Treaty Terms and Definitions

 

TERM

MEANING

Aboriginal people

Descendants of the original inhabitants of North America. The Canadian Constitution Act of 1982 recognizes three groups of aboriginal people –Indians, Metis, and Inuit.

 

Aboriginal rights

Refers to practices, traditions or customs, which are integral to the distinctive culture of an aboriginal society and were practiced prior to European contact, meaning they were rooted in the pre-contact society.  Aboriginal rights arise from the prior occupation of land, but they also can arise from the prior social organization and distinctive cultures of aboriginal peoples on that land.

 

Aboriginal title

A sub-category of aboriginal rights dealing solely with land claims.

 

Agreement in Principle -AIP

A document produced in the fourth phase of the six-stage treaty negotiation process.  The AIP outlines the major points of agreement between parties regarding, provisions which will form the basis of the treaty.  An AIP is not binding on the parties and changes may occur in negotiating the final agreement.

 

Blanket Extinguishment

Term used to describe the cessation of surrender of aboriginal rights to lands and resources in exchange for rights granted in a treaty.  To date, Canada has required full or partial extinguishment to conclude treaties.

 

British Columbia Treaty Commission (BCTC)

An independent body of five commissioners appointed by Canada, the Province and the First Nation Summit.  BCTC oversees and facilitates the six-stage process for negotiating treaties.

 

BCTC Six-Stage Process

The process established for all treaty negotiations in BC. The six stages are:

  1. A First Nation sends a statement of intent to the BCTC;
  2. The readiness of all parties are established;
  3. The parties negotiate a framework agreement;
  4. The parties negotiate an agreement in principle;
  5. The parties negotiate a final agreement;
  6. The provisions of the treaty are implemented.

Capacity Building

The development of human, technical and financial resources in First Nation communities.  For example, some First Nations may require capacity building to respond to provincial requests for consultation concerning aboriginal rights, and subsequently to carry out the authorities that they will assume under treaties.

 

Certainty provisions

Treaty provisions designed to clearly define the authorities, rights and responsibilities for all parties to the treaty.

 

Chapter(s)

Chapter(s) means a part or parts of an Agreement-in-Principle or Final Agreement detailing the agreement on one or more of the categories of issues negotiated.

 

Claim area

The area identified by a First Nation as the basis for negotiating treaty settlement land.  A First Nation’s claim area may or may not be the same as their traditional territory.

 

Comprehensive claim

A claim made by a First Nation based upon continuing aboriginal rights and title which have not been dealt with by treaty or other legal means. In BC comprehensive claims are being negotiated under the BCTC process.

 

Cooperative management

Arrangements made between the Province and First Nations to involve First Nations in provincial land and resource management processes.

 

Cost sharing Memorandum of Understanding (MOU)

The 1993 political agreement between Canada and BC, which outlines the financial responsibilities of the federal government and the Province pursuant to treaty settlements. 

 

The agreement is called: “Memorandum of Understanding between Canada and British Columbia Respecting the Sharing of Pre-treaty Costs, Settlement Costs, Implementation Costs and the Costs of Self-Government”.

 

Crown activity

Any activity for which Canada or the Province is responsible through legislation, regulation or policy.  These activities may include the issuance of tenure (permit, license, lease) or grants or the approval to conduct a special activity.

 

Crown Land

Land or interest in land owned by Canada or the Province.  The Province owns almost all Crown land in British Columbia.

 

Crown Land Activities and Aboriginal Rights Policy Framework

Provincial policy designed to meet the Province’s legal obligations to aboriginal people by requiring the Crown activity does not unjustifiably interfere with the aboriginal rights of aboriginal people.

 

Crown Tenure

A legal interest in Crown lands or resources issued by the Province in the form of a permit, license, lease or approval.

 

Cut-off Claim

A claim by a First Nation arising from the removal of portions of Indian reserves which occurred following the recommendations of the 1913-1916 federal-provincial McKenna-McBride Commission.

 

Delgamuukw Obligations

Informal term used to refer to the legal obligations of the Crown to aboriginal people arising out of the Court of Appeal decision in Delgamuukw.

 

Douglas Treaty

Fourteen treaties struck between 1850 and 1854 between the British Crown represented by Sir James Douglas and some Vancouver Island First Nations.

 

Eligibility

Entitlement to treaty benefits.

 

Enrolment

Process of registering eligible treaty beneficiaries.

 

Entrenchment

Term occasionally misused in the context of treaties to refer to protection under the constitution.  Aboriginal rights and treaty rights are protected under s.35 of the Canadian Constitution Act, 1982.  Entrenchment of treaty rights does not mean that treaties become part of the Constitution.

