FREQUENTLY ASKED QUESTIONS
Q - Why are we negotiating treaties in British Columbia?
Q - Why, in this day and age, are treaties being negotiated in BC?
Q - What is the BC Treaty Process?
Q - Why should I care about treaty negotiations?
Q - How do treaty negotiations affect the economy?
Q - Can't the government just legislate away Aboriginal claims to land?
Q - Is B.C. the only province where treaties are being negotiated?
Q - Is private property on the table?
Q - Will Aboriginal people pay income taxes after treaties are signed in B.C.?
Q - How will the rights of non-Aboriginal British Columbians be protected?
Q - What will Aboriginal self-government achieve?
Q - Can we afford to settle treaties?
Q - How much are B.C. treaty negotiations costing the taxpayer?
Q - Can the Public attend negotiation sessions?
Q - Are treaties final? What will happen if First Nations change their minds after a treaty is signed?
Q - Is the treaty process broken? Why doesn't someone fix it?
Q - What are Aboriginal Rights?
Q - How will the First Nations Governance Initiative affect treaty negotiations?
Q - Is the Nisga'a Treaty a template for other treaty negotiations in B.C.?
Q - Why are First Nations not ratifying deals, even though their negotiators are recommending them?
Why are we negotiating treaties in British Columbia?
Canada is negotiating treaties in British Columbia (B.C.) in order to resolve questions of uncertainty with respect to ownership, usage, management and regulation of lands and resources, and the application of laws. There are many historical, legal, economic and social reasons for negotiating treaties.
Historically, governments in Canada negotiated treaties with First Nations as a way of securing land for settlement. However, the treaty-making process undertaken in many other parts of Canada was never completed in B.C.
Why, in this day and age, are treaties being negotiated in BC?
Before Canada was a country Britain recognized that aboriginal people living here had title to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire land from First Nations, and that was typically done through treaties. In most parts of Canada, the British Crown established treaties with First Nations before Confederation. The new Dominion of Canada continued this policy of making treaties before the west was opened for settlement, but in BC, this process was never completed.
When BC joined Confederation in 1871, only 14 treaties on Vancouver Island had been signed, and aboriginal title to the rest of the province was left unresolved. It wasn't until 1970 that Canada's aboriginal peoples were able to pursue aboriginal rights in the Supreme Court of Canada. With the exception of Treaty 8 and negotiations with the Nisga'a Nation, most First Nations had to wait until 1993 to pursue their aboriginal rights through the BC treaty process.
Section 35 of the Constitution Act, 1982, affirmed that aboriginal title, and the rights that go along with it, exist whether or not there is a treaty. Continued uncertainty about how and where these rights apply discourages investment and economic development in BC. Through the give and take of negotiations, treaties will clearly define aboriginal rights and title, thereby clarifying ownership of BC's land and resources.
What is the BC Treaty Process?
The BC treaty process is a voluntary process of political negotiations among the First Nations, Canada, and BC. In treaty negotiations, a First Nation does not have to prove aboriginal rights and title – these rights are already recognized and protected by the Canadian Constitution.
The main goal of the treaty process is to provide certainty of jurisdiction over land and resources. Through a treaty, the rights and obligations of all parties are set out, thereby resolving conflicting land ownership between the Crown (BC) and aboriginal peoples.
The BC treaty process, open to all BC First Nations, currently includes 55 First Nations participating at 45 sets of negotiations. BC treaty negotiations are arguably the most complex set of negotiations Canada has ever undertaken and the most complex treaty negotiations ever undertaken in the world.
Why should I care about treaty negotiations?
Treaties will remove the uncertainty that hinders investment, and by limiting courtroom confrontations, negotiated treaties will help reduce social costs, stimulate and encourage economic development and bring stability to communities throughout B.C.
Benefits provided to First Nations through treaties will also help them build self-sufficient communities and address pressing social issues. This is in the interest of First Nations as well as other Canadians.
How do treaty negotiations affect the economy?
The absence of treaties in most of B.C. hinders economic and resource development and has also discouraged investment. In fact, many resource sector managers now refer to the "B.C. discount factor," or the added expense and risk of doing business in B.C. due to uncertainty over Aboriginal rights and title.
There are many economic benefits associated with the signing of treaties. Economic studies have evaluated the cost of treaty-making and concluded that treaty settlements will create economic growth for B.C.
