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Part One - Governance Toolkit (PDF)


 

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1.4  Comprehensive Governance Arrangements


Some of our Nations want to exercise broad self-government powers beyond the Indian Act or sectoral governance arrangements, in many cases by building on the governance work already undertaken under the Indian Act or sectoral initiatives.  While we are adamant that our inherent right exists and should not require approval other than from our own people, there are risks in proceeding on this basis without formal recognition or a court action.  Short of securing a declaration from a court that our Nations have the inherent right of self-government over a broad range of subject matters, or simply asserting our jurisdiction and enacting our own laws in respect of a subject matter, it is considered prudent for legal certainty – certainly by Canada  – that we negotiate arrangements with the Crown.  These comprehensive governance arrangements set out the basic rights of self-government and establish the core institutions of government along with the power of the government over particular subject matters (lands, resources, health, education, financial management, etc.).  Although Canada recognizes politically that there is an inherent right to self-government, before it is prepared to recognize the right of a specific Nation, comprehensive governance arrangements must be negotiated and agreed too.

Over the past 20 years, a number of our Nations have gained experience in successfully negotiating comprehensive governance arrangements and are now implementing aspects of the inherent right.  For the majority of our Nations, there still remains considerable work ahead.

Depending on the type of comprehensive governance arrangements, self-government arrangements can apply to either existing reserves or over the broader traditional territory.  In some cases, this is achieved through addressing comprehensive governance as part of a land claim agreement.  Negotiating comprehensive governance arrangements is not restricted to treaty negotiations under the BC treaty process although this is the preferred approach for Canada and BC, as issues of certainty to title in land can be addressed at the same time as governance rights. 

The advantage of negotiating a comprehensive governance arrangement is that these arrangements provide the broadest of jurisdictions of all the options currently available, notwithstanding what the courts may ultimately declare.  At this point, the range of jurisdictions addressed in comprehensive arrangements goes further than the courts have declared are an aspect of the inherent right of self-government.  That is, they deal with subject matters that go beyond meeting the more restrictive legal test of being integral to the distinctive cultures of our peoples.  Comprehensive governance arrangements provide ownership and exclusive jurisdiction over land along with broad powers of governance associated with being the owner of the land.  In the most comprehensive of these arrangements, the Indian Act no longer applies in its entirety and, because of this there is no longer any ministerial sign-off or approval when the First Nation exercises its law-making authority.  This is very powerful and allows our Nations to get on with the business of government within the scope of their governance arrangements.  The onus is on other governments and third parties to challenge the exercise of our jurisdiction, rather than the other way around.  Finally, comprehensive governance arrangements can be constitutionally protected.

 

The disadvantage of comprehensive governance arrangements is the potential for our Nations to make trade-offs (e.g., phasing out tax exemptions) in order to achieve arrangements and recognition from Canada and, where applicable, BC.  This is particularly so where comprehensive governance arrangements are negotiated within the context of BC treaty negotiations.  Also considerable time and money are needed to negotiate comprehensive arrangements, particularly when governance is being addressed along with all the other issues that are contemplated in a modern treaty.  Finally, one of the biggest issues deterring Nations from entering into comprehensive governance arrangements is the amount of work needed to gain community support for such a significant move beyond the Indian Act.  Some of our Nations are waiting to see how comprehensive governance arrangements work for other Nations before taking what is often characterized as a “leap of faith.”

 

Canada’s Inherent Right Policy

As stated previously, Canada’s approach to negotiating comprehensive governance negotiations is set out in its Inherent Right Policy.  This policy governs treaty negotiations as well as non-treaty self-government negotiations, and is national in scope.

 

Canada has two programs relevant to negotiating governance arrangements that are tied to its determining with whom and to what degree it will negotiate and provide money to assist in negotiating or preparing to negotiate governance.  These are the “Self-Government Negotiating Support Program” and “The Gathering Strength: Reorientation of Self-Government Program”.

 

Canada continues to refine how it chooses to engage in negotiations with First Nations and provide capacity funding for governance-related work.  Canada is currently testing its own Governance Capacity Planning Tool: a step-by-step Approach to Planning Capacity Development with some communities.  Plans completed with the Governance Capacity Planning Tool can be used to support proposals for capacity development funding from INAC.  In addition, INAC recognizes that many of our communities have already completed our own governance assessments or comprehensive community plans.  In some cases, these can also be used to apply for capacity-development funding from INAC or to request engagement in comprehensive governance negotiations with Canada.

