Stage 1: Amending a Statement of Intent
The Commission will accept an amended Statement of Intent that meets all the criteria for Stage 1 and the requirements set out below.
A Statement of Intent may be amended in a number of circumstances, such as where:
- the First Nation makes changes to the organization of its governing body,
- the First Nation files an amended map of its traditional territory,
- additional aboriginal communities join a First Nation which has already been accepted into the process, and or
- one or more aboriginal communities that were members of a First Nation in the process separate from that First Nation.
1. Changes to the organization of the governing body
Changes to the organization of a First Nation's governing body may occur; for example, where there are significant changes to its Constitution. A First Nation must file with the Commission an amended Statement of Intent describing any changes to the organization of its governing body.
If the changes to the governing body are substantial, they must be mandated by the First Nation's constituents. A First Nation should file the amended Statement of Intent after it has obtained this mandate. It may file the amended Statement of Intent before it obtains this mandate. In this case, the First Nation must indicate in writing that it will obtain the mandate from its constituents as soon as practicable.
2. Amendments to a First Nation's map of its traditional territory.
A First Nation may need to make changes to its map after it has begun research and preparations for the negotiations. This has important implications for other First Nations, which use the maps of traditional territory to identify overlaps, and for Canada and British Columbia which use them for consulting with third parties. Consequently, changes to traditional territories may affect neighbouring First Nations as well as Canada and British Columbia. Thus the First Nation must provide a written explanation of the reasons for the boundary changes.
A revised map filed with the Commission has the effect of amending the First Nation's Statement of Intent. The Commission will date and attach the revised map and the explanatory note to the Statement of Intent, along with the original map.
The Commission must be notified of such changes and must receive a new traditional territory map, along with the written explanation of the reasons for boundary changes. The Commission will distribute copies of the revised map and explanatory note to Canada and British Columbia, and the First Nation will be expected to distribute copies to all neighbouring First Nations affected by the changes and to address any ensuing overlap issues.
3. Aboriginal communities joining a First Nation which has already been accepted into the treaty process.
An aboriginal community may join a First Nation which is already in the treaty process. This may allow the joining group to move quickly into the later stages of the process. This process requires the consent of all three parties currently in negotiations (the original First Nation, Canada and British Columbia) and the approval of the Commission.
REQUIREMENTS FOR THE JOINING GROUP
The joining group must develop a plan on how it proposes to join the original First Nation and the negotiations. This plan must be reviewed by the parties and the Commission before it is submitted for acceptance by the parties and for approval by the Commission. The joining group will be required to obtain the following mandates from its constituents depending on the stage reached by the original First Nation:
- to enter into treaty negotiations with Canada and British Columbia through the treaty process,
- approving the organization of the original First Nation, amended to include the joining group, as the appropriate governing body to conduct the treaty negotiations.
- where the original First Nation has completed Stage 2 of the process:
- a mandate approving the substance of the readiness documents already filed by the original First Nation, with the necessary amendments to include the new group,
- a specific mandate to negotiate a framework agreement in conjunction with the original First Nation, and
- an effective process to develop its mandate during Stages 3 and 4, in conjunction with the original First Nation. Stage 3 - where the original First Nation has completed
- where the original First Nation has completed Stage 3 of the process:
- all of the above mandates,
- a specific mandate to adopt the framework agreement, with the necessary amendments to include the joining group, and
- a specific mandate to negotiate an agreement in principle in conjunction with the original First Nation.
REQUIREMENTS FOR THE ORIGINAL FIRST NATION
Where the original First Nation is substantially changed by the addition of the joining group, the original First Nation should obtain approvals from its constituents for that addition.
Requirements for the newly organized First Nation
The newly organized First Nation must file with the Commission:
- an amended Statement of Intent and map of the traditional territory, reflecting the joining group as part of the First Nation,
- amended readiness documents, if already filed,
- initialled or signed copies of any amended agreements already entered into.
The Commission will accept an amended Statement of Intent that meets all the criteria for Stage 1, and amended readiness documents that meet the criteria for Stage 2.
REQUIREMENTS FOR BRITISH COLUMBIA AND CANADA
The agreement of Canada and British Columbia is required to negotiate with the newly organized First Nation, and to amend any agreements they have already initialled or signed with the original First Nation to include the joining First Nation.
4. One or more aboriginal communities that were members of a First Nation in the process separating from that First Nation.
Reorganizations within a First Nation caused by separations of its component communities place undue strains on the treaty process. Where a separated group files its own Statement of Intent as a First Nation, the number of treaty tables is increased, along with a corresponding demand for resources. The negotiations may become more complicated, as new overlapping traditional territories emerge. Where the First Nation has received funding, it may be difficult to resolve issues of each party's proportionate share of debt liability.
A First Nation enters the treaty process when at least a majority of its constituents who have participated in the decision approve the governing body as the appropriate organization to conduct the treaty negotiations (see criteria 2 and 3 above). Disputes within a First Nation that could lead to separation should first be treated as internal matters to be resolved by the First Nation.
Where the issues cannot be resolved internally and a separation results, the original First Nation must file with the Commission an amended Statement of Intent to accurately describe its altered structure and membership.
Where the separated group wishes to re-enter the treaty process either by filing its own Statement of Intent or by joining another First Nation in the process, it must meet all the criteria listed below.
A) The separated group must meet the definition of First Nation, by meeting criteria 1 - 9 described above.
B) Subject to (e) below, the Commission will only consider a Statement of Intent from or including a separated First Nation where the original First Nation has not yet been declared ready to begin Stage 3 of the process. This is because considerable commitments are made and resources spent by the First Nation before it can be declared ready to begin Stage 3 framework negotiations. Moreover, the other parties, and the Commission, are entitled to assume that the First Nation has the authority to negotiate and enter into binding agreements. Once tripartite negotiations have started, all three parties have an interest in issues that may affect progress towards the goal of reaching agreements. Thus it is important to the process that the established governing organizations that were mandated in Stages 1 and 2 to negotiate a treaty continue throughout Stages 3 and following.
C) The separated First Nation must demonstrate that it has a specific mandate from its constituents to separate from the original First Nation and, according to criteria 2 and 3, enter the treaty process independently or with another First Nation, as the appropriate governing body.
D) The separated First Nation will be expected to first identify all overlapping territories, whether shared or disputed, and resolve any overlapping territorial issues with the original First Nation ("internal overlaps"). In determining whether internal overlaps are resolved for the purposes of proceeding into the treaty process, the Commission will consider the nature of the dispute, and whether it is satisfied that best efforts have been made by all parties to achieve resolution through a process such as the First Nations Summit's Recognition Protocol.
E) Where a separated First Nation files a Statement of Intent either independently or with another First Nation after the original First Nation has been declared ready to begin Stage 3 of the process or later, the Statement of Intent will only be considered by the Commission where:
i) the separated and original First Nations have explored all other available options to resolve their differences internally and the original First Nation agrees that negotiations must be conducted separately,
ii) the separated First Nation's governing body is organized appropriately for treaty negotiations, with the capacity to proceed,
iii) the separated and original First Nations have resolved all issues of responsibility for any debt liability taken on by the original First Nation, and
iv) the separated and original First Nations have resolved any overlapping territorial issues between them and have prepared revised traditional territory maps showing this. (In determining whether internal overlaps are resolved for the purposes of proceeding into the treaty process, refer to (d) above.
Where requested by the First Nations affected, the Commission will provide advice on dispute resolution services available to resolve overlap or other organizational issues.