What is a Treaty
A treaty is a negotiated agreement that sets out clearly defined rights and responsibilities of First Nations and the federal and provincial governments over far-reaching matters. These include land ownership, governance, wildlife and environmental management, financial benefits and taxation. A treaty is also a full and formal expression of reconciliation between First Nations and government.
Why are we negotiating treaties in British Columbia?
There are no treaties with the majority of First Nations in B.C. The Canadian Constitution and court decisions all point to the fact that treaties should be negotiated with First Nations in order to build greater certainty over lands and resources, and equality for all British Columbians.
What are we trying to accomplish?
One of the primary goals of treaty-making is to build a New Relationship with First Nations based on the principles of mutual respect, recognition and reconciliation. Another significant goal is to establish certainty over British Columbia Crown land and resources.
Treaties will clearly define the rights and responsibilities of all parties in the negotiations. Treaties will also lead to greater self-reliance for First Nation communities, and help to close the social and economic gap between Aboriginal and non-Aboriginal British Columbians.
What is meant by "certainty"?
Certainty is the resolution of who owns the land, who has the right to resources on it, and who has law-making authority over it. Treaties with First Nations will provide this resolution.
Why not go to court?
The adversarial nature of litigation can harm government efforts to build a New Relationship with First Nations founded on the principles of mutual trust, recognition and reconciliation.
In most cases, litigation is inflexible, confrontational, costly and time-consuming. Disputes over the use of Crown lands and resources often result in court injunctions, which do not resolve the issues in a timely or practical manner.
Court decisions do not necessarily meet the needs of all parties or resolve all issues between parties. Court decisions fail to build in affordability and economic benefits. They have not clearly defined Aboriginal rights. Instead, the courts have advised the provincial and federal governments and First Nations to negotiate the nature and extent of Aboriginal rights.
Isn't negotiating treaties on the basis of race a form of racism?
British Columbia is not negotiating treaties on the basis of race.
Treaties are being negotiated to define constitutionally protected Aboriginal rights. Treaties are not race-based; they are fulfilling legal obligations.
Aboriginal people are treated differently because of the Constitution and common law. The application of Canadian laws, particularly the federal Indian Act, has created a legacy of distrust and despair. In short, First Nation communities are disenfranchised from the rest of Canadian society because of these laws.
Treaties will provide First Nations with the authority to manage their affairs and become less reliant on government transfers. Treaties will also help address outstanding economic and social injustices, which exist because Aboriginal people have been treated differently in our society since colonization.
Why can't the issues be resolved by simple lump-sum cash payments?
Resolving the issues with lump-sum cash payments would not be practical. The Constitution and the courts already recognize Aboriginal rights and title. Aboriginal people have indicated they will not give up these rights for treaty rights unless a land component is included in the agreements.
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Who Is Negotiating
There are three parties at each treaty table: the First Nation(s), Canada and British Columbia. Each party is represented by a negotiating team.
What is British Columbia's role in treaty negotiations?
British Columbia must be involved in treaty negotiations because many issues fall under provincial jurisdiction, most importantly Crown land and resources. The report of the British Columbia Claims Task Force (1991) also recommended that to achieve lasting agreements as quickly as possible, the negotiation process must be "made in B.C."
British Columbia's role in treaty negotiations is to:
- represent and protect the interests of all British Columbians
- ensure that treaties work in British Columbia
- ensure that treaties are fair and affordable
- ensure that Canada lives up to its legal and constitutional obligations
- ensure that all interested parties have the opportunity to be consulted
How many First Nations are at the treaty table?
There are currently 45 BC treaty tables involving 116 BC First Nations, or 60 per cent of First Nations in British Columbia. Each table includes one or more First Nations.
What is going to happen with First Nations not in the treaty process?
Government has a legal obligation to consult with First Nations about land and resource-related activities on their asserted traditional territories whether or not they are in the treaty process.
Ministries across the provincial government work with all First Nations in B.C. to build a New Relationship and to negotiate lasting agreements that will create economic and social development opportunities.
Is there a published list of First Nations already participating in the treaty process?
Yes. The Ministry of Aboriginal Relations and Reconciliation website contains a list of all First Nations inside and outside of the BC treaty process, as well as tribal councils and treaty groups. First Nations participating in the treaty process is also available on the British Columbia Treaty Commission website.
Is there a published list of First Nations not participating in the treaty process?
Yes. The Ministry of Aboriginal Relations and Reconciliation website contains a list of all First Nations in British Columbia. It indicates whether or not individual First Nations are in the treaty process.
What is the British Columbia Treaty Commission?
The British Columbia Treaty Commission (BCTC) is an independent body of five commissioners appointed by Canada, British Columbia and the First Nations Summit to oversee the process of treaty negotiations.
