Reconciliation between Indigenous peoples and non-Indigenous Canadians is part of our national discourse, but it is less obvious that Canadians share an understanding of what it means in practice. The Truth and Reconciliation Commission (TRC) provides a concise definition of what is needed: “Reconciliation not only requires apologies, reparations, the relearning of Canada’s national history, and public commemoration, but also needs real social, political, and economic change.”1
Achieving such structural change will challenge all levels of government —
Indigenous and non-Indigenous. For a start, Canada’s governance institutions will need to meaningfully treat Indigenous people as partners in our national success. Indeed, the federal, provincial and territorial governments have taken a number of important steps along these lines during the past few decades.
In this context, the Government of British Columbia’s policies on reconciliation merit study. The province has been an important source of Canadian law and policy regarding Indigenous peoples for nearly 50 years. Unlike the situation in the other western provinces and Ontario, only a small portion of the province’s territory is covered by historical treaties. British Columbians nevertheless share the challenge facing all Canadians: What is the appropriate place for Indigenous nations in Canada’s social order, system of governance and economy?2
Since the early 2000s, the BC government has signed several hundred bilateral arrangements with more than 200 Indigenous nations across the province. These agreements are not treaties, but most of them provide the Indigenous community with a role in the planning of economic development on the territory where it resides and, for many of them, a share of BC’s resource revenues. This article places them within a broader policy context, examines those negotiated with four Indigenous nations and considers lessons that the bilateral approach may offer for governance arrangements and reconciliation measures elsewhere in Canada.
BC’s history of relations with Indigenous nations may provide signs that nineteenth-century colonial attitudes colour modern policy choices. A brief survey of early developments is therefore necessary.
After 1846, when Britain and the United States settled their border disputes through the Oregon Treaty, two new Crown colonies were created: Vancouver Island, which was leased to the Hudson’s Bay Company (HBC); and the mainland colony of British Columbia formed from HBC lands not lost to the Americans. The mainland was then sparsely settled by non-Indigenous people, but the sudden arrival of American gold prospectors led in 1866 to the colonies’ unification.3
During the time of the HBC’s control over Vancouver Island, its chief executive, James Douglas, who was also the Crown colony’s governor, negotiated the so-called Douglas treaties with some Indigenous nations.4 These covered lands on southeastern Vancouver Island desired for non-Indigenous farming and a small area around Nanaimo for coal mining. Treaty making was halted in the 1850s when the Imperial government refused to provide funds for the purpose. It never extended to the mainland colony and ended entirely by 1866 when the two colonies were united.
BC joined Confederation in 1871 through an Imperial Order-in-Council. Article 1 of the Terms of Union was one of the most important to BC’s negotiators: Canada became liable for the colony’s “debts and liabilities.” In addition to confirming the division of powers between the federal and provincial governments, Canada agreed to take “charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit.” In return, BC agreed to provide public lands as needed to carry out a “policy as liberal as that hitherto pursued.”
As many have noted, that policy was neither liberal nor generous. When BC joined Canada, Indian reserves comprised 0.01 percent of the province’s territory, while Indigenous people were the overwhelmingly majority of the population.5
Given the illiberal colonial policy, it is hard not to interpret the Terms of Union as an attempt by BC officials to preserve the status quo — that is, no land rights for Indigenous people and no reserves to be created without agreement by Victoria.6 It did not take long before the two governments disagreed on their respective responsibilities, particularly whether either was responsible for addressing Indian claims to lands being opened to intensive non-Indigenous use.