 

Fee Simple

Legal interest in land that is commonly characterized as private ownership.

 

Fiduciary Duty

Legal obligation of one party to act in the best interest of another. Canada has a fiduciary obligation with respect to Indians and lands reserved for Indians under s.91 (24).

 

Final Agreement

Document produced in the 5th stage of the 6-stage process.  The final agreement embodies the principles outlined in the AIP which are to be included in the treaty.  Once ratified by the parties, it becomes the treaty.

Financial Transfer Arrangements

Arrangements made in treaties for funding First Nation governments.  The fiscal arrangements among Canada, BC and each First Nation will identify the revenue sources available to the First Nation government for carrying out its governance responsibilities and will determine whether and to what extent Canada and BC will contribute to those revenues.

 

First Nations Summit

An umbrella organization of some BC First Nations and tribal councils.  The First Nations Summit is one of the parties to the BC Treaty Commission.

 

Fiscal Arrangements

Government financial arrangements for treaties, including financial limits on settlements, revenue arising negotiated in the treaty, cost sharing arrangements between Canada and the Province, financial transfer arrangements with First Nations and compensation arrangements with third parties.

 

Framework Agreement

Document produced in Stage 3 of the 6 Stage process.  The framework agreement identifies negotiation topics and objectives, and establishes a timetable and any special procedural arrangements for the negotiations.

 

Implementation

Final phase of the 6 Stage process.  In the implementation stage the terms of a treaty are put into effect. Program, financial legislative and other commitments, which have been agreed upon in the treaty are fulfilled.

 

Incremental Treaty Agreement

Incremental Treaty Agreements (ITAs) allow First Nations and the Province to enjoy shared benefits in advance of a Final Agreement (Stage 6 of the Treaty Process).

An ITA is a legally-binding pre-treaty agreement negotiated, under a B.C.-generated process, by the Province and First Nation(s) at a treaty negotiation table.

An ITA is not a replacement for treaty but it can advance treaty-related benefits for the First Nations and the Province. They are not Final Agreements.

 

Infringement

An action by the Crown in which impairs an aboriginal right.

 

Initialed Agreement

An agreement in which the negotiators for all parties have initialed as a means of expressing their intention to recommend the agreement to their respective authorities for approval.

 

 

Interest Based Agreement

An approach to negotiating treaties in which negotiators focus on objectives rather than stating a single acceptable outcome.  This approach allows negotiators the flexibility to explore options that meet the objectives of all parties.

 

 

Interim Protection Measures

Formal agreements between Canada, BC and a First Nation which are undertaken in the later stages of a treaty negotiation.  The agreement may include carefully defined limits on the development or alienation of a specific area of land in order to protect what has been agreed to in the negotiations. Interim protection measures require agreement among all parties to the treaty and must be approved by the BC Provincial Cabinet.

 

Land Claims Agreement

Term used by the Federal Government to refer to a treaty with a First Nations.

 

Land Quantum

The amount of land to be negotiated as treaty settlement land in a particular treaty.

 

Land Settlement Model

The description of the legal status of treaty settlement land, which will follow from the particular legal mechanism used to transfer the land from the Crown to the First Nation.

 

Land Based Jurisdictional Model

A model of First Nation self-government whereby First Nation self-government powers are limited to treaty settlement lands.

 

Legal Obligations

Obligations regarding Crown activities determined through court decisions.  When BC engages in Crown activity it must determine if aboriginal rights exist in the area of proposed activity; if that activity will infringe upon those rights; and make efforts to avoid or minimize the infringement of those rights to the extent possible.

 

Legal Uniformity

Provincial policy that holds that some laws will apply uniformity across the Province after treaties is concluded. This includes the Charter of Rights and Freedoms and the Criminal Code.  Provincial laws of general application will also apply uniformity unless specifically varied by treaty.

 

Openness Protocol

A document negotiated between the three parties to a treaty, which provides for public involvement in the treaty process, for example, through public observation of negotiation sessions, media coverage and the public release of tabled documents.

 

Overlaps

Areas of land identified by more than one First Nation as part of their traditional territory.

 

Province-wide Treaty Mandates

Broad instructions given to provincial treaty negotiators by Cabinet, to establish consistent treaty policies and provide guidance in all treaty negotiations.

 

Ratification

The official acceptance of an agreement by one of the parties.

 

Readiness

A term that denotes that a negotiating party is adequately prepared to enter treaty negotiations.  The readiness of each party- Canada, BC, and the First Nation- is assessed by the BC Treaty Commission in the second phase of the six-stage process.

