The BC Treaty Process
The treaty process, now under way in BC, dates back to 1990 when First Nations leaders and the governments of Canada and British Columbia jointly established a task force to find ways to fairly resolve Aboriginal land claims.
In 1991, the BC Claims Task Force filed its report (The Report of the British Columbia Claims Task Force). Its 19 recommendations were subsequently accepted by all parties and formed the blueprint for a made-in-BC treaty process. In December 1993, the British Columbia Treaty Commission, an independent, neutral body that oversees the treaty process began its work. First Nations were then invited to submit statements of intent to negotiate treaties.
The Principals of the BC treaty negotiations process are the Government of Canada, as represented by the Prime Minster of Canada and the Minister of Crown-Indigenous Relations and Northern Affairs Canada. Also, the Government of British Columbia, as represented by the Premier of British Columbia and the Minister of Indigenous Relations and Reconciliation, and the First Nations Summit, as represented by a three-member Task Group.
The Principals are signatories to the agreement that established the BC Treaty Commission. The Principals’ responsibilities are established by their acceptance and commitment to the 19 recommendations of the BC Claims Task Force made in 1991.
The Parties to the negotiations are individual or collective First Nations, the Government of Canada, and the Government of BC.
Canada and BC represent non-aboriginal interests at the negotiation table, much in the same way local officials represent municipalities and regional districts.
The First Nations Summit is not a party to treaty negotiations; it is a forum for First Nations in the BC treaty negotiations process. The Treaty Commission is not a party to the negotiations; it is the independent facilitator of negotiations.
There are 6 stages to the Treaty Process;
A First Nation files with the Treaty Commission a statement of intent (SOI) to negotiate a treaty with Canada and BC. The SOI must identify the First Nation’s governing body for treaty purposes and the people that body represents and show that the governing body has a mandate from those people to enter the process. The SOI must describe the geographic area of the First Nation’s distinct traditional territory and identify any overlaps with other First Nations.
The Treaty Commission must convene an initial meeting of the three parties within 45 days of accepting a statement of intent. For most First Nations, this will be the first occasion on which they sit down at a treaty table with representatives of Canada and BC. This meeting allows the Treaty Commission and the parties to exchange information, consider the criteria for determining the parties’ readiness to negotiate and generally identify issues of concern. The meeting usually takes place in the traditional territory of the First Nation. The three parties must demonstrate that they have a commitment to negotiate, a qualified negotiator, sufficient resources, a mandate and a process to develop that mandate and ratification procedures. The First Nation must have begun addressing any overlaps. The governments of Canada and BC must have a formal means of consulting with third parties, including local governments and interest groups. When the three parties have everything in place, the Treaty Commission will declare the table ready to begin negotiating a framework agreement.
The framework agreement is, in effect, the “table of contents” of a comprehensive treaty. The three parties agree on the subjects to be negotiated and an estimated time frame for stage four agreement- in-principle negotiations. Canada and BC engage in public consultation at the regional and local levels. A municipal representative sits on the provincial negotiation team at each treaty table.
This is where substantive treaty negotiations begin. The three parties examine in detail the elements outlined in their framework agreement. The goal is to reach agreement on each of the topics that will form the basis of the treaty. These agreements will identify and define a range of rights and obligations, including: existing and future interests in land, sea and resources; structures and authorities of government; relationship of laws; regulatory processes; amending processes; dispute resolution; financial component; fiscal relations and so on.
The treaty formalizes the new relationship among the parties and embodies the agreements reached in the agreement in principle. Technical and legal issues are resolved at this stage. A treaty is a unique constitutional instrument to be signed and formally ratified at the conclusion of Stage 5.
Long-term implementation plans need to be tailored to specific agreements. The plans to implement the treaty are put into effect or phased in as agreed. With time, all aspects of the treaty will be realized and with continuing goodwill, commitment and effort by all parties, the new relationship will come to maturity.