal government wanted to settle land claims, “then it should be required to buy from the province, presumably at fair market-value, any land or resources it wished to include in a land claim”.[6] However, in general, Smith opposed transfer of “full ownership over land and extensive social and economic benefits”, because this went “far beyond what is necessary to discharge the aboriginal interest”.[7]
In contrast with Smith’s narrow legalistic view, Slade and Freedman[8] maintained that “whatever the impact of the public debate on government policy on the negotiation of treaties, the necessity for Canadian governments to address aboriginal rights issues will remain”. Failure to do so “would yield up greater social disruption and uncertainty”. This view was echoed in an opinion piece by Stephen Hume in the Vancouver Sun entitled “Why treaty talks with the Nisga’a cannot be allowed to fail”. Hume addressed the monetarist arguments about the costs of settling British Columbia land claims, which in one estimate might be C$8 billion:
Before swooning, keep in mind that just about the time the Calder decision by the Supreme Court [in 1973] sent its wake-up call to the federal government, 30,000 natives in Alaska were ceded 40 million acres of land and nearly $1 billion in cash. Even at $150 an acre – the U.S. government has just $606 an acre for 1,330 acres of Alaskan swampland the value was close to $7 billion.
Consider please, that $7 billion in 1971 would be $28 billion in today’s dollars, a reminder that at most we might offer B.C’s Indians a quarter of what their cousins next door were given to extinguish aboriginal claims.
Consider, also, that since the Nisga’a sat down to negotiate the mix of cash and land with which they could shed their economic dependence on Ottawa, British Columbians generated wealth worth at least $1.3 trillion from lands and resources confiscated from First Nations without compensation.
But what’s at issue is more than cash. It is the wherewithal for aboriginal people to secure their cultural survival. They want to join the confederation we built on this land. They want to do it as dignified equals. They do not want to abandon their language, their spiritual identity, their connection to ancestral places or their cultural heritage in the process.
And why should they? We didn’t. We brought our languages, our cultures and our political and legal institutions. By what moral right do we now deny the legitimacy of the laws, traditions, customs and rights that were here before we imported ours?
....First Nations are in this for the long haul. The ethical and moral test they bring to the larger society will not evaporate simply because expedient politicians pretend they can simply walk away.
Because they can’t walk away. A growing arsenal of powerful court decisions compels the government to either negotiate a solution or to have it unilaterally imposed by the judiciary - a judiciary which appears increasingly impatient with the obfuscating evasion of responsibility by government.[9]
There has been a good deal of frustration among First Nations in British Columbia at the apparent lack of progress in negotiating settlements. Some of this has been expressed in occupations of land and in road blocks set up in various part of the province. In a commentary entitled “K’Watamus Speaks”, the questions of political lack of will and the shortcomings of the Indian Act were addressed:
When you read in the newspaper, the Attorney-General saying, “Roadblocks will not achieve justice for aboriginal people, there will be no negotiations on substantive issues concerning aboriginal people while the blockade is in place” (Vancouver Sun, Wednesday June 7 1995). This statement is pure rhetoric. I’ve read a lot of First Nation history where these kinds of political events have taken place where the non-Indian politician continues to blame the Aboriginal People for stepping out of line (blockades etcetera), therefore will not resolve the issue at hand. The point is, the governments of the day intentionally forget that it is they who are out of line.
The roadblocks are deliberate but humane ways by The First Nations to get the direct attention of governments.
Again we read in the same paper, the politicians in the legislature pointing fingers at each other instead of working together to resolve the Aboriginal question....
How many First Nation politicians are showing frustration at this point because of the lack of government involvement in resolving the dysfunction on reserves created by the Indian Act? Every First Nation chief is frustrated but what can they do when the government condemns them for becoming impatient. Roadblocks by Indians is not a negotiating tactic, it’s the last straw. It’s the government officials who are breaking the law in Canada by neglecting to do their duty as politicians.
In closing, I will repeat what the Attorney-General said, “Let me say this to those who would choose the path of lawlessness as a means of achieving their ends - that path will not succeed”.
My question to the Attorney-General: Can you tell us which path will succeed, that you may take us through so that it will show Canadian Justice has served its people. The treaty process isn’t going anywhere. It is in reverse right now, so please show us... which political process will finally resolve this issue.[10]
A publicity pamphlet, entitled “Building New Partnerships”, issued jointly in 1994 by the First Nations Summit, the British Columbia Ministry of Aboriginal Affairs and the Federal Treaty Negotiation Office in Vancouver, described the treaty-making process as: “[a] modern day answer to historical obligations”. It emphasised the benefits for all British Columbians and the “spirit of mutual trust and cooperation” between the parties in conducting negotiations:
Treaties are negotiated agreements that will spell out the rights, responsibilities and relationships of First Nations and the federal and provincial governments. The negotiation process is likely to deal with far-reaching issues such as land ownership, self-government, wildlife and environmental management, sharing resources, financial benefits and taxation. ... Treaties will benefit all British Columbians by forming the blueprint for new relationships between Aboriginal and non-Aboriginal communities. These new partnerships will create economic certainty and increase investment and jobs in the province.
It is beyond the scope of this article to consider in detail the legal arguments about the nature of aboriginal rights or title. However, it is fair comment that the treaty-making process now evolving in British Columbia has been spurred on by several significant judicial decisions. In 1973 the Nisga’a Tribal Council had claimed that Nisga’a aboriginal title had never been extinguished in the Nass Valley in northern British Columbia. The Supreme Court of Canada ruled that aboriginal rights were based on occupation and use of traditional territories over a long period, but divided evenly on the question of the continued existence of Nisga’a aboriginal rights to the present.[11] The ambiguity of this decision persuaded the federal government to begin negotiating treaties to define aboriginal rights to land and resources in regions where no treaty had been made. During the 1970s, a federal policy of negotiation of “comprehensive claims” evolved.[12] The Nisga’a Tribal Council began negotiations in 1976. By 1988 more than 20 comprehensive claims had been lodged with the federal government by First Nations in British Columbia. Only the Nisga’a claim was in negotiation under the then current federal policy of dealing with only one comprehensive claim per province at one time.[13]
In 1984 the Musqueam Indian Band, who live at the mouth of the Fraser River in southern British Columbia, sued the federal Crown for breach of trust over a transaction concerning a lease of reserve lands for a golf course in the Shaughnessy district of the city of Vancouver. The Supreme Court of Canada recognised a pre-existing legal right of First Nations and a fiduciary obligation of the Crown, both on and off the reserve, to protect the interests of aboriginal people.[14] During the 1980s, there was increasing political activity by First Nations, court proceedings including, for example, a successful injunction against the timber company Macmillan Bloedel to prevent logging of forests on Meares Island in the Clayoquot Sound area of Vancouver Island, protests and road blocks, and increasing media attention to First Nations claims. Much of this activity was directed against British Columbia government policy of granting timber licences on Crown lands which allowed clear cutting of forests, regardless of any aboriginal claims or concerns about destruction of cultural sites, loss of hunting rights, or other environmental impacts. There were similar concerns about fisheries and mining activities.
The term “First Nations” is used in Canada to describe the indigenous population, Indian, Inuit and Métis. Although the term Indian has been used historically for aboriginal populations of North America, it also has a specific definition in Canada to refer to people who have status under the Indian Act, and excludes “non-status Indians”, Inuit and Métis. The term native has also been used, although the term aboriginal is now more widely used. Late in 1991, the Ministry of Native Affairs in British Columbia was renamed the Ministry of Aboriginal Affairs. In the federal government, the Department of Indian and Northern Affairs (DINA), formerly known as the Department of Indian Affairs and Northern Development (DIAND), is responsible for the administration of the Indian Act and lands set aside as Indian reserves. While the federal Crown holds the title for lands reserved for Indians, all other Crown lands in British Columbia are vested in the province. Indian reserve lands are thus outside the jurisdiction of both provincial and local governments in British Columbia. The terms of union with the Canadian Confederation, which British Columbia joined in 1871, included maintaining the federal responsibility for dealing with all matters related to indigenous people.