After joining Canada, BC saw the creation of reserves as the means to satisfy Indigenous land claims, but without the need to negotiate treaties. If more was needed to settle claims, it saw the Terms of Union making it a federal concern. For more than a century afterward, the federal government was stymied by provincial opposition in its attempts to resolve the so-called Indian land question. It even briefly considered referring the matter to the courts but backed down in the face of provincial resistance.7
Although there may have been occasional political qualms in Ottawa, legal theories of the time held that Indigenous rights could be extinguished unilaterally by the Crown without compensation. Over time, BC’s non-Indigenous population grew quickly, while the pre-Union Indigenous majority became a minority in their own homelands.8
Although the federal government was actively negotiating treaties on the Prairies prior to those lands entering Confederation, it did not act alone in BC because it could not unilaterally offer provincial Crown lands and resources. The only exception was the inclusion in Treaty 8 of a portion of northeastern BC. This was done for pragmatic reasons to follow the natural boundary of the Rockies rather than the provincial boundary, which would have split Indigenous communities in the Peace River country.9
Efforts to find a solution lasted well into the twentieth century through various commissions and inquiries that led to a series of federal-provincial agreements on the creation and management of Indian reserves.10 The two governments could agree to share costs for specific purposes (such as the British Columbia treaty negotiations process), but their dispute over article 13 still lies close to the surface.11
Beyond setting aside parcels of land as Indian reserves, neither level of government took active steps to address Indigenous rights outside the reserves. Indigenous nations resisted the loss of their traditional lands but could not stop their appropriation, without consent or compensation.12
Federal policy changed only when the courts held that Indigenous land rights survived the imposition of Crown sovereignty and continued where there were no treaties that required their surrender. Most important, the courts held that, where rights survived, there were legal consequences.13 The failure of governments to resolve Indigenous claims did not change the modern legal reality that the nations still existed and their rights had legal force.
The federal government began negotiations with the Nisga’a Nation in 1973 in response to its court challenge.14 BC refused to join, on the basis of its position that any costs for a settlement were Ottawa’s responsibility.
Patriation of the Constitution in 1982 included section 35 of the Constitution Act, 1982, which states that “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” After 1982, the impact of section 35 was felt across BC, with growing unrest and uncertainty about Indigenous land rights. BC finally joined the federal government in negotiations with the Nisga’a and also agreed to work with Ottawa and the First Nations Summit representing Indigenous rights holders.15
In June 1991, the tripartite Claims Task Force made 19 recommendations on how the three sides should collaborate to resolve questions about Indigenous rights.16 Many statements from the task force continue to ring true:
In the negotiation of treaties certainty is an objective shared by all. These treaties will be unique constitutional instruments. They will identify, define and implement a range of rights and obligations, including existing and future interests in land, sea and resources, structures and authorities of government, regulatory processes, amending processes, dispute resolution, financial compensation, fiscal relations, and so on. It is important that the items for negotiation not be arbitrarily limited by any of the parties.17
In September 1992, the three parties agreed to create the BC treaty process to implement the task force recommendations.18 In parallel, Victoria and Ottawa reached a political agreement to set aside (but not settle) their long-standing debates and share the costs of the process and its outcomes. Across BC, there was great hope that disputes about private, public and Indigenous land interests would be resolved within a few years.
Over the past 25 years, the treaty process has had some successes, such as the treaty with the Tsawwassen First Nation; more may come.19 However, many Indigenous nations remained wary of the process, and a significant number have stayed out.20 As the early optimism dissipated, numerous reviews and studies advised on ways to improve the process, including the Auditor General of Canada’s report and, more recently, Douglas Eyford’s 2015 report.21 The three sides have made changes to attract more Indigenous nations and speed up resolution, but the results have been modest.22
Over the same period, the province’s population grew significantly as a result of immigration (from 3.4 million in 1991 to 4.8 million in 2017).23 Its economy became increasingly service-based, even though natural resources remain important outside urban centres.24 Gaps between Indigenous and non-Indigenous socio-economic conditions remain significant, even as the Indigenous population has become younger and more urbanized.25 Meanwhile, the proportion of British Columbians identifying as Indigenous has grown to roughly 6 percent. Ten percent of BC children 14 years and under are Indigenous.26
The legal framework has also changed with Supreme Court of Canada decisions on Indigenous title (Delgamuukw in 1997,27 Tsilhqot’in in 201428) and the Crown’s legal duty to consult and accommodate claims to rights (Haida Nation in 200529). Although public policy on Indigenous issues often lags behind the legal framework set by the Supreme Court of Canada, it has evolved (e.g., Federal Self-Government Policy and government policies on the duty to consult in 1991, Canada’s unconditional acceptance of the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, in 2016). While BC is therefore not unique in changing policy to respond to the courts, it stands out for the speed of change — especially over the past 15 years.30
Before winning the 2001 election, Gordon Campbell, then leader of the opposition BC Liberal Party, challenged the Nisga’a Treaty in court.31 Although the case was rejected by the courts, his election as premier was followed by a referendum on principles to inform the province’s treaty negotiating positions.32
The path seemed set for conflict, but then the BC government took a different direction. This was likely the result of a combination of factors, but key was the 2002 decision of the BC Court of Appeal that the province owed fiduciary duties to Indigenous people and was legally required to consult them about their claimed rights and, where necessary, to accommodate their concerns.33 The core of the decision was upheld by the Supreme Court of Canada in 2004.34
Soon after the Court of Appeal decision, the Throne Speech of February 2003 announced new policy directions. The government apologized for past policies and promised a “new era of reconciliation” based on a “New Relationship” with partnerships to promote “greater equity and certainty for all concerned — Aboriginal and non-Aboriginal alike.”35
Under Premier Campbell, BC charted its own policy path without awaiting change from Ottawa. One of its boldest moves was a proposed Recognition and Reconciliation Act.36 It would be a statutory framework to implement the New Relationship by recognizing “constitutionally established Aboriginal rights and title,” and facilitating “partnerships and prosperity through shared decision making and revenue sharing.” The Act would also “support the rebuilding of the historic Indigenous Nations of British Columbia and enable the establishment of political structures for meaningful government-to-government relations.”
