B.C. Claims Task Force Report

3. Process: How the Negotiations Should Proceed

The negotiation of treaties to establish a new relationship provides a formidable challenge. The wide range of issues to discuss, from land ownership to First Nation government, complicates the task. As many as thirty separate negotiations may take place, with many occurring at the same time. Although similar solutions may be found to apply to several sets of negotiations, the very different circumstances and histories of the First Nations require careful consideration. Also, the different regional resources and community aspirations of groups within the province, both aboriginal and non-aboriginal, will require specific tailoring of agreements. Taking these regional variations into account, it is unlikely that a single solution can be applied universally.

A review of the results of processes used in similar negotiations in Canada indicates that the process is a critical factor in the successful outcome of negotiations.

First and foremost, the process must be voluntary. Those First Nations who prefer to deal with disputes in other ways have that right. As the negotiations with the Nisga'a continue, the parties to that negotiation may wish to adopt aspects of this process which they find helpful.

The First Nations, Canada and British Columbia want to conclude treaties as soon as possible. However, undue haste may lead to failure. Agreements must be carefully crafted so that they work, are supported by aboriginal and non-aboriginal people, and stand the test of time.

To achieve successful and lasting agreements, the process of negotiations must embody the following:

1. Commitment
   No process for negotiations can be successful without the serious resolve and commitment of all three parties to reach agreements. The parties must match their commitment with sufficient resources to support the process.
2. Made in British Columbia
   To meet the special circumstances of these negotiations, the process must be located and managed here in British Columbia.
3. Fair
   The process must provide a level playing field for the participants. No party should be at a disadvantage because of the process.
4. Impartial
   No one party should have control over the process. All three must be equal partners in its management.
5. Effective
   The process must encourage effective negotiations which are efficient, and avoid creating barriers to progress.
6. Understandable
   Each party should clearly understand its duties and responsibilities in the negotiation process.

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The recommendations which follow set out a process which incorporates the above six elements.

First, and central to these recommendations, is the establishment of a British Columbia Treaty Commission. Its role will be to ensure that the process is fair and impartial, that all parties have sufficient resources to do the job, and that the parties work effectively to reach agreements.

Second, Stages of Negotiations, outlines the six steps in the negotiation process.

Third, there are comments and recommendations on a number of specific process issues which the parties must consider.

The British Columbia Treaty Commission

Based upon the twenty-two claims filed to date under the existing federal comprehensive claims policy, we estimate there could be as many as thirty separate negotiations throughout the province. Therefore, it is essential that the process be controlled and located in British Columbia.

The experience of negotiations in other provinces where only one or at most two — claims have been negotiated at once, indicates that co-ordination is crucial to an efficient process. Where co-ordination is lacking, resources have been wasted because the parties were not prepared to proceed. In British Columbia, many negotiations will be proceeding at the same time, so the task of co-ordination will be critical.

A British Columbia Treaty Commission, sensitive to the realities in the province, should be given the job of co-ordinating the start of negotiations. This will require extensive communication with all three parties to ensure they are prepared to begin negotiations at the same time. Once negotiations begin, the parties must assume responsibility for co-ordination of their activities and set their own schedule. The role of the commission would then change to one of monitoring the progress that the parties make toward the targets they have set

The impartiality and fairness of the process is also critical to its success. The process will be more credible if assisted by a tripartite body appointed by British Columbia, Canada and the First Nations. An important issue of fairness for the First Nations is the question of adequate funding, which will enable the First Nations to negotiate on an equal footing with the governments. The commission should be given responsibility for decisions respecting funding for First Nations.

Because these negotiations are so important to residents of British Columbia and Canada, the commission should be accountable to the governments of Canada, British Columbia and the First Nations. It should publish reports on the effectiveness and fairness of the process, and the progress of each negotiation, and present those reports to the Parliament of Canada, the British Colombia Legislature and the First Nations. Public accountability will be an important tool enabling the commission to keep the parties on schedule and on course.

