Six Stages of Treaty Negotiation
Stage 1: Statement of Intent (SOI) to Negotiate
A First Nation files with the Treaty Commission a statement of intent (SOI) to negotiate a treaty with Canada and BC. The SOI must identify the First Nation’s governing body for treaty purposes and the people that body represents and show that the governing body has a mandate from those people to enter the process. The SOI must describe the geographic area of the First Nation’s distinct traditional territory and identify any overlaps with other First Nations.
A SOI may be amended for a number of reasons, such as:
- Changes in the organizational structure.
- Amendments to the traditional territory.
- Additional aboriginal communities join a First Nation which has already been accepted into the process.
- One or more aboriginal communities that were members of a First Nation in the treaty process separate from that First Nation.
Once the Statement of Intent is filed the next step is Stage 2, Readiness to Negotiate.
Stage 2: Readiness To Negotiate
Within 45 days of accepting a Statement of Intent, the Commission must organize an initial meeting between First Nations, Canada and BC. For most First Nations, this will be the first occasion on which they sit down at a treaty table with representatives of Canada and BC. This meeting allows the Treaty Commission and the parties to exchange information, consider the criteria for determining the parties’ readiness to negotiate and generally identify issues of concern.
The meeting usually takes place in the traditional territory of the First Nation. The three parties must demonstrate that they have a commitment to negotiate, a qualified negotiator, sufficient resources, a mandate and a process to develop that mandate and ratification procedures. The First Nation must have begun addressing any overlaps. The governments of Canada and BC must have a formal means of consulting with third parties, including local governments and interest groups. When the BC Treaty Commission determines that all three parties have met the criteria for readiness, it will confirm that the table is ready to begin the negotiation framework agreement.
In Stage 2 overlap issues are identified. Overlaps are when two First Nations are claiming the same areas or portions of land. The First Nations must try to resolve the overlap issues with neighbouring First Nations and repost the known overlaps to the BC Treaty Commission. There is a procedure that should be followed:
- Identify overlaps; notify all affected First Nations; prepare a map that shows the traditional territory, shared territory and the areas that are disputed; and send a copy of the map to affected First Nations.
- Begin to address overlaps; make the best effort to establish an agreed process; and describe the way that the BC Treaty Commission will be informed of the process of the overlap discussions.
Stage 3: Negotiation Of a Framework Agreement
The framework agreement is, in effect, the “table of contents” of a comprehensive treaty. The three parties agree on the subjects to be negotiated and an estimated time frame for stage four agreement-in-principle negotiations. Canada and BC engage in public consultation at the regional and local levels. At this stage, all three parties are expected to embark upon a program of public inforamtion pertinent to their table that will continue throughout the negotiations.
Canada and BC engage in public consultations at the regional and local levels through Regional Advisory Committees and sometimes through Local Advisory Committees.
- Municipal governments participate through Treaty Advisory Committees.
- At the Provincial level, a Treaty Negotation Advisory Committee also represents the interests of business, labour, environmental, recreation, fish and wildlife groups.
Stage 4: Negotiation Of An Agreement In Principle (AiP)
This is where substantive treaty negotiations begin. The three parties examine in detail the elements outlined in their framework agreement. The goal is to reach agreement on each of the main topics that will form the basis of the treaty. These agreements will identify and define a range of rights and obligations, including: existing and future interests in land, sea and resources; structures and authorities of government; relationship of laws; regulatory processes; amending processes; dispute resolution; financial component; fiscal relations and others.
The Agreement in Principle also lays the groundwork for implementation of the treaty. It will also confirm the ratification process for each party. The ratification process allows each party to review the emerging agreement and to approve, reject, or seek amendments to it. The process is also intended to provided the negotiators witha mandate to conclude a treaty.
By Stage 4, all overlap issues should be resolved. Where an overlap dispute is not resolved near the end of Stage 4 negotiations, the Commission will assess the nature of the dispute and whether best efforts have been made by all parties to resolve it through a process, such as the First Nations Summit’s Recognition Protocol, agreed to in earlier stages. The Commission will provide a report on its assessment to the First Nation parties, as well as to Canada and British Columbia.
Stage 5: Negotiation to Finalize a Treaty
The treaty formalizes the new relationship among the parties and embodies the agreements reached in the agreement in principle. Technical and legal issues are resolved at this stage. A treaty is a unique constitutional instrument to be signed and formally ratified at the conclusion of Stage 5.
Stage 6: Implementation of the Treaty
Long-term implementation plans need to be tailored to specific agreements. The plans to implement the treaty are put into effect or phased in as agreed. With time, all aspects of the treaty will be realized and with continuing goodwill, commitment and effort by all parties, the new relationship will come to maturity.