| What is a Treaty?
A treaty is an agreement between two
or more governments, in our case between the Ktunaxa Nation,
Canada and British Columbia.
The last of the historic treaties
were signed in Canada by the early 1920s. Most of these
treaties were signed with First Nations east of the Rocky
Mountains.
By 1927 the federal government made
it a criminal offence for a First Nation to hire a lawyer
to pursue land claims settlements. Consequently, treaties
have never been concluded with First Nations in some parts
of Canada, including most of those in British Columbia.
Why Are Treaties
Being Negotiated In B.C.?
There are political and economic needs in B.C. to negotiate
treaties with First Nations. Aboriginal demands for recognition
of rights and title over the past few decades have gained
political and public support as a result of First Nation’s
activism and court judgments upholding aboriginal rights
and title.
Economic Factors
The economic cost of not negotiating treaties in B.C.
is clear. First Nations’ demands for recognition of
rights and title and court cases can delay resource development
projects pending settlement of disputes over rights and
title. As early as 1990 Price Waterhouse stated the cost
to B.C. of not settling land claims was $1 billion in lost
investment and 1,500 jobs a year in the mining and forestry
sectors alone.
Legal Factors
Since 1973, a series of judgements
have supported aboriginal rights and title, three of the
most significant being:
| 1982 |
Constitution Act, Section 35
Canada’s supreme law states: “The existing
Aboriginal and treaty rights of the Aboriginal peoples
of Canada are hereby recognized and affirmed.”
The Constitution did not create or define aboriginal
rights. Rather, it “recognized and affirmed”
existing aboriginal rights. |
| 1997 |
Delgamuukw Supreme Court Judgment
The landmark Delgamuukw decision confirmed that aboriginal
title is a right to the land itself – not just
the right to hunt, fish and gather. 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 compensate First Nations
whose rights are affected.
|
| 2004 |
Haida Nation Supreme Court Judgment
The Haida decision grounded the duty to consult in the
honour of the Crown, and noted that the duty is a necessary
part of an “honourable reconciliation process”
demanded by the Constitution. The Crown must act honourably,
and so cannot simply use resources “as it chooses,”
or “run roughshod over aboriginal interests.”
The Court noted that “Canada’s aboriginal
peoples were here when Europeans came, and were never
conquered.” The honour of the Crown requires it
to negotiate with aboriginal peoples to determine, recognize
and respect aboriginal rights and title. The Crown’s
duty to consult is related to the duty to negotiate
treaties or other agreements with aboriginal peoples
with respect to their rights and title. The honour of
the Crown may require consultation and accommodation
to avoid harming aboriginal interests while negotiations
take place. While the Court held that the duty to consult
and accommodate is not a “fiduciary duty”,
it held that the Crown must respect potential, unproven
rights which are protected by the Constitution. Government
must consult in good faith. This consultation with First
Nations must be meaningful and cannot be delegated to
third parties.
|
These judgements have confirmed aboriginal
title as a right protected under the Canadian Constitution.
They have also confirmed that it is the duty of the Crown
to recognize and protect aboriginal rights, title and interests.
What will
Treaties Accomplish?
Treaties will clearly set out the land rights, obligations
and authorities of First Nations in relation to other governments.
Treaties will
enhance First Nations’ opportunities for economic
development, self-government and self-reliance, and cultural
and social well-being.
Treaties will create certainty over
the use and management of lands and resources that will
lead to a more stable climate for business and investment.
The Six-Stage
Negotiating Process
Treaty
Negotiations >
What is a Treaty? |