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The onus is on the parties to carry out the negotiations. The commission can assist the process by providing the following services:

1. Co-ordinating the schedule for the start of negotiations;
2. Deciding the amount and distribution of funds required by the First Nations to participate in the process;
3. Determining the readiness of each of the parties to begin negotiations based upon criteria they have agreed to;
4. Encouraging timely negotiations by assisting the parties to establish a schedule and monitoring their progress in meeting deadlines;
5. Identifying the need for and providing dispute resolution services as requested by the parties;
6. Submitting annually to The Parliament of Canada, the Legislative Assembly of British Columbia, and the First Nations, a report on the progress of negotiations and an evaluation of the process;
7. Developing an information base on negotiations to assist the parties;
8. Providing a public record of the status of each negotiation and documents which the parties agree to make public.

As the responsibility for the successful and timely conclusion of negotiations lies with the parties, the commission is not to be directly involved in the negotiations. However, at the invitation of the parties it will be available to assist them in resolving disputes, or by providing services such as an independent chairman or secretariat for the negotiations.

The commission should draw to the attention of the parties their failure to meet agreed target dates, ask why, and report to the parties if major obstacles block progress. Where the commission finds that progress is not being made, it should draw the failure to the attention of the parties and ascertain the reasons. If the parties do not remove obstacles blocking progress, the commission should make public its recommendation to resolve the delay.

From time to time, the commission may meet with British Columbia, Canada and the First Nations to recommend improvements to the process or to seek resolution of similar issues delaying progress in more than one negotiation.

The commission should be made up of a chairperson and four members. The chairperson should be appointed by agreement of the federal and provincial governments and the First Nations. On a five-member commission two of the members (not including the chairperson) should be appointed by the First Nations. If the commission is larger than five members a similar ratio should apply.

The position of chairperson should be full time. Other members should be available on an as-needed basis. The work of the commission should normally be conducted by the chairperson and members rather than by delegation to staff.

A constant theme of this report is the need to move speedily to begin the long process of negotiation. The commission, its structure and its mandate, should be established by agreement between the three principals without delay, by order-in-council if necessary. Federal and provincial legislation, and authority from the First Nations should follow to give the commission a strong mandate.

It is important to the impartiality of the commission that both the federal and provincial governments contribute to its funding. Secure long-term funding for the operations of the commission and First Nations participation in the process will give all the parties confidence in the commission and the process. A commission which must constantly seek funding or protect its funding sources will be distracted from its task.

The commission should assist the parties to reach a successful and timely conclusion of the negotiations. It should not add unnecessary bureaucracy to the process and not impede progress. The three principals should review the commission's effectiveness after a three year period.

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The Task Force recommends that:

3. A British Columbia Treaty Commission be established by agreement among the First Nations, Canada, and British Columbia to facilitate the process of negotiations.

4. The Commission consist of a full-time chair person and four commissioners — of whom two are appointed by the First Nations, and one each by the federal and provincial governments.

Stages of Negotiation

The proposed stages of negotiations are designed to assist the parties to progress rapidly, without compromising the goal of achieving lasting agreements. As the parties become experienced in negotiations they may discover — and are encouraged to adopt — innovative ways to improve the process.

Prior to or in the early stages of negotiations, there may be issues which require the urgent attention of the parties. These matters should be resolved in interim measures agreements.

The Task Force recommends that:

5. A six-stage process for negotiating treaties, as follows:

Stage 1: Submission of Statement of Intent to negotiate a treaty

The negotiation process will begin when a First Nation sends a Statement of Intent to negotiate a treaty to the commission. The commission will forward the Statement of Intent to the federal and provincial governments and acknowledge its receipt to the First Nation. The Statement of Intent need only be a short and succinct document. Its preparation does not need to be supported by extensive research and consultations. Its purpose is to indicate the intention of the First Nation to enter into treaty negotiations. It will also provide basic information to enable the commission and the federal and provincial governments to begin preparations for the negotiations.