As "the keeper of the process," the activities of the BCTC allow many treaty negotiations to take place at the same time, rather than queuing treaties and negotiating them one at a time over many decades. The BCTC is also responsible for allocating negotiation support funding to First Nations and providing public information and education.
The BCTC does not negotiate treaties. Negotiation is the responsibility of the three parties at the treaty table.
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The Treaty Process
How does the treaty process work?
There are six stages in the BC Treaty Commission process. It begins with the First Nation filing a statement of intent through to the signing and implementation of a Final Agreement.
Where do negotiations occur?
Negotiations take place at the treaty table, which can be in the First Nation communities, and in federal or provincial government offices.
When do negotiations occur?
Negotiations begin once the British Columbia Treaty Commission has indicated that the parties are ready to negotiate. The frequency and location of meetings is established by the parties, as are topics for discussion at each negotiation session. Generally, treaty tables that are further along in the process meet more frequently than treaty tables where progress has been slower.
What structures are in place for consultation?
Consultation has been, and continues to be, an integral part of negotiations.
The Ministry of Aboriginal Relations and Reconciliation expects all negotiators to engage in consultation as part of their negotiating responsibility. In addition, the Ministry engages in discussions on specific issues with particular groups, local government representatives and First Nations not in the treaty process.
What happens while treaties are being negotiated?
It takes time to negotiate treaties. British Columbia is attempting to conclude substantive agreements on various items under negotiation, such as land, resources and land protection, on the way to eventually achieving a final comprehensive agreement. These agreements, known as interim measures and treaty-related measures, bring us closer to resolution, provide economic and development opportunities for First Nations, and address Aboriginal concerns over land and resource use while negotiations continue.
Are treaty negotiations secret?
No. The public is welcome to attend open negotiation sessions, which are advertised in local media. Open meetings are also listed on the British Columbia Treaty Commission website.
The website of the Ministry of Aboriginal Relations and Reconciliation contains a list and information about all First Nations and Tribal Councils in British Columbia. The Ministry also has a toll-free public information telephone number (1-800-880-1022) that people can call to get more information.
How do I find out what is happening at the treaty table where I live?
The public is invited to attend and observe open treaty negotiation sessions, which are advertised in the local media. If you have a specific question, please contact the Ministry of Aboriginal Relations and Reconciliation at:
THE MINISTRY OF ABORIGINAL RELATIONS AND RECONCILIATION
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PO BOX 9100 STN PROV GOVT VICTORIA BC
Telephone: Enquiry BC: Vancouver (604) 660-2421, Victoria (250) 387-6121, BC (other than Vancouver or Victoria): 1-800-663-7867
Toll-Free Treaty Information Line
Treaty Settlement Land
What is a land claim?
"Land claim" is a phrase used by federal and provincial governments to describe the assertion by Aboriginal people in Canada of their rights to traditional lands. Many Aboriginal people consider the term a misnomer, because it suggests they are "claiming" something that belongs to the governments. Some people refer to the issue as the "land question."
What is Aboriginal title?
Aboriginal title is a sub-category of Aboriginal rights dealing with lands and resources.
Why should treaty settlements include land?
Unlike other parts of Canada, very few historical treaties were signed in British Columbia.
In recent times, the Canadian Constitution and legal decisions have recognized and protected a broader concept of Aboriginal rights. British Columbia, Canada and First Nations are attempting to define these rights through negotiations.
For Aboriginal groups, hereditary title is the source of rights within their traditional territories. The land, sea and resources form the basis of the Aboriginal spiritual, philosophical and cultural views of the world. Aboriginal people have consistently stated that the stewardship of the land, sea and resources is a sacred trust that must be recognized for the benefit of future generations. Because of this, First Nations view land, sea and resources as fundamental components of modern treaties.
How much land will be included in treaty settlements?
The land quantum is negotiated at the treaty table under the British Columbia Treaty Commission (BCTC) process.
As part of the criteria for entering the BCTC process, a First Nation must submit a map of what they consider to be their traditional territory. A future land settlement may include a portion of this territory. That is the subject of negotiations.
The amount of land to be transferred to a particular First Nation will depend on factors specific to the First Nation and the negotiations. There is no percentage of land set aside for the entire province that will be available as treaty settlement land.
What topics are currently being discussed?
The details of matters under negotiation may vary, depending on demographics, location and so on. That said, many topics are common to all tables, such as:
- Land Title
- Forest and Resources
- Capital Transfer
- Roads and Rights of Way
- Wildlife and Migratory Birds
- Environmental Assessment & Protection
- Intergovernmental Relations
Will First Nations own treaty settlement land?
Yes. Treaty settlement land will be held in fee simple. First Nations will also have governing authority over their treaty land. Current reserve lands are tracts of land that have been set aside by the federal government for the use and benefit of an Indian band (Indian Act, section 2).
