British Columbia Treaty Process
Encyclopedia
The British Columbia Treaty Process (BCTP) is a land claims
negotiation process started in 1993 to resolve outstanding issues - including claims to un-extinguished aboriginal rights - with British Columbia
's First Nations
.
Currently, one treaty has been implemented under the current process. The Nisga'a Treaty is considered separate from the Treaty Process because those negotiations began before the BC treaty process was started, but it has been called a blueprint for the current process. To represent the interests of First Nations involved with the process, the First Nations Summit
was created. There are officially 60 First Nations in the process, but only 20 are said to be making progress. About 40% of First Nations are not involved in the treaty process at all.
stated that the crown must negotiate and sign treaties with the indigenous people before land could be ceded to a colony, the Numbered Treaties
were negotiated in most parts of the Prairie Provinces. The Government of the Colony of British Columbia
, however, failed to negotiate many treaties and as a result, most of the province's land is not covered by treaties. The few exceptions are the 14 Douglas Treaties
on Vancouver Island
, Treaty 8
(1899) in the Northeast of B.C., and the 2000 Nisga'a
Final Agreement.
Relations between Indigenous peoples and the B.C. government worsened over time, as the McKenna-McBride Commission led to the redistribution of reserve lands and the Allied Tribes of British Columbia
was essentially dissolved by an amendment to the Indian Act
. First Nations were not allowed to organize or raise money to pursue land claims. In the second half of the 20th century, demands for the recognition of aboriginal title
were buoyed by various court decisions in B.C., including Calder v. British Columbia (Attorney General)
and R. v. Sparrow
.
In 1990, the governments of Canada, B.C. and First Nations established the B.C. Claims Task Force to investigate how treaty negotiations might begin and what they should cover. The following year, the provincial government accepted the concept of aboriginal rights (including the inherent right to self-government) as official policy. The Claims Task Force made 19 recommendations and suggested a six-stage process for negotiating new treaties.
The following year, the Supreme Court of Canada rendered its decision on Delgamuukw v. British Columbia
, recognizing aboriginal title as "a right to the land itself", which derives from First Nations original occupation and possession at the time the Crown asserted sovereignty. The court also stated that the federal and provincial governments may infringe upon Aboriginal title under conditions for justification but that fair compensation would be due at the time of such an infringement.
The first nation to reach stage 5 of the process was Sechelt First Nation
, who signed an Agreement-in-Principle (AIP) in 1999. Members of the Sliammon First Nation
voted to reject their negotiated AIP in 2001, approved the AiP in June 2003 and negotiations are now nearing completion. Six of 12 member nations of the Nuu-chah-nulth Tribal Council
likewise rejected their AIP. The five Maa-nulth First Nations of the Nuu-chah-nulth ratified their treaty in October 2007. The BC Government has ratified the final agreement which is yet to be ratified in the federal parliament. Ditidaht First Nation has subsequently taken legal action against the Maa-nulth in a dispute over land and resource ownership.
In 2002, the BC Liberal Party mailed out ballots for a provincial referendum
on principles for treaty negotiations, sparking protests and a boycott.
In May 1993 the Treaty Commission allocated approximately $432 million in negotiation support funding to more than 50 First Nations- $345.6 million in the form of loans and $86.4 million in the form of contributions. Of that money the Treaty Commission's total operating costs from 1993 to March 31, 2009 has spent $34.2 million. One successfully negotiated treaty was rejected, by the Lheidli T’enneh First Nation, in 2007.
In July 2007, the Tsawwassen First Nation
members voted 70% in favour of the treaty. The treaty more than doubles the size of the Tsawwassen reserve, provides a one-time capital transfer of $13.9 million, $2 million for relinquishing mineral rights under English bluff, $13.5 million for startup and transition costs, $7.3 million for a number of funds for the purposes of resource management and economic development and $2.6 annually for ongoing programs and services, and reserves a portion of the Fraser River
salmon catch to the Tsawwassen. In return, the Tsawwassen will abandon other land claims and will eventually pay taxes
The Temexw Treaty Association, whose members are signatories to the Douglas Treaties, is also attempting to negotiate within the BC Treaty Process.