The Statement of Intent should identify the following:

1. The First Nation;
2. The general geographic area of the First Nation's traditional territory;
3. A formal contact for communication.

The First Nation may choose to submit a preliminary list of issues which it believes will be important to the negotiations.

At the time the First Nation files its Statement of Intent, it should also file with the commission any requirement it has for funding. The commission will meet with the First Nation to consider its funding needs.

Alternatively, First Nations who have already filed submissions under the current federal comprehensive claims policy may send these to the commission and indicate that they intend to rely on them as their Statement of Intent.

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Stage 2: Preparation for negotiations

When the commission receives the Statement of Intent, it will give written notice to the three parties, convening a meeting within 45 days. At this meeting, the parties will formally commit themselves to negotiate a treaty. This meeting will provide the parties and the commission with an opportunity to exchange information, consider the criteria to be used to determine the parties' readiness to negotiate, discuss background studies any of the parties intends to carry out in preparation for the negotiations, and identify in a general way issues to be negotiated. In consultation with the commission, the parties will also set a date for the first Framework Agreement negotiating meeting.

Prior to the date of the first Framework Agreement negotiation meeting, the commission will communicate with the parties to ascertain their readiness to begin negotiations, based upon criteria agreed to by the parties. The commission has the responsibility of assessing whether or not the parties are sufficiently ready to begin negotiating. The parties are expected to cooperate with the commission in this assessment. The commission must ensure that there is no delay of the process, but also ensure that negotiations do not begin until all the parties are adequately prepared. If the parties are ready, the commission will confirm the start date for the negotiation of the Framework Agreement. If one or more of the parties are not ready, the commission will ask them to set a new date.

The following criteria for readiness are suggested:

1. A First Nation is "ready" when it has identified subject matters to be negotiated, it has consulted its communities, established an organization sufficient to support the negotiations, and adopted a ratification procedure. A First Nation should also have identified and begun to address any overlapping territorial issues with neighbouring First Nations. It is not a requirement that overlap issues be resolved prior to negotiations.
2. The federal and provincial governments are "ready" when each has identified the subject matters it wishes to include in negotiations, has established a mechanism for consultation with non-aboriginal interests, has researched the background of the communities, people, and interests likely to be affected by the negotiations, and has adopted a ratification procedure.
3. Each of the parties must confirm to the commission that it has appointed negotiators and has given them a comprehensive and clear mandate, and has sufficient resources to carry out the negotiations.

Parties are encouraged to meet with the commission at any time, but particularly during this stage, to discuss matters which will expedite the process.

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Stage 3: Negotiation of Framework Agreement

A Framework Agreement is a negotiated agenda which:

1. Identifies the subjects for and objectives of the negotiations; and
2. Establishes a timetable and any special procedural arrangements for the negotiations.

This will enable the commission and the parties to evaluate the progress of negotiations. In addition, it will enable the parties to confirm, modify or expand their negotiators' mandates.

Identification of the parties' ratification, and implementation procedures must be considered in the course of the Framework Agreement negotiations. The parties should adopt a dispute resolution procedure and undertake a program of public information, for use during the entire period of negotiations.

Appendix 5 contains a list of items included in Framework Agreements negotiated to date.

While interim measures agreements can be raised at any time, the parties should consider the need for them prior to concluding the Framework Agreement.

Stage 4: Negotiation of Agreement in Principle

During this stage the parties reach the major agreements which will form the basis of the treaty. The Agreement in Principle is the product of a thorough and detailed examination of the issues on the agenda, as set out in the Framework Agreement. It should contain the salient points of the agreement between the parties. The parties must again confirm the process for ratification and establish a mechanism to develop an implementation plan.