How will negotiations address the rights of people living on treaty settlement land?
Negotiators ensure that the Canadian Constitution, the Charter of Rights and Freedoms, the Criminal Code of Canada and all federal and provincial laws of general application will apply to First Nation citizens living on treaty settlement lands.
Provincial negotiators also ensure that the rights of non-Aboriginal residents on First Nation lands are protected.
Are the rights of non-Aboriginal people living on reserve land currently being protected?
The Canadian Constitution, the Charter of Rights and Freedoms and the Criminal Code of Canada apply on reserve. However, British Columbia does not have jurisdiction over on-reserve issues. That responsibility continues to rest with the government of Canada.
Treaty negotiations are intended to resolve lease arrangements on reserve, by giving residents who are not members of the First Nation a much clearer understanding of the foundation of these arrangements. Federal and provincial laws of general application will apply on treaty settlement land, including British Columbia's Residential Tenancy Act.
Who will "control" the activities on treaty settlement land?
Treaty settlement land would be equivalent to private property. Federal and provincial laws would apply on treaty settlement lands, with First Nations laws operating simultaneously.
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What is Aboriginal self-government?
Self-government refers to the ability of Aboriginal people to govern themselves within the framework of the Canadian Constitution. Through self-government, Aboriginal people would make decisions about matters that affect them, such as health, education and child welfare. Self-government may also include the ability of Aboriginal governments to raise revenues (e.g., fees and taxation), to manage lands and resources on lands, and to negotiate with other governments on such matters as joint service delivery and economic development.
What are the levels of governmental authority in Canada currently?
The levels of governmental authority that currently exist in Canada are federal, provincial and local government authorities.
The federal Parliament has power "to make laws for the peace, order and good government of Canada," except for "subjects assigned exclusively to the legislatures of the provinces."
The provincial legislatures have power over direct taxation in the province for provincial purposes, natural resources, prisons (except penitentiaries), charitable institutions, hospitals (except marine hospitals), municipal institutions, licences for provincial and municipal revenue purposes, local works and undertakings (with certain exceptions), incorporation of provincial companies, solemnization of marriage, property and civil rights in the province, the creation of courts and the administration of justice, fines and penalties for breaking provincial laws, matters of a merely local or private nature in the province, and education.
Though Parliament cannot transfer any of its powers to a provincial legislature, nor a provincial legislature any of its powers to Parliament, Parliament can delegate the administration of a federal act to provincial agencies; and a provincial legislature can delegate the administration of a provincial act to a federal agency.
Federal and provincial governments can delegate law-making authority to local governments by conferring that authority in legislation.
Municipal governments - cities, towns, villages, counties, districts, and metropolitan regions - are set up by the provincial legislatures, and have such powers as the legislatures see fit to give them. Mayors, reeves and councillors are elected on a basis prescribed by the provincial legislature.
As of October 2005, there are 158 municipalities and 27 regional district for a total of 185 municipal governments in British Columbia. They provide services such as water supply, sewage and garbage disposal, roads, sidewalks, street lighting, building codes, parks, playgrounds, libraries and so forth. Schools are generally looked after by school boards or commissions elected under provincial education acts.
(A complete explanation of governmental authority is included in How Canadians Govern Themselves.)
Will the Constitution, Charter of Rights and Criminal Code apply to First Nations after a treaty settlement?
Yes. Like all citizens, First Nations will continue to be governed by the Canadian Constitution, including the Charter of Rights and Freedoms, and the Criminal Code.
Is there an example of a delegated Aboriginal government?
Yes. The federal and provincial governments have delegated law-making authority to the Sechelt Indian Band.
Four specific acts were passed to establish self-government for the Sechelt. The federal Sechelt Indian Band Self-Government Act (1986) is an enabling statute, creating the Sechelt band, and giving it the powers and responsibilities of self-government. Section 37 states that "all federal laws of general application in Canada are applicable to and in respect of the Band, its members and Sechelt lands, except to the extent that those laws are inconsistent with this Act."
Section 38 of the same act states that "laws of general application of British Columbia apply to or in respect of the members of the Band except to the extent that those laws are inconsistent with the terms of any treaty, this or any other Act of Parliament, the constitution of the Band or a law of the Band."
The British Columbia government passed the other three acts:
- Sechelt Indian Government District Enabling Act (1987) recognizes the Sechelt Indian Government District, gives the Sechelt government certain provincial powers, creates an appointed advisory council, applies provincial laws and grants provincial benefits to the band, suspends the province's ability to collect direct property taxes, and enables the province to delegate certain responsibilities to the band
- Land Title Amendment Act (1988) inserted new sections 366 to 373 into the Land Title Act
- Sechelt Indian Government District Home Owner Grant Act (1988)./li>
What model does the Nisga'a government follow?
