WHY TREATIES?

Aboriginal rights are rights held by Indigenous peoples, not by virtue of Crown grant, legislation or treaty, but by reason of the fact that Indigenous peoples were once independent, self-governing of most of the lands now making up Canada. Before Canada was a country, Britain recognized that Indigenous people living here had title to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire land from First Nations, and that was typically done through treaties. In most parts of Canada, the British Crown established treaties with First Nations before Confederation. The new Dominion of Canada continued this policy of making treaties before the west was opened for settlement, but in BC, this process was never completed.

When BC joined Confederation in 1871, only 14 treaties on Vancouver Island had been signed, and aboriginal title to the rest of the province was left unresolved. It wasn’t until 1970 that Indigenous peoples were able to pursue aboriginal rights in the Supreme Court of Canada. With the exception of Treaty 8 and negotiations with the Nisga’a Nation, most First Nations had to wait until 1993 to pursue their aboriginal rights through the BC treaty negotiations process.

Aboriginal rights are inherent and protected under the Constitution Act, 1982. Section 35 of the Constitution Act, 1982, affirmed that aboriginal title, and the rights that go along with it, exist whether or not there is a treaty. However, Section 35 does not define those rights, and uncertainty about how and where these rights apply can discourage investment and economic development in BC. Treaties provide certainty and will clarify aboriginal rights and title, ownership of BC’s land and resources.

For more information about Aboriginal and Treaty Rights, see our Aboriginal and Treaty Rights page.

First Nations were self-governing long before Europeans arrived in Canada. Indigenous nations lived as distinct and self-sufficient nations deeply connected to their homelands, with respective languages, economies, and systems of laws and governance.

In 1876, the Indian Act dismantled traditional governance systems and imposed strict regulations on Indigenous peoples’ lives. Section 35 of the Constitution Act, 1982, recognizes that Indigenous peoples have an inherent, constitutionally-protected right to self-government – a right to manage their own affairs.

Self-determination is a core principle of self-government and the BC treaty negotiations process. It is also a key concept found in the United Nations Declaration of the Rights of Indigenous Peoples. The Government of British Columbia affirmed their commitment to implementing the UN Declaration through the Declaration on the Rights of Indigenous Peoples Act, 2019. This includes supporting the affirmation of, and the development of relationships with, Indigenous governing bodies.

Under the BC treaty negotiations process, self-government will be recognized, and administered through a treaty or other negotiated agreement. Self-government jurisdictions may include education, language, culture, police services, health care, social services, housing, property rights, child welfare, and other provisions agreed to by the three Parties. A First Nation implementing a modern treaty will have a constitution, and law-making authority over treaty land and provisions of public services. Treaties set out how First Nations governance interacts with the Canadian Constitution. The Charter of Rights and Freedoms will apply to First Nations’ governments as it does to all other governments in Canada.

Provisions

There is no template for self-government, each First Nation establishes their own unique self-government arrangement. Self-government provisions may include:

• Education
• Language and
• Culture
• Health care and social services
• Police services
• Housing
• Property rights
• Child welfare

For example, the Nisga’a Lisims government has four directorships: Lands and Resources, Fisheries and Wildlife, Finance, and Programs and Services—including child and family, and justice services.

First Nations governments may choose to draw down their self-government provisions upon the effective date of their treaty, or gradually as they grow their governing capacity over time.

The new governing structure will have a constitution and law-making authority over treaty land and provision of public services. Regardless of who has jurisdiction over any particular service after the treaty, the Parties must agree on arrangements for its delivery.

Provisions for self-government will vary from treaty to treaty, guided by these principles:

• Self government will be exercised within the existing Canadian Constitution. Indigenous peoples will continue to be citizens of Canada and the province or territory where they live, and they may exercise varying degrees of jurisdiction and/or authority.
• The Canadian Charter of Rights and Freedoms and the Criminal Code of Canada will apply fully to Indigenous 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 service for their people, including health care, education and social services.
• Some local laws like zoning and transportation will apply to all residents on treaty lands, but the majority of treaty laws will apply only to treaty citizens. Federal, provincial, territorial and Indigenous 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).

