6 Dec

A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as: (international) agreement, protocol, covenant, convention, exchange of letters, etc. Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same.

Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the maxim pacta sunt servanda—”pacts must be respected”.

The reasons for treaty negotiations in British Columbia generally fall into three categories: moral; economic; and constitutional and legal. These are interconnected and need to be resolved in order for British Columbia to prosper both socially and economically.

The moral issue is self-evident. The quality of life for Aboriginal people is well below that of other British Columbians. Aboriginal people generally die earlier, have poorer health, have lower education and have significantly lower employment and income levels than other British Columbians. This is directly related to the conditions that have evolved in Aboriginal communities, largely as a result of unresolved land and title issues, and an increasing reliance on federal support programs.

As well as the obvious issues of the social and economic conditions of Aboriginal people, the courts have told government repeatedly that Aboriginal rights and title exist, and that these rights have significant impact on the way government does its business.

Uncertainty over ownership of land impedes the development of aboriginal communities and economies, affects the provincial economy and discourages investment. Government has to take that reality into account as it continues to manage the lands and resources of British Columbia.

In order to maximize opportunities for economic development and job creation for all British Columbians, government has to find a way to reconcile the rights and the interests of First Nations with those of the Crown. Treaty negotiations provide for public input and a method for resolution of these issues.

Constitutional Framework
The three most important aspects of the Constitutional framework for British Columbia are:
• Constitution Act, 1867 (BNA Act)
• Terms of Union Act, 1871
• Constitution Act, 1982, Section 35

The Constitution Act of 1867, also known as the BNA Act, has a special provision, section 91(24), which gives the federal government exclusive lawmaking authority in the category described as “Indians, and lands reserved for the Indians.” When forming the Dominion of Canada, the fathers of confederation assigned a special place in the constitution for Aboriginal people. That has not changed.

In 1871, British Columbia became part of Canada and accepted the division of powers that gave the federal government exclusive lawmaking authority over Aboriginal people and Indian lands. The province took the position that it had no other responsibilities with respect to Aboriginal land interests and for 120 years the province deferred its obligation to Canada to continue to supply lands for Indian reserves.
For that reason among others, treaty-making in British Columbia — which had a very brief history before Confederation — was not part of post-Confederation British Columbia until recently.

The third element of the Constitutional framework which is critically important is section 35 of the Constitution Act, 1982. It says in part: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” — again, a special place in the constitution for Aboriginal people and Aboriginal rights.

Legal Precedence

Over the past 130 years the courts have given content to the Constitutional documents, which significantly affects the way the Government of British Columbia does business. There are three important decisions of the Supreme Court of Canada that are landmarks in Canadian law and particularly important to British Columbia:

1973 –Calder: represented first modern recognition of aboriginal title in Canadian common law.
1990 – Sparrow: interpreted Section 35 and established a framework for addressing justifiable government infringement of aboriginal rights.
1997 – Delgamuukw: recognized Aboriginal title, set out test for its proof, and established a framework for justifiable government infringement of Aboriginal rights.

The Calder decision involved the Nisga’a claim to Aboriginal title. Calder represented the first modern recognition of Aboriginal title in Canadian common law. Common-law rights arise when facts exist and the court says: “If these facts exist, then the right exists.”

The Supreme Court of Canada said, in effect, that if there is Aboriginal historic presence on the land, then these rights can be recognized as common law without the need for any action by the provincial or federal governments — something called Aboriginal title. Calder became the legal lynchpin for the Government of Canada’s comprehensive claims policy that began in the early 1970s. British Columbia did not participate in this policy since the province’s position at that time was that this was a federal issue.

In 1990, in a case called Sparrow, the Supreme Court of Canada for the first time looked at section 35 of the Canadian Constitution Act, 1982, and interpreted it to mean that where there is an existing Aboriginal right, the ability of government to interfere with that right unilaterally is constrained. Sparrow says that the power of government to infringe Aboriginal rights is no longer absolute.

The Sparrow case establishes a framework for addressing what can be justifiable government infringement of Aboriginal rights. Therefore, the government has to undertake certain processes to make sure that it doesn’t interfere with Aboriginal rights. If the government does not do that, then its ability to legislate and regulate is constrained.

In 1997, Delgamuukw took some of the principles from those two previous cases and expanded them. Whereas Sparrow defined aboriginal rights as being activities — such as fishing, hunting and gathering forest resources — Delgamuukw talked about title as a right of ownership in land and said that that right of ownership exists in British Columbia. It also talked about how to prove that right of ownership and said that where that right exists, the same principles that constrain how the government can affect that right and that were talked about in Sparrow exist.

Consequently there is now a broader conception of which Aboriginal rights include title and a firm statement by the Supreme Court of Canada that the ability of government to infringe those rights is constrained. There is also a firm statement by government that the Crown continues to be the landowner, the resource owner, and ultimate decision-maker. Consequently, there must be some kind of reconciliation between the Crown’s sovereignty and Aboriginal rights and title.

Most recently, the 2004 Supreme Court of Canada ruling in Haida First Nation v. BC and Weyerhaeuser and Taku River Tlingit First Nation v. the BC Government and Redfern Resources Ltd. provided a clearer understanding of the rights and responsibilities of the governments and the necessity to consult and accommodate First Nations interests. The court reaffirmed that negotiating in good faith is the best means to reach long-term solutions and further defined what constitutes proper consultation and accommodation.

The first treaties in Canada

When the Europeans began to settle in the eastern part of North America, Britain recognized that the people who were already living there had title to the land. The Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty.

