Multilateral Engagement Process to Improve and Expedite Treaty Negotiations in British Columbia

Proposals for the Principals' Consideration

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Executive Summary

The history and process of modern-day treaty making in British Columbia is unique. In 1990, the British Columbia Claims Task Force was created to recommend how Canada, British Columbia and First Nations in British Columbia could negotiate treaties and what topics should be addressed. The Task Force completed its report in 1991, and Canada, British Columbia and the First Nations Summit accepted all of its 19 recommendations. These included the creation of the made-in-British Columbia treaty negotiations process to resolve the outstanding land question, and the establishment of the British Columbia Treaty Commission. Treaty negotiations under this process have proven to be complex, lengthy and costly for all parties. The challenges faced in these negotiations have been articulated in several previous reviews and reports.

On May 29, 2015, the Principals to the made-in-British Columbia treaty negotiations process (Minister of Indigenous and Northern Affairs, Canada; Minister of Aboriginal Relations and Reconciliation, British Columbia; and the First Nations Summit Task Group) agreed to establish a multilateral engagement process to improve and expedite treaty negotiations in British Columbia. This engagement process took place from June 2015 to March 2016. Representatives from Canada, British Columbia, and the First Nations Summit participated in the engagement process, along with representatives from the British Columbia Treaty Commission, who participated in an advisory capacity.

The commitment of the Principals to the multilateral engagement process is an acknowledgement that the status quo is not acceptable. The current reality of treaty negotiations in British Columbia necessitates changes in order to advance reconciliation. Under the terms of reference for the engagement process, officials were mandated to focus on: process efficiencies; negotiation support funding; shared territory and overlap issues; certainty; and the role of the British Columbia Treaty Commission. This report contains jointly developed proposals for consideration by the Principals, as well as action items to be undertaken by Senior Officials. These proposals and action items are intended to improve and expedite treaty negotiations in British Columbia by:

1. committing, at the Principals' level, to the treaty negotiations process and to expediting negotiations;
2. employing greater flexibility to reach treaties faster and more efficiently, and to reach agreements in advance of, or outside, a modern comprehensive treaty through the use of:
   1. a stepping stone approach to treaty making;
   2. constitutionally protected core treaties supported by side agreements;
   3. sectoral treaties and agreements and incremental treaty agreements to address the exercise and recognition of rights in defined subject areas;
   4. scoping discussions and proposals to determine earlier on whether parties share enough common ground to move forward; and
   5. condensed Agreements-in-Principle which contain the key elements of an agreement, with less focus on process-related chapters;
3. enhancing tools that could address shared territory and overlap issues by:
   1. exploring options for a dedicated, cost-shared source of funds to support the resolution of shared territory or overlap issues;
   2. creating a best practices guide and a public database of shared territory and overlap agreements;
   3. assessing efforts of First Nations to address shared territory and overlap issues, as well as Canada and British Columbia's support of First Nations' efforts; and
   4. exploring new approaches to provide incentives to non-negotiating First Nations to reach agreements with their neighbours;
4. opening the door for, and signaling a willingness to consider, reforms to negotiation mandates and/or broader, national policy reforms on substantive matters;
5. addressing issues related to negotiation support funding by:
   1. exploring alternative funding models to support First Nations' participation in negotiations; and
   2. modifying the funding process to, among other objectives, provide greater transparency and accountability;
6. establishing a forum to explore an alternative rights recognition approach to certainty; and
7. clarifying the roles and responsibilities of the British Columbia Treaty Commission.

The proposals and action items set out in this report are not meant to be mutually exclusive, and many of them will work most effectively in combination. It should be noted that there are a number of issues causing delays in and challenges to treaty negotiations that are not within the mandate of the multilateral engagement process, including issues with respect to the parties' internal mandates and mandating processes. Such substantive issues may be addressed through future exploratory initiatives.

To demonstrate commitment to improving the treaty negotiations process, this report proposes that the Principals issue a public statement confirming their support for treaty negotiations in British Columbia. It also proposes that the Principals release public materials on the outcomes of their discussions following their review of this report. The conclusion of work under the multilateral engagement process and submission of this report does not signal an end to dialogue on these important issues, rather, it serves as an opportunity to build a strong and collaborative relationship as we move forward toward reconciliation.