The ratification process of the Agreement in Principle provides the parties with the opportunity to:

1. Review the emerging agreement and approve, reject or seek amendment of its provisions;
2. Provide their negotiators with a mandate to conclude a treaty.

Stage 5: Negotiation to finalize a treaty

The treaty will formally embody the principles which underpin the new relationship and the agreements reached in the Agreement in Principle. It will also provide the implementation plan by which the parties will give effect to the agreements. A separate working group may be required to prepare for implementation, including such matters as the timing and funding of implementation and the responsibilities of each party.

The resolution of technical and legal issues in the settlement of the terms of the treaty should not be used as an opportunity to re-open issues already settled. A balance must be maintained between the need to deal with substantive amendments and the undermining of the Agreement in Principle.

On the completion of negotiations the treaty will be formally ratified and signed.

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Stage 6: Implementation of the treaty

While the task of the negotiators is now complete, the work of establishing the new relationship continues. Implementing legislation or authorities may be required by each of the parties. The implementation of the treaty will require continuing goodwill, commitment and efforts on the part of all the parties.

Access

In the interests of developing a new relationship, this negotiating process must be open to all First Nations in British Columbia.

While the majority of British Columbia's First Nations have never signed treaties, fourteen treaties covering territory on Vancouver Island, known as the "Douglas Treaties", were signed prior to the entry of British Columbia into Confederation and Treaty 8 covers territory in the north-eastern corner of the province. The existence of these treaties should not exclude First Nations from the negotiation process. Not only are there questions concerning the making of these treaties, their interpretation and their implementation, but more importantly, the new relationship will encompass a wider range of issues than do these treaties. While the existence of these treaties will be taken into account in negotiations, these First Nations should not be excluded by reason of these early attempts at defining their relationship.

Urban areas now cover parts of the traditional territories of some First Nations. Sometimes referred to as "superseded by law," this must not bar those First Nations from the negotiations. To do so would be contrary to the spirit and intent of these recommendations.

The Task Force recommends that:

6. The treaty negotiation process be open to all First Nations in British Columbia.

Organization of First Nations

Understanding the traditional and modern-day organization of First Nations in the province poses a considerable challenge for non-aboriginal people. In the first place, many impressions are based upon superficial exposure to aboriginal people and lifestyles. Secondly, there is little in the non-aboriginal experience that directly relates to aboriginal values and perspectives.

Traditionally, many First Nations organized their societies through houses or "clans," which preserved their authority through complex variations of matrilineal or patrilineal systems. These traditional governments exercised control over vast territories. They also formed the basis for larger political units, often referred to as tribes or nations.

After British Columbia entered Confederation, Canada began to impose the band council system. The traditional governments and their ability to exercise authority over territories were discouraged, and at times outlawed. Today, these traditional governments exist side-by-side with the band council system.

Also, political alliances have been forged among "tribal councils". These have been very effective in initiating constitutional changes and modifying federal and provincial laws and policies. Tribal councils will likely continue into the future.

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The term "First Nation" may refer to an organization of aboriginal people under the traditional government, the tribal council, the band or some combination of these systems.

Two major questions for a new process are, "How should First Nations organize themselves for negotiation purposes?" and "What are the advantages and disadvantages of different organizational structures?"

Answers to these questions must not ignore a fundamental principle: for First Nations the decision to ratify a treaty will come from their people. It is essential that the same people who will ratify the treaty support the organization which is negotiating on their behalf. The manner in which First Nations organize and structure themselves for treaty negotiations must be left to them to decide.

In making this decision, many factors such as language, the history of relations between communities, and the influence of natural boundaries and geography will play a role. Other considerations will include sharing of resources and costs, and developing more effective co-ordination between jurisdictions which a larger grouping allows. First Nations will also want to consider that the larger the territory covered by an organization the more difficult and expensive it will be for the First Nation negotiators to communicate effectively with its members.

The federal and provincial governments must recognize that this decision will not be easy for First Nations.