 

The following provides some of the key points in Canada’s approach to negotiating self-government as set out in their Inherent Right Policy:

 

 

Scope of Negotiations:  It is important to note that in its Inherent Right Policy, Canada recognizes the inherent right of self-government as an existing Aboriginal Right under section 35 of the Constitution Act, 1982 and that the inherent right of self-government may be enforceable through the courts.  Canada also acknowledges that there are different views about the nature, scope and content of the inherent right.  As a result, the central objective of Canada is to reach arrangements as to how self-government is to be implemented by a First Nation, as opposed to seeking a strict legal definition of the scope and extent of the inherent right of self-government.  This also serves First Nations’ purposes in gaining practical results, while recognizing that their view of the inherent right may be significantly broader than Canada’s.  Further, in future the understanding of the inherent right may be further refined by the courts.  An essential element for First Nations is the inclusion of a section 35 non-derogation clause in any self-government agreement that is not constitutionally protected.  These clauses ensure that nothing in a self-government agreement or in any legislation that is passed to implement them can be interpreted as abrogating or derogating from any Aboriginal rights recognized and affirmed by section 35 of the Constitution Act, 1982.  This will permit the First Nation to continue to benefit from constitutionally protected Aboriginal rights of self-government as the understanding of those rights evolves.  According to Canada’s Inherent Right Policy, Canada is prepared to protect rights contained in self-government agreements as constitutionally protected rights under section 35 of the Constitution Act, 1982In practice, this has not yet occurred outside a modern treaty arrangement.

Subject Matters for Negotiations:  Canada’s policy acknowledges that in order to give practical effect to the inherent right of self-government, First Nation governments and institutions require the jurisdiction or authority to act in a number of specific subject areas.  However, Canada views the scope of our core jurisdiction or authority as only extending to matters that are internal to our people as distinct cultures, and essential to our operation as a government or institution.  These matters are in many ways similar to those powers provinces have, although the federal government insists in many cases that First Nations’ laws be subject to standards and rules found in provincial laws and programs.

 

The range of matters that Canada sees as the core subjects for negotiation include all, some, or parts of the following:

  • establishment of governing structures, internal constitutions, elections, leadership selection processes
  • membership
  • marriage
  • adoption and child welfare
  • Aboriginal language, culture and religion
  • education
  • health
  • social services
  • administration/enforcement of Aboriginal laws, including the establishment of Aboriginal courts or tribunals and the creation of offences of the type normally created by local or regional governments for contravention of their laws
  • policing
  • property rights, including succession and estates
  • land management, including zoning; service fees; land tenure and access; and expropriation of Aboriginal land by Aboriginal governments for their own public purposes
  • natural resources management
  • agriculture
  • hunting, fishing and trapping on Aboriginal lands
  • taxation in respect of direct taxes and property taxes of members
  • transfer and management of monies and group assets
  • management of public works and infrastructure
  • housing
  • local transportation
  • licensing, regulation and operation of businesses located on Aboriginal lands

In some of these areas Canada may require the harmonization of First Nation laws with federal or provincial laws, while in others, a more general recognition of jurisdiction or authority is sufficient.

There are a number of other areas of jurisdiction that Canada maintains go beyond those matters that are integral to a First Nation’s culture or that are strictly internal to an Aboriginal group, but nevertheless can also be negotiated.  Canada, to the extent it has jurisdiction in these areas, may be prepared to negotiate aspects of First Nation jurisdiction or authority in the following areas with more conditions than in respect of the core areas:

  • divorce
  • labour/training
  • administration of justice issues, including matters related to the administration and enforcement of laws of other jurisdictions which might include certain criminal laws
  • penitentiaries and parole
  • environmental protection, assessment and pollution prevention
  • fisheries co-management
  • migratory birds co-management
  • gaming
  • emergency preparedness

 

Subject Matters currently non-negotiable (by Canada): In its approach to negotiating self-government, Canada also identifies a number of subject matters concerning which Canada believes there are no compelling reasons for First Nation governments or institutions to exercise law-making authority.  They are grouped under two headings: (1) powers related to Canadian sovereignty, defence and external relations; and (2) other national interest powers.   In these areas, Canada requires that the federal government retain its law-making authority.  These include:

  1. Powers Related to Canadian Sovereignty, Defence and External Relations
      • international/diplomatic relations and foreign policy
      • national defence and security
      • security of national borders
      • international treaty-making
      • immigration, naturalization and aliens
      • international trade, including tariffs and import/export controls
  2. Other National Interest Powers
    • management and regulation of the national economy, including:
        • regulation of the national business framework, fiscal and monetary policy
        • a central bank and the banking system
        • bankruptcy and insolvency
        • trade and competition policy
        • intellectual property
        • incorporation of federal corporations
        • currency
      • maintenance of national law and order and substantive criminal law, including:
        • offences and penalties under the Criminal Code and other criminal laws
        • emergencies and the "peace, order and good government" power
        • protection of the health and safety of all Canadians
      • federal undertakings and other powers, including:
        • broadcasting and telecommunications
        • aeronautics
        • navigation and shipping
        • maintenance of national transportation systems
        • postal service
        • census and statistics

While law-making power in these areas will not be the subject of negotiations, Canada is willing to consider administrative arrangements with a First Nation where it might be feasible and appropriate.