The Canadian Constitution Act 1981 provided in section 35 (1) that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed”. In section 35 (2), aboriginal peoples were defined as including “Indian, Inuit and Métis peoples of Canada”. In 1990 Ronald Sparrow, a member of the Musqueam band, appealed his conviction on a charge under the Fisheries Act on the ground that this was inconsistent with section 35 of the Constitution Act. The Supreme Court of Canada referred to Guerin v The Queen and other cases in noting that “the sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation”. The Court went on to state:
That is, the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginal is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.[15]
The effect of the Sparrow case was a ruling that aboriginal and treaty rights are capable of evolving over time and should be interpreted liberally, and that governments may regulate existing aboriginal rights only for compelling reasons such as conservation and management of resources. In the case of fisheries, conservation issues are paramount, but the next priority must be to aboriginal food fishery before other user groups. It was probably the Sparrow discussion which most provoked the British Columbia government to rethink its position on the question of aboriginal rights. In 1990, the British Columbia government decided to participate in the ongoing federal government negotiations in the comprehensive claim of the Nisga’a Tribal Council.
In 1984, the Gitskan and Wet’suwet’en Hereditary Chiefs sought recognition by the Supreme Court of British Columbia of their ownership of some 57,000 square kilometres of traditional territory in northern British Columbia and their right to govern it, as well as compensation for loss of lands and resources. In 1991, the Court dismissed the claims to ownership and aboriginal rights and ruled that the Crown had extinguished aboriginal title before 1871. The Court also stated that the Gitskan and Wet’suwet’en Hereditary Chiefs “are entitled to a declaration that, subject to the general law of the province, they have a continuing legal right to use unoccupied or vacant Crown land in the [tribal] territory for aboriginal sustenance purposes”.[16] There was a good deal of dissatisfaction over this judgment on all sides.[17] The Gitskan and Wet’suwet’en chiefs took their case to the British Columbia Court of Appeal. This Court ruled that the Gitskan and Wet’suwet’en people have “unextinguished non-exclusive aboriginal rights, other than a right of ownership or a property right” to much of their traditional territory, and that “such rights are of a sui generis nature”.[18] This did not alter the view that the radical title vested in the Crown, but it did overturn the view that aboriginal rights or interests had been extinguished by the assertion of British sovereignty in British Columbia before the province joined the Canadian Confederation in 1871. The Court of Appeal also suggested that the scope and content of aboriginal rights should be defined by negotiation rather than litigation in the courts.
On 21 September 1992, the “British Columbia Treaty Commission Agreement” was signed in Vancouver by representatives of the First Nations Summit and the Prime Ministers of British Columbia and Canada. The agreement established a Commission of four members, two appointed by First Nations, and one each by the two governments plus an independent chair, the Chief Commissioner. The agreement stated that “[t]he role of the Commission is to facilitate the negotiation of treaties and, where the parties agree, other related agreements in British Columbia”. It was also agreed that the two governments would pass appropriate legislation “to establish the Commission as a legal entity”. On 1 March 1996, both the British Columbia and federal governments proclaimed the British Columbia Treaty Commission Act. In the meantime the appointment of Commissioners for two-year terms from 1993 was made by Orders in Council. The First Nations Summit agreement to establish the Commission, and then to ratify the 1996 Act, was by resolution. Funding of the operation of the Commission is shared by the two governments. The British Columbia Treaty Commission established its office in Vancouver and began receiving “Statements of Intent” from First Nations on 15 December 1993.
The aboriginal population of British Columbia in 1995 was approximately 155,200, or about 17 percent of the total aboriginal population of Canada. Of these approximately 87,700 are “status Indians” as defined in the Indian Act, and 67,500 are non-status Indians and Métis who live in the province. Some 46,500 status Indians, or about 53 percent, live on reserves in 350 communities. The average size of a village on a reserve is about 120 people. There are 1634 reserves, mostly on small pockets of land near rivers, lakes, or on the coast:
Aboriginal people who leave their reserve homes generally do so in search of employment, or to escape crowded housing conditions and social distress that exist in many reserve communities. But in leaving the reserves, they lose benefits that are available to them from Indian and Northern Affairs, Canada, such as social assistance, housing and tax benefits. Aboriginal people who live off-reserve are eligible for the same programs and benefits that are available to all British Columbians. For those who live on-reserve however, many of these programs are out of reach. The paradox of aboriginal life in British Columbia, as in many other parts of Canada, is that the reserve is home. But on-reserve, there is little employment opportunity.[19]
There are some 220 separate bands and most of these have amalgamated locally into about 33 tribal councils, although some bands have affiliations to more than one council. About 20 bands are “independent” and are not members of any tribal council. There are 10 major linguistic areas and a much larger number of languages which are not mutually intelligible. There is also considerable variation in social, political and economic organisation within and between band and tribal council areas.
The British Columbia Treaty Commission is frequently described as “the keeper of the process of treaty-making”. Its role is independent and neutral, but it does not investigate the nature of claims against the Crown. Its principal function is to manage the treaty negotiations, assess readiness, provide funding to First Nations, monitor progress, set in place dispute resolution services if required, and generally ensure that the commitments entered into by the parties are carried out. The term “First Nation” was defined in the British Columbia Treaty Commission Agreement:
“First Nation” means 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.
The British Columbia Treaty Commission has established a six-stage process for negotiation of treaties:
“Stage 1: Statement of Intent”. This is a brief document filed with the B C Treaty Commission by the claimant group which must identify the First Nation and the aboriginal people it represents, confirm that the claimants have a mandate to negotiate, describe the geographic area of that First Nation’s traditional territory within British Columbia, and identify a formal contact person for communications.
“Stage 2: Preparation for Negotiations”. Once a Statement of Intent is accepted by the Commission, it gives written notice to the two governments and convenes an initial meeting of the parties within 45 days. This meeting is normally held within the territory of the First Nation concerned. The parties then work on preparation for their negotiations and must meet “readiness criteria” which include appointment of a chief negotiator, and allocation of resources to carry out negotiations. The First Nation must also identify and begin to address any issues of overlapping claims with neighbouring First Nations. The two governments are required to obtain background information on the communities, people and interests likely to be affected by negotiations, and to establish mechanisms for consultation with non-aboriginal interests.
“Stage 3: Negotiation of a Framework Agreement”. This is a negotiated agenda that identifies the issues to be negotiated, the goals of the negotiation process, any special procedural arrangements and a timetable for negotiations. The parties are also expected to embark on a programme of public information that will continue throughout the negotiations.
“Stage 4: Negotiation of an Agreement in Principle”. This is the stage of substantive negotiations to form the basis of a treaty. The ratification process will be agreed and an implementation plan considered. There is also provision for public review in British Columbia of agreements in principle before ratification.