The proposal came to naught as opposition rose from both Indigenous and non-Indigenous quarters.37 Influential Indigenous leaders voiced concerns that the province lacked the constitutional power to deal with Indigenous rights, even by way of recognition, and questioned the government’s readiness to deliver real structural change. Some business leaders expressed concern about not being adequately consulted or whether the practical implications of the government’s plan were clearly thought through. In the aftermath, the province reiterated its commitment to the New Relationship38 but increased its focus on bilateral arrangements in what some observers called a “let’s-make-a-deal approach.”39
Even if these various changes had not occurred, it is worth asking whether the policy vision in the treaty process remains “fit for purpose.” It reflected and in many ways still reflects an early 1990s vision of the province’s society, economy and governance. Over 25 years, it has produced only three final agreements approved and implemented by both governments and Indigenous nations.40 In contrast to the results of the treaty process, over the past 15 years BC has reached several hundred bilateral arrangements with more than 200 Indigenous nations on land and resource issues.41
At their core, the TRC’s Calls to Action require a break with policy decisions reflecting past circumstances that are no longer relevant or appropriate. And yet, despite 15 years of agreements, a question remains: How far has BC policy moved from past social, political and economic behaviour that marginalized and impoverished many Indigenous people?
The TRC’s vision of real change reflects emerging domestic and international norms. If we look at the BC government’s arrangements with Indigenous nations, two norms are particularly relevant: the current and near-future state of Canadian law; and emerging international standards, most notably UNDRIP. Looking at these two sources together, a relatively coherent vision is emerging, with three main elements:
Governance — Indigenous nations and their rights predate and largely survived colonialism and claims to the imposition of the Crown’s sovereignty. They remain legally recognizable entities with inherent governance powers derived from a precolonial legal order. Additional rights may flow from postcolonial events, such as treaty making. The right to govern one’s own affairs is one consequence, but it should also be reflected by a meaningful role in the governance of their precolonial traditional territories.42
Traditional territories — Indigenous nations have continued connections to their traditional territories as a corollary of their precolonial legal systems. The exceptions will be where changes were negotiated with the Crown. Specific rights to geographic locations may have been changed by intervening events even where not agreed to by the rights holders, but remedies for those losses need to be addressed.
Indigenous connections to traditional territories should translate into a formal role in their governance. That governance role could range along a spectrum from exclusive to differing degrees of shared jurisdiction, but it is more than simply a government obligation to seek their advice through consultations. In some instances, governments will want to obtain consent before taking action on those lands.
Fiscal relations — Indigenous nations should be treated equitably by other levels of government when it comes to apportioning the public revenue generated in Canada. Their connections to traditional territories should play a role in decisions on allocating the public benefits derived from them. Indigenous nations have the same rights as others to economic development, but their ability to generate their own wealth should be encouraged and public policy barriers reduced where possible.
