Political negotiation is the most constructive and practical means to address the complex issues relating to Aboriginal rights and title. Indigenous sovereignty is a foundational principle of Indigenous Rights.
Under the BC treaty negotiatons process, each First Nation, Canada and BC may introduce any issue at the negotiation table that it views as significant to the new relationship. True reconciliation requires a sharingn of soverignty between Indigenous Nations and the governments of Canada and British Columbia. The negotiation of treaties, agreements and other constructive arrangments can accomplish this.
Although each treaty negotiation is unique, comprehensive treaties will address:
- First Nations government structures and related financial arrangements;
- Jurisdiction and ownership of lands, waters and resources;
- Cash settlements.
Treaties will also establish processes for amendment and resolving disputes. They are living documents that can evolve over time.
New Developments, Policies and Resources
On June 21, 2021, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, was passed in the House of Commons and received Roayl Assent. It affirms and upholds the rights of Indigenous peoples as recognized by section 35 of the Constitution Act, 1982 and the UN Declaration. It affirms that “the Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration” and develop a national action plan. This legislation further emphasizes that “all relations with Indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the right of self-government” in its preamble.
In November 2019, the provincial government passed the Declaration on the Rights of Indigenous Peoples Act. This piece of legislation sets out a process to ensure provincial laws are consistent with the rights defined in the UN Declaration, an action plan to achieve the objectives, and annual reporting on progress. Co-developed with the First Nations Leadership Council, it is the first legislation in Canada that implements the UN Declaration. Fully implementing the UN Declaration requires a sharing of soverignty between Indigenous Nations and the Crown. Modern treaties have provided a mechanism for sharing sovereignty, and the collective work of reconciliation and implementing the UN Declaration requires governments to continue to vacate power and trust Indigenous Nations to govern.
In September 2019, the Principals of the BC treaty negotiations process (the First Nations Summit, Canada, and British Columbia) endorsed the Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia, which they co-developed. This came after the Principals undertook a comprehensive and collaborative review of the gaps in existing policies. This new treaty negotiations policy explicitly details how negotiations will be grounded in the recognition of Indigenous rights and ownership of their lands and resources. This new policy is ground-breaking: it is the first tripartite public policy for the recognition and protections of Indigenous rights in British Columbia. Prominent commitments include rights recognition, non-extinguishment, implementing the UN Declaration, support for Indigenous self-determination, and ensuring treaties are flexible, living agreements. The policy encourages flexible, innovative, and collaborative approaches to the negotiation of treaties, agreements, and other constructive arrangments. The policy also unequivocally rejects the nation of extinguishment; completing a treaty through the BC treaty process does not extinguish Aboriginal rights and title.
A successful fiscal relationship between Canada and Indigenous governments is crucial to self-determination. In August 2019 it was announced Canada developed a new fiscal policy in partnership with First Nations a new fiscal policy, Canada's Collaborative Self-Government Fiscal Policy to better support Indigenous self-government. This fiscal policy provides self-governing Indigenous Nations with sufficient, predictable and sustained funding that is required to fulfill responsibilities and govern effectively. It strengthens government-to- government partnerships and supports equitable socio-economic outcomes, and closing gaps in infrastructure, housing and overall well-being of Indigenous people. The goal of this new policy is to support landbased stewardship, community health initiatives, social programs, and build governance capacity to effectively serve communities. The increased fiscal resources that will come with self-government are significant, and in some cases First Nations in treaty negotiations could see a three-to-four fold increase in fiscal financing.