Introduction

On May 29, 2015 the Principals to the British Columbia treaty negotiations process (Minister of Indigenous and Northern Affairs, Canada; Minister of Aboriginal Relations and Reconciliation, British Columbia; and the First Nations Summit Task Group) agreed to establish a multilateral engagement process and directed a Senior Officials Group to oversee a Technical Working Group to develop options to improve and expedite treaty negotiations in British Columbia. The purpose of this final report is to put forward proposals and fulfill the Terms of Reference agreed to by the Principals.

Since the establishment of the British Columbia treaty negotiations process in 1992, the negotiation of modern day treaties has proved to be a complex and lengthy process for all parties. The investment has been significant. These challenges are well-known and have been articulated in several previous reports and reviews. The most recent reports include: the Eyford Report, 2015; the Lornie Report, 2011; and various annual reports of the British Columbia Treaty Commission. The Principals have also produced discussion papers on how to address specific challenges in treaty negotiations in British Columbia.

As these reports have indicated, the history and process of treaty making in British Columbia is unique. With the exception of the Douglas Treaties on Vancouver Island and the extension of Treaty 8 into northeastern British Columbia, no other historic treaties were concluded in British Columbia. Furthermore, the province has a large number of diverse First Nations in comparison to other provinces, resulting in a high number of First Nations whose Aboriginal title and rights have not been reconciled through treaty negotiations and whose territories cover most of British Columbia. Today, 58 tables representing approximately half of the First Nations in the province continue to be engaged in the treaty negotiations process.

The recent commitment of the Principals to the multilateral engagement process is an acknowledgement that the status quo is not acceptable; the current reality of British Columbia treaty negotiations necessitates changes in order to advance reconciliation. Delays in treaty negotiations are common and caused by many factors. For example, negotiators have indicated that limitations and inflexibility in mandates on all sides and frequent delays in the mandating process of the parties impede completion of modern-day treaties. As well, unresolved shared territory and overlap issues are causing delays, particularly at tables closer to completion. The proposals seek to expedite and improve treaty negotiations by increasing flexibility in approaches used to reach a treaty and the range of mechanisms available to the negotiating parties, as well as focusing efforts to address some of the key impediments in negotiations.

Background to treaty making in British Columbia

In December 1990, a Task Force was created with representatives from First Nations in British Columbia, the Government of British Columbia, and the Government of Canada. The terms of reference mandated the Task Force to recommend how the three parties could begin negotiations and what topics should be addressed in negotiations.

The British Columbia Claims Task Force released its report in 1991 (the "Task Force Report"). Canada, British Columbia and the First Nations Summit all accepted its 19 recommendations, including the creation of the current six-stage treaty negotiations process to resolve the outstanding land question and un-extinguished Aboriginal rights in British Columbia, and the establishment of the British Columbia Treaty Commission to oversee the process.

British Columbia Treaty Commissioners were first appointed in April 1993, and the British Columbia Treaty Commission formally began accepting "Statements of Intent to negotiate treaties" from First Nations in December 1993. A foundational principle of the British Columbia treaty negotiations process is that neither Canada nor British Columbia is to play a gatekeeper role by assessing the strength of a First Nation's rights and title in advance of engaging in treaty negotiations. Rather, negotiations are open to all First Nations. The British Columbia Treaty Commission accepts First Nations ^{Footnote 1} into the negotiations process and determines when all of the parties are ready to commence negotiations.

At the time treaty negotiations began, it was anticipated that treaty making would be completed by 2000. After more than 20 years of negotiations, it is clear that those expectations have not been met. Treaty negotiations have proven to be complex and challenging undertakings. Still, important lessons have been learned.

There have also been numerous changes since the Task Force Report was released and the treaty negotiations process in British Columbia was initiated. Evolution in the legal environment both domestically and internationally, evidenced by important legal decisions such as Tsilhqot'in, Haida and Taku, and development and adoption of instruments such as the United Nations Declaration on the Rights of Indigenous Peoples, contribute to a growing recognition of Aboriginal rights and title and the need for new approaches to address outstanding rights.

Despite the changes impacting the negotiating environment, the fundamental principles in the Task Force Report continue to be relevant, including the critical importance of establishing a new relationship among the negotiating parties. The treaty negotiations process in British Columbia has the potential to be at the forefront of resetting the relationship between Canada, British Columbia and First Nations and advancing a nation-to-nation approach. Given the shifting legal and political environment, resolving the outstanding land question in British Columbia is more important than ever, and advancing reconciliation is a commitment expressed by all parties.

