The BC Treaty Commission and the treaty negotiations process were established in 1992 through agreement by Canada, British Columbia, and the First Nations Summit (the Principals). Negotiations are guided by those agreements and the 1991 Report of the BC Claims Task Force, which is the blueprint for the made-in-BC treaty process. The Treaty Commission and the made-in-BC negotiations process were designed to advance negotiations and facilitate fair and durable treaties and agreements, recognizing Aboriginal title and rights.
First Nations have a right to self-determination and self-government, and will determine their own pathway. True reconciliation requires a sharing of sovereignty between First Nations and the governments of Canada and British Columbia. This sharing of sovereignty can be accomplished by the negotiation of treaties and agreements.
Indigenous sovereignty is a foundational principle of Indigenous rights. Political negotiation is a constructive and practical means to address the complex issues related to Aboriginal rights and title, and reconciliation. Negotiations are also a mechanism to support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration). Under the BC treaty negotiations process, each party may introduce any issue at the negotiation table that it views as significant to the new relationship.
In September 2019, the Principals of the BC treaty negotiations process endorsed the Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia (“Rights Recognition Policy” or “RRR Policy”) after undertaking a comprehensive and collaborative review of the gaps in existing policies. This new treaty negotiations policy explicitly details how negotiations of treaties, agreements and other constructive arrangements will be grounded in the recognition of Indigenous rights and ownership of their lands and resources. The RRR Policy is ground-breaking: it is the first tripartite public policy that recognizes and protects Indigenous rights in British Columbia. Prominent commitments include rights recognition, non-extinguishment, implementing the UN Declaration, support for Indigenous self-determination, and ensuring modern treaties are adaptable, living agreements. The policy encourages flexible, innovative, and collaborative approaches to the negotiation of treaties, agreements, and other constructive arrangements. The RRR Policy also unequivocally rejects the notion of extinguishment; completing a treaty through the BC treaty process does not extinguish, modify or surrender Aboriginal rights and title.
The BC Treaty Commission supports tripartite engagement to recognize and protect First Nations title and rights, and reconciliation amongst the governments of Canada, British Columbia and First Nations in BC. Respecting and recognizing First Nations’ right to self-determination and self-government.
There are two negotiation pathways supported by the BC Treaty Commission: Modern Treaties and Tripartite Reconciliation. Both pathways are grounded in the recognition of Indigenous rights, seek to reconcile pre-existing Indigenous sovereignty with assumed Crown sovereignty, and operate on a non-extinguishment model.
Modern treaties are negotiated by the governments of Canada, British Columbia and participating First Nations in BC. Modern treaties are grounded in the recognition of the Indigenous rights and reconcile pre-existing Indigenous sovereignty with assumed Crown sovereignty. They do not extinguish rights, including title, in form or result, and are able to evolve over time based on the co-existence of Crown and Indigenous governments, and the ongoing process of reconciliation.
Modern treaties are negotiated through the six-stage, made-in-BC treaty negotiations process. Information on each stage is outlined below.
A comprehensive overview of Stages 1-4 of the six-stage process can be found in the Policies and Procedures document below.
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.
The Treaty Commission must convene an initial meeting of the three parties within 45 days of accepting a Statement of Intent. 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 three Parties have everything in place, the Treaty Commission will declare the table ready to begin negotiating 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. Local government representatives may sit in on treaty negotiations as observers as part of the provincial negotiation team.
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.
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.
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 to by the Parties. 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.
Through innovations in the negotiations process, some tables have been engaging in Tripartite Reconciliation discussions and negotiations.
These are in line with the new RRR policy and the renewed recognition of Indigenous rights and nation-to-nation, government-to-government relationships. These negotiations are a new and innovative approach to self-government and reconciliation agreements in British Columbia. These tripartite negotiations are supported by the BC Treaty Commission. These tables may proceed through the negotiations process differently than Modern Treaty tables. Tripartite Reconciliation is a new pathway to recognizing self-government, protecting Indigenous rights and title, and supporting lasting reconciliation.
Like Modern Treaty negotiations, Tripartite Reconciliation negotiations operate from a foundation of non-extinguishment.