B.C. Claims Task Force Report

2. Scope: What the Negotiations Should Include

The development of the new relationship through negotiation is vital to all peoples in the province. These negotiations must deal with the issues of fundamental importance to the relationship. No party can dictate to the other what these fundamental issues are. Consequently, the parties must be free to raise any issue which they view as significant to this relationship. There should be no unilateral restriction by any party on the scope of negotiations.

The imposition of restrictions can only serve to create conflict and detract from the central purpose of the negotiations. Full and frank consideration of all items of importance will contribute to creative and practical solutions. This will be the key to lasting treaties which will foster and sustain the new relationship.

The Task Force recommends that:

2. Each of the parties be at liberty to introduce any issue at the negotiation table which it views as significant to the new relationship.

The following list of issues, which will be significant in the negotiation of the new relationship, is offered for guidance only.

First Nation Government

First Nation government, often referred to as self-government, will be an essential component of a new relationship.

To date, both federal and provincial governments have exercised powers affecting First Nations' interests, often without consultation or consent. When British Columbia joined Confederation in 1871, the federal government assumed legal responsibility over Indians and lands reserved for Indians". Recent initiatives have marginally increased First Nations' responsibility for programs on reserves. In 1985, the federal government began negotiating agreements which would delegate more administrative responsibility. However, legal authority continues to rest with the federal government.

Treaty negotiations in British Columbia provide an opportunity to recognize First Nation governments on their traditional territories. It is important that the treaties, which will receive constitutional protection, be explicit on matters of jurisdiction. Canada has a rich and diverse history of political structures. First Nations have equally rich traditions. The negotiations must take into account these traditions together with the democratic principles and the rights and freedoms guaranteed by the Canadian Constitution.

The subjects for negotiations will include the powers and responsibilities to be exercised respectively by First Nation, federal and provincial governments, as well as clarification of the political institutions which will exercise those powers. Jurisdiction may be exercised individually, or shared among the parities. One of the central responsibilities of government is the delivery of services to people. Regardless of where jurisdiction over any particular service may lie after the treaty, the parties must agree on arrangements for its delivery. This issue of services and fiscal relationships to pay for the services is dealt with in later section of this report.

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During the 1980s, at constitutional conferences, First Ministers and First nation leaders failed to agree to amend the constitution to explicitly affirm self-government as an aboriginal right. Now Canada is embarking on a new round of constitutional discussions. The federal government has announced that it will place aboriginal issues on the constitutional agenda including the amendment of the constitution to explicitly affirm the right of self-government by aboriginal people in all areas of the country. The federal government supports constitutional affirmation of a right to self-government. The success of this initiative may provide a positive constitutional direction for the treaty negotiations in British Columbia. On the other hand, examples of First Nation governments developed in British Columbia treaty negotiations may contribute positively to the national discussions.

These two processes should be considered complementary. National constitutional discussions are a valuable forum for addressing First Nation government. However, the national constitutional process must not interfere with the inclusion of First Nation government in treaties in British Columbia.

Negotiating First Nation government within the treaty process involves important interests of all the parties. Both the federal and provincial governments are concerned about constitutionally protecting agreements which will alter jurisdictions. For First Nations, constitutional protection represents a vital point because it provides certainty on the fundamental issue of First Nation government.

All the parties seek certainty on questions of jurisdiction. They therefore have a mutual interest in negotiating agreements which are workable and will not be vulnerable to unilateral amendment. The negotiation of these important matters should therefore proceed with care, because agreement on First Nation government within the treaty will receive constitutional protection.

Land, Sea, and Resources

Land, sea, and resources have always been at the centre of contention between First Nations and the federal and provincial governments. Canada and British Columbia exercise authority over the First Nations traditional territories without their consent. This has led to disputes, sometimes erupting into serious confrontations.

For First Nations, hereditary title is the source of all of their rights within their traditional territories. The land, sea and resources have supported their families, communities and governments for centuries, and form the basis of the aboriginal spiritual, philosophical, and cultural views of the world. Stewardship of the land, sea, and resources is for the First Nations a sacred trust, with immense responsibilities to be exercised, with care and diligence, for the benefit of future generations.

Because of this, the First Nations view land, sea and resources as fundamental components of modern treaties. Fishing, hunting, trapping and gathering continue to be important traditional economic and cultural activities. The land, sea, and resources will also provide the foundation of new economic opportunities for First Nations.

Land, sea, and resources are also of fundamental importance to non-aboriginal people. To the individual, they provide the opportunity to enjoy nature, to participate in recreational activities, to own property, and to build business enterprises. To the provincial economy, they provide business opportunities, jobs, and the revenue that enables governments to provide services. The relationship to the land has also helped to define the character of British Columbia.

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These disputes over jurisdiction and ownership of land, sea, and resources have created an unsettling degree of uncertainty. As a consequence, individuals express concern about title to their property. Business enterprises are concerned about the future of their endeavours and new investment is discouraged. For their part, First Nations see their traditional territories being dramatically and, in some cases, permanently altered without their consent.

During treaty negotiations the following specific issues will need to be considered:

1. Certainty of ownership and jurisdiction over land, sea, and resources.
2. Identification of territories and resources over which First Nations have ownership, and those over which they exercise jurisdiction.
3. Coordination of management regimes to ensure efficient and effective resource development, as well as sustaining the land, sea, and resource base for future generations.
4. Implications of changes to ownership and jurisdiction.

Resolution of these issues is critical to the new relationship between aboriginal and non-aboriginal peoples.