 

Harmonization of Laws and Provincial Involvement: Canada’s policy stresses the need for a First Nation’s jurisdictions to work in harmony with jurisdictions of other governments.  They believe it is in the interests of both Aboriginal and non-Aboriginal governments to develop co-operative arrangements that will ensure the harmonious relationship of laws and proper functioning of the federation.  The relationship between laws and how jurisdictions operate either independently or concurrently can quickly become very complex.  The relationship between our laws and other government’s laws is discussed in the Introduction to Section Three of this Report and throughout the discussion of the various jurisdictions. Given that a number of jurisdictions or authorities that may be the subject of negotiations normally fall within provincial jurisdiction, or may have an impact beyond a First Nation’s lands in question, Canada may, in respect of a particular subject, require the province to be a party to the negotiations and to any resulting agreement.  The Inherent Right Policy is clear that it is only in very exceptional circumstances, for instance if a province refused to come to a tripartite table, that Canada would consider exclusively bilateral negotiations. Because of the perceived legal risks to proceeding without provincial involvement in a self-government negotiation, negotiations that do occur without the province are limited to matters within exclusive federal jurisdiction and may not result in the self-government agreement being constitutionally protected.  Assuming Canada will participate in negotiations, the decision of whether to proceed bilaterally and restrict negotiations to matters exclusively federal (e.g., lands, governance, family property, estate succession, citizenship, etc.) or to include provinces and address a broader range of subjects (i.e., child custody and family relations, education, social services, administration of justice etc.) will be one for each Nation to make based on its circumstances and self-government development timetable.  This is a contentious issue for our Nations, and is particularly so where the arrangement only applies on reserve, over which arguably the province has little or no right to participate, given that “Indians, and Lands reserved for the Indians” is exclusive federal jurisdiction under section 91(24 ).

 

Ratifying a Self-government Agreement:  For agreements in principle and final agreements with First Nations on self-government, Canada must obtain federal cabinet approval.  The First Nation ratifies the self-government agreement in a way that clearly demonstrates the First Nation government’s requirements for ratification have been met.  The process of ratification by the First Nation needs to ensure that:

    • all members have an opportunity to participate
    • they have all relevant available information
    • the procedures for ratification are transparent and recognized as binding, and 
    • the ratification mechanism complies with legal requirements respecting the transfer of assets.

Federal legislation is necessary to give a self-government agreement legal effect, whether it is part of a treaty or a separate self-government agreement.  Generally, this is undertaken after the First Nation has ratified the self-government agreement.

 

Developing a Proposal to Negotiate a Comprehensive Self-Government Agreement:  Canada has developed A Guide for the Submission of Stand-Alone Self-Government Proposals. Proposals are submitted to the Regional Office (to the attention of the Regional Director General (RDG)).  The Region reviews the proposal based on the criteria set out in the guide and develops an assessment report, prepares options and a recommendation for the RDG to accept or reject the proposal.  The submission package (consisting of the proposal, the Region's assessment, options and the RDG's recommendation) is then submitted to the Assessment and Historical Research Directorate (AHRD) at INAC Headquarters in Gatineau for further review. AHRD, in collaboration with the Negotiations Branch and Directorate, Financial Management and Strategic Services and the Operational Policy Development Directorate, reviews the submission package and prepares a recommendation from the Director of AHRD.  The Director of AHRD then presents the proposal to INAC's Steering Committee on Self Government and Comprehensive Claims (SCSGCC), chaired by the Senior Assistant Deputy Minister of Treaties and Aboriginal Government, for consideration and recommendation.

The Senior Assistant Deputy Minister submits the SCSGCC's recommendation to the Minister of Indian Affairs and Northern Development, who decides whether to enter into negotiations or not.  The First Nation is then advised of the Minister's decision.  If the Minister agrees to commence discussions on self-government, the First Nation is provided with information on how to move forward to the discussions stage (if required) or negotiations.

