By Terence Ho | Foundation of HKPLTW
Terence is a Research Coordinator for the Foundation of HKPLTW with interests in history & traditions, social organization & inter-group relations, culture & religion, and economics & politics of Canadian Indigenous People and Visible Minorities. Follow him on Twitter: @hkpltw
Terence is a Research Coordinator for the Foundation of HKPLTW with interests in history & traditions, social organization & inter-group relations, culture & religion, and economics & politics of Canadian Indigenous People and Visible Minorities. Follow him on Twitter: @hkpltw
Difference: B.C. Refused to Federal’s Claim Process
In British Columbia, treaties were traditionally not negotiated between the government and First Nation peoples. As First Nation activists would argue for years, Aboriginal title is therefore not officially extinguished, and legally they retained ownership and rights over their land properties. British Columbian government’s stance had to reflect the Calder case in 1973, the first court case to acknowledge the continued existence of Aboriginal title. However, there remained divisions on whether or not Aboriginal title ever existed in BC.
Determining the potential presence of Aboriginal title would be the responsibility of the Crown, even though the burden of proof entirely rests on First Nations to prove it exists. In response to the division on Aboriginal title, the federal government developed a comprehensive claims process for dealing with grievances related to claims to land where, in the perspective of the Crown, the question of Aboriginal title had never been addressed through historical treaties.
Despite the federal government’s claim processes, the British Columbian government refused to cooperate, and issues of outstanding Aboriginal title in BC remained. In the 90s, things started to change when First Nation activists throughout the province protested in desperate attempts to have the BC government recognize their right to jurisdiction over their land. These direct actions had come after more than a century of failed petitions and negotiating with the government. Due to the pressures from the protests, the government set up British Columbia Treaty Process (BCTP) to finally reach agreements with First Nation activists over the title.
British Columbia Treaty Process: What Makes It Speical?
First, I want to point out that BCTP is a voluntary process, commonly described as the “keeper of the process,” because it does not negotiate treaties but helps ensure a fair, impartial, practical and understandable process. Furthermore, please note that not all First Nations communities are participating. Since it was created, the majority of the current treaty negotiations in BC have occurred within the BCTP. Within the BCTP, 60 First Nations participate in 49 sets of negotiations, representing about two-thirds of all First Nations people in BC. As a process, the BCTP includes Six stages, as outlined in the table below.
| Stage Number | Stage Name | Description |
| Stage One | Statement of Intent to Negotiate | The process begins when a First Nation submits a statement of intent with the BC Treaty Commission. To be accepted, one must state and identity who is claiming, proof that the negotiating party is supported by the community and where the claim will be made. It also must identify First Nation’s traditional territory in BC and identify any overlaps with other First Nations. |
| Stage Two | Readiness to Negotiate | Within 45 days of submitting the Statement of intent, the parties (First Nation, BC, Canada) conduct their initial meeting to exchange information and consider criteria that will determine that all parties have the will and resources to negotiate a treaty. |
| Stage Three | Negotiation of a Framework Agreement | The three parties agree on the subjects to be negotiated and time frame for agreement-in-principle negotiations in state 4. It is a “table of contents” of comprehensive treaty which uses to identify the content for negotiations and establish procedures. Furthermore, all parties also embark on a program of public information and education which is pertinent to their table — this will continue throughout the negotiations process. |
| Stage Four | Negotiation of an Agreement In Principle | This stage begins the substantive negotiations. The negotiating parties examine in detail the elements outlined in their framework agreement with the goal to identify the problems, define a range of rights and obligations, like interests in resources or regulatory processes, and create working treaty. In addition, this stage outlines implementation and ratification plans for the treaty. |
| Stage Five | Negotiation to Finalize a Treaty | The treaty for all intents and purposes is finished at this stage, but it has to be approved by all parties. Any technical and legal issues still present will be examined and resolved by the parties. The treaty will formally signed at the end of this stage. |
| Stage Six | Implementation of the Treaty | The final stage: applying and running the First Nation as set out by the treaty. All aspects of the treaty will be realized and with continuing goodwill, commitment and effort by all parties, the new relationship will be brought to maturity. |
Has BCTP Been Successful?
Since its debut in 1992, the British Columbia Treaty Process has not been entirely successful. Many First Nation communities have dropped out or refused to participate based on their belief that the process favours the government, allowing the government to continue developing lands at the expense of First Nations, territories and cultures. As a result, a few treaties have been completed under BCTP.
As of 2021, the majority of the treaties involved in BCTP are in Stage 4. Many treaties fell short when both parties have conflicts over the elements outlined in their framework agreement with the goal to identify the problems, define a range of rights and obligations, like interests in resources. So far, the Nisga’a agreement is the first and only successful modern land treaty in B.C..
Personally, I believe that British Columbia Treaty Process is a necessary first step for both the First Nations and B.C. government. However, the current state of BCTP failed at settling issues of Indigenous tittle in B.C. BCTP is very controvial, and the deabtes are ongoing.
This is an opinion article; the views expressed by me. Follow Me on Twitter: @hkpltw And @Terry_Terence97
Bibliography
Crowe, Keith. “Comprehensive Land Claims: Modern Treaties”. The Canadian Encyclopedia, 11 July 2019, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/comprehensive-land-claims-modern-treaties. Accessed 09 November 2021.
Dyck, Lillian E., et al. A Commitment Worth Preserving: Reviving the British Columbia Treaty Process. Canada Senate, Ottawa, Ont., 2012.
Green, Arthur, et al. British Columbia in a Global Context. Geography Open Textbook Collective, 2014.
Hanson, Eric. “Aboriginal Title.” Indigenous Foundations. First Nations and Indigenous Studies UBC, 2009. Accessed 8 November 2021.
“Overview of Treaty Negotiations in B.C. ” Government of Canada. Nisga’a Final Agreement and Background Information, https://www.rcaanc-cirnac.gc.ca/eng/1100100031304/1543410622429. Accessed 4 November 2021.
“The Six Stage Negotiation Process.” FIRST NATIONS SUMMIT. Treaty Negotiation, https://fns.bc.ca/treaty-negotiation-process-in-bc/six-stage-negotiation-process. Accessed 7 November 2021.
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