“Stage 5: Negotiations to Finalize a Treaty”. While there is provision for additional agreements on minor issues to be negotiated as required, it is intended that the treaty will be a durable document signifying a new relationship between First Nations and the provincial and federal governments.[20]
By mid 1995 there were 43 First Nations who had submitted “Statements of Intent” which had been accepted by the British Columbia Treaty Commission. By 30 June 1996 the total was 47. Some of these were individual bands, some were tribal councils, and other groups described themselves as a “nation” or “hereditary chiefs”. Most of these were still engaged in the second and third stage of the treaty-making process, but 11 groups had met the “criteria for readiness”, negotiated a framework agreement, the third stage, and moved to Stage 4, negotiation of an agreement in principle, by mid 1996.[21] It was estimated in 1994 that about 65 percent of First Nations in British Columbia had agreed to participate in the process of treaty negotiations.[22] By June 1996, the British Columbia Treaty Commission was expressing concern about “system overload” and inadequate funds to resource so many separate negotiations.[23]
The federal government of Canada has jurisdiction over all matters in relation to aboriginal people. In a draft paper entitled “British Columbia Treaty Negotiations, The Federal Perspective”, produced in the Federal Treaty Negotiation Office in British Columbia in June 1995, the treaty negotiations were described as “unfinished business” that for “historical, legal, economic and social reasons” needs to be completed:
As the Constitution is silent on the nature, scope and extent of aboriginal rights, and because the Court decisions have not resulted in a clear definition of aboriginal rights, legal disputes have arisen over these issues. The courts have, however, clearly indicated that when dealing with aboriginal rights, they are to be regarded as use, site, and group specific. This means that wherever the court considers issues of aboriginal rights, it does so in the context of the particular facts and the particular group before it. Accordingly, there remains much uncertainty with respect to land and resource use. Resolving this uncertainty can be pursued by litigation or negotiation. The courts have endorsed negotiations as the best way to resolve land claims.[24]
There was an economic dimension to this “uncertainty” in First Nations’ protests, court judgments and injunctions:
In this climate of uncertainty, British Columbians and other Canadians have lost opportunities to areas where there are fewer uncertainties related to the use of lands and resources. The extent of such lost opportunities was examined in a 1990 Price Waterhouse study. This study estimated that over $1 billion and 1,500 jobs had been lost in the mining and forestry sectors alone as a result of disputes over land claimed by aboriginal people in British Columbia.[25]
There were also social dimensions in that the “socio-economic conditions of aboriginal communities lag behind other communities in British Columbia”. In the same paper, under the heading “The Federal Vision”, it was stated:
Canada seeks a society in which a new relationship has been forged with First Nations; a relationship based on respect and trust and one that reconciles modern Canadian realities and traditional native aspirations.[26]
This “new relationship” is to be “built on a process of negotiations” between First Nations and the British Columbia and federal governments. Among the “Fundamental Elements of the Federal Vision” are the desire “to pursue certainty as to the rights and obligations of all land and resource users”; to “deal with aboriginal issues with equality and finality”; to negotiate practical treaties protected by the Constitution, as well as other agreements; and “to protect third party interests and balance the interests of all Canadians”. The “certainty” resulting from treaty settlements would mean increased confidence for investors, and therefore increased revenue and jobs for all British Columbians:
First Nations, too, will have increased opportunities for economic development. The provision of a clearly-defined land base, access to resources and financial benefits will assist their aspirations for sustainable communities and self-reliance.... The integrity of the Canadian nation will be enhanced. Negotiations are not about separateness nor segregation. They will not result in sovereign states or autonomous enclaves within the boundaries of Canada. Treaties, including their self government components, will enhance aboriginal participation in Canadian society.... Finally, both the Department of Indian Affairs and the Indian Act should no longer be necessary. The anachronistic and paternalistic structures can be dismantled and First Nations at long last take charge over their own futures.[27]
The concept of an “inherent right to self-government” was defined in the constitutional amendments proposed in 1992:
The exercise of the right of self-government includes the authority of the duly constituted legislative bodies of Aboriginal peoples, each within its own jurisdiction:
(a) to safeguard and develop their languages, cultures, economies, identities, institutions and traditions; and,
(b) to develop, maintain and strengthen their relationship with their lands, waters and environment
so as to determine and control their development as peoples according to their own values and priorities and ensure the integrity of their societies.[28]
Although the “Charlottetown Accord” was not ratified by all the provinces, the concept of an aboriginal right to self-government became federal policy. The federal government announced on 10 August 1995 a “negotiating process which will enable Aboriginal peoples to implement their inherent right of self-government”. The Minister of Indian and Northern Affairs, Ronald Irwin, stated that “the paternalistic system has just not worked – and the proof is all around us”. This new approach was intended to “give Aboriginal communities the legitimate tools they need to make a tangible positive difference in the lives of Aboriginal peoples”. It was also recognised that there was “no single model of self-government”, and that each First Nation community would negotiate with federal and provincial government representatives on matters important to them. It was noted that “[t]his may include new arrangements in areas such as Aboriginal languages, cultures, education, health, housing and social services among others”. A number of “key principles” were identified as the policy basis for negotiating self-government agreements:
- the inherent right is an existing Aboriginal right under the Canadian Constitution;
- self-government will be exercised within the existing Canadian Constitution; it should enhance the participation of Aboriginal peoples in Canadian society;
- the Canadian Charter of Rights and Freedoms will apply fully to Aboriginal governments as it does to other governments in Canada;
- due to federal fiscal constraints, all federal funding for self-government will be achieved through the reallocation of existing resources, as outlined in the 1995 Budget;
- where all parties agree, rights in self-government agreements may be protected in new treaties under Section 35 of the Constitution [Act], in addition to existing treaties, or as part of comprehensive land claims agreements;
- federal, provincial and Aboriginal laws must work in harmony; laws of overriding federal and provincial importance such as the Criminal Code will prevail;
- the interests of all Canadians will be taken into account as agreements are negotiated.[29]
The issue of governance was already on the agenda for treaty negotiations in British Columbia. The Department of Indian and Northern Affairs affirmed this in a separate information release dated 10 August 1995:
The federal government is committed to full and extensive consultation with the public and third party groups in British Columbia. In other words, the principals [sic] and practices of openness which currently characterize the B C treaty-making process will also apply to self-government negotiations. The advice of the existing Treaty Negotiation Advisory Committee (TNAC) and Regional Advisory Committees (RAC’s) will be sought in support of self-government negotiations. Public information initiatives will also encompass self-government.[30]
The response in British Columbia was more sceptical. The Vancouver Sun, reporting the federal government announcement, noted that giving “municipal-type powers to aboriginal governments won’t avert a looming crisis in B C treaty negotiations”, referring to the recent break down of the Nisga’a negotiations. The President of the Nisga’a Tribal Council, Joseph Gosnell:
said he was unimpressed by Irwin’s announcements. He said he found it difficult to believe Ottawa would be able to carry through such a sweeping national policy when it is unable to agree with the B C government over sharing the cost of a single treaty with the Nisga’a ... The response from Victoria was also cool – aboriginal affairs assistant deputy minister Joy Illington described the proposal as an incursion into provincial jurisdiction and an attempt to shift costs on to the B C taxpayers. Gosnell said the Nisga’a manage several of the services – including health care and education – Irwin is offering to negotiate. He suggested Irwin is simply tagging along behind the Nisga’a and other tribes that have already taken on similar responsibilities.[31]
Some of the most vigorous opposition to the treaty-making process in British Columbia, and second only to concerns about the cost of treaty settlements, is on the issue of aboriginal self-government. An extreme conservative view is that of Melvin Smith, QC, who was critical of both federal and provincial government policy on aboriginal affairs:
The outcome of these treaty negotiations, as presently contemplated, with the self-government arrangements which are likely to follow, could re-shape the economic, social and political face of British Columbia. If this process goes ahead, at the end of the day, B C may create dozens of fiefdoms, or so-called “First Nations”, each with their own law-making body, territory, justice system and economy. In process and in substance the present B C treaty-making process is ill-conceived, unworkable, unaffordable and unjust. It must be substantially modified.[32]
In a review of the relationship between aboriginal people and the Crown in Canada, Frank Cassidy described the “troubled hearts” of both First Nations people and those of European descent who have not yet learned to live comfortably with each other:
The movement for indigenous self-government has come a long way in the past thirty years. If it is to continue to proceed forward and if difficult issues such as achieving a balance between the right of indigenous peoples as indigenous peoples and as Canadians are to be resolved, then Canadians are going to have to look deep into their own history and culture. Canadians are going to have to think about their country, its past and future, in vastly different ways than those to which they have become familiar. It might be agreed that this is not very likely. And that may be so, but such an argument should not obscure what is necessary for a full recognition of the indigenous right of self-government in Canada today.[33]
The demise of the Indian Act, the transfer of certain powers of self-government to First Nations, and reform of land tenure arrangements are among the long-term objectives of federal policy.
