“With the latest three treaties—K’ómoks, Kitselas and Kitsumkalum—the treaty process has gone off the rails.”
—Geoffrey Moyse
There is a lot of confusion about treaties these days. For good reason. The treaty process has changed and not for the better.
A modern treaty used to mean a land claim converted into a defined area of treaty settlement land, with private property never included except on a willing seller basis. It defined whose laws prevailed on those lands and set out a short, negotiated list of off-treaty land rights (for hunting, fishing or harvesting, for instance).
The modern-day treaty-making process in British Columbia has admittedly been painfully slow and it is not perfect, but it has yielded many good agreements resulting in legal certainty and finality for the rest of the land base.
The same can’t be said for the three most recent “living” treaties signed under the current government. Treaties under the Eby government can be re-opened every decade and rely on a United Nations declaration as their interpretive guide. This weakens the certainty about whether Aboriginal title can later be claimed, even when there’s an agreement that the First Nation won’t assert Aboriginal title post-treaty.
Also troubling, the BC Treaty Commission’s mandate now openly incudes “non-treaty agreements” and “other arrangements” with even less certainty and no finality. Agreements drafted under section 7 of the Declaration on the Rights of Indigenous Peoples Act (DRIPA) are worse still, moving statutory decision-making by the provincial government to joint or consent models without concluding the land claim or Aboriginal title questions.
As legal counsel in the Ministry of Attorney General, I was a part of the provincial team that helped complete the landmark Nisga’a Final Agreement, the first modern-day treaty in B.C. It came into legal effect on May 11, 2000, after more than ten years of negotiations.
Following Nisga’a, seven more treaties followed—Tsawwassen, Tla’amin and Maa-nulth, which includes five Indigenous communities—with similar provincial and federal mandates.
But in the latest three treaties with K’ómoks, Kitselas and Kitsumkalum, the treaty process has gone off the rails.
DRIPA drove treaty certainty and finality provisions off a cliff
Even before the BC NDP took office, its BC Liberal predecessors began adjusting modern-day treaty mandates, significantly weakening both legal certainty and finality of outcomes.
But it was after the province channeled the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into law through DRIPA that the whole process veered over a cliff into highly legally uncertain territory.
In the latest three treaties, the UN declaration has been included as a “definitive” interpretive tool for the content of these agreements. Article 26 of the declaration in particular muddies the jurisdiction and territorial waters completely. Under UNDRIP, any land claimed by an Indigenous community is deemed owned by that group, without having to prove Aboriginal title in court.
Additionally, treaty signatories are now accorded an ever-expanding ability to control and influence outcomes on the provincial public land base well beyond the geographic area designated as their treaty “settlement lands.” This effectively creates a kind of co-governance authority outside of treaty lands. This authority is in addition to appropriate and specifically defined treaty rights, such as hunting and fishing, on lands outside the treaty settlement area. It is also creates uncertainty as to who governs lands outside of First Nation-owned settlement lands.
Last year’s BC Court of Appeal decision that DRIPA is actionable law in the province further destabilizes the previous certainty of the treaty process. In fact, the ruling seriously undermines it.
UNDRIP creates a false narrative when viewed in the Canadian legal context, that Aboriginal ownership of lands and resources only requires an assertion of territorial claim—a conclusion not supported by Canadian constitutional case law.
It is very often the case that the amount of land identified in modern treaties as treaty settlement lands is strikingly similar in geographic scope to the area that, in all likelihood, could be proven in court to be Aboriginal title under Canadian constitutional law.
This reality is a sticking point for some Aboriginal communities and their advocates who believe treaty land mandates are inappropriate, inadequate or unjust. Relying on, and leveraging, the much more expansive (and I would say unrealistic and unsustainable) UNDRIP definition of territorial ownership, some B.C. Indigenous groups may well now expect treaty settlement lands, and their authority over them, to extend well beyond what could be proven in court.
Change to the Commission’s mandate is ‘betrayal’
Present federal and provincial governments appear fascinated with UNDRIP, to the point, they have changed the basic mandate of the BC Treaty Commission. The new chief treaty commissioner now endorses the value of “non-treaty agreements” and “other arrangements” to reach reconciliation outside of treaty-making.