Constitutionally-protected vs. Municipal style Government

Under the BC treaty negotiations process, each First Nation negotiates self-government provisions to meet their unique social, cultural, political and economic needs.

The BC Claims Task Force, established in 1991 to make recommendations for a made-in-BC treaty negotiations process, envisioned that self-government arrangements negotiated through the BC treaty negotiations process would have constitutional protection. Constitutionally protected self-government, like the Nisga’a, Maa-nulth, Tsawwassen, and Tla’amin Treaties, are passed as Canadian law, and cannot be changed unless all three Parties – Canada, BC and the First Nation – agree. Constitutional protection ensures that self-governing powers established by the treaty cannot be taken away. All modern treaties in British Columbia are constitutionally protected, although it is possible to negotiate other types of agreements and self-governing arrangements.

In a municipal-style of self government arrangement, governance powers are delegated by an act of Parliament and an act of the BC Legislature and have no constitutional protection. The Sechelt Indian Band Self-Government Act, 1986 is an example of a municipal-style self-government agreement. The Westbank First Nation Self-Government Agreement, 2005, is another example of an agreement that is not constitutionally protected.

Some First Nations may choose to pursue other types of self-government or reconciliation agreements. In 2018, shíshálh Nation (formerly known as Sechelt) and the Government of British Columbia signed a reconciliation agreement, the shíshálh Nation/British Columbia Foundation Agreement, that recognizes shíshálh’s Aboriginal title and rights, and supports self-determination and self-government. Like the Sechelt Self-Government Act, this is not a constitutionally protected agreement.

Eligibility

Treaties will replace Indian Act-imposed band governments with a government authority for all citizens of a Nation. Each treaty will define who is eligible and who can be enrolled. Most First Nations will have broader eligibility criteria than current status and non-status designations under the Indian Act. Eligibility criteria will likely require that an individual be of First Nation ancestry connected to the Nation or accepted as a citizen of the particular nation. All citizens recognized by a First Nation, whether or not they are recognized by the Indian Act, can vote on their treaty.

Self-government strives to provide better opportunities for Indigenous people living within their traditional territory, while not excluding those Indigenous people who choose to live elsewhere.

Land has spiritual, economic and political significance for First Nations peoples. First Nations traditional territory—land occupied and used historically—is integral to their identity and survival as a distinct nation.

Under the Indian Act, First Nations are wards of the federal government, living on reserve land to which they have no ownership. Indian reserves cover just 0.4 per cent of the BC land base—a tiny portion of First Nations’ traditional territory. In some cases, reserve land is not even within a nation’s traditional territory, further compounding overlapping land issues. 

When a First Nation enters the BC treaty process they submit a statement of intent outlining their traditional territory. This establishes the parameters for land to be included in a final treaty. For most First Nations, treaty settlement lands — the area of land that will be owned and managed by First Nations pursuant to a treaty — will comprise only a percentage of their traditional territory. For example, land included within the Nisga’a Treaty comprises approximately eight per cent of the nation’s traditional territory.

Through treaties, BC First Nations will finally attain the ability to have what non-Indigenous Canadians have had since day one — land ownership.

Aboriginal Title and Crown Title

In 1997, the Supreme Court of Canada ruled in  Delgamuukw v. British Columbia that aboriginal title is a right to the land itself — not just the right to hunt, fish and gather. Crown title refers to the provincial or the federal government’s interest in land. Almost all Crown land in BC is held by the province.

Delgamuukw confirmed that aboriginal title still exists in BC and that when dealing with Crown land the government must consult with and may have to compensate First Nations whose rights are affected. Aboriginal title is often referred to as a burden on Crown title.

Who can own the land? Aboriginal title is a communal right; an individual cannot hold aboriginal title.

What limits are there on land use? Because aboriginal title is based on a First Nation’s relationship with the land, these lands cannot be used for a purpose that may impair traditional use of the land by future generations.

Can the owner sell the land? Aboriginal title land can only be sold to the federal government.

What laws protect aboriginal title? Ordinary land ownership is protected by common law and provincial statutes. Aboriginal title has the additional protection of the Canadian Constitution, as do all aboriginal rights — those that exist now and those that may be acquired in a treaty.

Private Property

The BC treaty process has always been guided by the principle that private property (fee simple land) is not on the negotiation table, except on a willing-buyer, willing-seller basis.