In late 1993 the British Columbia government produced a booklet outlining its attitude to treaty negotiations:
British Columbia is committed to the resolution of treaty settlements with the aboriginal First Nations of our province. We have made this commitment because we can no longer afford to ignore issues that will have a profound effect on all our lives in the years ahead. The status quo is no longer a viable option for this province. Social stability and economic certainty are essential to the well being of all British Columbians, and the courts have made it clear that treaty negotiations, not costly litigation, are the best way to resolve these historical issues. First Nations have said they want to build independent, healthy, productive communities. They need a definitive framework within which their unique culture can flourish, and all British Columbians need the reassurance that positive steps are being taken to end years of indecision.
It won’t be easy. But it will be fair. Treaty settlements issues are complex. There are many voices to be heard and many points of view to be reconciled. Consensus will not be achieved overnight. But the will is there, and the British Columbia government’s mandate is clear: we will seek fair, affordable, long-term solutions that serve the rights and reflect the interests of all British Columbians.
Fairness, above all else, will remain the cornerstone of the settlement process. Settlements should recognize the rights, privileges and obligations of all citizens. Privately owned property is not on the table. And the province will not enter into any agreements that place undue financial burden on the taxpayers of British Columbia.[34]
The political rhetoric that justified the reversal of British Columbia government policy in recognising aboriginal rights and accepting the need to negotiate treaties was based on objectives of “economic certainty, social stability and new hope for the future”.[35]
While the British Columbia government had been forced into this position by the courts, there was general agreement that negotiation was the only way through the situation. The difficulties lay in establishing a process that was effective and acceptable to all parties. The increasing level of protest by First Nations during the 1980s, and the implications of judicial decisions such as the Sparrow case in 1990, also had the consequence that pressure from a variety of other groups was being put on the British Columbia government to deal with aboriginal rights issues. Early in 1991, a “Third Party Advisory Committee” was established, comprising over 30 representatives from the timber, mining and petroleum industries, commercial and sport fishing interests, farming organisations, local government, labour organisations and environmental and recreational groups. This committee met periodically and reported directly to the Minister of Aboriginal Affairs.
In 1993 the Ministry of Aboriginal Affairs was restructured to service the requirements of the treaty-making process, parallel with the establishment of the British Columbia Treaty Commission. A Treaty Negotiations Division was established to service the negotiating teams and various other committees. The province was divided into several regions, each with its own negotiating team. A regional negotiating team comprises a chief provincial negotiator and several other negotiators, each with a responsibility for a particular claim, or group of claims. In addition, one team member is responsible for consultation, including servicing the Regional Advisory Committees which are described below. The team is also provided with legal counsel and other administrative and secretarial staff. The negotiating teams work closely with the equivalent federal negotiating team in each region.
A statement produced by the British Columbia Ministry of Aboriginal Affairs in 1994 set out some principles that apply to treaty negotiations throughout the province:
- the Canadian Constitution will apply to all citizens of B C;
- private property will not be on the table;
- fair compensation for unavoidable disruption of commercial interests will be assured;
- province-wide standards of resource management and environmental protection will continue to apply;
- continued access to hunting, fishing and recreational opportunities will be guaranteed;
- jurisdictional certainty between First Nations and local municipalities must be clearly spelled out.
These and two additional points were included in a statement by British Columbia Premier Mike Harcourt on 23 September 1994:
- agreements must be affordable to B C taxpayers;
- the federal government’s primary constitutional and financial responsibility for treaties must be maintained.
Harcourt underlined the inherent political conflict between federal and provincial responsibilities, and reiterated the British Columbia view, consistently held by all British Columbia governments, that the costs of negotiating with aboriginal people is primarily a federal responsibility.
The Minister of Aboriginal Affairs, in providing instructions to provincial negotiating teams, has been concerned with ensuring consistency province-wide. In policy development, the Treaty Negotiations Advisory Committee (TNAC), which is discussed below, was seen as playing an important role to ensure that the interests of local government, industry, communities, and labour and environmental organisations are considered. It was also recognised that some elements of settlement packages will be specific to particular negotiations with First Nations but must fall within the province-wide mandate. Overall review of negotiations is coordinated by the Treaty Mandates Branch of the British Columbia Ministry of Aboriginal Affairs and reported to the Minister. The British Columbia Cabinet must approve the “mandates” or instructions given to provincial treaty negotiators.
The British Columbia Claims Task Force in 1991 briefly considered “non-aboriginal interests”, often referred to as “third parties”, and recommended that these “be represented at the negotiating table by the federal and provincial governments”. The Task Force commented that the two governments “face a major challenge in properly representing the full range of non-aboriginal interests in negotiations”, but did not consider that third parties as such should be involved in negotiations. The Task Force also identified a need for “public education and information”, but this is a separate issue from consultation with third parties. The legal issues are clear, that negotiations are between First Nations and the Crown, represented by both federal and provincial governments. The pragmatic political reality is that powerful third-party interests have lobbied for more participation in the treaty-making process.
In July 1993, the Third Party Advisory Committee was given a more formal existence as part of the restructuring of the Ministry of Aboriginal Affairs which set up the Treaty Negotiations Division. By 1994, the Committee was renamed the Treaty Negotiations Advisory Committee (TNAC), and included the representatives of major sectors and groups in British Columbia as well as provincial and federal representatives. The Committee meets regularly with the function of providing input to policy-making at a provincial level. Its meetings are not open to the public. Each member of TNAC also participates in the monthly meetings of one or more of five “sectoral committees” – fisheries, lands and forests, wildlife, governance, and energy, minerals and petroleum resources.
A number of interest groups have also established their own organisations. For example, the Council of Forest Industries (COFI) has established an Aboriginal Affairs Division. So too has the Union of British Columbia Municipalities. The local government role is discussed below. The theme of the February 1995 Newsletter of the COFI Committee on Aboriginal Affairs was “Organizing for Treaty Negotiations”, and outlined the status of negotiations and contact people in federal and provincial negotiating teams:
The Council of Forest Industries Aboriginal Affairs Division is working to help forest industry members assess the impact of these negotiations and determine how we need to organize our participation.... COFI believes the outcome of treaty negotiations will reflect forest industry interests in proportion to our level of involvement in the process. Every one of us has a responsibility to become as knowledgeable as possible and to make our voices heard either directly to the governments [federal and provincial] or through our industry representatives.[36]
The forest industry is a powerful lobby group, and, like the commercial fishing industry and others, has spoken out about concerns over treaty negotiations. There are also well-organised environmental groups who, in a coalition with First Nations, have succeeded in either preventing or at least restricting logging, and who maintain a steady opposition to the practice of clear cutting by timber companies. The injunction against any logging of Meares Island, and joint management agreements between the British Columbia government and Nuu-cha-nulth tribes for the Clayoquot Sound area of western Vancouver Island, are examples of restrictions imposed on timber company operations. The issue of negotiating “interim measures” to deal with aboriginal rights before specific treaty negotiations are finalised is one that has concerned TNAC and is discussed in a later section. The one theme that seems to link all the various interest groups is the desire for certainty and finality as the outcome of treaty negotiations. It is probably in response to lobbying by conflicting interests that the British Columbia government has put a great deal of emphasis on “openness” and “consultation”, although the TNAC members are bound by confidentiality in their meetings.
