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.