Why We Are Negotiating Treaties

Reasons to Negotiate Treaties

The reasons for treaty negotiations in British Columbia generally fall into three categories: moral; economic; and constitutional and legal. These are interconnected and need to be resolved in order for British Columbia to prosper both socially and economically.

The moral issue is self-evident. The quality of life for Aboriginal people is well below that of other British Columbians. Aboriginal people generally die earlier, have poorer health, have lower education and have significantly lower employment and income levels than other British Columbians. This is directly related to the conditions that have evolved in Aboriginal communities, largely as a result of unresolved land and title issues, and an increasing reliance on federal support programs.

As well as the obvious issues of the social and economic conditions of Aboriginal people, the courts have told government repeatedly that Aboriginal rights and title exist, and that these rights have significant impact on the way government does its business.

Uncertainty over ownership of land impedes the development of aboriginal communities and economies, affects the provincial economy and discourages investment. Government has to take that reality into account as it continues to manage the lands and resources of British Columbia.

In order to maximize opportunities for economic development and job creation for all British Columbians, government has to find a way to reconcile the rights and the interests of First Nations with those of the Crown. Treaty negotiations provide for public input and a method for resolution of these issues.

Constitutional Framework

The three most important aspects of the Constitutional framework for British Columbia are:

• Constitution Act, 1867 (BNA Act)
• Terms of Union Act, 1871
• Constitution Act, 1982, Section 35

The Constitution Act of 1867, also known as the BNA Act, has a special provision, section 91(24), which gives the federal government exclusive lawmaking authority in the category described as "Indians, and lands reserved for the Indians." When forming the Dominion of Canada, the fathers of confederation assigned a special place in the constitution for Aboriginal people. That has not changed.

In 1871, British Columbia became part of Canada and accepted the division of powers that gave the federal government exclusive lawmaking authority over Aboriginal people and Indian lands. The province took the position that it had no other responsibilities with respect to Aboriginal land interests and for 120 years the province deferred its obligation to Canada to continue to supply lands for Indian reserves.
For that reason among others, treaty-making in British Columbia — which had a very brief history before Confederation — was not part of post-Confederation British Columbia until recently.

The third element of the Constitutional framework which is critically important is section 35 of the Constitution Act, 1982. It says in part: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed" — again, a special place in the constitution for Aboriginal people and Aboriginal rights.

Legal Precedence

Over the past 130 years the courts have given content to the Constitutional documents, which significantly affects the way the Government of British Columbia does business. There are three important decisions of the Supreme Court of Canada that are landmarks in Canadian law and particularly important to British Columbia:

1973 –Calder: represented first modern recognition of aboriginal title in Canadian common law.

1990 – Sparrow: interpreted Section 35 and established a framework for addressing justifiable government infringement of aboriginal rights.

1997 – Delgamuukw: recognized Aboriginal title, set out test for its proof, and established a framework for justifiable government infringement of Aboriginal rights.

The Calder decision involved the Nisga'a claim to Aboriginal title. Calder represented the first modern recognition of Aboriginal title in Canadian common law. Common-law rights arise when facts exist and the court says: "If these facts exist, then the right exists."
The Supreme Court of Canada said, in effect, that if there is Aboriginal historic presence on the land, then these rights can be recognized as common law without the need for any action by the provincial or federal governments — something called Aboriginal title. Calder became the legal lynchpin for the Government of Canada's comprehensive claims policy that began in the early 1970s. British Columbia did not participate in this policy since the province's position at that time was that this was a federal issue.

In 1990, in a case called Sparrow, the Supreme Court of Canada for the first time looked at section 35 of the Canadian Constitution Act, 1982, and interpreted it to mean that where there is an existing Aboriginal right, the ability of government to interfere with that right unilaterally is constrained. Sparrow says that the power of government to infringe Aboriginal rights is no longer absolute.
The Sparrow case establishes a framework for addressing what can be justifiable government infringement of Aboriginal rights. Therefore, the government has to undertake certain processes to make sure that it doesn't interfere with Aboriginal rights. If the government does not do that, then its ability to legislate and regulate is constrained.