Although governments have not agreed, BC Indigenous nations have consistently articulated their vision to achieve four goals that align with those emerging policy norms:
In response to these realities, in 2017 the federal government articulated its own policy vision for its relations with Indigenous nations, based on 10 principles.44 In contrast, BC’s vision to date has been less about defining a place for Indigenous nations and more about improving Indigenous socio-economic conditions and fostering economic growth for all citizens.45
The New Democratic Party (NDP) government elected in 2017 has committed to fully implementing the UNDRIP and the TRC’s Calls to Action.46 Premier Horgan has instructed all ministers to determine within their mandates how to bring the UNDRIP principles into action.47 It remains to be seen how the NDP government will put its stamp on previous policy approaches, although it has already signalled that it will go further than the previous government on some issues such as revenue sharing.48
For purposes of this discussion, the three themes above — governance, traditional territories and fiscal relations — will be a standard for review. The goal is not to judge how well the parties achieved their aims in bilateral negotiations, but to examine how they found ways to bridge the gaps between their visions.
In response to BC’s offer of a new relationship, leaders from First Nations peak organizations met with provincial officials in 2005 to develop a shared vision of how to work together. From those discussions emerged the bilateral New Relationship Vision49 and the trilateral Transformative Change Accord.50 While these negotiations were largely driven by the province’s need to respond to legal duties, Indigenous leaders were pragmatic and tactical in agreeing to work with the province.
The BC Liberal government characterized its new relationship with Indigenous nations as “based on respect, recognition and accommodation of Indigenous title and rights; respect for each others’ laws and responsibilities; and for the reconciliation of Indigenous and Crown titles and jurisdictions.”51 The province accepted the need for “new processes and structures for working together on decisions about the use of land and resources” and “revenue-sharing to reflect Aboriginal rights and title interests, and to help First Nations with economic development.”
The agreements between the BC government and Indigenous nations fall into a number of categories (see the box on page 10). A large proportion of them address BC’s legal duties to consult either generally or in the context of specific industries (forestry, mining, pipelines, clean energy).52 The province has also made considerable effort to include Indigenous people in its local and regional planning processes for Crown lands and resources.53 In most respects, the majority of such agreements and arrangements follow a template, with little room for tailoring to an Indigenous nation. This is not to denigrate the inherent value of the arrangements, but it does speak to the power imbalance implicit in their “negotiation.”
In some arrangements, a share of resource revenues, lands and other benefits is provided as a “contribution towards the reconciliation” of the parties’ interests.54 BC characterizes the revenue sharing from mining, forestry and other resources as “a path to partnership that provides a percentage of what the Province receives from resource development on First Nations’ traditional territories directly back into the communities.” 55
The province paid some $60 million in revenue-sharing benefits to Indigenous nations in 2016-17.56 It is estimated that this will rise to around $71 million in 2017-18.57 For a sense of scale, the most recent estimate of the BC government’s natural resource revenue is $2.3 billion out of total revenues of $50.8 billion.58 Revenues shared with Indigenous nations therefore represent just over 3 percent of the government’s resource revenues. While not insignificant, the scale of shared revenues is more modest than in some other Canadian jurisdictions.59
For this review, a sample of agreements with four First Nations was chosen: Haida, Musqueam, Lax Kw’alaams and Tsilhqot’in. The four share characteristics with many other Indigenous nations in BC: no treaty with the Crown, proven or strong likelihood of Indigenous title and rights to their traditional lands, shared purpose among their members and effective internal leadership. What distinguishes their agreements is that the province has gone further to find common ground and, to varying degrees, modified the template agreements offered to most others. Even if the province’s motivation was tied to specific goals (e.g., legal claims settlement, land management, fostering specific industries), we will see whether a broader policy picture emerges.
The Haida Nation’s traditional territory encompasses parts of southern Alaska, the archipelago of Haida Gwaii and its surrounding waters. Haida people make up half of the 5,000 residents of the islands. The Haida are concentrated in two main centres, Gaaw Old Massett and HlGaagilda Skidegate. Around 2,000 Haida live elsewhere, with concentrations in Prince Rupert and Vancouver.
The Haida Nation has numerous agreements with both the federal and provincial governments.60 Two common threads run through them: recognition of the status of the council to speak on behalf of the Haida Nation and acceptance that the connection with their traditional territory is the basis for a role in its governance and a share of resource revenues.