In the late 1960s and early 1970s the federal government urged bands in B.C. to group together to pursue a collective approach to "land claims negotiations". Province-wide organizations were formed. Negotiations never materialized and the insistence on establishing a province-wide aboriginal organization was discontinued. Resurrecting this approach for the purpose of negotiating treaties is impractical and doomed to failure.

To date, the majority of "claims" presented for negotiation under the federal claims process have been organized at the tribal council level. The Nisga'a and the Council for Yukon Indians provide two quite different examples of how negotiations can be structured around larger groupings.

Whatever the decision, it will be important to the successful outcome of the negotiations that the people of the First Nations have made their own choice. A clear decision, a strong mandate for the organization and its negotiators, and effective communications will enhance the prospects of reaching agreement, ratifying and implementing the treaty.

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The Task Force recommends that:

7. The organization of First Nations for the negotiations is a decision to be made by each First Nation.

Overlapping Territories

In many instances, traditional territories of First Nations overlap one another. To the extent that these overlaps may affect negotiations, it is the responsibility of First Nations to resolve them.

Preparation for negotiations must include discussions with neighbouring First Nations on the issue of overlapping territories. Because treaties will identify specific territories, it is not necessary to settle such issues prior to beginning the negotiations, but a process for resolution should be in place before conclusion of the treaty. In exceptional cases, the parties may agree to implement the provisions of a treaty in all but the disputed territory.

The commission, where requested by First Nations, will provide advice on dispute resolution services available to resolve overlap issues. It should be noted that First Nations may require funding from the commission to carry out the necessary studies to assist in resolving overlaps.

The Task Force recommends that:

8. First Nations resolve issues related to overlapping traditional territories among themselves.

Timeframes

Negotiating treaties with all First Nations in British Columbia must be considered a matter of urgency by all the parties. The resolution of these issues is too important to delay. The federal and provincial governments must be prepared to begin negotiations as soon as First Nations are ready. No limit should be placed upon the number of negotiations ongoing at one time.

There is no question that conducting the number of negotiations that may be required at one time will call for a substantial commitment of resources by all the parties. For this reason, the process which has been recommended provides for coordination to start negotiations.

9. Federal and provincial governments start negotiations as soon as First Nations are ready.

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Non-Aboriginal Interests

The federal and provincial governments face a major challenge in properly representing the full range of non-aboriginal interests in negotiations. As the treaties will cover a variety of political, economic and social issues, as well as the ownership of and jurisdiction over land, sea, and resources, they will significantly affect British Columbians, and other Canadians.

A wide range of groups want to participate in the development of treaties with First Nations. This interest should be encouraged. If treaties are to establish a workable new relationship, it is essential that these groups have the opportunity to contribute to their development. To achieve this, the federal and provincial governments must establish effective ways of consulting with non-aboriginal interest groups.

In the past, non-aboriginal interest groups have been critical of the federal and provincial governments for not consulting them or for not keeping them adequately informed during negotiations. This has led to demands for a place at the negotiating table, or for the opportunity to observe negotiations. The task force sees these arrangements as impractical. They may impede progress in negotiations. At the Framework Agreement stage, the parties may wish to consider special procedural arrangements to involve non-aboriginal interests during the negotiations.

10. Non-aboriginal interests be represented at the negotiating table by the federal and - provincial governments.

Funding for Negotiations

The provision of adequate funding for federal and provincial government and First Nation participation in negotiations is critical to the success of the process.

The importance of First Nations being able to prepare for and carry out negotiations on an equal footing with the federal and provincial governments has been emphasized throughout this report. This can only be achieved if First Nations have adequate resources available to them. Agreements which are negotiated without proper preparation will lead to further disputes, delays and wasting of resources. It is also important that First Nations are free to plan and manage their own negotiations. First Nations should not have their expenditures reviewed by another party to the negotiations, as i8 presently the case.