In most of Canada, both before and after Confederation, treaties were signed which set out the rights of Aboriginal people with respect to land, hunting and fishing.
Treaties in British Columbia
On Vancouver Island, the British Crown instructed James Douglas, chief factor of the Hudson’s Bay Company and later governor of the colony, to purchase First Nations lands. Douglas made 14 purchases in all, known as the Douglas Treaties, between 1850 and 1854. When the mainland became a colony in 1858, Douglas made no further purchases because of a shortage of funds. Instead, he offered Aboriginal people opportunities similar to those offered to new settlers, including the right to acquire Crown land to become farmers.

When Douglas retired, however, the colonial government took away this right and denied that Aboriginal people had ever owned the land. In 1871, when British Columbia joined Confederation, the new province did not recognize Aboriginal title, so there was no need for treaties.

In an exception, the Government of British Columbia did permit the federal government to negotiate treaties with eight First Nations in the northeastern area of the province to help resolve the problems brought on by the Klondike Gold Rush. The result was the extension of Treaty 8 into British Columbia in 1899.

Over the decades, Aboriginal people in B.C. petitioned the federal and provincial governments for treaties. In response to intensified demands, Ottawa amended the Indian Act in 1927, making it illegal for Aboriginal people to raise or spend money to advance land claims. The restriction was lifted in 1951. In August 1990, nearly 40 years later, the two governments agreed to sit down with First Nations in B.C. and negotiate treaties.

In August 1990, nearly 40 years later, the two governments agreed to sit down with First Nations in B.C. and negotiate treaties.

That same year, the provincial government entered the negotiations already underway between the Nisga’a Tribal Council and the federal government. It also agreed to the establishment of a tripartite task force, with representation from First Nations, Canada and British Columbia, to develop a process for negotiating treaties with other First Nations in B.C.

The Report of the British Columbia Claims Task Force, released in 1991, contained 19 recommendations. Key recommendations included:
• the establishment of a new relationship among the First Nations, Canada and British Columbia, based on mutual trust, respect and understanding, through political negotiations
• the establishment of a British Columbia Treaty Commission to facilitate the process of negotiation, and
• A six-stage process for negotiating treaties.
The recommendations were unanimously accepted by Canada, British Columbia and the First Nations Summit as the basis for the current treaty negotiation process, which began in 1993 with the formation of the British Columbia Treaty Commission.

In the meantime, Canada, British Columbia and the Nisga’a Tribal Council continued their negotiations for a treaty settlement throughout the 1990s. The result was the Nisga’a Treaty, implemented in 2000. Although not part of the British Columbia treaty process, Nisga’a negotiations followed the same tripartite process and resulted in the first modern-day treaty in British Columbia.
Based on everything that has been documented so far, Canada and British Columbia have failed to keep up their end of the treaty. The government had one goal and that was to purchase land for their own benefit and growth. Natives were not even in the picture of this growth and benefit. British Columbia has gone further by taking away rights and title by law without consultation. These actions should void any agreement or treaty in Canada. British Columbia did not have treaties for most of the land they took over.
The part that bothers me is that James Douglas , “Instead, he offered Aboriginal people opportunities similar to those offered to new settlers, including the right to acquire Crown land to become farmers.” Why would they try to have the people who originally owned it, reacquire it to use it? How did Douglas even come to believe that the land became Crown Land when there were no treaties signed for it?
According to this, it was all done without accordance of Canadian Law. When British Columbia joined Canada, it undertook Canada’s law, when the Europeans began to settle in the eastern part of North America, Britain recognized that the people who were already living there had title to the land. The Royal Proclamation of 1763 declared that only the British Crown could acquire lands from First Nations, and only by treaty. So, when British Columbia became a part of Canada, their first item on the agenda should have been to acquire lands, which could only be done by treaty. However, the provincial government did not recognize title and rights. The federal government just turned a blind eye on this issue. Did they know they were in breach of their own law? There was no penalty for breach of the government breaking their own law it seems.
When it comes to penalizing governments for breach of law, the leader and the direct line of consultation are imprisoned and fined. When you look at dictators who have committed genocide and war, you will see that they have been sentenced to prison and sometimes death. How is it that British Columbia and Canada governments have not had the same fate as these other dictators? Well, one reason could be that the Canadian government do not recognize First Nations as having self-determination. self•-determination (-di tʉr′mə nā′s̸hən)
1. The act or power of making up one’s own mind about what to think or do, without outside influence or compulsion
2. The right of a people to decide upon its own political status or form of government, without outside influence
If we do not have that right, Canada believes that they must decide for us on what is ours, what is needed, and what is given. On the contrary, Canada cannot be punished by people who do not have self-determination. At least that is how I believe the governments see it.
Seeing as how the governments failed on their own laws and are liable for punishment and penalty, they now want to sit down and “talk” about treaties. Mandates on both sides are opposite. You have one side trying to give as little as possible while the other wants as much as possible. One should not have to negotiate for what was already theirs. How can British Columbia and Canada compensate for what they have taken forcibly and used the resources for their own good? How can loss of culture and language be compensated for? You can start with money but in the long run money doesn’t last forever and is a short solution. How can money be enough for restitution on years of torture and loss of culture? You cannot just put money you receive into a savings account and have it last forever. When you look at the losses, death, language, and culture are mostly gone forever. You can say that language and culture can be regained so not lost forever. But that is where a lot of the negotiation problems start. How can you compensate for such losses?


One Response to “Treaties”

  1. gaber79 December 6, 2011 at 11:38 pm #

    I wrote this piece on treaties but have lost the cites and bibliography I had them for this particular piece but have since lost the paper. I gathered information on it and wrote it as I went.

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