A 1996 KPMG report on the Benefits and Costs of Treaty Settlements in B.C. projected positive financial and economic outcomes from treaty settlements. It forecast a significant employment increase for B.C., estimated at 7,000 to 17,000 new jobs. The study estimated that the B.C. economy can expect about $3 worth of total financial benefit for every $1 of provincial financial cost. The net financial benefit will be between $3.9 billion and $5.3 billion over 40 years.
A similar conclusion was reached in a March 1999 study by independent consultant Grant Thornton, which confirmed "completing treaties to settle Aboriginal land claims will bring a net financial benefit of between $3.8 billion and $4.7 billion to British Columbia over the next 40 years."
Can't the government just legislate away Aboriginal claims to land?
No. The Constitution of Canada recognizes and affirms existing Aboriginal rights. The Crown has not been able to extinguish Aboriginal rights since Aboriginal rights received constitutional protection in 1982.
Over the past 30 years, Aboriginal rights have slowly been defined through the courts and Canadian courts have determined that Aboriginal rights exist in law. Canadian courts have repeatedly encouraged negotiations to resolve issues related to Aboriginal rights.
Is B.C. the only province where treaties are being negotiated?
No. Modern treaty negotiations have been taking place across Canada since 1973. In addition to treaty negotiations in B.C., there are 16 other negotiations taking place across Canada.
Since the implementation of Canada's Comprehensive Claims Policy in 1973, 15 treaties, or claim settlements, have been signed in Quebec, Yukon, the Northwest Territories and B.C. These claim settlements have successfully resolved longstanding issues of Aboriginal title to land and natural resources.
Is private property on the table?
No. Consistent with Canada's interest in protecting the legal rights of all citizens, lands held in fee simple will not be expropriated in order to make them available for treaty negotiations. Any sale of fee simple land for that purpose would be voluntary and would be fairly compensated.
Will Aboriginal people pay income taxes after treaties are signed in B.C.?
It's important to clarify that only aboriginal people living on reserves receive tax exemptions; most aboriginal people pay the same taxes as other Canadians.
When the tax exemption came into effect under the 1876 Indian Act, First Nations did not have the right to vote, own property or practise many cultural traditions. First Nations did not gain the right to vote in federal elections until 1960.
The Indian Act has made economic development on reserves difficult. Reserve land is held in trust by the federal government for use by status Indians. Because the Indian Act stipulates that reserve lands cannot be seized to enforce payment of a debt, these lands have never been available for use as collateral. The same is true of all real and personal property of aboriginal people or bands on a reserve. Negotiated cash and land settlements will provide First Nations people with the capital they need to begin businesses and create jobs and industries.
Through treaties, First Nations will acquire a land base and establish a government with powers to access revenues, borrow, receive transfers from other governments and levy taxes. The governments of Canada and BC seek to gradually eliminate tax exemptions as First Nations move towards greater economic self sufficiency. For example, under the Nisga'a Treaty transaction taxes such as sales tax will be eliminated eight years after the effective date and all other taxes, including incomes tax, after 12 years.
Many First Nations in the BC treaty process are reluctant to give up their tax exemption when most other First Nations in Canada will continue to have these exemptions —including those that have signed treaties in the past. Canada, BC and the First Nations Summit are working together to find creative solutions to taxation and other fiscal issues.
How will the rights of non-Aboriginal British Columbians be protected?
Treaties must be fair to all British Columbians. The Government of Canada seeks to ensure that the rights of non-Aboriginal people are not prejudiced through the negotiation of treaties with First Nations in B.C. and that Aboriginal self-government will not have an impact on the legal rights of British Columbians. When treaty settlements impact upon third party interests, the federal government is committed to ensuring that those interests will be dealt with fairly.
The legal rights of third parties and the public interest of British Columbians will be respected during the selection of lands for treaties, as they relate to public and third party access corridors, third party occupancies, and tenures. In addition, one of Canada's key objectives is to ensure the conservation of resources and protected areas, such as national parks, for the future use and benefit of all British Columbians.
Under Canada's approach to Aboriginal self-government, in most cases, First Nations will only be able to make laws that apply to First Nations members. First Nations' authority will be exercised within the Canadian constitutional framework. A key objective of self-government is to assist First Nations in protecting their culture and heritage, and to allow them to manage their own lands, resources and assets.