In the bilateral agreements, the BC government has avoided a blanket acquiescence to Haida claims of title to their traditional territory. It has also continued in the courts to challenge assertions of title to specific locations. However, in order to advance a broader policy agenda, the province appears prepared to accept on a de facto basis that title exists. The following are examples of recent bilateral agreements.61
This agreement confirms a government-to-government relationship between the Council and the provincial government as the basis for a shared land use planning process based on common management objectives. It includes provisions on Protected Areas and Special Areas as Haida Natural, Cultural and Spiritual Areas to be confirmed under provincial legislation and maintained in accordance with Haida laws, customs, traditions and decision-making processes. The agreement also deals with fiscal relations by committing to an initial timber harvest opportunity and agreement to develop a process to determine the long-term timber supply for Haida Gwaii.
Meaning “the beginning,” this agreement provides for joint decision-making respecting lands and natural resources on Haida Gwaii and other collaborative arrangements, including on socio-economic matters pertaining to children and families.
The protocol is cast as an agreement to work toward an overarching reconciliation agreement that would include the federal government. In the meantime, the two parties agree to collaborate on shared objectives: land and resource management, sharing carbon offset and resource revenues, forest tenures and other economic opportunities and Haida socio-economic well-being. On decision-making, the protocol confirms that each party will work under its own separate authorities and jurisdiction. It then lays out a framework for shared decision-making between the parties for land and natural resource management on Haida Gwaii.
A core mechanism is the Haida Gwaii Management Council composed of two representatives from each party, with a chairperson jointly appointed by the Haida Nation and the province. The Council has an extensive list of strategic management and operational roles, and essentially provides a forum for shared and joint decisions on land and resource management. It also promotes technical cooperation on such matters.
The parties agreed to share carbon offsets and to pursue revenue-sharing opportunities related to new major natural resource development projects that may be proposed within Haida Gwaii.
This agreement lays out the parties’ respective views of sovereignty and title, although without agreeing to each other’s views.62 They agree that the protocol is not a land claim agreement or modern treaty protected by the Constitution. It includes a dispute resolution mechanism, as well as other provisions designed to prevent disagreements or misunderstandings that could give rise to disputes. It is also noteworthy for having a legislated base through the Haida Gwaii Reconciliation Act, unlike most other bilateral agreements, which rely on general legislative authorities.63
The cooperative relationship reflected in the protocol has led to other arrangements, including the ones described below.
This agreement reflects the province’s model of sharing a fixed portion of revenues generated from forestry within a First Nation’s traditional territory. BC also commits to ongoing efforts to address the cultural aspects of Haida forest interests. The parties recognize that each will implement the agreement in accordance with its respective authorities, which for the Haida Nation are its “laws, policies, customs, traditions and their decision-making processes and authorities.”
In 2011, BC and Coastal First Nations, including the Haida Nation, signed a Letter of Intent to Collaborate on Coastal and Marine Planning in the Pacific North Coast. It committed BC to develop a joint marine plan for Haida Gwaii together with an associated implementation agreement. The parties agreed that the “protection, stewardship and governance of the land and waters within the territory of the Haida Nation is integral to the existence and continuation of Haida culture, government, economy, community and Aboriginal rights and title.” They agreed to jointly implement the Haida Gwaii Marine Plan and work collaboratively to address marine issues generally. This entails agreeing on priorities and joint structures, notably the Haida Gwaii Marine Management Board, which is composed of equal numbers of representatives from each party and has a mandate to “make best efforts to achieve consensus in their recommendations and decisions.”
These agreements, along with others with local, provincial and federal governments, recognize the Haida as a self-governing nation. Equally important, they accept that the Haida merit a meaningful voice in the governance of their traditional territory. The Haida have knit these recognitions together with a well-developed economic development strategy.
As such, the agreements offer compelling examples of how to make practical, incremental gains without sacrificing Indigenous rights. Some commentators have gone as far as hailing the arrangements as a “hallmark” of Indigenous self-determination expressed through “collaborative consent.”64 Others have noted the challenges the Haida face, including dealing with entrenched attitudes and an enduring power imbalance despite the use of language such as “government-to-government relations.”65
The Musqueam people’s traditional territory extends to much of what is now Greater Vancouver.66 The Musqueam Indian Band represents approximately 1,200 Coast Salish people with reserves in Point Grey, Vancouver, where the community resides, as well as Richmond and Tsawwassen.