In urban areas where Crown land is limited, private property available from willing sellers will be critical to achieving final treaties. It is important to consider the land issue within the following context:

• In most cases, it will be Crown lands and resources transferred under treaties.
• Numerous economic studies have concluded that increased control by First Nations will boost their self-sufficiency and result in joint venture and partnership business opportunities for non-Indigenous people as well.
• The transfer of land and resources will enable First Nations to develop their own businesses and create taxable revenues.

Land Protection

First Nations are watching potential treaty settlement land being developed by forestry, mining and other businesses, while not sharing in decision making or business opportunities. Some development is occurring within sensitive archeological areas and areas with spiritual significance to First Nations.

Protecting land that will ultimately be part of a final treaty settlement is crucial to restoring First Nations’ faith in the treaty process and to ensuring that an acceptable land package can be delivered when a final treaty is reached. Land protection agreements, a type of interim measures agreement among Canada, BC and, a First Nation are important building blocks to final treaties.

In March 2001, Cowichan Tribes, Hul’qumi’num Treaty Group, Canada and BC signed an agreement to protect 1,700 hectares of land between Duncan and Lake Cowichan known as the Hw’teshutsun or the Hill 60 sacred site. According to Cowichan creation myths Hw’teshutsun is the area where people first fell from the sky.

In its Review of the BC Treaty Process, the Treaty Commission strongly urged the governments of Canada and BC to negotiate more land protection agreements.

In July 2002, Canada and BC signed an agreement with Yale First Nation to set aside 181 hectares of land for potential inclusion in an eventual treaty settlement. The land, located in the Hills Bar area, is important to Yale’s cultural heritage and a significant archaeological site. Under the three-year agreement, an existing mineral license was honoured but no new forestry, mining or land development licenses were issued. The agreement was extended in 2005.

Parks and Protected Areas

The concept of “parks” and “protected” areas runs contrary to First Nations holistic approach to responsible land stewardship through which all land is treated with equal respect. However, as lands, resources and archaeological sites are increasingly threatened within First Nations’ traditional territories, setting aside specific areas to protect them from development and degradation has gained support from many First Nations.

For example, Tsleil-Waututh Nation signed the Cates Park/Whey-ah-Wichen Agreement with the District of North Vancouver (2001) to protect archaeological resources in Cates Park and work towards mutually beneficial economic opportunities.

Treaties may include provisions for First Nations to be directly involved in the planning, staffing and operation of parks within their traditional territory. Some treaties may include a portion of settlement lands set aside as protected areas.

Land Use Planning

Because First Nations’ culture and spiritually is intrinsically tied to their traditional territory, treaties may also include co-management rights on traditional territory outside of treaty settlement land.

In 1992, the BC government established a land use planning process that led to the development of land and resource management plans (LRMPs). The first LRMPs were complete in 1995. However, in many parts of the province the LRMP initiative predated treaty making and in most cases did not involve First Nations. Furthermore, though these plans were developed without prejudice to aboriginal rights and title, most First Nations chose not to participate in these stakeholder processes, preferring government-to-government negotiations on land issues.

Today among First Nations there is recognition of the need to define their rights and title by developing a land use plan for their territory. Land use plans are seen as an essential tool for setting out the First Nation’s vision for land and resources and reflecting the priorities and values of its people. These plans: describe lands and resources of the territory; identify land use issues, challenges and opportunities that are of concern to the community, and that need to be addressed; articulate a vision for the future of where First Nations people want to go with their land and resources; summarize community priorities for protection and development of resources; and provide direction for what activities are acceptable, where activities should occur and where they should not be carried out.

Reconciling existing land and resource management plans with First Nation land use plans is being addressed. In February 2006, First Nations and the BC government came to a land use decision in the North and Central Coasts. The combined Central Coast and North Coast Land and Resource Management Plan covers approximately 6.4 million hectares from north of Vancouver Island to the Alaska Panhandle, protects 1.8 million hectares, and special logging regulations apply wherever forestry is allowed in the area.

Comprehensive Community Planning

Treaties bring significant changes to current land management practices, governance authorities and the economic components of First Nations communities and regions. Comprehensive community planning is one way First Nations can take control of the development, maintenance and growth of their own communities leading up to and following treaty.