To promote fairness at every stage of the process, Canada is committed to continuing consultation with third parties. Consultation ensures that everyone has the opportunity to have their issues and concerns heard. In addition to consultation activities, the federal government participates in information activities on treaty negotiations throughout the province, and ensures that open negotiation sessions are advertised locally.
Will Aboriginal self-government mean that First Nations will be independent, sovereign countries within Canada?
No. Self-government arrangements resulting from treaties will operate within the Canadian Constitution and will not result in sovereign states or autonomous enclaves within the boundaries of Canada. First Nations' authority will be exercised within the Canadian constitutional framework.
Federal and provincial laws will continue to apply to treaty settlement lands, including laws such as the federal Criminal Code, Canadian Environmental Assessment Act and Fisheries Act.
Self-government arrangements will be workable. Canada will seek to: harmonize management regimes; minimize duplications; establish compatible planning and infrastructure between First Nation governments and other levels of government; and put in place effective and efficient dispute resolution mechanisms.
Self-government does, however, include law-making powers. Such laws will, for the most part, be focused on matters that are internal to a First Nation and integral to the distinctiveness of its culture. Where Aboriginal laws co-exist with provincial or federal laws, clarity and harmony of the respective jurisdictions will be established.
What will Aboriginal self-government achieve?
Aboriginal self-government will give First Nations the legitimate tools they need to make a tangible, positive difference in the lives of Aboriginal people and enable them to exercise greater control over their lives.
Under the federal approach, Aboriginal groups will negotiate the details of self-government in areas where they may wish to develop arrangements more suitable to their needs, cultures and values such as health care, child welfare, education, housing and economic development. For more information on Canada's approach to governance negotiations, see the federal policy guide on Aboriginal governance entitled The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government.
Can we afford to settle treaties?
We can't afford not to. The cost of not resolving these issues far exceeds the cost of settling land claims. The Government of Canada is committed to concluding treaties with First Nations that are fair, equitable and affordable. Although the cost of treaties is not insignificant, we must ask ourselves if we can afford not to settle treaties. Treaties will create a stable climate for investment in B.C. and provide Aboriginal people with expanded economic opportunity. In the long term, this will benefit all B.C.
How much are B.C. treaty negotiations costing the taxpayer?
Taxpayer money supports the treaty process and pays for the settlement of land claims across Canada. Signed treaties will contribute to greater economic certainty in B.C., so the dollars spent are an investment in the future. We have already started to see positive results. Investments to support treaty negotiations over the last eight years are helping to foster the evolution of stable, self-reliant First Nations' communities.
Treaty negotiations are also less costly, and more efficient in the long run than seeking resolution in the courts.
Canada's costs under the B.C. treaty process from 1993 to 2001 are estimated at $169 million. This figure includes $22.5 million of Canada's share of negotiation support funding contributions to First Nations, and $146 million of operations and administrative costs provided to federal government departments, the B.C. Treaty Commission and the First Nations Summit. This figure does not include expenditures for interim or treaty-related agreements with First Nations.
Canada's share of one-time settlement and implementation costs for the Nisga'a Treaty is $255 million (in 1999 dollars) and Canada's share of ongoing costs is $31.5 million (in 1999 dollars).
Treaties will cost money, but they will also save money. Eventually, savings and new tax revenues will equal and then exceed the cost of treaties. Although the cost of treaties is not insignificant, the cost of not resolving these issues exceeds the cost of settling land claims.
Can the Public attend negotiation sessions?
Every treaty table has Openness Protocol that sets out times that the general public may attend negotiations. Open main table negotiations are frequent and always advertised in local media and listed on the Treaty Commission’s web site. Members of the public are invited to attend and observe these sessions. Many sessions include an open question and answer period.
Are treaties final? What will happen if First Nations change their minds after a treaty is signed?
Yes. Treaties are legal agreements which create mutually binding obligations and commitments. Under Canada's approach to treaty negotiations, treaties will set out and describe in detail how rights will be exercised and bring certainty to land and resource use and ownership in the province.
Is the treaty process broken? Why doesn't someone fix it?
Treaty negotiations involve difficult issues that will take time to resolve. Negotiations are complex and seek to address a wide range of issues put forward by many parties with diverse interests. Although treaty negotiations in B.C. have not moved as quickly as anticipated, Canada is looking at ways to reach achieve results more quickly.