Nisga'a governmental authority is set out in a treaty and is constitutionally protected. The treaty can be changed only with the consent of all three signatories to the treaty-Canada, British Columbia and the Nisga'a government.
Nisga'a government powers that differ from the Sechelt's include:
- provision for the creation of a Nisga'a police force
- the power to set up courts and appoint judges
- the power to levy direct taxes on Nisga'a citizens only; non-Nisga'a pay taxes directly to the province
- the power to create a community corrections service
In addition, only Nisga'a members can vote for the Nisga'a government. The Nisga'a are required to provide "a reasonable opportunity" to non-Nisga'a to make representation to Nisga'a public institutions if the activities "directly and significantly affect them."
Nisga'a government powers that are essentially the same as the Sechelt's include:
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- control of education on First Nation lands
- authority over health services on First Nation lands
- control of child and family services and adoption
- First Nation membership
- ownership of forest resources
What is the eligibility criterion for tax exempt status?
Status Indians registered under the Indian Act are exempt from paying tax in certain situations. This tax exemption status does not apply to non-status Indians, Métis or Inuit.
How do tax exemptions currently apply on and off reserve?
Status Indians do not pay the provincial sales tax (PST) or federal goods and services tax (GST) on goods purchased on reserve. In other cases, where status Indians make purchases off reserve and take possession of the goods at the time of sale, such as restaurant meals, or clothing, they are required to pay both PST and GST as applicable.
Income earned by status Indians on a reserve is exempt from provincial and federal income tax. If income is earned from an employer located off reserve, and employment duties are carried out off reserve, status Indians are required to pay income tax.
How would tax exemptions apply after treaties?
Provincial negotiators have been instructed to include a provision in treaties for phasing out the above tax exemptions.
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How many Aboriginal people live in British Columbia?
Statistics from Indian and Northern Affairs Canada reported the total registered Aboriginal population of British Columbia as of December 31,
2006 was 122,089. The same report indicated the total registered Aboriginal population of Canada was 763,555.
What is an Indian band?
An Indian band is a body of Aboriginal people declared by the Governor in Council of the Government of Canada to be a band for the purposes of the Indian Act (Indian Act, s.2). The Crown has set aside reserve lands for the band and the federal government supplies funding for services in accordance with its constitutional obligations. Indian bands are also referred to as First Nations.
How many Indian bands / First Nations are there in British Columbia?
As of September 30, 2006, there were 198 Indian bands in British Columbia, or approximately 33 per cent of Canada's 612 bands. (Source: Indian and Northern Affairs Canada)
What is a tribal council?
A tribal council is a self-identified entity that represents Aboriginal people or a group of bands. Tribal Councils do not necessarily coincide with treaty groups.
How many tribal councils are there in British Columbia?
There are 29 tribal councils in B.C.
What is a reserve?
A reserve is land set aside by the federal government for the use and benefit of a band (Indian Act, section 2). Reserve land cannot be privately owned by the band or band members. There are 1,701 reserves in British Columbia.
Who can live on a reserve?
Any registered Indian who is also a band member may live on a reserve and use the land as long as the band has not adopted a residency bylaw that limits or regulates the right to live on the reserve. Forty per cent of bands control their own membership lists.
British Columbia is unique among the provinces in that over 25 per cent of the population on reserves is not of Aboriginal ancestry. The majority of non-Aboriginal people living on reserves are on land leased from the reserves.
How many Aboriginal people live on reserves in B.C.?
As of December 31, 2005, Indian and Northern Affairs Canada reported that approximately 49 per cent of the Aboriginal population in British Columbia were living on reserves. (Source: Indian and Northern Affairs Canada, Registered Indian Population by Sex and Residence 2005) [link to URL at: http://www.ainc-inac.gc.ca/pr/sts/rip/rip05_e.pdf ]
How many reserves are there in British Columbia?
British Columbia has 1,701 reserves, or approximately 63 per cent of Canada's 2,675 reserves. (Source: Government of Canada. See Indian and Northern Affairs Canada (PDF - 798KB)).
What is the land area of reserves in British Columbia?
Reserve land accounts for 0.36 per cent (343,741 hectares) of B.C.'s total land. B.C. reserves account for 13 per cent of the total area of Canadian reserves (2,684,448 hectares). (Source: Government of Canada. See Indian and Northern Affairs Canada (PDF - 798KB)).
How many First Nations are in the B.C treaty process?
As of September 30, 2006, there were 116 of 195 eligible BC First Nations / Indian bands in the treaty process, or approximately 60 per cent. These First Nations / Indian bands were sitting individually or as part of treaty group of BC First Nations at 45 BC treaty tables.
Six First Nations / Indian bands from the Yukon and Northwest Territories at three treaty tables were also involved in the BC treaty process, negotiating cross-boundary claims.
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