Comprehensive community planning supports a community to plan for all elements of its community in an integrated way, including governance, culture, health, land use, environment, economic and social development, and physical infrastructure.

Comprehensive community planning will be especially important where First Nations have close non-Indigenous neighbours. Development in non-Indigenous communities can have a huge impact on First Nation communities and, similarly, development by a First Nation can have a huge impact on its neighbours.

To help prepare First Nations and their neighbouring local and regional governments for this new reality, the Treaty Commission initiated a pilot project on intergovernmental community planning among Tla’amin Nation (formerly Sliammon First Nation), the Corporation of the District of Powell River and the qathet Regional District (formerly Powell River Regional District). The four phase project comprised development of a Tla’amin community plan, comparison of Tla’amin and local/regional plans, amendment of plans and, implementation and monitory.

Wildlife

Fish, forests and wildlife are all critical to First Nations culture, lifestyle and self-sufficiency. As development continues within First Nations’ traditional territories, wildlife are increasingly threatened. First Nations want to protect their right to continue responsible wildlife stewardship and hunting as they have for thousands of years.

Treaties will balance the right of Indigenous people to continue traditional hunting with the need to protect wildlife. 

Successful implementation of treaties are integral for lasting and meaningful reconciliation, and is fundamental for self-determination and improving the quality of life for Indigenous peoples and communities. Treaties will bring certainty to land ownership and jurisdiction, a major financial component, and new investment into the First Nation and the entire region benefitting First Nations, British Columbians and all Canadians. Through treaties, First Nations will be able to provide services appropriate to the unique culture, economy and social needs of their communities.

Government Operations

Treaties may include funding for First Nation government operations, programs and services.

In treaties concluded in BC and other parts of Canada, funding for First Nation government operations typically covers several years at a time, are renegotiated periodically and are not usually constitutionally protected.

Generally, funding is provided by Canada for all First Nation government operations, programs and services to members will be combined and forwarded to the First Nation government. These funding agreements are intended to allow for longer-term planning and budgeting.

Funding to implement the Treaty

Treaties may also include funding for First Nations to make the change from operating under the Indian Act to self government.

For example, funding may be negotiated to develop laws and a First Nation constitution, or to determine eligibility for treaty benefits, and to undertake enrollment and ratification for treaty purposes. The Tsawwassen First Nation treaty agreement provided $13.5M for startup and transition cost. The treaty agreement with the five Maa-nulth First Nations provided $47.3M to fund transition and implementation costs.

Funding for Infrastructure

There may be one-time costs established in the treaty for physical infrastructure. An example is the BC government’s commitment of $41 million to pave the Nisga’a Highway.

Fiscal Accountability

Each First Nation will develop a constitution and a government structure with greater accountability for allocation of funding than is currently provided by the Indian Act. For example, Tsawwassen First Nation government is required to prepare an annual report including financial statements.

New Economic Studies and Policy

Closing the social gaps between Indigenous and non-Indigenous people is a key goal of reconciliation. A 2016 study from Deloitte commissioned by BCTC, Socio-Economic Benefits of Modern Treaties Deloitte Report), validates the findings of previous studies that there are significant future economic benefits from treaties to First Nations ranging between $1.2 and $5.8 billion total dollars. The Deloitte Report also begins to examine the broader socio-economic benefits that come from self-determination and self-government.

The Deloitte Report also begins to examine the broader socio-economic benefits that come from self-determination and self-government. The Deloitte Report quantifies the benefits of treaties to all British Colombians. Negotiations result in a considerable infusion of federal capital into BC’s regions where First Nations are implementing a modern treaty.

A 2009 report by PricewaterhouseCoopers, concluded that completing treaties with First Nations will deliver more than $10 billion in benefits to British Columbia’s economy over the next 15 years.

Canada’s collaborative self-government fiscal policy

Successful implementation of treaties and self-government are integral for lasting and meaningful reconciliation, and is fundamental for self-determination and improving the quality of life for Indigenous peoples and communities. A new fiscal relationship was necessary to address previous gaps.  In 2019, the Government of Canada established Canada’s collaborative self-government fiscal policy, a renewed and transparent funding model and policy to better support the implementation of self-government agreements and treaties with self-government arrangements. 