In many ways, the Musqueam are a model of economic self-determination through their real estate and business investments on and off reserve. They have leveraged connections to their traditional territory to form business alliances with private industry and quasi-governmental bodies such as the Vancouver International Airport Authority. Bilateral agreements with BC have also played into the Musqueam strategy, notably through the settlement of legal claims that the province failed to consult with them before taking decisions affecting their interests. There are two noteworthy agreements.67
The parties acknowledge the Musqueam assertion of Indigenous rights and title over their traditional territory and seek to reconcile the prior existence of “aboriginal peoples and the assertion of sovereignty by the Crown.” The agreement settles Musqueam claims against the province for past infringements of Indigenous rights and title and failures to adequately consult and accommodate in relation to lands specified in the agreement. In exchange, the Musqueam have received several high-value land parcels and cash compensation.
The parties recognize that they have different perspectives on the scope of the Musqueam rights to fish and on BC’s consultation duties. Nevertheless, they “share the goal of establishing relationships and processes that reduce conflict, foster mutual understanding and respect, and promote collaboration.” The Musqueam are acknowledged as the custodians of traditional knowledge. The parties agree to collaborate “to support the responsible management” of the Fraser River delta through “joint stewardship initiatives that respect and consider Musqueam Aboriginal Rights.”
The core governance bodies are the Management Working Group and the Technical Working Group. The former’s role includes “high-level strategic problem solving,” while the latter (among other responsibilities) develops joint stewardship initiatives to be submitted for approval. The Technical Working Group’s responsibilities also include management of the agreement’s dispute resolution processes. Although negotiated with the Musqueam, the agreement contemplates the addition of other First Nations with rights in the same area.
As with the Haida, the Musqueam approach reinforces connections to traditional territory, together with a strong sense of community cohesion and effective governance, as the basis for a modern economic development strategy.
The Tsimshian consist of the nine tribes of Lax Kw’alaams on the northwest coast of BC.68 The Lax Kw’alaams Band is the largest of seven communities near Prince Rupert and has more than 80 parcels of land reserved for its use. The community operates within the administrative structures of the Indian Act, with 3,351 members, of whom some 1,000 reside on the main reserve.
The proximity to Prince Rupert port means that the community is adjacent to a planned liquefied natural gas (LNG) terminal. Although the project was cancelled due to declining commodity prices, Lax Kw’alaams and the BC government negotiated numerous agreements to facilitate it.69 I have selected three agreements for consideration here; one relates to forestry matters and the others to a planned LNG infrastructure in the Prince Rupert area.
BC acknowledged that “the Lax Kw’alaams has Aboriginal interest within its Traditional Territory” and committed to consult and accommodate those interests with respect to impacts arising from provincial decisions on forest management. The agreement also provides for the Lax Kw’alaams to receive a share of revenues from forestry on their traditional territory.
The parties stated their desire to develop “an effective long-term working relationship” that would include the Lax Kw’alaams “sharing benefits” associated with the pipeline in return for not challenging provincial decisions. For its part, BC was given releases from claims related to its obligation to consult or for infringement of rights in relation to the pipeline.
The BC and federal governments agreed that the Coast Tsimshian have a “central and ongoing role in the environmental and compliance monitoring of the [LNG] Project, together with federal and provincial Regulatory Authorities.” To that end, they established an Environmental Monitoring Committee and supporting Technical Committee. The Committees were described as “forums for information sharing, collaboration amongst the Parties and coordination to the extent possible.” The parties also acknowledged that the Agreement was to “build a foundation” for environmental and compliance monitoring structures for “other potential major development properties within Coast Tsimshian Territories.”
Although the agreements on the LNG project were controversial within the Lax Kw’alaams community, the process allowed the latter to gain a recognized voice within its traditional territory. Once given, recognition cannot be rescinded; Lax Kw’alaams is therefore well positioned for any future developments proposed on those lands.
The Tsilhqot’in Nation comprises six communities in central BC, one of which (Xeni Gwet’in First Nations government) successfully convinced the Supreme Court of Canada to declare that Tsilhqot’in Indigenous title exists over a defined area.70 The traditional territory of the Tsilhqot’in Nation extends beyond the land where Indigenous title was confirmed, but the Court’s decision was a major legal and political achievement.
