Before Canada was a country, Britain recognized that aboriginal 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 Canada's aboriginal 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 process.
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. Aboriginal rights refer to practices, traditions and customs that distinguish the unique culture of each First Nation and were practised prior to European contact. Aboriginal title is an aboriginal property right to land.
Continued uncertainty about how and where aboriginal rights apply discourages investment and economic development in BC. Through the give and take of negotiations, treaties will define aboriginal rights and title, thereby resolving ownership of BC's land and resources.
The BC treaty process, open to all BC First Nations, currently includes 60 First Nations at 49 sets of negotiations. BC treaty negotiations are arguably the most complex set of negotiations Canada has ever undertaken and the most complex treaty negotiations ever undertaken in the world.
Achieving certainty is the primary goal of the BC treaty process.
Certainty in a treaty means ownership and the rights, responsibilities and authorities of all parties are clear and predictable. The process for reviewing and amending the treaty must also be fair and predictable.
In all types of negotiations, certainty can be achieved without finality. The challenge is to develop predictable procedures for dealing with issues without extinguishing or impairing those aboriginal rights not specifically dealt with in a treaty. In the past, the Government of Canada required First Nations to cede, release and surrender their aboriginal rights in exchange for treaty rights. This is referred to as an extinguishment model". First Nations in the BC treaty process reject this approach because they see it as giving up rights that may not be included in a treaty.
The parties have explored an approach to certainty known as the 'non-assertion model': the First Nation agrees to not assert any governance-related right other than those exhaustively set out in the governance agreement (for more information see Annual Report 2003 p. 10).
Although there has been progress, much work is still required by treaty tables to close the gap in vision on the certainty issue.
What certainty really means is "predictability"the familiarity that develops from a history of working together. Through interim measures agreements, aboriginal and non-aboriginal communities can start building mutually beneficial governance arrangements, business relationships, land management processes and other cooperatives relationships.
Since the early 1970's aboriginal rights have slowly evolved and been defined by the Canadian courts.
The Delgamuukw case is widely seen as a turning point for negotiations. In 1997, the Supreme Court of Canada ruled in the Delgamuukw case 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 was never extinguished in BC and therefore still exists; it is a burden on Crown title; and when dealing with Crown land the government must consult with and may have to accommodate First Nations whose rights are affected.
Haida and Taku
Two cases provide broad guidelines for the negotiation and definition of aboriginal title in BC.
In November 2004, the Supreme Court of Canada established a general framework for the duty to consult and accommodate First Nations in British Columbia. The court ruled in Haida and Taku that government has a duty to consult and possibly accommodate aboriginal interests even where title has not been proven.
This duty arises from the need to deal with aboriginal rights in the interim prior to those rights being addressed through a treaty or court decision. Government cannot run roughshod over aboriginal interests. And First Nations do not have a veto over what can be done with land pending final proof of claim. The consultative process must be fair and honourable, but at the end of the day, government is entitled to make decisions even in the absence of consensus.
However, the court put to rest the notion of extinguishment of aboriginal rights and finality in agreements. Instead, the goal of treaty making is to reconcile aboriginal rights with other rights and interests, and that it is not a process to replace or extinguish rights. The courts stated, "Reconciliation is not a final legal remedy in the usual sense." It said "just settlements" and "honourable agreements" are the expected outcomes.
Negotiation vs. Litigation
Canadian courts have repeatedly urged the parties to resolve aboriginal title through negotiation, not litigation. Litigation is costly, generally narrowly focused, time consuming and ultimately leaves the question of how aboriginal rights and title apply unanswered.
For example, the Delgamuukw case was in the courts thirteen years. While the case resulted in some clear and strong statements concerning aboriginal title, it did not define how aboriginal title applied for the First Nations involved as the court decided a new trial was required.
In the BC Court of Appeal ruling in the Haida case, then Justice Lambert reiterated the need to negotiate:
Of course as both this Court and the Supreme Court of Canada have said many times, a negotiated settlement, by treaty or otherwise...is always better than a judgment after litigation pursued to the end. (Haida Nation v. B.C. and Weyerhaeuser. Justice Lambert)
Modern treaty making is not unique to Canada. For example, in New Zealand several treaties have been established with the Maori people and Australia is currently embarking on treaties with the Torres Strait Islander and aborigine peoples. A succession of U.S. presidents has reaffirmed that a government-to-government relationship exists between the United States and Indian Nations.
Under international treaty law, nations must respect aboriginal people's right to self determination. The International Bill of Rights of the United Nations declares that self determination is the right of a people to freely determine their political status and freely pursue their economic, social, and cultural development and to dispose of and benefit from their wealth and natural resources.