The policy aims to co-develop in collaboration with self-governing Indigenous governments, a new approach and arrangement tailored to address the specific circumstances of each government and sufficient fiscal resources to fulfill responsibilities to provide public services that are reasonably comparable to other Canadians. Its executive summary outlines the following shared vision:

• That the new fiscal relationship should constitute a regime that by design recognizes and is responsive to First Nations’ right to self-determination – a recognition-of-rights approach;
• That the new fiscal relationship should strengthen First Nations’ exercise of their right to self-determination by supporting First Nations-led capacity enhancement;
• That the new fiscal relationship should be a learning, evolving and empowering relationship – a conscious break from rigid colonial structures – with whole-of-Government approaches that address the realities of all First Nations;
• That a new fiscal relationship will ensure sufficient funding;
• That the new fiscal relationship will empower First Nations to plan and invest based on their own priorities, by ensuring greater predictability, flexibility and autonomy of funding arrangements;
• That the new fiscal relationship should be founded on a mutual accountability relationship whereby First Nations governments operating under the auspices of the Indian Act are primarily accountable to their own citizens, while the Government of Canada and First Nations governments hold one another mutually accountable for the commitments they make to one another and work together to achieve results for First Nations citizens; and,
• That a new fiscal relationship will underpin progress toward the elimination of socio-economic gaps underpin between First Nations and other Canadians.

Compensation

The BC Claims Task Force, established in 1991 to make recommendations for a made-in-BC treaty negotiations process, envisioned that “negotiations will likely include consideration of a financial component to recognize past use of land and resources and First Nations ongoing interests”.

The Task Force further recommended that “Although recognition of past and current uses is important, detailed calculations would be technically difficult, costly and time consuming. The Task Force encourages the parties to reach a negotiated solution by bargaining in good faith in the determination of compensation.”

Compensation is a tough issue for treaty negotiations. First Nations assert they should be compensated for land they are being asked to give up and wrongs done to them in the past; the governments of Canada and BC want to avoid focusing on the past and use treaties to build stronger relationships for the future.

Canada, BC and the First Nations Summit are working together to find creative solutions to compensation and other common fiscal issues.

Taxation

It is important to clarify that First Nations only receive tax exemptions when on reserve lands, this is often misunderstood. Most Indigenous people pay the same taxes as all other Canadians. 

The Indian Act has made economic development on reserves difficult. Because it stipulates that reserve lands cannot be seized to enforce payment of a debt, these lands have never been available for use as collateral. The same is true of all real and personal property of aboriginal people or bands on a reserve. Negotiated cash and land settlements will provide First Nations with the capital needed to begin businesses and create jobs and industries.

Through treaties, First Nations will acquire a land base and establish a government with powers to access revenues, borrow, receive transfers from other governments and levy taxes. The governments of Canada and BC seek to gradually eliminate tax exemptions as First Nations move towards greater economic self sufficiency. For example, generally under treaty, transaction taxes such as sales tax will be eliminated eight years after the effective date and all other taxes, including incomes tax, after 12 years.

Many First Nations in the BC treaty negotiations process are reluctant to give up tax exemption when most other First Nations in Canada will continue to have these exemptions —including those that have signed treaties in the past. Canada, BC and the First Nations Summit are working together to find creative solutions to taxation and other common fiscal issues.

Costs and Benefits

The cost of not settling treaties is far greater than the cost of treaty making.

A 2009 study conducted by PricewaterhouseCoopers estimated that uncertainty surrounding unresolved aboriginal rights and title could cost B.C. $1 billion in lost investment and 1,500 jobs a year in the mining and forestry sectors alone. The report concluded that completing treaties with First Nations will deliver more than $10 billion in benefits to British Columbia’s economy over the next 15 years.

The BC government’s share of the overall cost is estimated at $2 billion, or $50 million annually over 40 years, plus rural Crown land with a notional value of $2.8 billion to $3.5 billion. BC’s annual portion is equal to about 25 cents of every $100 in the current provincial budget.

Negotiation support funding is allocated to First Nations to negotiate with Canada and BC. The funding is provided by Canada and BC and the Treaty Commission allocates this funding to First Nations.