Proposals are assessed for their prospects of success.  For Canada, the key to this assessment is evidence of a shared vision between the First Nation and Canada on implementing self-government.  This can be measured in a number of different ways, which are set out in the guide to submitting a proposal.  The proposal should include the following:

  1. Introduction of Self-Government Proposal: Canada is looking for a detailed submission of the proposed self-government project to assist in the determination of the community’s vision of self-government and any changes in governance that may occur as a result of the self-government initiative.
  2. Background Information: Information related to the First Nation(s) included in the proposal including: the location of community or communities; population(s); the number of members living on reserve and off reserve; whether there has been a previous request to enter self-government negotiations with the federal government.
  3. Community Involvement: Evidence of community support from both on- and off-reserve members and commitment to self-government negotiations, as indicated by a commitment by the leaders to begin substantive negotiations and assume the jurisdictions being sought; evidence of community support for self-government negotiations and that their representatives have community support (e.g., First Nations should provide a Band Council Resolution; other groups should provide a resolution passed by the general assembly of their organization).
  4. Preparedness to Negotiate: Evidence of readiness to start substantive self-government negotiations, as indicated by: a description of the proposed negotiation process being sought; governing structures and accountability mechanisms, including an evaluation plan to assess the progress of negotiations; a description of jurisdictions the group(s) would like to negotiate; an identification of other substantive and procedural matters; a description of how the community or communities would be kept informed as negotiations progress in support of ratification of the final agreement; the degree to which the group or groups have assumed responsibilities under existing programs or authorities such as the FNLMA, FNCIDA, FNOGMMA ; past and present financial management practices; financial situation of the group or groups, including the past several annual audits; the stability and extent of existing political and institutional structures; other current key activities (e.g., claims, economic development projects, etc.)
  5. Financial Considerations: Canada looks at the merits of the proposal as indicated by: the complexity of the proposal; size and aggregation of groups; economies of scale; jurisdictions to be assumed; achievable results and milestones; the federal government's fiscal framework and existing resources; availability of other funds, including financial contributions from First Nation group or groups.
  6. Provincial Roles: Canada is looking for evidence of provincial representation as indicated by:  where applicable, willingness of the province to confirm its participation as demonstrated by a letter from the Minister responsible for Aboriginal Affairs in the province; where applicable, willingness of the First Nation group or groups to involve the province
  7. Inherent Right Policy: An evaluation by Headquarters (in consultation with the concerned Negotiations Branch and Directorate, Financial Management and Strategic Services and the Operational Policy Development Directorate and the Region) of the feasibility of the self-government proposal in relation to the Inherent Right Policy.

For more details on developing a proposal, including examples of items that can be addressed in completing the various sections of the proposal, please visit the BCAFN website and follow the link to INAC’s guide to submitting a proposal to negotiate Self-Government.

 

Treaty Negotiations under the British Columbia Treaty-making Process

The BC treaty-making process and the BC Treaty Commission (BCTC) were established in 1993 by Agreement (British Columbia Treaty Commission Agreement, (21 September 1992)) among Canada, BC and the First Nations Summit as a means to address the “Indian Land Question” and resolve long-outstanding land claims.  Treaty negotiations are guided by this agreement and the BC Claims Task Force Report, which is the blueprint for the made-in-BC treaty process.  The Treaty Commission and the six-stage treaty process were designed to support negotiations and facilitate fair and durable treaties.

 

The process includes self-government as a matter that can be included in treaties.  Canada and BC prefer that First Nations in BC negotiate governance arrangements as part of treaty settlements and  have been reluctant to negotiate comprehensive governance outside treaty negotiations, although they still can if they so choose.  The scope and extent of governance powers under treaty are guided by government mandates, which in Canada’s case are based on the Inherent Right Policy.  However, in some areas Canada’s approach to governance negotiations in the context of treaty-making is different from its approach to comprehensive governance negotiations outside treaty, notwithstanding that the same policy guides Canada in both processes.  The matter is further complicated, as Canada’s approach to negotiating sectoral governance arrangements is also supposedly guided by the Inherent Right Policy and is also different at times from the approach taken under treaty.

 

The BC treaty process was envisaged in the BC Claims Task Force Report to be a voluntary process of political negotiations among First Nations, Canada and BC.  This is how it was designed.  The rationale at the time was that while section 35 of the Constitution Act 1982 recognized existing rights, these still needed to be defined and their extent and content decided by negotiation or litigation.  Therefore, before commencing treaty negotiations, a First Nation did not have to prove or make a case for its existing Aboriginal rights and title but simply had to demonstrate that it had the mandate to negotiate on behalf of a group of Aboriginal people, had a defined territory and had the capacity and organization to negotiate.  Although treaty negotiations were initially characterized as being political, they are arguably more than this, given that they ultimately seek to address and clarify legal rights based on recognition and reconciliation.  While the objectives of treaty negotiations have not changed since the Task Force Report, the legal landscape has.  Since 1991, our Nations have continued to litigate as well as negotiate and in many respects the decisions of the court have overtaken the treaty process and begun to define the relationship and what is required for reconciliation.  Because of this, our Nations have demanded that the treaty process as well as federal and provincial negotiating mandates be aligned with the directions of the court.  In addition to the Inherent Right Policy, Canada’s approach to settling the land question and therefore treaty negotiations in BC is guided by the federal Comprehensive Claims policy of 1986.  This policy has come under significant criticism by First Nations for also being inconsistent with court decisions and out of step with political statements made by the federal government.