Multilateral Engagement – Context and Process

On May 29, 2015, the Principals of the British Columbia treaty negotiations process agreed to establish a multilateral engagement process with the goal of improving and expediting treaty negotiations in British Columbia (see Annex A for Terms of Reference).

This engagement process took place from June 2015 to March 2016. Two committees were established to undertake the work: a Senior Officials Group to monitor progress and provide direction and a Technical Working Group to develop proposals based on guidance from the Senior Officials Group. Representatives from Canada, British Columbia, and the First Nations Summit participated on both committees. The British Columbia Treaty Commission participated in committee meetings in an advisory capacity.

Under the Terms of Reference, the Technical Working Group was mandated to focus on the following subject areas:

• Process Efficiencies;
• Negotiation Support Funding;
• Shared territory and overlap issues;
• Certainty; and
• Role of the British Columbia Treaty Commission.

Proposed Approach

Proposals for improvements to the above listed areas were developed by the Technical Working Group through a collaborative approach. Initial proposals and action items fell along a spectrum from more modest changes to broader, more complex policy changes. The Senior Officials Group focused the proposals and action items and provided feedback on them. This report contains proposals and action items jointly developed by the parties in accordance with the Terms of Reference.

These proposals and action items are intended to improve and expedite treaty negotiations in British Columbia by:

1. committing, at the Principals' level, to the treaty negotiations process and to expediting negotiations;
2. employing greater flexibility to reach treaties faster and more efficiently, and to reach agreements in advance of, or outside, a modern comprehensive treaty;
3. enhancing tools that could address shared territory and overlap issues;
4. opening the door for, and signaling a willingness to consider, reforms to negotiation mandates and/or broader, national policy reforms on substantive matters;
5. addressing issues related to negotiation support funding;
6. establishing a forum to explore an alternative rights recognition approach to certainty; and
7. clarifying the roles and responsibilities of the British Columbia Treaty Commission.

Many of these proposals and action items will work most effectively if they are combined.

Process Efficiencies

Treaty negotiations have taken far longer than originally anticipated, resulting in lost opportunities for First Nations, Canada and British Columbia. All parties have an interest in improving the effectiveness of negotiations as well as expediting the pace of negotiations in British Columbia. This includes increasing flexibility within the existing negotiations process by employing a broader range of tools to address diverse interests.

Improving flexibility is intended to address some of the interests the parties have identified as important in advancing and expanding opportunities for reconciliation – for example, recognition of existing section 35 rights, incremental opportunities that enable agreements to evolve more easily, and a focus on the post-treaty relationship.

Proposals and action items to improve the efficiency and effectiveness of negotiations include new tools to streamline the negotiation of agreements, as well as more flexible tools and approaches that support reaching a wider range of negotiated agreements in advance of concluding a comprehensive treaty.

Negotiation Support Funding

The administration and allocation of negotiation support funding by the British Columbia Treaty Commission to First Nations to support their participation in the treaty negotiation process is one of the key elements of the made-in-British Columbia treaty negotiations process.

First Nations' participation in negotiations is primarily funded through loans and, as noted above, treaty negotiations have taken longer than originally anticipated. One result is that First Nations have accumulated significant negotiation support funding debt. The magnitude of debt and uncertainty about the repayment of the loans are significant concerns for all parties.

Canada and British Columbia have expressed a strong interest in increasing accountability and transparency measures in respect of both the allocation and expenditure of negotiation support funding in order to meet the parties' accountability obligations related to the expenditure of public funds by the British Columbia Treaty Commission.

The parties have agreed that the starting point for a discussion around improving administration and allocation of negotiation support funding should follow jointly agreed upon principles. These principles include:

• First Nations should be an adequately resourced negotiating partner.
• Negotiation support funding should not influence a First Nation's decision to remain in – or withdraw from – treaty negotiations.
• Negotiation support funding should not include incentives for First Nations to incur unnecessary costs or to delay the conclusion of treaty negotiations.
• Negotiation support funding should provide for reasonably equitable treatment among Aboriginal groups in British Columbia and elsewhere in Canada.
• Canada and British Columbia have sufficient mechanisms in place within the negotiation support funding model(s) to ensure accountability to the public.

Proposals and action items developed to address issues with the allocation and administration of negotiation support funding should be considered in light of the principles noted above, as well as by how they improve and/or expedite treaty negotiations in British Columbia.