Treaty negotiation support funding allocated by the Treaty Commission is now 100 percent contribution funding. In 2018, the federal government announced that going forward it would replace negotiation support loans with non-repayable contribution funding for First Nations participating in modern treaty negotiations. Canada provides over 90% of the contribution funding and BC provides the remainder.

Existing treaty loans will be eliminated. The government of Canada’s federal Budget 2019: Investing in the Middle Class to Grow Canada’s Economy indicated that outstanding treaty negotiation loans for First Nations across the country would be eliminated. Canada will confirm the timing for the elimination of existing treaty loans. 

The Treaty Commission is a small organization, with 11 full-time staff in addition to the four Commissioners and one Chief Commissioner. 

Cost Sharing

Funding for administering the treaty negotiations process and the cash settlement costs are borne jointly by the provincial and federal governments. The federal government is responsible for 72% of the total cost of treaties and the provincial government is responsible for 28%.

Canada funds 60% of the Treaty Commission’s operating budget, and BC funds 40%.

Treaty negotiation support funding allocated by the Treaty Commission is now 100 percent contribution funding. In 2018, the federal government announced that going forward it would replace negotiation support loans with non-repayable contribution funding for First Nations participating in modern treaty negotiations. Canada provides over 90% of the contribution funding and BC provides the remainder.

First Nations have inherent and treaty rights protected in the Canadian Constitution. These rights include the right to traditional and customary governance of traditional lands, waters and resources, including fisheries.

First Nations have for thousands of years sustained vibrant and rich cultural identities profoundly linked to BC’s land and waters. It is said that the Nisga’a, people of the mighty river, are so connected to fish that their bones are made of salmon. Living in balance with the land and the water is an integral part of First Nations’ cultures, and fishing is regulated by long-standing cultural laws around conservation and preservation for future generations.

Commercial Fishing in BC: A History

Long before there was an official commercial fishery in British Columbia, First Nations had been trading fish among themselves and with European settlers. As commercial fishing evolved, Indigenous people had less and less access to fish as a means of maintaining their livelihoods.

The aboriginal food fishery was created in the 1880s to regulate and limit Indigenous fishing and to allow the expansion of a commercial fishery. In 1889, the Federal Department of Fisheries limited the number of licences on the Fraser River to 450; of these 350 were issued to cannery-owned boats and 100 went to independent fishers. In 1892, the chief of the Musqueam Nation testified before the British Columbia Fisheries Commission about his people’s trouble obtaining independent fishing licences. Ten Musqueam people had obtained licences; the rest had access to the commercial fishery only by working for low wages for European-owned canneries.

While Indigenous people had limited access to the commercial fishery, access to fish for food was also curtailed. In 1894, Fisheries regulations were amended to require First Nations to obtain permission from the inspector of fisheries to fish for food. For $1, a non-Indigenous person could obtain a domestic licence, which allowed the same right to fish for food as an aboriginal person — without seeking ‘permission’.

The domination of the commercial fishery by non-Indigenous interests persisted and, until recently, fisheries policies continued to limit Indigenous people’s access.

Fairness in the Commercial Fishing Industry

Concerns have been raised that there will be job losses and economic decline among non-Indigenous fishers and supporting industries — that treaties will take away part of somebody else’s livelihood.

Treaty negotiations strive to find a balance between providing First Nations with a greater role in the management and commercial use of fish, while protecting the interests of non-Indigenous fishers. Indigenous and non-Indigenous fisheries co-exist and will continue to do so.

For example, the Nisga’a Treaty and Harvest Agreement sets out an annual allocation of salmon comprising, on average, approximately 26 per cent of the Canadian Nass River total allowable catch. This right is subject to conservation and allocations may be reduced if stock is not available in a given year.

Establishing access to the commercial fishery as part of treaty negotiations is really about recognizing that fish is not only an integral part of First Nations’ culture, but also a critical part of restoring economic self-sufficiency.

Managing the Fish Resource

For First Nations, fishing goes hand-in-hand with responsible and sustainable environmental stewardship, so participating in how this resource is managed is critical. Treaties may include provisions for First Nations to be involved in aquatic management planning, somewhat similar to land use planning processes currently underway. For example, the Nisga’a treaty established a Joint Fisheries Management Committee (JFMC) to facilitate the cooperative planning and conduct of Nisga’a fisheries and enhancement activities.

