Legal issues for teachers and students with background information and teaching resources.
About two thirds of the Aboriginal population in British Columbia is engaged in the process of negotiating treaties with the provincial and federal governments. While each treaty will be unique, the general aim of this process is to enable First Nations to govern their own communities and build economies based upon rights to lands and resources in their traditional territories. This backgrounder will explain the legal and historical basis upon which these parties negotiate treaties, the process of treaty negotiation, and an update on some of the negotiations in the Province that are at the most advanced stages.
Legal and historical basis for negotiating treaties
1. Colonial history
Compared to land title that derives from Crown grant—which is how most privately held land is owned—Aboriginal title is sui generis, that is, it is unique, of its own kind. Instead of deriving from grant by the sovereign Crown, as all title in fee simple does, Aboriginal title derives from the Aboriginal peoples’ original possession and occupation of the land before the assertion of British sovereignty over the land.
British colonial policy recognized that Aboriginal tribes were sovereign nations whose title to the land was recognized by English law and international law. Treaties were made in Canada and the United States with First Nations because under international law they were sovereign nations which owned the land they occupied, and treaties were a lawful means of extinguishing that ownership so that it could transfer to the British Crown.
However, while treaties were negotiated throughout Canada and the United States in the eighteenth, nineteenth and early twentieth centuries, this was not the case in the territory that is now British Columbia. Contrary to international and British law (as well as Dominion Indian policy), the government of British Columbia took possession of most of its lands without entering into treaties with the owners of the lands. This was in sharp contrast with how colonial settlement proceeded in the rest of Canada. In fact, the Governor General of Canada, Lord Dufferin, made an official tour of British Columbia in 1876, and in his departing speech said:
Now we must all admit that the condition of the Indian question in British Columbia is not satisfactory. Most unfortunately, as I think, there has been an initial error ever since Sir James Douglas quitted office, in the Government of British Columbia neglecting to recognize what is known as the Indian title. In Canada this has always been done; no Government, whether provincial or central, has failed to acknowledge that the original title to the land existed in the Indian nations and communities that hunted or wandered over it. Before we touch an acre we make a treaty with the chiefs representing the bands we are dealing with, and having agreed upon and paid the stipulated price, oftentimes arrived at after a great deal of haggling and difficulty, we enter into possession, but not until then do we consider that we are entitled to deal with an acre.[i]
Despite this, only a few treaties which covered a limited area of British Columbia were made during the colonial settlement of this province.
The so-called “Douglas treaties” were named after James Douglas who made fourteen purchases of First Nations land on southern Vancouver Island on behalf of the Hudson’s Bay Company before he became the first Governor of British Columbia between 1850 and 1854. After this initial stage of treaty purchases, Douglas made no more treaties. Instead, he implemented a policy under which Aboriginal people could acquire Crown land on the same basis that settlers who wanted to take up farming could. However, even this diminished right to acquire land was removed after Douglas retired from colonial government. The colonial government adopted the official position that Aboriginal people had never had rights to the land they had occupied, removed the right of Aboriginal people to even acquire Crown land as settlers could, and reduced the size of the reserves that had been allotted to Indians. This was all done without compensation.
The only other treaty in British Columbia, Treaty 8, was negotiated in 1899 by the federal government and encompasses much of what is now the northern half of Alberta, the northeastern quarter of British Columbia, the northwestern corner of Saskatchewan, and the area south of Hay River and Great Slave Lake in the present-day Northwest Territories.
Other than these treaties, the settlement and development of British Columbia was done without any recognition of the underlying Aboriginal title to the land, and without compensation for the taking of the land.
2. Legal history
However, the First Nations with whom treaties were never made, despite the appropriation of the land they occupied, have not, in over a century and a half, wavered in their insistence that they have a right to the lands they occupied at sovereignty. For instance, the Nisga’a, the Gitksan and the Wet’suwet’en began to fight for the legal recognition of their claim to their lands from the origin of the colony of British Columbia. The legal struggles of all three of these Nations have lead to the most significant events in British Columbia in the twentieth century regarding the question of Aboriginal title.
The Nisga’a were the plaintiffs in Calder v. Attorney-General of British Columbia,  S.C.R. 313 in which the Supreme Court of Canada held that modern Canadian law does in fact recognize Aboriginal rights to land based on historic occupation and possession. The case provided the foundation on which the first modern treaty in British Columbia, the Nisga'a Final Agreement was ultimately negotiated, and for the B.C. treaty process to be started after 130 years of opposition by provincial and colonial authorities.
