This image depicts modern treaties in Canada as of 2016. Image retrieved from https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ-AI/STAGING/texte-text/mprm_pdf_modrn-treaty_1383144351646_eng.pdf
Tansi Nîtôtemtik,
Comprehensive land claims, or ‘modern treaties,’ are most common in areas where Aboriginal rights and title have not yet been codified into law by historical agreement. As the map in Monday’s post highlights, by 1975, much of Canada’s unceded lands (lands never surrendered by Indigenous peoples to the Crown) were located in BC and the northern territories. For this reason, modern treaties are most common in these same regions.
In BC, for example, there are currently 8 modern treaties: Nisga’a Nation, 5 distinct Maa-nulth First Nations, Tla’amin Nation, and Tsawwassen First Nation.[1] To date, 65 First Nations in the province (approximately 52.5% of all bands legally recognized in BC under the Indian Act) “are participating in, or have completed treaties through, the treaty negotiations process.”[2] Of course, much of the province remains unceded.
BC’s modern treaty process began in the early 1990s. Open to any First Nations group, the process involves a 6-stage negotiation between the individual First Nation applicant, the government of Canada (represented by the Prime Minister of Canada and the Minister of Indigenous and Northern Affairs Canada), and the government of British Columbia (represented by the Premier of British Columbia and the Minister of Aboriginal Relations and Reconciliation, and the First Nations Summit).[3] The process is coordinated and overseen by the BC Treaty Commission.
The 6-stage process in BC begins with a First Nation filing a statement of intent to commence negotiations. The applicant must meet certain criteria, such as proving they represent the people and that they have a distinct traditional territory – often, these requirements are difficult to meet. In the second stage, the parties must “demonstrate that they have a commitment to negotiate, a qualified negotiator, sufficient resources, a mandate and a process to develop that mandate and ratification procedures.”[4] Once everything is in place, the parties move to the third stage and decide on what the agreement will include (typical issues are related to “governance structures, jurisdiction, and ownership of lands, waters, and resources”[5]) and how long the negotiations for each section will take. After that, the fourth stage – substantive negotiations – begins. Then, during the fifth stage, any outstanding “technical and legal issues are resolved”[6] and the treaty is formally signed and ratified. Finally, the treaty is implemented in the sixth stage.
In practice, the process is extremely lengthy and has been criticized for its “glacial pace.”[7] Further, misconceptions abound in terms of what is actually given and received. However, most problems arise in the implementation stage. Governments are supposed to take a broad approach when it comes to the statutory interpretation of treaties (both historic and modern), but this is not the reality experienced by many Indigenous groups when they go to exercise their treaty rights. Accordingly, signatories to some of the modern treaties have argued that in order to ensure accountability, “Canada needs a treaty watchdog akin to the federal environment commissioner.”[8] As Trudeau’s Liberals move forward with dissolution of Indigenous and Northern Affairs Canada, and the creation of Indigenous Services Canada, Crown-Indigenous Relations, and Northern Affairs Canada, it will be interesting to see if this idea gains force.
Until next time,
Team ReconciliAction YEG
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[1] BC Treaty Commission, “Treaties and Negotiations” online, http://www.bctreaty.ca/faq.
[2] Ibid.
[3] Ibid.
[4] BC Treaty Commission, “Stages of Treaty” online, http://www.bctreaty.ca/six-stages.
[5] “Treaties and Negotiations” supra note 1.
[6] “Stages of Treaty” supra note 4.
[7] Vanessa Sloan Morgan and Heather Castleden, “Framing Indigenous–Settler Relations within British Columbia's Modern Treaty Context: A Discourse Analysis of the Maa-nulth Treaty in Mainstream Media” (2014) International Indigenous Policy Journal 5:3 at 8.
[8] See R v Marshall, 2005 SCJ No. 44.
[9] James Munson, “Time for a treaty watchdog, say modern land claims holders” IPolitics, Dec 1, 2017, online: https://ipolitics.ca/article/time-treaty-watchdog-say-modern-land-claims-holders/.
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