A November 2007 court ruling for the Xeni Gwet'in First Nation
has called future participation in the process into question. The judge's ruling included a non-binding opinion that the Xeni Gwet'in
could demonstrate aboriginal title
to half of the Nemaiah Valley, and that the province had no power over these lands. Under the BC treaty process, negotiating nations have received as little as 5% of their claimed land recognized. Grand Chief Stewart Phillip
, president of the Union of B.C. Indian Chiefs, has called the court victory a "nail in the coffin" of the B.C. treaty process.
, the provincial government, and First Nations
. A combination of contribution (grant) funding and loans are provided to First Nations on cost-share basis by the federal and provincial governments to support negotiation efforts.
The British Columbia Treaty Commission accepts First Nations into the process, allocates negotiation support funding and monitors the progress of negotiations.
The process:
The Fraser Institute
, a Canadian libertarian
think tank, released a report in 2008 criticizing the B.C. Treaty Process as "incomplete, illiberal and expensive".http://www.fraserinstitute.org/commerce.web/product_files/15_Years_BC_Treaty_NegotiationsRev2.pdf
Land claims
Land claims are a legal declaration of desired control over areas of property including bodies of water. The phrase is usually only used with respect to disputed or unresolved land claims...
negotiation process started in 1993 to resolve outstanding issues - including claims to un-extinguished aboriginal rights - with British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
's First Nations
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
.
Currently, one treaty has been implemented under the current process. The Nisga'a Treaty is considered separate from the Treaty Process because those negotiations began before the BC treaty process was started, but it has been called a blueprint for the current process. To represent the interests of First Nations involved with the process, the First Nations Summit
First Nations Summit
The First Nations Summit is a First Nations political organization in British Columbia founded in 1992 after the formation of the British Columbia Treaty Commission and the British Columbia Treaty Process. It represents the interests of First Nation band governments involved in the treaty process...
was created. There are officially 60 First Nations in the process, but only 20 are said to be making progress. About 40% of First Nations are not involved in the treaty process at all.
Previous negotiations
Because the Royal Proclamation of 1763Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
stated that the crown must negotiate and sign treaties with the indigenous people before land could be ceded to a colony, the Numbered Treaties
Numbered Treaties
The numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...
were negotiated in most parts of the Prairie Provinces. The Government of the Colony of British Columbia
Colony of British Columbia
The Colony of British Columbia was a crown colony in British North America from 1858 until 1866. At its creation, it physically constituted approximately half the present day Canadian province of British Columbia, since it did not include the Colony of Vancouver Island, the vast and still largely...
, however, failed to negotiate many treaties and as a result, most of the province's land is not covered by treaties. The few exceptions are the 14 Douglas Treaties
James Douglas (Governor)
Sir James Douglas KCB was a company fur-trader and a British colonial governor on Vancouver Island in northwestern North America, particularly in what is now British Columbia. Douglas worked for the North West Company, and later for the Hudson's Bay Company becoming a high-ranking company officer...
on Vancouver Island
Vancouver Island
Vancouver Island is a large island in British Columbia, Canada. It is one of several North American locations named after George Vancouver, the British Royal Navy officer who explored the Pacific Northwest coast of North America between 1791 and 1794...
, Treaty 8
Treaty 8
Treaty 8 was an agreement signed on June 21, 1899, between Queen Victoria and various First Nations of the Lesser Slave Lake area. The Treaty was signed just south of present-day Grouard, Alberta.-Treaty:...
(1899) in the Northeast of B.C., and the 2000 Nisga'a
Nisga'a
The Nisga’a , often formerly spelled Nishga and spelled in the Nisga’a language as Nisga’a, are an Indigenous nation or First Nation in Canada. They live in the Nass River valley of northwestern British Columbia. Their name comes from a combination of two Nisga’a words: Nisk’-"top lip" and...
Final Agreement.
Relations between Indigenous peoples and the B.C. government worsened over time, as the McKenna-McBride Commission led to the redistribution of reserve lands and the Allied Tribes of British Columbia
Allied Tribes of British Columbia
The Allied Tribes of British Columbia was an Indigenous rights organization formed following the First World War. There were 16 tribal groups involved, all focused on the issues of land claims and aboriginal title in British Columbia....
was essentially dissolved by an amendment to the Indian Act
Indian Act
The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
. First Nations were not allowed to organize or raise money to pursue land claims. In the second half of the 20th century, demands for the recognition of aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
were buoyed by various court decisions in B.C., including Calder v. British Columbia (Attorney General)
Calder v. British Columbia (Attorney General)
Calder v. British Columbia [1973] S.C.R. 313, [1973] 4 W.W.R. 1 was a decision by the Supreme Court of Canada. It was the first time that Canadian law acknowledged that aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law.In...
and R. v. Sparrow
R. v. Sparrow
R. v. Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35 of the Constitution Act, 1982...
.