In 1997, Delgamuukw took some of the principles from those two previous cases and expanded them. Whereas Sparrow defined aboriginal rights as being activities — such as fishing, hunting and gathering forest resources — Delgamuukw talked about title as a right of ownership in land and said that that right of ownership exists in British Columbia. It also talked about how to prove that right of ownership and said that where that right exists, the same principles that constrain how the government can affect that right and that were talked about in Sparrow exist.

Consequently there is now a broader conception of which Aboriginal rights include title and a firm statement by the Supreme Court of Canada that the ability of government to infringe those rights is constrained. There is also a firm statement by government that the Crown continues to be the landowner, the resource owner, and ultimate decision-maker. Consequently, there must be some kind of reconciliation between the Crown's sovereignty and Aboriginal rights and title.

Most recently, the 2004 Supreme Court of Canada ruling in Haida First Nation v. BC and Weyerhaeuser and Taku River Tlingit First Nation v. the BC Government and Redfern Resources Ltd. provided a clearer understanding of the rights and responsibilities of the governments and the necessity to consult and accommodate First Nations interests. The court reaffirmed that negotiating in good faith is the best means to reach long-term solutions and further defined what constitutes proper consultation and accommodation.

The first treaties in Canada

When the Europeans began to settle in the eastern part of North America, Britain recognized that the people who were already living there had title to the land. The Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty.

In most of Canada, both before and after Confederation, treaties were signed which set out the rights of Aboriginal people with respect to land, hunting and fishing.

Treaties in British Columbia

On Vancouver Island, the British Crown instructed James Douglas, chief factor of the Hudson's Bay Company and later governor of the colony, to purchase First Nations lands. Douglas made 14 purchases in all, known as the Douglas Treaties, between 1850 and 1854. When the mainland became a colony in 1858, Douglas made no further purchases because of a shortage of funds. Instead, he offered Aboriginal people opportunities similar to those offered to new settlers, including the right to acquire Crown land to become farmers.

When Douglas retired, however, the colonial government took away this right and denied that Aboriginal people had ever owned the land. In 1871, when British Columbia joined Confederation, the new province did not recognize Aboriginal title, so there was no need for treaties.

In an exception, the Government of British Columbia did permit the federal government to negotiate treaties with eight First Nations in the northeastern area of the province to help resolve the problems brought on by the Klondike Gold Rush. The result was the extension of Treaty 8 into British Columbia in 1899.

Over the decades, Aboriginal people in B.C. petitioned the federal and provincial governments for treaties. In response to intensified demands, Ottawa amended the Indian Act in 1927, making it illegal for Aboriginal people to raise or spend money to advance land claims. The restriction was lifted in 1951. In August 1990, nearly 40 years later, the two governments agreed to sit down with First Nations in B.C. and negotiate treaties.

In August 1990, nearly 40 years later, the two governments agreed to sit down with First Nations in B.C. and negotiate treaties.

That same year, the provincial government entered the negotiations already underway between the Nisga'a Tribal Council and the federal government. It also agreed to the establishment of a tripartite task force, with representation from First Nations, Canada and British Columbia, to develop a process for negotiating treaties with other First Nations in B.C.

The Report of the British Columbia Claims Task Force, released in 1991, contained 19 recommendations. Key recommendations included:

• the establishment of a new relationship among the First Nations, Canada and British Columbia, based on mutual trust, respect and understanding, through political negotiations
• the establishment of a British Columbia Treaty Commission to facilitate the process of negotiation, and
• a six-stage process for negotiating treaties.

The recommendations were unanimously accepted by Canada, British Columbia and the First Nations Summit as the basis for the current treaty negotiation process, which began in 1993 with the formation of the British Columbia Treaty Commission.

In the meantime, Canada, British Columbia and the Nisga'a Tribal Council continued their negotiations for a treaty settlement throughout the 1990s. The result was the Nisga'a Treaty, implemented in 2000. Although not part of the British Columbia treaty process, Nisga'a negotiations followed the same tripartite process and resulted in the first modern-day treaty in British Columbia.