 

There is also concern with the principles that guide the provincial government’s involvement in treaty-making.  Specifically, with respect to comprehensive governance arrangements to be negotiated as part of treaty, BC’s negotiating principles, as stated on the Ministry of Aboriginal Relations and Reconciliation’s website (www.treaties.gov.bc.ca), are as follows:  (1) that Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia, (2) that Treaties should include mechanisms for harmonizing land use planning between Aboriginal governments and neighbouring local governments and (3) that existing tax exemptions for Aboriginal people should be phased out.  While these may be the stated guidelines of the Ministry, the position taken at individual treaty tables by the province, the negotiating mandates of our Nations and, in fact, what has actually been agreed in modern treaties are quite different.  In particular, with respect to principle 1, while the characteristics of our government includes aspects of municipal government, it would not be accurate to describe comprehensive governance arrangements in modern treaties as “delegated” or limited to “municipal” type powers.   Furthermore, land and marine use planning as addressed in modern treaties has as a principal focus large-scale planning at a regional and provincial level, and significantly less emphasis on compatibility of land use planning at the local or municipal level (municipal land use plans and zoning issues, etc.), as suggested by principle 2.   

Notwithstanding the challenges of negotiating treaty and the mandates of the Crown, the main objectives of the treaty process remain the same: the recognition and reconciliation of Aboriginal rights and title with the Crown.  This will in turn provide certainty of ownership and jurisdiction over the land and resources within our traditional territories.  This will in part be achieved by ensuring appropriate powers of governance for our peoples and not just over existing reserve lands.  There are, of course, other objectives for our Nations, depending on their individual circumstances.  

 

While there are inevitably trade-offs in treaty negotiations, the governance arrangements recognized in a treaty can be broader than those under sectoral initiatives or comprehensive governance arrangements outside treaty which, for the most part, are restricted to existing reserve lands. 

 

Procedures to Negotiate a Treaty

The British Columbia Treaty Commission is the independent body responsible for facilitating treaty negotiations.  BCTC does not negotiate treaties: that is done by the three parties at each negotiation table. The BCTC’s primary role is to oversee the negotiation process to make sure that the parties are being effective and making progress in negotiations.  In carrying out the recommendations of the BC Claims Task Force, the Treaty Commission has three roles in the treaty-making process: facilitation, funding and public information and education.  The requirements of the six stage process to negotiate a treaty are set out below:

Stage 1: Statement of Intent to Negotiate: A First Nation files with the BCTC 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 it must 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 the territories of other First Nations.

Stage 2: Readiness to Negotiate: The Treaty Commission must convene an initial meeting of the three parties within 45 days of accepting the SOI.  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 BCTC 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, 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 three parties have everything in place, the BCTC will declare the table ready to begin negotiating a framework agreement.

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 4 agreement in principle negotiations. Canada and BC engage in public consultation at the regional and local levels.  A municipal representative sits on the provincial negotiation team at each treaty table.

Stage 4: Negotiation of An Agreement In Principle: 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 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 so on.  The agreement in principle also lays the groundwork for implementation of the treaty.

Stage 5: Negotiation to Finalize a TreatyThe 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.  The treaty is 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.

The BCTC website contains additional information respecting the policies and procedures of the Treaty Commission for each of the six stages, including criteria for each stage of the process and sample documents.  According to the BCTC, provisions for self-government in a treaty will vary from treaty to treaty but are all guided by the following principles, not all of which are agreed to by First Nations:

  • Self-government will be exercised within the existing Canadian constitution.  Aboriginal peoples will continue to be citizens of Canada and residents of the province or territory where they live, but they may exercise varying degrees of jurisdiction and authority.
  • The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 will apply fully to Aboriginal governments as it does to all other governments in Canada
  • First Nations will have the ability to make laws pertaining to treaty land and the provision of public services to their people, including health care, education and social services.
  • Some local laws such as zoning and transportation will apply to all residents on treaty lands, but the majority of Aboriginal laws will apply only to First Nation citizens.  Federal, provincial, territorial and Aboriginal laws must work in harmony.
  • First Nations will be required to consult with local residents on decisions that directly affect them (for example, health, school and police boards).

First Nations that have gone into the treaty process have done so without any preconditions, saving those that are included in their framework agreement in stage 3.  Consequently, they take issue when Canada or BC imply that by entering into treaty negotiations certain positions or principles on governance have been conceded.  In other words, for our Nations, when we engaged in comprehensive governance negotiations at the level of treaty-making, everything is on the table for negotiations.

