The Nisga'a Final Agreement in the Canadian Context
The history of treaty making in the rest of Canada has been substantially different than it has been in B.C.
The process of treaty making in Canada began soon after Europeans landed in North America and came into contact with Aboriginal people.
By the 1850's, the British Crown had signed major treaties with First Nations in eastern Canada. The process of treaty making continued west to the Rockies in advance of European settlement.
Between 1860 and 1923, more than 60 major treaties were signed in Canada. Between 1923 and 1973, no new treaties were signed.
After a legal action launched by the Nisga'a Tribal Council in 1968, the situation began to change. The Supreme Court of Canada's 1973 decision in the Calder case raised doubts about whether Aboriginal title to land in B.C. had been properly dealt with and prompted the federal government to develop a policy to address unsettled Aboriginal land claims across Canada.
Canadian Treaties since 1973
Since 1973, the following treaties have been negotiated and signed:
- James Bay and Northern Quebec Agreement (1975) - Quebec
- Northeastern Quebec Agreement (1978) - Quebec
- Inuvialuit Final Agreement (1984) - Northwest Territories
- Gwich'in Comprehensive Land Claim Agreement (1992) - Northwest Territories
- Tungavik Federation of Nunavut Comprehensive Claim Agreement (1993) - Northwest Territories
- Sahtu Dene and Métis Comprehensive Land Claim Agreement (1994) - Northwest Territories
- Vuntut Gwitchin First Nation Final Agreement (1994) - Yukon
- First Nation of Na-cho Ny'a'k Dun Final Agreement (1994) - Yukon
- Teslin Tlingit Council Final Agreement (1994) - Yukon
- Champagne and Aishihik First Nations Final Agreement (1994) - Yukon
- Little Salmon/Carmacks First Nations Final Agreement (1997) - Yukon
- Selkirk First Nation Final Agreement (1997) - Yukon
- VTr'ondëk Hwech'in First Nation Final Agreement (1998) - Yukon
These modern treaties address matters related to lands and resources. Some provide for the negotiation of self-government agreements as well.
B.C.'s History with Treaties
Since most treaty making over the last 100 years in Canada stopped at the Rockies, British Columbia's situation is unique. Until the negotiation of the Nisga'a Final Agreement, almost all of the province remained subject to outstanding Aboriginal land claims. The only treaties affecting the province are Treaty 8, which extends into northeastern B.C. from Alberta, and 14 limited-scope treaties on Vancouver Island.
In 1993, Canada, British Columbia and First Nations established the British Columbia Treaty Commission (BCTC) to facilitate the negotiation of treaties. Its main functions are to assess the readiness of the parties (Canada, B.C. and First Nations) to begin negotiations, to allocate negotiation funding to Aboriginal groups, to report publicly on the progress of negotiations and to assist the parties when asked to resolve differences.
Reasons for Negotiating Modern-Day Treaties in Canada
There are legal, social and economic reasons for negotiating treaties in B.C. today.
Section 35(1) of the Constitution Act, 1982 recognizes and affirms Aboriginal rights but it does not specify the nature, scope or extent of those rights.
Section 35(1) has been interpreted in notable court cases such as Sparrow and Delgamuukw. However, the decisions in those cases did not include a clear definition of all Aboriginal rights.
Rather, the courts have indicated that Aboriginal rights are fact, site and group specific. This means that whenever a court considers issues of Aboriginal rights, it will do so only in the context of the particular facts and the particular group before it.
The courts have also repeatedly encouraged the resolution of Aboriginal issues by negotiation rather than litigation, which is a more costly, adversarial and time-consuming way to address outstanding Aboriginal issues.
The administration of Aboriginal matters under the Indian Act has not achieved positive results.
The social conditions of Aboriginal communities have improved considerably over the last few decades, but they still lag behind other communities in B.C.
Compared to the Canadian population in general, First Nations people experience the lowest rates of literacy and education and the highest rates of infant mortality, unemployment, incarceration and suicide.
The Government of Canada regards the transfer of responsibility and control of their communities to Aboriginal people through treaty negotiations as an essential step towards positive change.
In short, treaties with First Nations will help establish a new relationship between Aboriginal and non-Aboriginal people based on mutual respect, trust and understanding.
The absence of treaties has created uncertainty regarding the use and management of lands and resources.
According to a 1990 study done by Price Waterhouse, close to $1 billion and 1,500 jobs had been lost in B.C.'s mining and forestry sectors alone as a result of disputes over land claimed by First Nations in B.C.
One of the goals of treaty negotiations is to establish certainty over lands and resources to provide a more secure climate for investment and economic development in B.C.
Modern Treaty Negotiations in B.C.
Currently, there are 51 Aboriginal groups, representing over 70 per cent of B.C.'s First Nations, involved in treaty negotiation through the BCTC process.
The tripartite Nisga'a negotiations, which began in 1990, are separate from the BCTC process.
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