The Gitksan and the Wet’suwet’en were the plaintiffs in Delgamu’ukw v. British Columbia,  3 S.C.R. 1010 in which the Supreme Court of Canada determined the content of Aboriginal title, how it is protected by s. 35(1) of the Constitution Act, 1982, and what is required for its proof. Section 35(1) preserves all Aboriginal rights existing as of 1982. Thus, whatever rights or title existed at common law in 1982 (i.e. that were neither extinguished by the Crown or surrendered by a First Nation) became constitutionally protected on that date.
The Court determined that Aboriginal title is a property right that is a right to the land itself. Aboriginal title:
Aboriginal title also has limiting features. It is held communally, and it cannot be sold to anyone other than the Crown. Nor can title land be used in a way that would “destroy the ability of the land to sustain future generations of Aboriginal peoples” (Delgamu’ukw para. 166).
If a First Nation wants to use land to which it holds Aboriginal title in a way that would be inconsistent with these limits, it must transform its Aboriginal title to title in fee simple. It does so by surrendering the land to the Crown so as to extinguish its Aboriginal title and in turn receives title to the land in fee simple by Crown grant.
It is this transformation of title that forms the basis of treaty negotiations in British Columbia. While the Court in Delgamu’ukw set out the criteria by which Aboriginal title can be proven, it also strongly encouraged First Nations and the federal and provincial governments to put the guidelines it had set out regarding the content, status and proof of title to work at negotiation tables rather than in litigation. Thus, negotiation takes place on the basis that un-extinguished and un-surrendered Aboriginal rights and title could be proven in court over a particular area (and would thus grant exclusive or, in some cases, priority rights to First Nations), but that it is in all parties’ interests to instead negotiate treaties that incorporate all parties’ interests in the land and its resources.
Negotiation of Modern Treaties
As mentioned above, the Nisga’a Final Agreement was the first modern treaty in British Columbia. It was negotiated over 23 years outside the B.C. Treaty Commission process which guides current negotiations. It was finalized in 2000.
In 1992 the British Columbia Treaty Commission was established as an impartial body to facilitate and manage treaty negotiations between First Nations, Canada and British Columbia. The principals are the parties at the tables, who are represented by their negotiators. The three principals are the First Nations, the federal government and the provincial government. The treaty commission oversees some stages of negotiation.
A number of First Nations have elected to remain outside the process, objecting to, among other things, the limited mandates that Crown negotiators have with respect to lands and fish.
Six Stage Process
There are six stages to treaty negotiation under the B.C. Treaty Commission process:
1: Statement of intent
At the first stage, the First Nation that seeks to enter negotiations must submit a statement of intent to enter negotiations that, among other things, identifies the First Nation, that Nation’s traditional territory, the people the Nation’s governing body represents for the purposes of negotiations, and the means by which that body received a mandate from its citizens to pursue treaty negotiations.
2: First meeting
At stage two the parties meet for the first time, review the statement of intent, and assess each party’s readiness to embark upon negotiations. It is also at stage two that parties discuss their expectations regarding what interim measures will be taken in relation to the land at issue while negotiations are underway. The question of interim measures is an important issue, since treaties take many years to negotiate. This issue will be revisited below.
3: Framework agreement
At stage three the parties work to develop the framework under which “agreement in principle” negotiations will take place. This establishes what issues will be on the table for negotiation at stage four, and it establishes the basic mechanics of how the negotiations will unfold. At this stage, the parties also discuss the ratification processes, which are the processes by which they ensure that the treaty they have negotiated on behalf of those they represent is acceptable to those they represent. The parties must say how ratification processes will work at the final agreement stage. Once the negotiators reach agreement at this stage they recommend this agreement to their principals. When the principals sign, the agreement is reached and the parties move on to stage four.
4: Agreement in Principle
This is the substantive stage of the negotiations. At this stage, the parties examine and negotiate the subjects set out in the framework agreement. Agreements on these subjects form the basis of a final treaty. An Agreement in Principle (AIP) will list the essential points of agreement between the parties. At this stage the parties also confirm the processes by which they will ratify the treaty, as well as set out their plans for implementation of the treaty.
