BarTalk February 2003
Volume 15, Number 1

New tools promote treaty breakthrough

by John Watson

It has been nearly a decade since the Government of Canada, the Government of British Columbia and First Nations throughout the province entered into the B.C. treaty negotiations process.

At the outset, all parties anticipated several treaties would be concluded before 2000. Ten years’ experience has taught us many lessons, not least of which is that we all underestimated the complexities of modern treaty-making.

The lack of agreements led to a high level review of the treaty process, triggered in large part by the B.C. Treaty Commission. In its 2001 report Looking Back, Looking Forward – A Review of the Treaty Process, (www.bctreaty.net) the B.C. Treaty Commission proposed some bold recommendations to improve treaty negotiations. The result is a significantly improved treaty process – new approaches and techniques that provide greater resilience and flexibility.

Canada remains firmly committed to negotiating practical and workable arrangements to fulfill First Nations’ inherent right to self-government, and to achieving certainty through comprehensive treaties. Within this mandate, Canada is prepared to support incremental treaty-making as a means of generating benefits for all parties – particularly First Nations – in advance of a final settlement, provided they promote progress toward a final agreement.

Despite their complexity, modern treaties are possible. Since 1975, Canada and provincial or territorial governments have concluded 15 comprehensive treaties or land claims agreements with First Nations, including the Nisga’a treaty in B.C. and others in Quebec, Yukon, Northwest Territories and Nunavut. Federal negotiators are confident that similar achievements are within reach at several negotiation tables in B.C.

In the short term, the treaty process will not resolve all outstanding Aboriginal issues in this province. Forty-two First Nations groups, representing about two thirds of Aboriginal people in the province, are now participating in the B.C. treaty process. Among them, the potential to conclude comprehensive treaties within the foreseeable future varies widely.

Comprehensive agreements with some of these groups and with groups not in the treaty process may not be achievable in the near future. However, the federal government is also moving forward with other initiatives focused on improving the viability of Aboriginal communities in B.C. and across Canada.

The First Nations Governance Act is designed for First Nations operating under the Indian Act and provides an interim step towards self-government. The Act will modernize local law-making and allow a band to put in place its own codes for leadership selection, financial management, accountability, and band administration. It will also enable band governments to enter into contracts; acquire property; and raise, spend, invest and borrow money.

The Government of Canada is also expanding First Nations’ participation under the First Nations Land Management Act. Enacted in 1999, the legislation allows participating First Nations to adopt their own codes governing on-reserve land and resource management. Original restrictions limiting eligibility have been relaxed, and several B.C. First Nations have expressed an interest in enrolling.

The proposed First Nations Fiscal and Statistical Infrastructure Management Act will provide First Nations with real property taxation powers and access to capital markets as a source of funding for community development and infrastructure.

These initiatives go a long way to liberating First Nations from the restrictions of the Indian Act. Together with treaty negotiations, they translate into concrete action to bring First Nations into the fabric of Canadian society and ensure they share in the opportunity and prosperity that other Canadians take for granted.

John Watson is the Regional Director General BC Region, Indian and Northern Affairs Canada.

This article was published in the February 2003 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.