A Background to Treaty Making in Canada and B.C.*
The Purpose of Treaties
Fundamentally, treaties between First Nations, Canada and British Columbia are a means to address issues related to the rights of First Nations, as well as to establish a foundation for building a new relationship between First Nations and non-Aboriginal governments and people. They are also a way in which to provide greater certainty about the rights of non-Aboriginal people and to increase the level of understanding of how people and governments can work together for the future development of all communities.
Articulating Aboriginal Rights
The existence of Aboriginal rights has been clearly and firmly established, and is no longer open to question. Aboriginal people have been consistent in their assertion of their rights, and in their insistence that those rights be recognized, affirmed and protected. Government commissions established to review and make recommendations on policies affecting Aboriginal people have also consistently supported the existence of Aboriginal rights. In addition, the Constitution Act, 1982 acknowledges Aboriginal rights. Section 35 of the Constitution reads “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
Section 35, however, does not define Aboriginal rights, and their nature and extent remainslargelyunresolved. It is still necessary, then, to specify the scope of Aboriginal rights, to develop mechanisms for making their implementation a reality, and to define the relationship between Aboriginal and non-Aboriginal people — all formidable challenges. These outstanding issues can be clarified through negotiations and the establishment of modern treaties. Of particular importance is the fact that treaty negotiations represent an opportunity to address the land, resource and governance rights of Aboriginal people through a collective process which is consistent with their values and their emphasis on their communities.
Providing for a More Certain Relationship
In articulating specific aspects of Aboriginal rights, treaties will provide a greater sense of certainty an outcome which will be beneficial to a range of people and communities. Many Aboriginal people have expressed a strong desire for certainty with respect to their title, rights and interests within their traditional lands. Many also want certainty that their rights and benefits will be respected and implemented.
Many non-Aboriginal people also have stressed the importance of achieving certainty, and providing all residents with a clear understanding of their rights and responsibilities, with security of tenure, and with a clear process for acquiring and disposing of land. Certainty for many people also means the ability to conduct their operations in a stable and predictable environment.
Clear treaties can set out and describe the rights of parties and others affected by the terms of the agreement. As the 1990 and 1991 Annual Reports of The Canadian Human Rights Commission indicate, treaties can provide a “workable balance” between the desire of Aboriginal people to preserve their rights and the desire of government to clarify the legal status of the land question. The overall task, then, is to construct a treaty that will recognize the existence of Aboriginal rights and provide certainty with respect to the rights of all interested people.
An Alternative to Continued Confrontations and Court Actions
As an alternative to the negotiation of treaties, the scope of Aboriginal rights may be addressed through a continuation of confrontations and court actions routes which have been pursued on numerous occasions in the past. The use of Canadian courts to articulate Aboriginal rights, however, has proven to be time consuming, expensive, and not entirely satisfactory for any party.
The Canadian courts have generally favoured negotiations as a more appropriate route to resolve issues between Aboriginal and non-Aboriginal people. In recent decades, a number of court decisions have recognized, and to a certain extent defined, Aboriginal rights. But these cases, almost without exception, have emphasized that litigation of these issues is not the ideal route to their resolution. Rather, the courts have generally maintained that negotiation not litigation will provide the best solution. For example, in responding to the Nisga’a case decades ago (described in more detail on pages 33 - 35), the court recommended negotiation rather than litigation as a means for addressing questions associated with Aboriginal title. Similarly, in the Delgamuukw appeal brought to the B.C. Court of Appeal by the Gitskan and Wet’suwet’en Hereditary Chiefs, Justice MacFarlane notes in his decision:
"... that treaty-making is the best way to respect Indian rights there is no doubt ... The parties have expressed willingness to negotiate their differences. I would encourage such consultation and reconciliation, a process which may provide the only real hope of an early and satisfactory agreement which not only gives effect to the aspirations of the aboriginal peoples but recognizes there are many diverse cultures, communities and interests which must co-exist in Canada. A proper balancing of all those interests is a delicate and crucial matter".
Resolving a Range of Important Issues
Treaty negotiations can encompass a range of issues deemed to be important by the parties involved. The issues considered at each treaty negotiation table will vary, reflecting the unique priorities of each participating First Nation. Some of the issues likely to arise at the majority of tables include: lands and resources, including parks and protected areas; forestry; fisheries; self-government, including education, culture, languages and heritage, eligibility and enrolment, and social services; and financing and the amount of money to be included in the agreement.
*(First Nations Summit, Treaties in British Columbia Information Pamphlet)