Shared Territory and Overlap Issues

Shared territory and overlap issues are challenging to mitigate and resolve, and contribute to delays in treaty negotiations. First Nations are best placed to reach agreements among themselves to address shared territory and overlap issues, with the support of Canada and British Columbia. The British Columbia Treaty Commission is actively engaged in facilitating and assisting First Nations, when requested, to resolve shared territory or overlap issues. This includes facilitation of specific disputes, encouraging First Nations to engage with each other regarding shared territory or overlap issues, assisting First Nations in establishing processes for resolution, and bringing greater awareness and information to shared territory and overlap issues.

There are a number of challenges associated with resolving shared territory and overlap issues. For example, there is no one source of funds dedicated to assisting First Nations with these disputes. Rather, funding to support First Nations' efforts is often part of a broader funding authority serving multiple purposes. In recent years, funding support from the British Columbia Treaty Commission has been small, contribution-only allocations to some First Nations when surplus funds are identified and made available. A dedicated source of funds, cost-shared by both Canada and British Columbia, could address some of these concerns. Canada and British Columbia would need to obtain internal approvals for such new funding and to determine if and how such funding may be cost-shared.

The parties negotiating a treaty should engage early in the process with neighbouring First Nations on any shared territory or overlap issues. The British Columbia Treaty Commission could assist by summarizing and assessing efforts of First Nations to address shared territory and overlap issues with their neighbours, as well as Canada and British Columbia's support of First Nations' efforts. This assessment, as well as recommendations for further action, could be included in a report. These steps could help focus efforts on resolving these issues earlier in the treaty negotiations process, and avoid protracted delays at the Final Agreement stage.

Some First Nations that are not participating in treaty negotiations have stated that they do not want these issues resolved through processes that are directly linked to the treaty negotiations process. These First Nations may view treaty negotiations as creating a "first past the post" scenario in which the First Nation that first concludes a treaty secures rights and benefits within shared or overlapping territories at the expense of other First Nations. Governments should consider measures that provide incentives for First Nations not in treaty negotiations that could encourage their participation in efforts to resolve disputes. This could include considering the negotiation of agreements that provide for recognition of the rights of First Nations not negotiating a treaty (see Annex F – Supporting the Resolution of Shared Territory and Overlap Issues – for a more detailed description).

In some cases, even where shared or overlapping territory agreements are reached among First Nations, governments and other parties are not aware of the agreement and may act in a way that does not respect them. Awareness of and respect for these agreements could be fostered through the creation of a publicly available repository of these shared or overlapping territory agreements.

It should be noted that Canada and British Columbia have an ongoing and separate duty to fulfil their consultation obligations and, where appropriate, accommodate First Nations when treaty negotiations have the potential to adversely impact the rights of a First Nation that shares territory or has territory that overlaps with the First Nation in negotiations. These obligations are not altered by the following proposals and action items.

Certainty

Although the topic of certainty is included as part of the Terms of Reference for the multilateral engagement process, discussion on specific certainty models has been set aside at the direction of the Senior Officials Group. Senior Officials agreed it would be more appropriate to address this issue as part of the federal government's broader engagement process on reforming the Comprehensive Land Claims Policy.

First Nations have expressed concern that if a new legal certainty technique is developed, they would be precluded from considering other certainty models that may be available under the British Columbia treaty negotiations process. Representatives for both Canada and British Columbia have assured the First Nation Summit that First Nations would not be precluded from discussing or negotiating different certainty models that have been endorsed by Canada and British Columbia. Additionally, a "comfort clause" for inclusion in Agreements-in-Principle has been available to First Nations that makes clear that the parties are not precluded from considering other certainty models prior to concluding a Final Agreement.

Role of the British Columbia Treaty Commission

The British Columbia Treaty Commission was created to ensure that the treaty negotiations process is fair and impartial, that all parties have sufficient resources to negotiate and implement a treaty, and that the parties work effectively to reach agreements. The role of the British Columbia Treaty Commission was further clarified in the 1992 British Columbia Treaty Commission Agreement (the "British Columbia Treaty Commission Agreement"), which was based on the recommendations from the Task Force Report, and in the ratifying legislation and resolutions of the Principals.

The role of the British Columbia Treaty Commission is to facilitate negotiations, allocate negotiation support funding, and provide public education and communication. Over the past 20 years, the role has evolved to deal with new challenges the parties have faced.