 

Regional Advisory Committee (RAC)

A body of representatives from key social and economic sectors in a region where negotiations are occurring.  A RAC advises both provincial and federal negotiators about issues in the region which should be taken into consideration in treaty negotiations.

 

Regional Caucus

A body comprised of local provincial ministry, Crown corporation, and Treaty Advisor Committee representatives that provides advice to provincial negotiators regarding issues specific to the region.

 

Resource Revenues

Revenues from resource extraction and related activities that accrue to BC or Canada, usually in the form of rents or royalties.

 

s. 35

The section of the Constitution Act, 1982 that states that aboriginal rights and treaty rights are recognized and affirmed and makes it clear that treaty rights include rights that now exist by way of land claim agreements or those that might be acquired.  As a result of this constitutional protection, government has an obligation not to infringe upon Aboriginal and treaty rights without jurisdiction.

 

s. 87 tax exemption

Tax exemption arising from s. 87 of the Indian Act that applies to status Indians’ income and property (including personal property) situated on Indian reserve land.

 

s. 91.24

The section of the Constitution Act, 1867 which allows the federal Parliament the power to make laws in relation to “Indians and Lands reserved for Indians”.

 

Self-government

The internal regulation of a First Nation by its own people.

 

Specific Claim

A claim made by a First Nation which is based upon the alleged failure of Canada or BC to meet either the terms of an existing agreement or in the case of Canada to meet its fiduciary obligations.  Specific claims are negotiated outside the treaty process.

 

Statement of Intent

The document submitted by the First Nation to the BC Treaty Commission indicating their intention to negotiate a treaty. The Statement Of Intent (SOI) states among other things who is claiming, proof that the negotiating party is supported by the community and where the claim will be made.

 

Third Parties

Parties outside the governments and the First Nations who have an interest in treaty negotiations, including parties who hold legal interests, rights, permits, or leases granted by a government.

 

Traditional Territory

The geographic area identified by a First Nation to be the area of land which they and/or their ancestors traditionally occupied or used.

 

Trans boundary Agreement

An agreement made with a First Nation whose traditionally territory is not wholly within the Province and who already has a treaty outside the Province.  A Trans boundary Agreement may be protected under s. 35 of the Constitution.

 

Treaty

An agreement between government and a First Nation that defines the rights of Aboriginal peoples with respect to lands and resources over a specific area and may also define the self-government authority of a First Nation.  Treaties are final agreements that have been ratified by all parties.

 

Treaty 8

Treaty entered into by Canada and the five bands from the Peace River area in 1889, with subsequent adhesions up to 1914.  The treaty covers large portions of northeast BC and northern Alberta.

 

Treaty Advisory Committee

A committee of local government representatives set up pursuant to an agreement between BC and the Union of BC Municipalities. Treaty Advisory Committees enable local government representatives to discuss issues and interests, advise provincial negotiators on local government issues and participate in negotiations as members of provincial negotiating teams.

 

Treaty First Nation

A First Nation that has signed a treaty. (In BC this refers only to First Nations included in Treaty 8 and the Douglas Treaties).

 

Treaty Mandates

Instructions for negotiators from their respective governments that set out treaty policy related to subjects to be negotiated. 

 

Treaty Negotiations Advisory Committee

(TNAC)

The committee established to identify province-wide interests of third parties with respect to treaty negotiations and provide advice to the provincial and federal ministers responsible for treaties.  The 31-member TNAC includes provincial organizations whose members may be directly affected by treaty settlements.  Committee members represent the interests of business, labour, environmental, recreational, fish and wildlife groups, and municipalities.

 

Treaty Right

Right protected under s. 35 of the Constitution that is held by First Nations people pursuant to a treaty.

 

Treaty Settlement Land

Area of land that will be owned and managed by a First Nation pursuant to a treaty. The precise legal status of treaty settlement lands and the extent of First Nation jurisdiction on it remain to be determined. 

 

Some areas within treaty settlement lands will be help in private ownership or otherwise designated for uses incompatible with public access.  Other areas will accommodate public access as provided in treaties.  The underlying title to treaty settlement lands will rest with the Provincial Crown.

 

Tribal Council

A self-identified entity, which represents aboriginal people or a group of bands.

 

Underlying Title

Legal interest in land, which underlies private ownership and remains consistent through changes in private ownership.  When a private owner abandons land, it reverts to the entity, which holds underlying title.  The underlying title of all land in BC vests with the Crown, either Canada or the Province.  After treaties, the Province will have underlying title to treaty settlement lands.