On September 4, 2019, Canada, BC, and First Nations leaders released a new approach for treaty negotiations. The co-developed Recognition and Reconciliation of Rights Policy for Treaty Negotiations in BC targets issues within the existing treaty negotiation process that have resulted in stalled negotiations across the province.

The Existing Process

Since the British Columbia Treaty Commission was established in 1992, three treaties have been concluded with seven Indigenous Nations in BC. For many other nations, negotiations have dragged on or stalled entirely, and the existing process has been widely criticized for being restrictive, time-consuming and outdated.

The Revamped Approach

The policy was jointly developed and endorsed by Canada, BC, and leaders of the First Nations Summit, which represents First Nations involved in the treaty process.

Canada (through Crown-Indigenous Relations and Northern Affairs), states that the new policy is designed to enable flexible and collaborative approaches to the negotiation of treaties, including the co-development of mandates.

The policy explicitly provides that, in developing mandates and in negotiating treaties, negotiators may use a stepping stone approach. Under the new policy, negotiators may arrive at incremental treaties and treaties will not require full and final settlement. The policy equally provides that treaties will be capable of evolving over time.

Under the new policy, treaties and agreements will provide for the recognition and continuation of Indigenous rights and will not result in those rights being modified, surrendered or extinguished when a treaty is signed. The new policy recognizes the inherent right of self-determination as the starting point to negotiations, and incorporates the United Nations Declaration on the Rights of Indigenous Peoples.

Part of the benefit of a treaty is in the certainty that it gives regarding the nature and extent of Indigenous rights and involvement in decision making processes that may impact those rights. It is difficult to discern how certainty will be achieved regarding decisions that may affect Indigenous rights under this policy.

Looking Forward

While generally supportive of the new approach, First Nations representatives have voiced concerns that the policy fails to address the issue of overlapping and shared territory between nations. Instead of addressing the issue head on, the policy provides that the parties will co-develop further approaches in this area and a forum is planned for March 2020.

While Canada, BC, and First Nations leaders are hopeful that the co-developed policy will lead to more treaties, time will tell whether the revamped approach results in an accelerated treaty negotiation process.