Section 12 of the British Columbia Treaty Commission Agreement states that, "the Principals shall review the effectiveness of the Commission at least once every three years following its establishment." In 2003, the Principals belatedly undertook their first joint review of the British Columbia Treaty Commission's effectiveness. A second review was conducted in 2012. The British Columbia Treaty Agreement does not elaborate on how a review must be conducted or reported.

Through discussions at the Technical Working Group and Senior Officials level, there is agreement that the British Columbia Treaty Commission continues to play an important role in advancing and achieving treaties in British Columbia. The activities taken on by the British Columbia Treaty Commission have evolved over time as treaty negotiations have also evolved. Developing a current, mutually agreed upon articulation of the British Columbia Treaty Commission's role in facilitation, public education and communication, and the allocation of negotiation support funding, could encourage more effective use of the British Columbia Treaty Commission and its expertise to advance treaty negotiations.

Reporting on Progress

In order to follow the progress of the proposals endorsed by the Principals, Senior Officials will provide a report on progress to date, a year after conclusion of the multilateral engagement process, and when requested by the Principals.

Concluding Comments

All parties acknowledge that treaty making in British Columbia is unique. British Columbia is home to a large number of diverse First Nations communities whose Aboriginal title and rights have not been reconciled through treaty negotiations and whose territories cover most of the province. As a result, there are more First Nations engaged in treaty negotiation in British Columbia than there are in the rest of Canada. There have been numerous calls to increase flexibility in both approaches to, and outcomes of, negotiations in part to address the number of First Nations at negotiating tables and the diversity among them.

In order to improve and expedite treaty negotiations in British Columbia, this report attempts to create the flexibility that is necessary to meet these objectives. Officials from Canada, British Columbia and the First Nations Summit have explored more flexible process options for reaching treaties and other types of agreements that could support dialogue with interested First Nations, and advance reconciliation. The proposals in this report also aim to encourage the resolution of shared or overlapping territory issues. Increasing flexibility in approaches to negotiations and encouraging the resolution of shared or overlapping territory issues is critical to advancing treaty negotiations.

The proposals in this report also aim to address the continued interest in exploring an alternative rights recognition approach to certainty through the establishment of a forum. The proposals in this report are intended to support efforts by all parties to promote innovation and evolution of approaches to advance reconciliation through negotiations.

The role of the British Columbia Treaty Commission has evolved since its inception and remains an integral part of treaty negotiations in British Columbia. As part of the multilateral engagement process, officials have reviewed and clarified the role and responsibilities of the British Columbia Treaty Commission. Also addressed, are issues related to negotiation support funding, including modifying the funding process to provide greater transparency and accountability in the allocation and administration of funding.

All parties remain committed to treaty negotiations and to the overarching goals of renewing and reconciling the relationship between First Nations, Canada, and British Columbia, and promoting a nation-to-nation relationship based on recognition, rights, respect, cooperation and partnership. The proposals introduced in this report are meant to continue a dialogue with First Nations to foster reconciliation processes that support sustainable First Nations governments, healthy and prosperous communities, and respectful government-to-government relationships.

Public Statement

Consolidated List of Proposals and Action Items

Annex A – Terms of Reference

Annex B – Scoping Proposal

Currently, land and cash offers are provided by Canada and British Columbia to Stage 4 First Nations, generally after many years of negotiating.

To improve the efficiency of the negotiations process, it would be helpful to determine whether there is sufficient common ground among the parties on the main components of an agreement through a scoping discussion before carrying on with negotiations. If there is sufficient common ground and the parties agree, a scoping discussion could be followed up with a scoping proposal that could provide for the exchange of information regarding key mandate areas such as land and cash, and possibly fish and fiscal elements.

A scoping proposal is

• intended to build on information provided by a First Nation to Canada and British Columbia on its interests in land and cash, and possibly other elements e.g. fish allocation.
• not a detailed land and cash offer. In order to provide a scoping quantum proposal to a First Nation earlier in Stage 4, the land detail that would normally be included in a land and cash offer (all specific parcels, maps and exact quantums) would not be provided at the time of the proposal. This information would be provided later in a formal offer if the First Nation expresses interest in moving forward with such an offer.

Annex C - Condensed Agreement-in-Principle

Annex D - Sectoral Agreements and/or Treaties

Annex E - Core Treaty

Annex F - Supporting the Resolution of Shared Territory and Overlap Issues