The BC treaty-making process is open to all BC First Nations.  Currently there are 60 First Nations involved (there are 48 sets of negotiations as some First Nations choose to organize at the tribal council or other level).  As stated by the BCTC, treaty negotiations in BC are arguably the most complex negotiations Canada has ever undertaken and the most complex treaty negotiations ever undertaken in the world.  It is not surprising given the scope and difficulty of the issues that progress has been slow.  Many First Nations within the process have become frustrated and are anxious to see progress in treaty negotiations.  In this regard, some treaty tables are looking to implement aspects of their treaty in advance of finalizing the entire treaty.  Interim governance arrangements are a way to assist communities in moving forward.

Canada’s Treaty Related Measures (TRM) Initiative is unique to BC treaty negotiations and is one of the federal government’s primary tools for Interim Measures.  According to Canada, the key objectives of the TRM initiative are to advance the progress of negotiations; promote good governance and cooperative relationships for First Nations; and, to assist First Nations in preparing to implement their treaties.  First Nation’s treaty negotiators can propose TRM’s through Canada’s negotiating teams, and the proposal is then processed within INAC.

 

There are also opportunities for our Nations to negotiate what are referred to as Incremental Treaty Agreements (ITAs) with the government of BC.  Two such agreements have been negotiated to date.  The first ITA was signed between the Tla-o-qui-aht First Nation and BC (Tla-o-qui-aht First Nations Incremental Treaty Agreement (13 November 2008)). This ITA provided for the transfer of several parcels of land in the Tofino area as well as money for capacity building.  Secondly, Klahoose First Nation signed an ITA with BC (Klahoose First Nation Incremental Treaty Agreement (5 March 2009)) and received $2.1 million to assist in the cost of acquiring Tree Farm Licence 10 in their traditional territory along with other opportunities. In exchange, Klahoose was asked by the province to return to treaty negotiations, which they have agreed to do.

As arrangements between the Crown and our Nations in the treaty context can extend to matters beyond the lands that the Nation will govern (former reserve lands and additional settlement lands), there is the possibility of negotiating additional arrangements for the broader territories of the proper title holder(s).  The broadest of these are sometimes referred to as co-management or shared decision-making.  There are opportunities for our Nations to enter into co-management or shared decision-making arrangements with the Province in advance or perhaps instead of treaty under what are referred to as “Reconciliation Agreements” and “Strategic Engagement Agreements” (SEAs).  These arrangements can arise in the context of treaty negotiations, where the parties to the negotiations have reached an impasse or where the likelihood of reaching agreement in the short term is unrealistic.  These arrangements provide for the Nation to begin exercising authority or jurisdiction beyond its existing reserve lands in advance of a treaty and are also viewed like TRMs as a way to promote good governance and cooperative relationships and assist First Nations in preparing to finalize and implement treaties.  Details of some of these arrangements are talked about in more detail in other parts of this Report. 

It should be appreciated that the degree to which such arrangements address governance beyond existing reserves is evolving.  In limited cases, BC now recognizes the power of our Nations to make laws (jurisdiction) and to participate in true joint decision-making with respect to land, resource use and other decisions with respect to the land and people. In other cases, the arrangements are more limited with respect to governance and only extend to establishing enhanced consultation and dispute resolution processes than currently exist for all Nations.

Funding: BCTC allocates negotiation support funding to First Nations so that they can prepare for and carry out negotiations on a more even footing with the governments of Canada and BC.  For every $100 of negotiation support funding, $80 is a loan from Canada, $12 is a contribution from Canada and $8 is a contribution from BC.  The Treaty Commission's funding duties include receiving and considering funding requests from First Nations (including obtaining evidence of community approval for a funding request), approving the budgets filed by First Nations in support of their work plans, allocating funds to First Nations in accordance with funding criteria, and reviewing annual audit reports and other accounting reports from First Nations that receive negotiation support funding.

Since opening its doors in May 1993 and as of 2010 the BCTC has allocated approximately $500 million in negotiation support funding to more than 50 First Nations, $397 million in the form of loans and $103 million in the form of non-repayable contributions.  For more information, see the BCTC Funding Fact Sheet.

 

Comprehensive Governance Arrangements

In BC, the only comprehensive governance arrangements that have been negotiated and implemented are Sechelt (1986), negotiated before the federal approach to implementing and negotiating the inherent right had been adopted, 2) Nisga’a (1995) negotiated as part of the Nisga’a Treaty with Canada and BC under the federal comprehensive claims and Inherent Right Policy 3) Westbank (2005) negotiated bilaterally with Canada under the Inherent Right Policy, 4) Tsawwassen (2009) negotiated with Canada and BC as part of a modern treaty through the BC treaty-making process and 5) Maa-nulth (2010)  negotiated with Canada and BC as part of a modern treaty through the BC treaty-making process.  Part Two, Section three of this Report includes in each chapter discussing a particular jurisdiction a chart indicating the treatment of that jurisdiction under each of these arrangements, along with a brief commentary.