On 19 September 1994, “Instructions on Open Negotiations” were issued by the British Columbia government, which included a statement of “Principles for Openness”:
Negotiations must not be done in secret. Openness must be the starting point for treaty negotiations, with any closed negotiations the exception, rather than the rule. Provincial negotiators will therefore be instructed to negotiate with the federal government and First Nations as open a process as possible. Open negotiations could include:
- opening main table negotiation sessions for observation by anyone;
- broadcasting some negotiating sessions on local cable television or radio;
- opening up side tables to stake holders where specific issues are being discussed.[37]
Some of the ways in which British Columbians could have “meaningful input into the process” included the Treaty Negotiations Advisory Committee (TNAC), a regional consultation process of public forums, the regional advisory committees (RAC), and an agreement with the Union of British Columbia Municipalities (UBCM) which ensured local government participation through local treaty advisory committees (TAC). There was also to be publication of “province-wide mandates, setting out the bottom lines and goalposts for the negotiations”, as well as information sharing throughout the process. In addition, there is provision that all treaty settlements will be submitted to the British Columbia legislature for ratification, before final approval by federal government in Ottawa, and thus subject to further public scrutiny.[38]
In an address to the Union of British Columbia Municipalities, 20 September 1994, British Columbia Premier Harcourt commented that “[t]he old framework for negotiating treaties with the Nisga’a First Nation has demonstrated how mandatory confidentiality clauses can undermine public trust in the process”. This was a scarcely disguised swipe at the federal policy of negotiating comprehensive claims both with the Nisga’a in British Columbia and with other aboriginal peoples in the northern regions of Canada, which had not been open to any public scrutiny. This was also a little unfair, because the Nisga’a Tribal Council had gone to considerable trouble to provide information to the public about their negotiations. It has been suggested privately by some officials that perhaps the British Columbia government “over-reacted” in the pursuit of openness in negotiations. This meant that meetings “in committee”, in which all parties may freely debate alternative options, may be severely constrained. In practice, it simply means that much of this debate is carried on informally, by “working parties”, and the public negotiations become more formally structured occasions, after understandings are reached. In its Annual Report of July 1996, the British Columbia Treaty Commission referred to the need for public information and the need for a “balance of openness and confidentiality” in treaty negotiations:
Parties need time to explore interests and explore options in a safe and confidential environment. They need to develop trust among themselves when they have narrowed the issues for continued discussion, the time should be appropriate for the talks to be open to the public.[39]
The First Nation is also required to agree to a process of consultation with third parties, openness in treaty negotiations, and participation in public education and information activities. To this end, an “Openness Protocol” must be signed by the principal negotiators of the First Nation and the federal and provincial governments, which sets out the respective obligations in some detail.
Within each regional area served by a provincial and federal negotiating team, a system of regional advisory committees has been established. These committees are made up of representatives of a wide range of organisations and community groups. For example, the distribution list for the South Island Regional Advisory Committee, established in May 1995 and covering the south and east side of Vancouver Island, included 56 representatives from agriculture (farmers’ organisations), commercial fishing (both industry and unions), community services, education (school trustees’ associations), environment and conservation groups, forestry companies and forest contractors, health authorities, labour organisations, local government, outdoor recreation, real estate and homebuilders’ associations, small business (Chambers of Commerce), sport, fishing and tourism, transportation and utilities, and wild life interests.
The terms of reference for regional advisory committees note that both federal and British Columbia governments are committed to consultation, and that the “readiness criteria” set out by the British Columbia Treaty Commission require that a mechanism be put in place for consultation with non-aboriginal interests. The regional advisory committee is “a cross-sectoral committee representing any organizations whose interests may be directly affected by treaty negotiations”. The purpose of the committee is to provide information and advice to federal and provincial negotiators, to “ensure that the interests and expertise of economic, resource, environmental, social and governmental sectors are understood and taken into account” in the process of negotiation of treaties. The RAC is also expected to “contribute to treaty arrangements that are workable and lasting” and to be “a vehicle for information exchange among the various sectoral interests and the federal and provincial negotiators”. The administration and financing of RAC meetings is the responsibility of the federal and provincial negotiating teams. The committees meet quarterly, or more often if required, at various centres within the region. Meetings are open to members of the public, who may be given speaking rights at the invitation of the chairperson. Media representatives are “asked to identify themselves as a matter of courtesy”.
Early meetings of each RAC have focussed on organisational issues and agreement on the terms of reference. The next stage is the organisation of workshops to assist the RAC in defining the interests of each group represented which may be affected or should be considered in treaty negotiations within the RAC region. It is too soon to assess the effectiveness of the RAC. However, it does provide a mechanism for communication and consultation which is open to public view. In contrast, the TNAC structure is bound by confidentiality provisions, and its purpose is primarily to provide sectoral input to the development of British Columbia provincial government policy on treaty negotiation issues. The RAC is also intended to be a means of providing information to the federal and provincial negotiating teams. At a meeting of one RAC attended by the writer in 1995, there were strong expressions of opinion that First Nations should be asked to meet directly with the RAC, but it was never intended that the RAC be directly involved in negotiations. The RAC is also intended as a vehicle for public information about treaty negotiations in the region. However, there is a need for RAC members themselves to be educated about the legal and historical background which has led to the treaty-making process now in train in British Columbia before this public information role can become effective.
In 1991, in response to British Columbia government proposals to participate in a process of negotiating treaties, the Union of British Columbia Municipalities (UBCM) began to address the implications for local governments. Policy papers were prepared, setting out “basic principles and criteria for the successful resolution of land claims”. The negotiation process “must be fair, open, principled and community based”. Criteria for “success of process” included that it must be “democratic, efficient and acceptable”, and mechanisms to achieve this must include “public information and education; public consultation; a dispute resolution process and pro-activity on the part of local governments”.[40]
In September 1994, the UBCM produced another policy paper which attempted to define “the municipal interest”. It was considered that there were many implications for the 75 local governments “with reserve lands within or adjacent to their boundaries and for those dependent on resources in traditional aboriginal territories”. The UBCM considered that local government interests would be general, or common to all negotiations and to the community generally, and that some would be specific to local government, such as “revenue and taxation, planning, infrastructure and servicing, and governance and jurisdiction”.[41] Among general interests identified were “certainty and finality” in treaty settlements; “affordability”, meaning “they will not impose any extraordinary financial burdens on the people of British Columbia”; maintaining “social and economic stability”; settlements being within the Canadian Constitution, “the Charter of Rights and Freedoms to apply to all citizens and residents”, and “equity and fairness”; similar standards of land use planning, environmental protection and other regulatory provisions to apply on both local government and First Nation territories; fee simple lands not be part of negotiation, nor subject to expropriations, and compensation be payable for other forms of interest in land or resources which may be part of a treaty settlement; concern about management and jurisdiction over various resources, especially forests, water and agricultural land; the negotiation process to “be as transparent as possible”, and encouragement of consultation, communication and public information between local governments and First Nations; and the establishment of “mechanisms for dispute avoidance and that there be a formalized process for dispute resolution following the final settlement”.[42]
In a further paper prepared by the UBCM Executive in April 1995, the focus was on “certainty and finality” as “the primary outcomes of treaty negotiations”. The UBCM preference was for a surrender of the vague general concept of “aboriginal rights” and to replace this with a definition of specified treaty rights to land and resources, while acknowledging that “cultural and similar rights” might continue. Underlying the local government concerns is a fear of loss of revenue if large areas of land and resources are transferred to First Nations as part of any treaty settlement. Nor do local governments want to inherit continuing disputes over property tax, planning issues, or services such as water supply, sewerage, and garbage disposal. Indian lands are the responsibility of the federal government and lie outside the jurisdiction of local or provincial governments.
Property on Indian reserves has been exempt from taxation since 1876 when the federal Indian Act was passed. The intention was to protect reserve lands and ensure that use of Indian property on reserve lands would not be eroded by taxation. One way for a First Nation to move toward greater self-reliance and economic independence is to assume control of property taxation on reserve lands. There were problems, however, for First Nations who wanted to tax non-Indian users of reserve lands. An earlier interpretation of the Indian Act suggested that leased land was no longer “in the reserve”, and that the First Nation’s taxation powers therefore did not apply. This was remedied by an amendment to the Indian Act in 1988 which allowed a First Nation to pass a property taxation bylaw for a reserve, which has to be reviewed by the Indian Taxation Advisory Board, and then approved by the federal Minister of Indian and Northern Affairs.