Financial Component

Negotiations will likely include consideration of a financial component to recognize past use of land and resources and First Nations' ongoing interests, and to provide capital for community and economic development. The nature and extent of the financial component will vary depending on the individual circumstances of each First Nation and other terms of the treaty. A standard formula for use throughout the province is not practical.

The financial component could take different forms, such as cash payments, resource revenue sharing, or credit. Payments could be made in either lump sum or instalments. The taxation treatment of these payments should also be considered in the negotiations.

Although recognition of past and current uses is important, detailed calculations would be technically difficult, costly, and time-consuming. The task force encourages the parties to reach a negotiated solution by bargaining with good will and good faith in the determination of compensation.

The allocation of resource revenues offers an opportunity to resolve the issue of financial compensation. At the same time, it could provide an important tool for building First Nations' self-sufficiency in the future and enabling them to benefit from development activities within traditional territories.

Government Services

As discussed in the section on First Nation government, these negotiations will deal with the jurisdiction for government services. Negotiations will also determine which government will provide each service. Any of the services currently provided by British Columbia or Canada could be the subject of negotiations. These services fall into four major categories: resource management; economic development; social development and human resources; and justice services.

As First Nations have a wide variety of needs and priorities for government services, negotiations will result in a variety of delivery arrangements. First Nations may wish to provide some services, enter into joint management arrangements, or opt into federal or provincial programs. Which arrangements will work best cannot be predicted; experience will ultimately be the best teacher. Therefore, flexible arrangements will likely be in the best interests of all parties.

Changes to responsibilities for services may require the parties to develop a new fiscal relationship. This must take into account both the ability to generate revenue and the cost of service delivery. It will include such topics as taxation, royalties, licensing, and the transfer of funds among the three governments.

Changes in service delivery made after the implementation of the treaty may also require changes to the fiscal relationship. Accordingly, the parties should consider regular reviews to provide appropriate funding.

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Certainty

First Nations and the federal and provincial governments share the common objective of achieving certainty in their relationship, particularly concerning the ownership of and jurisdiction over land and resources. Certainty will create levels of confidence and understanding, and facilitate constructive developments in the political, social, and economic fields.

In the past, blanket extinguishment of First Nations' rights, title, and privileges was used to achieve certainty. The task force rejects that approach. Section 35 of the Constitution Act, 1982 gives express recognition and affirmation to aboriginal and treaty rights. First Nations should not be required to abandon fundamental constitutional rights simply to achieve certainty for others. Certainty can be achieved without extinguishment. The parties must strive to achieve certainty through treaties which state precisely each party's rights, duties, and jurisdiction. The negotiations will inevitably alter rights and jurisdictions. Those aboriginal rights not specifically dealt with in a treaty should not be considered extinguished or impaired.

All parties recognize that treaties arising out of the new process cannot hope to achieve absolute certainty in all areas; they must permit changes as circumstances require. For this reason, treaties must allow for revision and amendment .

Amendment

The treaties will document the relationship between the parties at one point in time. As this relationship evolves, the treaties must be capable of amendment to accommodate changing circumstances. The need for amendments to the Inuvialuit Settlement Agreement signed as recently as 1984 demonstrates why this flexibility is required. To do otherwise would be to set an unrealistic goal of negotiating a wide-ranging agreement which could stand untouched for all time.

The possibility of amendment to treaties must receive careful attention during the negotiations. Some issues within treaties may lend themselves to revision, while others may not. For example, the parties generally may not want to reopen issues related to land and resource ownership. On the other hand, it may be necessary to review on-going relationship issues such as joint-management arrangements. Therefore the parties must identify topics which will, and will not, be open for amendment, and the method of amendment. They may consider revisiting some provisions on a periodic basis, or on the occurrence of certain events -- or not before a certain date.

Implementation

How the treaty will be implemented must be considered during the negotiations. Experience from other negotiations has shown that if negotiators do not carefully consider the legal and practical aspects of implementation and the implications flowing from the treaty, it will have little chance of meeting its objectives.

The section of the report dealing with stages of negotiation contains recommendations on the timing and organizing of implementation. In setting their overall approach to implementation, the parties may want to consider the following: implementation of sub-agreements prior to concluding the treaty, phased implementation of the treaty, the negotiation of single issue treaties, and the resolution of disputes arising during the implementation of the treaty.

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In order to implement a sub-agreement prior to completion of the treaty, it must be sufficiently detailed to stand alone as a workable agreement. It must also specify how it is to be incorporated in the treaty. The parties must pay special attention to the ratification procedure for a sub-agreement to ensure that they have sufficient confidence to implement it.

Early implementation of sub-agreements may provide the parties with an opportunity to demonstrate good faith, build trust and establish a constructive relationship. It may also provide early resolution of an issue which is a source of conflict. Parties must, however, consider whether early implementation will serve as a disincentive to finalizing the treaty. On balance, the advantages of early implementation appear to outweigh the disadvantages.

Parties should develop a timetable for the phased implementation of the terms of the treaty that takes into account the availability of resources and their capacity to implement the treaty in an orderly manner.

Parties may wish to negotiate several less comprehensive or single-issue treaties which may either stand alone or be incorporated in a comprehensive treaty. This would be practical where parties are prepared to ratify and sign a treaty with respect to a limited number of important issues rather than await the negotiation of a comprehensive treaty. Such treaties would allow several First Nations to negotiate together on a single or limited number of issues should they so choose. As a treaty, such an agreement would be constitutionally protected.

The Parties should also develop a dispute resolution mechanism to resolve disputes about matters of interpretation and implementation.

In addition to the foregoing issues, the task force has included in Appendix 6 a list of issues which have been adopted in framework agreements negotiated to date. The parties may wish to consider these and other issues.

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