Stage 1: Criteria
An aboriginal governing body filing a Statement of Intent must provide the following information:
- The name of the First Nation;
- How the governing body is organized and established for the purposes of treaty negotiations by the aboriginal people it represents;
The organization and establishment of a governing body for treaty negotiations is a decision to be made by the aboriginal people it represents, namely the constituents of the First Nation. "Constituents" are all the members of the First Nation, on and off reserve or wherever they reside. The governing body must describe its organizational structure and how it was established.
TYPES OF ORGANIZATION STRUCTURE
A. traditional government
This may include an organization according to an hereditary system.
A band is established under the Indian Act. Its authority is limited to the powers granted by that legislation. In order for a band to meet the definition of First Nation, it must, among other things, be a governing body "organized and established by aboriginal people." In order to meet this criterion, the constituents must specifically approve the band as the appropriate governing body to conduct treaty negotiations. (Further explanation is provided under criterion 3 below.)
C. tribal council
A tribal council may be a political alliance of bands or tribes. It may be organized in a number of ways, such as a governing council appointed or delegated by independent bands or tribes, or as a governing body of all the members of its component bands or tribes. However organized, the constituents must approve the tribal council as the appropriate governing body to conduct treaty negotiations. Where a tribal council's component members are independent bands, the constituents of each band must give the approvals.
D. combination of the above.
- That the governing body is mandated by its constituents to submit a Statement of Intent to negotiate a treaty on their behalf with Canada and British Columbia under the treaty process;
The governing body must obtain the following mandate from its constituents: to enter into treaty negotiations with Canada and British Columbia through the treaty process, and specifically approving it as the appropriate organization to conduct the treaty negotiations.
The governing body must describe how its constituents have given it the mandates described above. This necessarily involves those constituents with capacity to make decisions (i.e., adult members). In determining whether the constituents have given the required mandates, the Commission will expect compliance with the following guidelines:
A - there must be clear notice given to all known constituents of the First Nation that informs them of the specific mandates being sought, and
B - all known constituents should be given an opportunity to participate in the decisions. As a minimum standard, a majority of constituents who have participated in the decisions must indicate their support for the mandates sought.
EXAMPLES OF WAYS FOR CONSTITUENTS TO PARTICIPATE IN DECISION MAKING INCLUDE:
- attending meetings convened in the communities where a significant number of members reside;
- where members are unable to attend a meeting, they should have an opportunity to express their views in writing -- by mail-in ballot, by appointing a proxy to vote on their behalf or by sending written comments to be considered at the meeting;
- community petitions; and
- consensus processes in combination with other examples described above.
- Who the aboriginal people are represented in the Statement of Intent;
The governing body should describe the aboriginal people, including tribal affiliation.
- The number of aborignal people represented in the Statement of Intent;
This number must reflect the total number of the First Nation's current members, wherever they live, broken down as follows: total number of members living on reserve, number of adult members living on reserve, total number of known members living off reserve, and number of known adult members living off reserve.
- Whether there is any other First Nation that claims to represent the aboriginal people described in 4 and 5 above;
This would include First Nations either in or outside the treaty process. The Commission is responsible for ensuring that only one Statement of Intent is accepted on behalf of the people described in 4 and 5.
- A description of the First Nation's traditional territory in British Columbia;
The Treaty Commission does not make any determination of the boundaries of a First Nation's traditional territory. However, the Commission must be able to determine that the aboriginal people represented in the Statement of Intent have a distinct traditional territory that is generally recognized as being their own.
The governing body should attach a map showing the traditional territory. The suggested map size is 1:250,000. Refer also to 8 below.
- Whether there are any First Nations with whom the First Nation may have overlapping or shared territory;
if so, identify them; In many instances, traditional territories of different First Nations overlap one another. The governing body filing the Statement of Intent must identify any First Nations in or outside the treaty process with whom the First Nation may have shared or overlapping territory.
Insofar as these overlaps may affect negotiations, First Nations are responsible for resolving them. As a general principle, these issues do not have to be resolved before negotiations start, but a process for resolution must be established in Stage 2.
- The name of the person assigned as a contact for formal communications.
The governing body must advise the Commission when the contact person is changed. The Commission may require additional information where clarification is necessary.
For further information, see Appendix A, a sample Statement of Intent.