In addition to the governance arrangements reached in BC, either inside or outside the treaty process, there are over 35 Aboriginal groups within Canada with governance arrangements.  These are either included within the terms of a treaty itself or negotiated as side arrangements outside the treaty.  The following is a list of these agreements (see www.bcafn.ca for links):

  1. James Bay and Northern Quebec Agreement (1975)
  2. Northeastern Quebec Agreement (1978)
  3. Yukon Umbrella Agreement (Self-Government by separate agreements - 11 communities each with their own Final Agreements negotiated in accordance with the Umbrella Final Agreement)
        • Vuntut Gwitchin First Nation (1995),
        • Champagne and Aishihik First Nations (1995),
        • Teslin Tlingit Council (1995),
        • First Nation of Nacho Nyak Dun (1995),
        • Selkirk First Nation (1997),
        • Little Salmon Carmacks First Nation (1997),
        • Tr'ondek Hwech’in First Nation (1998),
        • Ta'an Kwach'an Council (2002),
        • Kluane First Nation (2003),
        • Kwanlin Dun First Nation (2005) and,
        • Carcross/Tagish First Nation (2005)
  1. Gwitch’in Comprehensive Lands Claim Agreement (self-government by separate agreement) (1992)
  2. Sahtu Dene (self-government by separate agreement) (1993)
  3. Labrador Inuit Claim Claims Agreement (self-government included) (2005
  4. Tlicho Land Claims and Self Government Agreement (2003)
  5. Nunavik Inuit Land Claims Agreement (2008)

 

It should be noted that not all modern land claims address governance.  The 1984 Inuvialuit Final Agreement has no explicit self-government provision, although arguably the Inuvialuit Land Administration is an institution of self-government.  Sometimes the treaties provide for the negotiation of governance arrangements that will not form part of the treaties. This is case for the Yukon and with the Gwitchin and Sahtu Dene.  This technique was adopted to avoid constitutional protection of the governance provisions in land claims that were negotiated after section 35 of the Constitution Act 1982 came into force and before Canada changed its policy with respect to constitutional protection of governance.  In the Northwest Territories, for a long time the Government of Canada policy was to establish public governments rather than territorial-based First Nation governments.  It is only relatively recently that it has agreed to negotiate governance as part of treaties or land claims.  The Tlicho were the first to get a treaty that included self-government.  Other Aboriginal groups are now pursuing governance agreements. 

 

Resources

  • British Columbia Treaty Commission

Suite 700, 1111 Melville Street

Vancouver, BC  V6E 3V6

Phone:     604-482-9200

Fax:        604-482-9222

Toll Free:         1-800-665-8330

Email: info@bctreaty.net

www.bctreaty.net

  • The BCTC website has much information on the process of negotiating a treaty and on the status of negotiations in BC.
  • British Columbia Treaty Commission Agreement, (21 September 1992), online: BC Treaty Commission <http://www.bctreaty.net/files/pdf_documents/092192_bc-treaty-commission-agreement.pdf>

 

  • First Nations Summit

Suite 1200, 100 Park Royal South

West Vancouver, BC  V7T 1A2

Phone:         604-926-9903

Fax:              604-926-9923

Toll Free:     1-866-990-9939

www.fns.bc.ca

 

First Nations Summit and the Treaty Negotiation Process.  The Summit's mandate is to represent the interests of First Nations which have agreed to participate in treaty negotiations. The Summit's role is not to negotiate treaties on behalf of First Nations, but to support local First Nations' negotiations. In doing so, the Summit also recognizes that not all First Nations in the province have chosen to participate in the treaty process. The Summit respects each First Nation's right to determine its own course. The 1991 Report of the British Columbia Claims Task Force Report lays the foundation for the treaty process in BC.

 

  • Land Claims Agreements Coalition

488 Gladstone Avenue

Ottawa, ON  K1R 5N8

Tel: 613-374-3830

Fax: 613-237-3845

Email: black@consilium.ca

www.landclaimscoalition.ca

  • As stated on their website, the Land Claims Agreements Coalition (LCAC) works to ensure that comprehensive land claims and associated self-government agreements are respected, honoured and fully implemented in order to achieve their objectives.
  • The membership of the LCAC includes the following modern treaty governments and organizations in Canada:

 

  • Government of Canada -Indian and Northern Affairs Canada

British Columbia Region
Suite 600, 1138 Melville Street

Vancouver, BC  V6E 4S3

Phone:         604-775-5100
Toll Free:     1-800-567-9604
Fax:              604-775-7149
TTY:             1-866-553-0554