In 1990, the British Columbia government passed the Indian Self-Government Enabling Act, which provides for withdrawal of provincial and municipal authorities from taxing reserve lands when the First Nation taxation bylaws take effect. In the same year, the Westbank and Kamloops Indian Bands passed taxation bylaws and since then nearly 40 other First Nations have followed their lead. In 1994, the British Columbia Ministry of Aboriginal Affairs estimated that less than one percent of the province’s property tax base was on reserve land. The Ministry commented that “[b]and taxation has little effect on the overall revenues of either provincial or local governments, but has been of significant benefit to First Nations with taxation powers”.[43] In a number of cases where First Nations have established their own taxation schemes, they have also negotiated service agreements with the local municipality for sewerage, water supply, garbage collection or other services or facilities. Municipalities have, however, expressed concern that, if large areas are transferred to First Nations as part of treaty settlements, there will be a consequent loss of revenue to local governments.
On 22 March 1993, a “Memorandum of Understanding” was signed by representatives of the Province of British Columbia and the Union of British Columbia Municipalities. The British Columbia government recognised that “local government constitutes a unique and special government interest in the negotiation of modern day treaties”, and agreed to establish “a process for local government representation” before the framework agreement negotiations stage of treaty-making is commenced. The British Columbia government also agreed to consult on any matter affecting local government interests, including:
- any proposed changes to legislation that may directly or indirectly affect local government;
- fiscal arrangements between the Province and local governments;
- land selections in areas within or adjacent to municipalities;
- the creation of new institutions of governance where local government interests are affected;
- terms of settlement related to service production and delivery;
- issues related to the financing, construction and maintenance of municipal infrastructure;
- issues related to land use planning, zoning, regulation, and standards and codes;
- emergency services within local government service boundaries;
- bylaw enforcement.
The UBCM agreed to participate in “the implementation of a process of public information and education in each land area” and cooperate in “a process of public consultation”. The British Columbia government also agreed to provide funding to cover costs beyond those normally covered by member contributions to UBCM.
On 19 September 1994, a further document was signed by representatives of the British Columbia government and UBCM, entitled “Protocol... for implementing the Memorandum of Understanding on Local Government Participation in Aboriginal Treaty Negotiations”, which dealt with the first four stages of the treaty-making process. The agreement set out provisions for identification of local government interests that may be affected by treaty-making, establishment of a comprehensive consultation process with local governments in each treaty area, and establishment of local treaty advisory committees (TAC). At the readiness stage for a framework agreement, each local government in a treaty negotiation area could nominate one representative to a TAC. One member of a TAC would be nominated to be present with the provincial negotiator’s team at the negotiating table with full access to the agenda and knowledge of issues under negotiation. The local government role had shifted from consultation to participation in negotiation, to the extent that the TAC representative acted as an adviser on the provincial negotiating team. The British Columbia Government had also agreed to set up RACs, but the TAC representative at the negotiating table would not also be a member of the RAC. The role of the TAC, as defined in the “Protocol”, is to ensure “that the provincial team is fully aware of local government’s interests and that those interests have been considered in Agreement in Principle negotiations”.
The British Columbia Claims Task Force had recommended in its Report that “[t]he parties negotiate interim measures agreements before or during the treaty negotiations when an interest is being affected which could undermine the process”.[44] A discussion paper produced by the British Columbia Ministry of Aboriginal Affairs in May 1995 provided a definition:
An interim measure is an activity related to the management or use of land or resources undertaken before or during treaty negotiations, i.e. in the interim before treaties are settled or the land question is resolved in other ways, that is aimed at meeting British Columbia’s legal obligations and policy commitments as well as representing and protecting the rights and interests of all British Columbians.[45]
Two kinds of interim measures were identified. The first, described as “program-related”, are concerned with agreements between the British Columbia government, through any of its ministries, with any First Nation. Such agreements may include the protection of specific sites such as burial grounds or berry picking areas, the sharing of information on development proposals or land use plans, the participation of First Nations in joint management of lands and resources, or their access to employment, training programmes or other economic development initiatives. A number of such agreements have already been signed. The second form of interim measure are “treaty-related”. Such measures are intended to protect agreements already reached by both the federal and provincial negotiators with the First Nation concerned and which are already set out in a framework agreement. Protection measures may include an agreement not to alienate land, or the restriction of certain land development activities. There is also a requirement for consultation with affected third parties by reference to the Treaty Negotiations Advisory Committee and RACs, and in accordance with the Protocol Agreement with the Union of British Columbia Municipalities.
Interim measures, according to a statement produced by the Ministry of Aboriginal Affairs, do not:
- transfer the jurisdiction of lands and resources to First Nations;
- include broad moratoria over land and resource development; or
- predetermine the outcome of treaty negotiations.[46]
Individual British Columbia government ministries are responsible for notifying and consulting with First Nations whenever aboriginal rights may be affected within that ministry’s jurisdiction: forestry issues are dealt with by the Ministry of Forests, fishing issues by the Ministry of Agriculture, Fisheries and Food, and disputes over a protected area by the Ministry of Environment, Lands and Parks. While interim measures can include agreements on management of lands and resources, or protection of specific cultural sites, they may also include the establishment of a framework to transfer responsibility for child welfare, social services or education from the Province to a First Nation. The onus, however, appears to be on the government ministry to notify and consult with First Nations and also to notify and consult with third parties whose interests may be affected. The Ministry of Aboriginal Affairs stated that “[m]inistries are responsible for making sure all interests – aboriginal and non-aboriginal – are represented and respected through open and accessible negotiations”.[47]
In January 1995, in a direct response to the British Columbia Court of Appeal judgment in the Delgamuukw case, a “Crown Land Activities and Aboriginal Rights Policy Framework” was issued by the British Columbia Ministry of Aboriginal Affairs. This represented a greater emphasis on fiduciary obligations of the Crown in British Columbia “to consult with First Nations regarding Crown activities on unoccupied Crown land”, derived from the judgments in the Guerin and Sparrow cases. Now, if the Province wished to engage in any activity on Crown land, it had to make its best efforts first to determine if aboriginal rights existed in that area and if the proposed activity would infringe upon those rights. The effect of this policy is to require the various government departments and agencies to be more pro-active in determining the nature of any aboriginal rights on Crown lands. It is also intended that this policy framework should complement the interim measures arrangements. The Framework provided that:
In some cases it may be effective for staff and First Nations to prepare an agreement that identifies who consults with whom, about what, with what time-lines, towards what objectives, with what avenues of appeal/dispute resolution etc. rather than having ad hoc consultation on individual items.
Alternatively, interim measures agreements may set out what steps will be taken by the line agency to avoid the infringement of aboriginal rights, i.e., what site will be specifically managed or protected (e.g. burial grounds), how artifacts will be treated, how streams will be protected from logging damage or how First Nations will have input into planning for the future development. In addition, they may also identify how the interests will be represented.
Interim measures arrangements may have broader focus than simply avoiding infringement of aboriginal rights. For example, they may also identify other benefits to the First Nation such as employment, training, funding for data collection etc. This is where they may depart from Delgamuukw obligations and shift towards other commitments of government....