In 1990, the governments of Canada, B.C. and First Nations established the B.C. Claims Task Force to investigate how treaty negotiations might begin and what they should cover. The following year, the provincial government accepted the concept of aboriginal rights (including the inherent right to self-government) as official policy. The Claims Task Force made 19 recommendations and suggested a six-stage process for negotiating new treaties.
The Treaty Commission and Process
The British Columbia Treaty Commission is the independent body which oversees the treaty process. B.C. Treaty Commissioners were first appointed in April 1993, and the treaty process officially began in December 1993. By 1996, 47 First Nations, representing more than 60% of Status Indians in B.C., had decided to participate. After a few years of negotiations, the Treaty Commission released a 1997 Systems Overload Report which argued that the provincial and federal governments needed to increase their financial resources and the capacity level of First Nations for the negotiation of treaties in BC.The following year, the Supreme Court of Canada rendered its decision on Delgamuukw v. British Columbia
Delgamuukw v. British Columbia
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a famous leading decision of the Supreme Court of Canada where the Court made its most definitive statement on the nature of aboriginal title in Canada....
, recognizing aboriginal title as "a right to the land itself", which derives from First Nations original occupation and possession at the time the Crown asserted sovereignty. The court also stated that the federal and provincial governments may infringe upon Aboriginal title under conditions for justification but that fair compensation would be due at the time of such an infringement.
The first nation to reach stage 5 of the process was Sechelt First Nation
Shishalh
The Shishalh people, at the time of the first European contact had a population near 26,000. Shishalh women were famous for their beautiful cedar woven baskets, using materials gathered from the roots of the cedar tree, cannery grass and birch bark for the design.The Sechelt First Nations...
, who signed an Agreement-in-Principle (AIP) in 1999. Members of the Sliammon First Nation
Sliammon First Nation
The Sliammon First Nation or Tla A'min First Nation is a First Nations government located on the upper Sunshine Coast in southwestern British Columbia, Canada...
voted to reject their negotiated AIP in 2001, approved the AiP in June 2003 and negotiations are now nearing completion. Six of 12 member nations of the Nuu-chah-nulth Tribal Council
Nuu-chah-nulth Tribal Council
The Nuu-chah-nulth Tribal Council is a First Nations Tribal Council in the Canadian province of British Columbia, located on the west coast of Vancouver Island.- History :...
likewise rejected their AIP. The five Maa-nulth First Nations of the Nuu-chah-nulth ratified their treaty in October 2007. The BC Government has ratified the final agreement which is yet to be ratified in the federal parliament. Ditidaht First Nation has subsequently taken legal action against the Maa-nulth in a dispute over land and resource ownership.
In 2002, the BC Liberal Party mailed out ballots for a provincial referendum
British Columbia aboriginal treaty referendum, 2002
The BC Treaty Referendum was a province-wide referendum on First Nations treaty rights in British Columbia, Canada.In the spring of 2002 the Premier Gordon Campbell and the British Columbia Liberal Party government sent out ballots to registered voters in the province. The referendum proposed eight...
on principles for treaty negotiations, sparking protests and a boycott.
In May 1993 the Treaty Commission allocated approximately $432 million in negotiation support funding to more than 50 First Nations- $345.6 million in the form of loans and $86.4 million in the form of contributions. Of that money the Treaty Commission's total operating costs from 1993 to March 31, 2009 has spent $34.2 million. One successfully negotiated treaty was rejected, by the Lheidli T’enneh First Nation, in 2007.