Fish and the Law

Canadian courts did not create the aboriginal right to fish; they simply recognized that it was never extinguished and continues to exist.

The Supreme Court of Canada’s decision in Sparrow was a major turning point for aboriginal rights, and specifically aboriginal fishing rights. In this case, the Musqueam Nation was asserting an aboriginal right to fish; the Government of Canada argued that First Nations had only those rights granted by the Fisheries Act and regulations. The court ruled that aboriginal rights could only be taken away by clear and explicit legislation, and the Fisheries Act had never extinguished aboriginal or treaty rights.

Sparrow defined aboriginal people’s right to fish for food, social and ceremonial purposes — a right that takes priority over all other uses of the fishery except conservation. Responding to Sparrow, the Aboriginal Fishing Strategy was launched in 1992 to recognize the aboriginal right to fish. The strategy applies where the Department of Fisheries and Oceans manages the fishery and where treaties or other agreements are not already in place. 

The Supreme Court of Canada’s 1999 decision in the Marshall case further defined the aboriginal right to fish. Donald Marshall, a New Brunswick Mi’kmaq convicted in 1996 for illegally catching and selling eels, appealed to the Supreme Court. The Supreme Court overturned the conviction and ruled that aboriginal people in the Maritimes affected by a 1760 treaty with the British have access to fish and wildlife to provide a moderate livelihood for such basics as food, clothing, housing and a few amenities.

Forests are an integral part of First Nations culture, economy and spirituality. For more than a century First Nations across Canada have watched the depletion of forests in their traditional territories, while having limited opportunities to participate in forestry jobs and business development.

Before the treaty process was established in 1992 many First Nations had no choice but to seek court injunctions or participate in blockades to prevent logging in their traditional territories. The treaty process provides a constructive means to address First Nation interests in forestry.

Treaties may provide First Nations with a greater role in the management and commercial use of forests within their traditional territories.

Concerns have been raised that transferring land ownership and resource control to First Nations will reduce timber harvesting and processing on settlement lands and eliminate non-aboriginal jobs in forestry. However, organizations like the Council of Forest Industries, Interfor and Weyerhaeuser agree that providing a clear definition of forestry ownership, roles and responsibilities will benefit all British Columbians.

Studies into the impacts of aboriginal land claims settlements elsewhere have concluded that because of this increased certainty, resource development improved or stayed the same following settlements. Furthermore, some retail organizations, like Home Depot, require all lumber products to be certified under a scheme that ensures First Nations’ legal rights to land have been “recognized and respected”.

The Duty to Consult

Two landmark rulings in the BC Court of Appeal, Haida and Taku, confirm the provincial government must properly consult with and accommodate the interests of First Nations, pre-treaty, before proceeding with development on their traditional territories.

The court held that “there is a reasonable possibility that the Haida will be able to establish aboriginal title to at least some parts of the coastal and inland areas of Haida Gwaii as well as an aboriginal right to harvest red cedar trees from the various old-growth forests on Haida Gwaii.”

The duty to consult, deriving from the “trust-like” relationship between First Nations and the Crown, exists when a First Nation asserts title through entering the treaty process and continues until after a treaty is signed or aboriginal rights and title are defined through the courts. The extent of the duty depends on the strength of the First Nation’s connection to the land. The court concluded the Haida would have a potentially strong legal claim to aboriginal rights and title.

Interim Measures Agreements

The court made it clear that interim processes, either through the courts or negotiated agreements, can temporarily reconcile competing interests until there is final reconciliation through a treaty or decision at trial. This reaffirms the Report of the BC Claims Task Force, which stated in 1991 that “to protect interests prior to the beginning of negotiations, the federal and provincial governments must provide notice to First Nations of proposed developments in their traditional territories and, where required, initiate negotiations for an interim measures agreement.

Many First Nations have already signed interim measures agreements on forestry-related matters, which provide a greater degree of stability for investment and development while treaty negotiations continue. Some of these agreements have spurred joint venture and training opportunities between forest companies and First Nations.