The needs and circumstances of First Nations will vary considerably. They will be influenced by such factors as their current degree of readiness, availability of resources and expertise, diversity of membership, travel requirements, and experience in negotiations.

The task force reviewed various options, including grants and loans, to support First Nations involvement in the negotiations. A system of payments to support this involvement which does not penalize First Nations or put them at a disadvantage is important. The task force therefore supports the development and implementation through the commission of a new system of financial support. The parties may wish to review this matter in the negotiation of the financial component.

The commission and the First Nations should together work out the details of the accountability of First Nations to the commission for the funds. The commission should not set priorities on behalf of the First Nations. First Nations will be accountable to their own people for the specific expenditures.

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In the development of the new relationship, the federal and provincial governments may be required to make significant changes in jurisdictions, rights, and services. It is therefore essential that all the options are carefully analyzed, and the impact of positions well understood. This will require the commitment of substantial resources throughout the federal and provincial government structures to ensure that there is adequate consultation and development of new government positions. For these reasons it is important that the federal and provincial government negotiating efforts be adequately funded.

The funding of the commission, public information and the implementation of treaties are equally critical, but are dealt with in their respective sections of this report.

11. The First Nation, Canadian, and British Columbian negotiating teams be sufficiently funded to meet the requirements of the negotiations.

12. The commission be responsible for allocating funds to the First Nations.

Ratification

Each party's process of ratification must be dealt with in the negotiations for the Framework Agreement and reviewed at the Agreement in Principle stage.

Parties must understand each other's ratification procedure and be confident that agreements reached at each stage in the process have been fully considered and approved, and that the treaty will be binding once it is ratified. It would be unfortunate to reach the treaty stage only to find that ratification of some earlier stage was incomplete, thus undermining support for the treaty.

First Nations may have different ratification procedures reflecting their distinct political organizations. As well, there may be a need for different ratification procedures at each stage in the negotiation process.

13. The parties develop ratification procedures which are confirmed in the Framework Agreement and in the Agreement in Principle.

Dispute Resolution

When disputes arise in the course of negotiations, it is the responsibility of the parties to resolve them. In the event of a continuing dispute, any one of the parties may invite the commission to offer suggestions or discuss the issue with the parties. Where all the parties agree, the commission may provide them with assistance or make recommendations with respect to dispute resolution.

14. The commission provide advice and assistance in dispute resolution as agreed by the parties.

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Negotiators

Skilled and experienced negotiators with clear mandates will play a key role in the success of the negotiations.

Recognizing the importance of this role, the parties should recruit, train and develop negotiators. Some negotiators may require training to develop their skills and to familiarize themselves with the substantive issues. A number of British Columbia institutions can provide this training.

Canada, British Columbia and the First Nations should undertake joint training programs and investigate modern techniques for negotiations and dispute resolution. These programs and techniques should be available to the parties.

Negotiators must have clear instructions and sufficient authority to negotiate effectively. As well, they will require the confidence of the party they represent. They should be sufficiently informed, and sensitive to the issues, to gauge accurately the likelihood of the parties approving agreements they endorse.

Federal and provincial negotiators must have direct and timely access to the relevant senior officials and cabinet ministers. Most importantly, they must represent their government as a whole not just one ministry or department. It may be helpful for the federal and provincial governments to each establish a cabinet committee to provide overall direction to the negotiators. The committees should be composed of the minister responsible for negotiations and other ministers directly responsible for the issues which will be dealt with during negotiations.

For their part, First Nation negotiators also must have direct and timely access to their leadership, and maintain contact with the communities they represent.

15. The parties select skilled negotiators and provide them with a clear mandate, and training as required.

A fair and impartial process that is effective and understandable is essential to successful treaty negotiations. The treaty commission i8 the key to meeting these criteria. A six stage negotiating process is recommended. Comments and recommendations are provided on a number of specific issues. This is a new era and experience will help to refine and improve the negotiating process.

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