5: Final Agreement
The final agreement (or “treaty”) will formalize the new relationship between the parties and embody the agreements reached in the AIP. Any technical and legal issues still present will be examined and resolved by the parties. The treaty will be signed and formally ratified at the conclusion of this stage.
6: Implementation of treaty
As the name suggests, it is at this stage that all points agreed upon in the treaty are implemented. This is a long and complex process that involves developing the laws and institutions of the now largely self-governing First Nations.
Currently 60 First Nations (including 111 of the 198 Indian Act Bands in British Columbia) are involved in the B.C. treaty process through 48 sets of negotiations.
Several years ago, the provincial government focused the treaty negotiation process to six “lead” negotiation tables where parties had reached stage four AIP negotiations. This was instead of an equally concentrated effort in all negotiations in the province.
The Tsawwassen First Nation is at the final stage of the process, having reached and ratified a final agreement and now implementing its treaty. Seven First Nations are at various points of stage five of the treaty process (moving from and AIP to a settled Final Agreement and toward Implementation). 43 First Nations are at the stage of negotiating AIPs, at stage four of the process. Three First Nations are at stage three, and six at stage two of the process.
Tsawwassen First Nation
The Tsawwassen First Nation Final Agreement came in to effect April 3, 2009. The Nation has a population of about 400 people. Its traditional territory covers about 279,000 hectares in the southwest corner of the province. Under the treaty, among other things, the Nation takes about 724 hectares now (i.e. about 2.6% of the territory it traditionally held) with an opportunity to add more land later. The Nation is also self-governing, and has recently elected its legislative assembly to enact its laws.
Maa-nulth First Nations
After 15 years of negotiation, ratification for the Final Agreement for the Maa-nulth First Nations was completed in June 2009. The Maa-nulth First Nations are comprised of five nations with a population of about 2,125, whose territories are located on the west coast of Vancouver Island surrounding Barkley and Kyuquot Sounds. The Agreement provides 24,550 hectares and approximately $73 million in capital to the Nations, as well as self-government and access to resources and resource revenues.
The date upon which the treaty is to take effect has not yet been set. However, there have been early land transfers to Maa-nulth First Nations before the treaty takes effect, enabling the Nations to pursue community and economic activities with these lands.
Lheidli T’enneh First Nation
The Lheidli T’enneh First Nation (near Prince George) reached a Final Agreement in 2006, however this Agreement failed the ratification vote by the Lheidli T’enneh membership. The Band has been seeking more input from its members to determine whether the Final Agreement is sufficient, and whether a second ratification vote should be held.
In-SHUCK-ch First Nation
The parties at this table are working toward final agreement by the end of 2009. The Treaty Commission reports that the outstanding issues at this table revolve around the Nation’s concern that the treaty provides sufficient resources (including fisheries and financial resources) to build a solid economy for the community.
Sliammon First Nation
This First Nation, near Powell River on the Sunshine Coast, signed an AIP in December 2003, and is moving toward final agreement. However, the Treaty Commission identifies the lack of a fisheries mandate from the federal government as a major obstacle to final agreement.
In the meantime
Because treaty negotiations take many years, important issues arise between the parties in the meantime. For instance, often the land in a First Nation’s traditional territory will be targeted by third parties or government for resource exploitation or other economic activities. At the same time, First Nations continue to struggle economically while their land claims remain unresolved.
Incremental treaty agreements
Two First Nations have entered into “incremental” treaty agreements with the Crown under the B.C. treaty process. The Klahoose First Nation, which is negotiating its AIP, has received money from B.C. to purchase a Tree Farm License in their traditional territory while their treaty is still being negotiated. The Tla-o-qui-aht First Nation will receive 63 hectares of land as milestones in their treaty negotiation are met. This land will form part of their Final Agreement settlement, when that is reached.
Consultation and accommodation
Outside the treaty process, but related to it, First Nations are entering into accommodation agreements with Crown and industry while economic activities are pursued on lands to which claims remain unresolved. This is based upon the judgment of the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73. In that important case dealing with the rights of First Nations whose claims remain unresolved, the Court held that while First Nations are in the process of establishing their rights to resources and title to land, they have the right to be consulted and, where appropriate, accommodated for infringements upon those interests.
[i] Quoted in S.L. Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence, (Toronto: University of Toronto Press, 1998) at 212.