This is an astounding betrayal of the reason the commission was created in the first place—to facilitate the negotiation of tri-partite modern treaties to create ultimate legal certainty on the British Columbia land base and to finally resolve the ‘land question’ in this province in a fair and honourable way.
In a modern-day treaty process, private land is never on the table except on a willing seller/willing buyer basis. Governance authority over the treaty settlement land base is carefully negotiated with clear rules as to whose legal authority takes precedence in areas covered by the treaty.
To see the kinds of topic areas and clarification of treaty rights covered by a current modern-day treaty currently proceeding through the ratification process, see the table of contents in the Komoks Treaty.
Which is not to say the treaty process is without flaws.
There have been many detractors who have regularly criticized the treaty process. Some Aboriginal communities vehemently oppose any process that threatens to undermine their ability to leverage Aboriginal title uncertainty—now exacerbated by the blanket promises within UNDRIP—over their entire claimed territories. The goal is to obtain land use control and revenue benefits over any and all resource development or other revenue-gnerating activities within those often-enormous geographic areas.
The Union of BC Indian Chiefs (UBCIC), for example, has long been a fierce opponent of treaties in this province and has argued that treaties must not infringe on Aboriginal rights and should require the consent of neighboring Indigenous communities.
Treaty model has been weakened
For many years, every negotiating table spent valuable time and resources trying to force federal and provincial governments to embrace less legal certainty for the public, less legal finality and ever greater “off settlement land” authority over non-treaty public lands. This forced continual attempts at renegotiation of core elements of treaties.
However, once the first eight modern treaties had been completed, the certainty provisions were no longer a subject for renegotiation table by table, as was the case in the first few years following the Nisga’a treaty. The reason was that a workable treaty model had not only been developed and followed several times, but it was also successful.
Those who disagree should speak to the Nisga’a people to understand their post-treaty accomplishments.
Unfortunately, this tried and true treaty model has now been detrimentally modified.
With the latest treaty negotiations in B.C., both the federal and provincial governments have effectively weakened their own treaty negotiation mandates as a direct result of ongoing insistence and pressure from negotiators for Aboriginal communities.
What this means is that the sensible previous mandates that were advanced to fully protect the public interest following the Nisga’a treaty, particularly with respect to legal certainty and finality, have now been altered to be less effective than they were with the eight previous modern BC treaties.
This must be immediately remedied. It is time to recommit to the treaty process with swiftness, alacrity, and an unwavering commitment to making the process a success.
BC must double down on treaties that bring certainty and finality
To advance balanced reconciliation in B.C., we must double down on treaties that respect and benefit Indigenous communities and the wider public. Participation must be broadened to allow many more Aboriginal communities to come to the table, and those efforts must be funded appropriately.
Governments must also reintroduce effective legal certainty and finality provisions into the treaties. Further, First Nation signatories can no longer have authority to control the use of publicly owned land outside the boundaries of their own treaty lands.
Provincial and federal treaty mandates, which the Nisga’a themselves ultimately accepted as a full, fair and final settlement, must be restored. “Foundation agreements” and “other arrangements” are not treaties. They bestow Aboriginal title without any legal or jurisdictional certainty, or finality whatsoever, for the larger population.
And the public needs to be brought along, every step of the way.
Provincial and federal mandates should be completely disclosed to the public and robust consultation processes in place for every treaty negotiation underway in the province, such as the former regional and technical advisory committees. Only then can the public see the content of negotiation topics and the ultimate rewards of completing those negotiations.
“British Columbians need policy that works, dialogue that is respectful, and a treaty process that everyone can understand and have confidence in,” former Lax Kw Alaams First Nation councillor, Chris Sankey recently wrote in an OpEd for Northern Beat.
To achieve that, our government must embrace and radically expand a strong, fast, effective and inclusive treaty process that will bring legal certainty for all British Columbians.
Because treaties are the true path to reconciliation.
Done carefully and purposefully with everyone’s best interests in mind, they can deliver unity and opportunity enough for all communities in this province to flourish.