Canada is always looking for ways to improve the B.C. treaty process, and meetings between Canada, B.C. and the First Nations Summit are already taking place to discuss ways to focus on greater efficiency and effectiveness.
What are Aboriginal Rights?
Over the last 30 years, Aboriginal rights have been slowly defined through the courts and Canadian courts have determined that Aboriginal rights exist in law.
Before Europeans arrived in North America, various areas were home to First Nations along the coast and inland. Aboriginal rights stem from this prior occupancy; they are the rights held as a result of longstanding use and occupancy of the land. Under the law, the unique legal and constitutional status of First Nations derives from the fact that they are the descendants of the people that were resident in North America long before Europeans arrived.
In 1982, the Canadian Constitution was amended to recognize and affirm existing Aboriginal rights. It is important to note that this change to the Constitution did not create or define any new Aboriginal rights - rather, it recognized and affirmed already existing Aboriginal rights, without spelling out what those rights were or where they may exist.
So far, Canadian courts have repeatedly confirmed that Aboriginal rights exist in law; may range from rights not intimately tied to a specific area of land, to site-specific rights, to Aboriginal title, which is a right to exclusive use and occupancy of land; are site-, fact- and group-specific; and are not absolute and may be justifiably infringed by the Crown.
For more information on Aboriginal rights, request copies of Canada's publications entitled Aboriginal Rights and Delgamuukw: The Supreme Court of Canada Decision.
What does certainty mean?
Achieving certainty is the primary goal of the BC treaty process.
Certainty in a treaty means ownership and the rights, responsibilities and authorities of all parties are clear and predictable. Then process for reviewing and amending the treaty must also be fair and predictable.
In all types of negotiations, certainty can be achieved without finality. The challenge is to develop predictable procedures for dealing with issues without extinguishing or impairing those aboriginal rights not specifically dealt with in a treaty. In the past, the Government of Canada required First Nations to “cede, release and surrender” their aboriginal rights in exchange for treaty rights. This is referred to as an “extinguishment model". First Nations in the BC treaty process reject this approach because they see it as giving up rights that may not be included in a treaty.
Recently, the parties have been exploring an approach to certainty known as the 'non-assertion model': the First Nation agrees to not assert any governance-related right other than those exhaustively set out in the governance agreement.
Although there has been progress, much work is still required by treaty tables to close the gap in vision on the certainty issue.
What certainty really means is "predictability"—the familiarity that develops from a history of working together. Through interim measures agreements/treaty related measures, aboriginal and non-aboriginal communities can start building mutually beneficial governance arrangements, business relationships, land management processes and other cooperatives relationships today.
How will the First Nations Governance Initiative affect treaty negotiations?
The First Nations Governance Initiative relates specifically to the Indian Act and is not intended to have any effect on the treaty process.
Treaties are a part of many First Nations' vision of governance, but it can take time to make that vision a reality. Until then, First Nations involved in the treaty process can use the tools provided by the proposed governance legislation to improve their day-to-day operations.
When their vision for a treaty is made real, and the Indian Act no longer applies to them, they will be well on the road to implementing effective governance structures.
Is the Nisga'a Treaty a template for other treaty negotiations in B.C.?
No. Because the circumstances of First Nations are diverse, there is no "one size fits all" answer to treaty making. For example, urban treaties will differ significantly from the Nisga'a Treaty because of the shortage of Crown land in urban areas.
The Nisga'a Treaty represents years of analysis and negotiations and shows that it is possible to arrive at common positions on different issues within the Canadian constitutional framework.
There may be some elements of the Nisga'a Treaty that some First Nations may draw on to apply to the circumstances of their communities.
Why are First Nations not ratifying deals, even though their negotiators are recommending them?
An agreement-in-principle (AIP) is a written document which defines each party's rights and obligations and sets out negotiated agreements in areas such as: land, cash, interests in resources, and jurisdiction of First Nation government. So far, under the B.C. treaty process, three separate AIPs have been reached with B.C. First Nations. Two of the three AIPs failed to be ratified by the First Nations communities.
When a treaty table reaches a draft AIP, it provides an opportunity for the First Nation community, general public and neighbouring communities to get a better understanding of what an eventual treaty may look like.
Each First Nation community has its own reasons for not ratifying an AIP and these reasons are to be respected. Canada will continue to work with B.C. and these First Nations to find ways of reaching agreements. In the future, Canada will try new ways of reaching First Nations communities with details and information about proposed AIPs