Staff should never set aside Delgamuukw obligations to negotiate an interim measures arrangement. They may want to negotiate an agreement to resolve conflict between an aboriginal right and a proposed Crown land activity in an attempt to have them co-exist. They may also wish to ensure other government commitments can be met. If an agreement fails, staff must still ensure that the policy framework is implemented.[48]
In effect, the recognition of aboriginal rights by the British Columbia government, and the implementation of an appropriate framework, is still being driven by judgments in the courts. It remains to be seen how effectively this aboriginal rights policy framework is implemented on Crown lands in British Columbia. In July 1995, the Ministry of Environment, Lands and Parks (MELP), which administers most of British Columbia Crown lands, produced a document entitled “Procedures for Avoiding Infringement of Aboriginal Rights”. This document emphasised the need to collect information and consult with First Nations in order to avoid “infringement”, defined narrowly as “an action of the Crown [which] significantly impairs an aboriginal right and, as a result, aboriginal peoples are undermined in their ability to continue activities such as hunting, fishing and trapping for food, social and ceremonial purposes and other activities intrinsic to their cultural traditions”.[49] This document also narrowly defined consultation as a process of asking for information to identify the nature of aboriginal rights:
We do not consult to ask for agreement or consent to an activity, or to ask for an assessment of the impact of an activity on aboriginal rights. The province retains responsibility for this determination.[50]
In its second annual report, the British Columbia Treaty Commission identified the negotiation of interim measures as one of the “significant challenges” that need to be addressed to ensure the success of the treaty-making process:
First Nations are very concerned that developments which could alienate resources in their traditional territories during treaty negotiations are occurring with little or no regard to their interests. British Columbia is concerned about maintaining ongoing economic development in the province, balancing the interests of all parties, and providing certainty about the use and management of lands and resources. Both British Columbia and Canada have expressed the view that interim measures should be specific; potentially complex interim measures negotiations may further delay treaty negotiations.
The Commission has not played a major role in interim measures so far, because it has considered that they deal with substantive issues which should be negotiated by the parties. However, conflicts over interim measures are beginning to have a negative effect on the treaty process and the Commission has a duty to safeguard that process.
So far, British Columbia and Canada have delegated authority to individual government ministries and departments for many interim measures issues, primarily those that have arisen early in the process. The implementation of these policies, mainly by British Columbia, has been inconsistent.[51]
While a number of “interim-measures agreements” have been put in place, most of them relate to the provincial government’s obligations to consult First Nations and fall outside the treaty process. Apart from the Nisga’a agreement with MELP in 1992 on co-management of Nisga’a Lava Bed Memorial Park, no specific treaty-related agreement had been negotiated by late 1995. The British Columbia Treaty Commission also commented in 1995:
There has been confusion and fear about interim-measures agreements in the non aboriginal communities, which see their interests also being affected .... The Commission intends to monitor the process of negotiating interim-measures agreements to ensure that treaty negotiations continue to be conducted fairly and that public confidence is maintained. The Commissioners firmly believe that interim measures are critical to the success of the process.[52]
In its third annual report produced in July 1996, the British Columbia Treaty Commission noted that “conflicts” about “interim measures continue to jeopardize the treaty process” because the British Columbia provincial government refuses to consider them until the fourth stage of treaty making, after a framework agreement has been signed.[53] The Commission considered “interim measures are integral to treaty negotiations” and strongly recommended that the British Columbia government “reconsider its refusal to negotiate the full range of options for interim measures during the earlier stages of treaty negotiations”.[54] In the late 1990s, leaders of First Nations were still complaining about the inadequacy of “interim measures”.
It is too soon to assess the effectiveness and impacts of the treaty-making process in British Columbia. Only one group, the Nisga’a Tribal Council, had reached the stage of signing a draft treaty in 1998, ratified by the tribe and British Columbia Parliament, and in 1999 before the federal Parliament in Ottawa. The Nisga’a negotiations began in 1976 and a framework agreement was signed in 1991, before the treaty-making process overseen by the British Columbia Treaty Commission was established. There are many criticisms levelled at the process: too slow and cumbersome; too many bureaucrats, advisers and consultants involved in the treaty-making “industry”; too much money being spent on government processes and not enough directed to First Nations to ensure that they are properly resourced for a negotiation process. This latter concern is one highlighted by the British Columbia Treaty Commission, which as “keeper of the process” also has the task of allocating funds to First Nations to support negotiations. The funding for the 1994-1995 fiscal year was just under C$19 million, of which 80 percent was in the form of a federal loan, and the balance was made up of 60 percent federal and 40 percent provincial contributions. In the 1995-1996 fiscal year, the total funding of the Commission was almost C$24 million, and over C$25 million allocated for 1996-1997. A large proportion of funding to First Nations is in the form of loans to be deducted from subsequent settlements when negotiations are completed. The 1991 Task Force had recommended that sufficient funds be made available to First Nations and that the British Columbia Treaty Commission would act as the independent body to allocate them:
The funding process requires First Nations to submit budgets and work plans detailing their financial requirements for the negotiations. In the 1994-95 fiscal year funds requested by the First Nations in the Treaty Commission process substantially exceeded the available funds. In no case could the Commission provide the level of funding requested by any First Nation. The amount of funds provided over the long term does not appear to be sufficient to accomplish the goals expressed by the Task Force. Even with savings through such steps as information sharing, the gap between First Nations needs and available funds will widen because the financial needs of First Nations are expected to increase as they progress through the process.[55]
In its Annual Report the Commission reiterated its concern about the adequacy of funding to resource First Nations during the treaty-making process.[56]
Not only were funds insufficient, but the annual basis of funding allocations constrained longer-term planning. There have also been complaints about excessively bureaucratic procedures:
The combined year-to-year and stage-by-stage [of negotiations] approach to funding is complex and inhibits long-term planning. It also creates additional paper work, because new budgets and work plans have to be filed every year and for every stage. First Nations find that excessive amounts of paper work and a cumbersome process unduly distract them from the immediate task of preparing for negotiations. Canada and British Columbia are concerned that public funds are properly accounted for. The Commissioners agree with this objective, but are of the view that accountability can be achieved in a simpler manner.[57]
It is also relevant that the funding is mainly in the form of loans, which raises the issue of what happens to repayments if negotiations break down. The federal loans become repayable 12 years from the date of first advance on the loan if negotiations end before reaching an agreement in principle. These and other financial issues have led to a review of the funding programme by federal and provincial governments, and by the Commission, and greater simplification of legal and paperwork is seen to be required “to ensure that funding arrangements reflect a fair treaty process”.[58]
Issues related to funding include the ways in which the negotiations are conducted, the information gathering and research required to support the negotiations, the involvement of legal and other advisers, consultants of various kinds, and the professional fees charged for these services. Some First Nations have taken a very pragmatic approach to negotiations and focussed on what is practicable. Some professional advisers have urged their First Nations clients to work through the whole history of their grievances as part of the negotiation process. The British Columbia Treaty Commission role in monitoring, not only the monetary costs, but also the historical, cultural, social and legal parameters of the negotiating process is a challenge in itself. Effective dispute resolution mechanisms need to be put in place. In some areas, resolution of overlapping claims has yet to be addressed, but this is seen as a matter for First Nations to sort out for themselves. There is no formal structure for resolving disputes between governments and/or First Nations. Although a memorandum of understanding was signed by British Columbia and federal governments in June 1993 on sharing the costs of treaty-making, the Nisga’a negotiations were delayed for many months in 1995 while the two governments renegotiated this issue. It is generally accepted that, having now established itself, the British Columbia Treaty Commission needs to take a more pro-active role as the keeper of the process. But the Commission has no judicial powers to enforce its role, or arbitrate in disputes, and some consider its effectiveness is therefore limited.
The role of third parties in the treaty-making process remains problematic. The federal government has agreed to participate in a process that emphasises openness in negotiations and consultation with third parties. The provincial government is keenly aware that not all voters in British Columbia support the idea of treaty-making. Many see First Nations’ demands as trouble-making, which is a disincentive to investors, and resent funds being diverted to settlements. Local governments also have concerns about loss of revenue. The British Columbia government does not want to pay the costs, and steadfastly maintains that dealing with First Nations is a federal responsibility. The problem is that most of the lands and resources that might become part of any settlement are vested in the Crown in right of British Columbia, which means the potential loss of a source of revenue to the province. The federal government is being pressured to pay for such losses, and for compensation to any user holding any form of tenure less that full title from the British Columbia Crown whose interests may be affected. It is likely that arguments between the two governments about who pays will continue to encumber the treaty-making process, as the Nisga’a negotiations have already demonstrated.