In July 2007, the Tsawwassen First Nation
Tsawwassen First Nation
The Tsawwassen First Nation is a First Nations government whose only Indian reserve is located in the Greater Vancouver area of the Lower Mainland of British Columbia, Canada, adjacent to the South Arm of the Fraser River and the Tsawwassen Ferry Terminal and just north of the international...
members voted 70% in favour of the treaty. The treaty more than doubles the size of the Tsawwassen reserve, provides a one-time capital transfer of $13.9 million, $2 million for relinquishing mineral rights under English bluff, $13.5 million for startup and transition costs, $7.3 million for a number of funds for the purposes of resource management and economic development and $2.6 annually for ongoing programs and services, and reserves a portion of the Fraser River
Fraser River
The Fraser River is the longest river within British Columbia, Canada, rising at Fraser Pass near Mount Robson in the Rocky Mountains and flowing for , into the Strait of Georgia at the city of Vancouver. It is the tenth longest river in Canada...
salmon catch to the Tsawwassen. In return, the Tsawwassen will abandon other land claims and will eventually pay taxes
The Temexw Treaty Association, whose members are signatories to the Douglas Treaties, is also attempting to negotiate within the BC Treaty Process.
A November 2007 court ruling for the Xeni Gwet'in First Nation
Xeni Gwet'in First Nation
The Xeni Gwet'in First Nation is a First Nations government located in the southwestern Chilcotin District in the western Central Interior region of the Canadian province of British Columbia...
has called future participation in the process into question. The judge's ruling included a non-binding opinion that the Xeni Gwet'in
Xeni Gwet'in
The Xeni Gwet'in, also known as the Stone Chilcotin, are a First Nations people whose traditional territory is located in the southern Chilcotin District of the Canadian province of British Columbia, on the inland flank of the Coast Mountains west of the Fraser River...
could demonstrate aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
to half of the Nemaiah Valley, and that the province had no power over these lands. Under the BC treaty process, negotiating nations have received as little as 5% of their claimed land recognized. Grand Chief Stewart Phillip
Stewart Phillip
Stewart Phillip is an Okanagan Aboriginal leader who has served as President of the Union of BC Indian Chiefs. Being a chief of the Penticton in British Columbia, he has advocated for Aboriginal rights for the First Nations in that province and particularly in the Okanagan region.In 2002, Phillip...
, president of the Union of B.C. Indian Chiefs, has called the court victory a "nail in the coffin" of the B.C. treaty process.
Process
The treaty process is a 6-stage negotiation between the federal governmentGovernment of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
, the provincial government, and First Nations
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
. A combination of contribution (grant) funding and loans are provided to First Nations on cost-share basis by the federal and provincial governments to support negotiation efforts.
The British Columbia Treaty Commission accepts First Nations into the process, allocates negotiation support funding and monitors the progress of negotiations.
The process:
- Stage 1: Statement of Intent to Negotiate
- Stage 2: Readiness To Negotiate
- Stage 3: Negotiation Of a Framework Agreement
- Stage 4: Negotiation Of An Agreement In Principle
- Stage 5: Negotiation to Finalize a Treaty
- Stage 6: Implementation of the Treaty
Criticisms
The voice of criticisms have come from different angles in indigenous communities across British Columbia and Canada, and from the non-native society as well. About 2/3 of First Nations are not involved with the Treaty Process, some have formed the "Unity Protocol", calling for an overhaul of the entire process.- ExtinguishmentExtinguishmentExtinguishment is the destruction of a right or contract. If the subject of the contract is destroyed , then the contract may be made void. Extinguishment occurs in a variety of contracts, such as land contracts , debts, rents, and right of ways...
of Aboriginal titleAboriginal titleAboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism... - Continued assimilation strategies
- Changing the indigenous peoples form nations to municipal style government.
The Fraser Institute
Fraser Institute
The Fraser Institute is a Canadian think tank. It has been described as politically conservative and right-wing libertarian and espouses free market principles...
, a Canadian libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
think tank, released a report in 2008 criticizing the B.C. Treaty Process as "incomplete, illiberal and expensive".http://www.fraserinstitute.org/commerce.web/product_files/15_Years_BC_Treaty_NegotiationsRev2.pdf
See also
- Aboriginal titleAboriginal titleAboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
- The Canadian Crown and First Nations, Inuit and MétisThe Canadian Crown and First Nations, Inuit and MétisThe association between the Canadian Crown and Aboriginal peoples of Canada stretches back to the first interactions between North American indigenous peoples and European colonialists and, over centuries of interface, treaties were established concerning the monarch and aboriginal tribes...
- Status of British Columbian First Nation Treaties