Email: Infopubs@inac-ainc.gc.ca

www.ainc-inac.gc.ca

 

  • Government of BC – Ministry of Aboriginal Relations and Reconciliation

PO Box 9100 Stn Prov Govt
2957 Jutland Road

Victoria, BC  V8W 9B1

Phone:         604-660-2421 (Vancouver)

Phone:         250-387-6121 (Victoria)

Toll Free:     1-800-663-7867 (outside Vancouver and Victoria)
Toll Free:     1-800-880-1022 (information line)
Email: 
ABRInfo@gov.bc.ca

www.gov.bc.ca/arr

  • Tla-o-qui-aht First Nations Incremental Treaty Agreement, (13 November 2008), online: Government of British Columbia <http://www.gov.bc.ca/arr/treaty/down/tla_o_qui_aht_ita_final_for_signing_premier_nov0608.pdf>
  • Klahoose First Nation Incremental Treaty Agreement, (5 March 2009), online: Government of British Columbia <http://www.gov.bc.ca/arr/treaty/down/klahoose_ita_final.pdf>

 

  • Sechelt Indian Band

PO Box 740, 5555 Sunshine Coast Highway

Sechelt, BC  V0N 3A0

Phone:         604.885.2273

www.secheltnation.ca

  • Sechelt Indian Band Self-Government Act, S.C. 1986, c.27
  • Westbank First Nation

Suite 301, 515 Hwy 97 South

Kelowna, BC  V1Z 3J2

Phone:         250-769-4999

Fax:              250-769-4377

Email: mail@wfn.ca

www.wfn.ca

  • Westbank First Nation Self-Government Agreement, 3 October 2003, online: Government of Canada <http://dsp-psd.pwgsc.gc.ca/Collection/R2-285-2003E.pdf>
  • Tsawwassen First Nation

1926 Tsawwassen Drive

Tsawwassen, BC  V4M 4G2

Phone:         604-943-2112

Toll Free:     1-888-943-2112

Fax:              604-943-9226

Email: info@tsawwassenfirstnation.com

www.tsawwassenfirstnation.com

  • Tsawwassen First Nation Final Agreement, 6 December 2007, online: Government of Canada <http://dsp-psd.pwgsc.gc.ca/collections/collection_2010/ainc-inac/R3-129-1-2010-eng.pdf>
  • Nisga’a Lisims Government

PO Box 231

2000 Lisims Drive

New Aiyansh, BC VOJ 1A0

Phone:         250-633-3000

Toll Free:     1-866-633-0888

Fax:              250-633-2367

Email: info

www.nisgaalisims.ca

  • Nisga’a Nation Final Agreement, 9 February 1999, online: Government of Canada <http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/EB/prb992-e.htm>
  • Maa-nulth First Nations

3075, 3rd Avenue

Port Alberni, BC  V9Y 2A4

Phone:         250-724-1802

Fax:              250-724-1852

Email: info@maanulth.ca

www.maanulth.ca

  • Maa-Nulth First Nations Final Agreement, 9 April 2009, online: Government of Canada <http://www.ainc-inac.gc.ca/ai/scr/bc/trts/agrmts/mna/fa/mnafa-eng.pdf>
  • Huu-ay-aht First Nations

Administration Office

PO Box 70

Bamfield, BC  V0R 1B0

Phone:         250-728-3414

Toll Free:     1-888-644-4555

Fax:              250-728-1222

Website: www.huuayaht.com

 

  • Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations

General Delivery

Kyuquot, BC  V0P 1J0

Phone:         250-332-5259

Fax:              250-332-5210

www.kyuquot.ca

 

  • Toquaht Nation

PO Box 759

1971 Peninsula Road

Ucluelet, BC  V0R 3A0

Phone:         250-726-4230

Toll Free:     1-877-726-4230

www.toquaht.ca

  • Uchucklesaht Tribe

PO Box 1118

Port Alberni, BC  V9Y 7L9

Phone:         250-724-1832

Fax:              250-724-1806

 

  • Ucluelet First Nation

PO Box 699

Ucluelet, BC  V0R 3A0

Phone:         250-726-7342

Fax:              250-726-7552

www.ufn.ca

 

  • Coastal First Nations

United Kingdom Building

Suite 1660, 409 Granville Street

Vancouver, BC  V6C 1T2

Phone:         604-696-9889

Fax:              604-696-9887

www.coastalfirstnations.ca

  • Reconciliation Protocol between the Coastal First Nations and Her Majesty the Queen in Right of British Columbia (10 December 2009), online: Coastal First Nations <http://www.coastalfirstnations.ca/files/PDF/EBM/cfn_bc_reconciliation_framework.pdf>

 

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