First Nations want to talk directly with government negotiators as representatives of the Crown. They do not see any requirement to have third parties at the negotiating table, but have been required to agree to consultation procedures, “openness” and information sharing. The third party interests in the treaty negotiation structure are required to provide information and advice to the two governments on how their interests may be affected. The various advisory committees also provide a vehicle for dissemination of information and education of the public at large, but this function is poorly developed as yet. The British Columbia Treaty Commission has sponsored production of some educational materials and encouraged all parties to provide information for the general public. It remains to be seen whether some of the powerful lobby groups can be kept at a reasonable distance, to allow space for negotiations to proceed, and whether the British Columbia government can maintain this balance.
Finally, there remains the issue of what happens to First Nations that have not yet agreed to participate in the treaty-making process. Some, but not all, of the people on Vancouver Island want to maintain their reliance on the “Douglas treaties” as a basis for their self-government in the future. Some want to negotiate only with the federal government, leaving out the provincial government, but in current circumstances this may be unrealistic. Some are waiting to see how things shape up before they commit themselves to the process. A few do not want to have anything to do with it. Chief Joe Mathias of the Squamish Nation, Chairman of the First Nations Summit and a member of the British Columbia Claims Task Force in 1991, has used the image of a ship leaving the harbour: either you are on the ship and going somewhere, or you are left behind on the wharf.
There can be no firm conclusions as yet. A treaty-making process has been set in place, with administrative structures and a large and complex range of hopes and expectations. There remain many difficult questions, including the fundamental issue for First Nations – can aboriginal rights be negotiated away? Alternatively, can there be a legal definition of what constitutes aboriginal rights? If negotiations under the British Columbia treaty-making process fail, then, once again, the courts may be confronted with resolution of these issues. The negotiation of treaties will inevitably include both a legal and a political dimension. Sufficient momentum has now been given to the treaty-making process in British Columbia that doing nothing is not an option.
[*] DNZM, Professor of Geography, University of Waikato. This article has been prepared after several visits to British Columbia in the last five years. I have met and talked with many people and cannot name them all. However, I do want to acknowledge the assistance of my brother, Graeme Dinsdale, Chairman of the Islands Trust and member of the South Island Regional Advisory Committee in British Columbia, who arranged meetings and acquired relevant materials for me, as well as providing a local government perspective. I am grateful to several people who have given their time to talk about their views on treaty-making: Barbara Fisher, Commissioner, and Paul Kariya, Executive Director, British Columbia Treaty Commission; Paul Tennant, University of British Columbia; Frank Cassidy and Hamar Foster, University of Victoria; Murray Rankin and members of the Vancouver Island provincial negotiating team; John Langford and members of the Vancouver Islands federal negotiating team; members of the South Island Regional Advisory Committee; and staff in the Treaty Negotiations Division of the Ministry of Aboriginal Affairs, Victoria. I am grateful to many other people in British Columbia – First Nations, non-aboriginal interests, bureaucrats, lawyers, academics and others. However, the opinions and interpretations in this article are mine.
[1] See Tennant, P Aboriginal Peoples and Politics: The Indian Land Question in British Columbia 1849-1989 (1990) for a review up to 1989.
[2] The Report of the British Columbia Claims Task Force, 28 June 1991.
[3] Slade and Freedman, “The Source of the Obligation to Treat with the Indian Nations”, paper presented to conference, Treaty-Making in British Columbia, Pacific Business and Law Institute, Vancouver, British Columbia, 29-30 November 1994.
[4] Ibid.
[5] Smith, M Our Home or Native Land? What Government’s Aboriginal Policy is Doing to Canada (1995) 265.
[6] Ibid, 266.
[7] Ibid, 264.
[8] Supra note 3.
[9] Vancouver Sun 19 July 1995.
[10] Kahtou, The Voice of B.C. First Nations Volume 4, No 7, July 1995.
[11] Calder v Attorney-General for British Columbia (1973) 34 DLR (4th) 145.
[12] Department of Indian Affairs and Northern Development, In All Fairness, A Native Claims Policy (1981).
[13] See Figure 1 below.
[14] Guerin v The Queen (1984) 13 DLR (4th) SCC.
[15] R v Sparrow (1990) 70 DLR (4th) 385, 408.
[16] Delgamuukw and Others v The Queen (1991) 79 DLR (4th) 185, 537.
[17] See Cassidy, F (ed) Aboriginal Title in British Columbia: Delgamuukw v The Queen (1992); Monet, D Colonialism on Trial: Indigenous Land Rights and the Gitskan Wet’suwet’en Sovereignty Case (1992); Stokes, “The Land Claims of First Nations in British Columbia” (1993) 23(4) Victoria University of Wellington Law Review 171-190; and Mills, A Eagle Down is our Law: Witsuwit’en Law, Feasts and Land Claims (1994).
[18] Delgamuukw v British Columbia (1993) 5 W W R 97.
[19] Ministry of Aboriginal Affairs, The Aboriginal Peoples of British Columbia: A Profile (1992) 6.
[20] “With continuing goodwill, commitment and effort by all parties, the new relationship will be brought to life at this stage” (British Columbia Treaty Commission, Policies and Procedure (1994) 12).
[21] British Columbia Treaty Commission, Annual Report (1996) 23.
[22] Fisher, “British Columbia Treaty Commission: An Update”, paper presented to conference, supra note 3.
[23] Supra note 21, at 24.
[24] Federal Treaty Negotiation Office, British Columbia Treaty Negotiations: The Federal Perspective (Draft) (27 June 1995) 2-3.
[25] Ibid, 3.
[26] Ibid, 4.
[27] Ibid, 5-6.
[28] Consensus Report on the Constitution (Final Text) (28 August 1992) 14.
[29] Government of Canada, Communique/News Release, 10 August 1995.
[30] Department of Indian and Northern Affairs, Communique/News Release: “Government Launches Process for Negotiating Aboriginal Self-Government”, 10 August 1995.
[31] Vancouver Sun, 11 August 1995.
[32] Supra note 5, at 104-105.
[33] Cassidy, “Troubled Hearts: Indigenous People and the Crown in Canada” (1994) 35(2) Pacific Viewpoint 191.
[34] Government of British Columbia, In Fairness to All: Moving Towards Treaty Settlements in British Columbia (1993) 2-3.
[35] Ibid, 45.
[36] Council of Forest Industries, (February 1995) 3(1) Newsletter of the COFI Committee on Aboriginal Affairs 1.
[37] Ministry of Aboriginal Affairs, News Release: Provincial Policies for Openness in Treaty Negotiations (19 September 1994).
[38] See Figure 2 below.
[39] Supra note 21, at 29.
[40] Union of British Columbia Municipalities, Local Government and Aboriginal Treaty Negotiations: Defining the Municipal Interest, A Policy Paper (1994) 9.
[41] Ibid, 13.
[42] Ibid, 10-12.
[43] Ministry of Aboriginal Affairs, Information About First Nations Property Taxation (1994).
[44] Supra note 2, at 65.
[45] Ministry of Aboriginal Affairs, British Columbia’s Approach to Interim Measures Regarding Lands and Resources: Discussion Paper (25 May 1995).
[46] Ministry of Aboriginal Affairs, Information About Interim Measures (1994).
[47] Ibid.
[48] Ministry of Aboriginal Affairs, Crown Land Activities and Aboriginal Rights Policy Framework (25 January 1995) 12-13.
[49] Ministry of Environment, Lands and Parks, Procedures for Avoiding Infringement of Aboriginal Rights (1995) 3.
[50] Ibid, 10.
[51] British Columbia Treaty Commission Second Annual Report 1994-1995, 11-12.
[52] Ibid, 12.
[53] Supra note 21, at 26.
[54] Ibid, 28.
[55] Supra note 51, at 15.
[56] Supra note 21, at 26.
[57] Supra note 51, at 15.
[58] Supra note 21, at 25.
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