In response, BC has negotiated arrangements for decision-making regarding Tsilhqot’in title lands, as well as collaborative mechanisms with respect to its traditional territory. Noteworthy agreements include those described below.71
This accord’s purpose is to “establish the shared vision, principles and structures” for the parties to negotiate future agreements on their relationship. In what are called “pillars of reconciliation,” the parties commit to negotiate a series of issues including Tsilhqot’in governance, culture and language, the Tsilhqot’in management role for lands and resources and a “sustainable economic base.” A shared goal is to “effect the practical transition of the Declared Title to Tsilhqot’in management, benefit and control, while respectfully engaging with third parties and attempting to address their interests” within those lands.
The agreement with the Tsilhqot’in Nation and the Tsilhqot’in national government is characterized as “A Strategic Engagement Agreement of Shared Decision-making Respecting Land and Resource Management.” The arrangements cover Crown land within the area claimed by the Tsilhqot’in and provide the basis for “an overarching framework to which more detailed revenue-sharing and resource specific policies, protocols and agreements can be appended.” The parties state that they have a “shared vision” to develop a “Cooperative Land and Resources Management Framework.” BC agrees that, as recognized by the courts, the Tsilhqot’in have rights to harvest and trade skins and pelts throughout their claimed traditional territory.
The agreement anticipates several joint mechanisms:
BC agrees that its agencies will engage with the Tsilhqot’in when decisions on land and resource management are considered in the area covered by the agreement. The parties further agree to “seek opportunities to bridge socio-economic gaps and enhance governmental relations.” Funding is provided to the Tsilhqot’in to implement the agreement, and BC agrees to pursue negotiations on “revenue sharing on new major resource development projects” within the lands.
The Tsilhqot’in waged a long and expensive court battle to gain recognition of their title, with consequential benefits for the legal strategies of other Indigenous nations. The agreements now in place with BC are essentially about cooperation, sharing information and working toward future arrangements. It remains to be seen whether the outcome of negotiations will differ significantly from what the BC government offers to nations with claimed, but not yet proven, title. The Tsilhqot’in are well positioned to pursue their objective of negotiating a new relationship with Canada, but their agreements with BC are an important signal of the extent to which non-Indigenous governments are prepared to accommodate the new legal realities.
In the generic agreements available to all First Nations and the more specific ones tailored to a few nations, BC has taken a common approach with two elements:
Using the lenses of governance, links to traditional territories and fiscal relations, the following pattern emerges:
Governance — BC takes a broad approach as to whom it engages with, rather than assessing whether a group could prove in court an Indigenous right to govern. This means agreeing with a variety of types of Indigenous bodies: some are bands recognized by Ottawa under the Indian Act; some are collections of bands acting together as a nation; some are incorporated bodies speaking for a nation; and some are nations with which the province concluded agreements directly. The common thread seems to be less about the legal structure or whether the group is an Indigenous nation with the right to self-determination, but rather who has the political power to reflect the Indigenous consensus in a geographic area.
BC accepts that these communities have their own laws and authorities in parallel to the province’s jurisdiction. What is less clear is how BC envisages resolving a situation where provincial and Indigenous laws give different answers to the same question. Many of the agreements have dispute resolution provisions, but the approach seems to be one of parallel law-making regimes working together rather than specifying what matters are within their respective jurisdictions or how conflicts of laws will be resolved.
Traditional territories — Where no treaty is in place, the BC government has generally accepted Indigenous claims that rights and title exist within their traditional territories. In most cases, it has avoided admitting that title exists to specific parcels of lands, or what its impact would be. Even in the agreements with the Tsilhqot’in, who have judicially recognized title to at least a portion of their territory, the language is guarded about the consequences of that title for provincial law-making and administration.
Fiscal relations — BC has been more willing to engage in revenue-sharing discussions outside the treaty process than the federal government, but its willingness extends only to specific sources of revenues from particular natural resources. The agreements do not suggest a readiness for a broader discussion about sharing public revenues generated from traditional territories or commensurate responsibilities to provide public services to all residents on those lands.
When the three elements are considered together, BC’s approach to date seems to be primarily focused on fostering good relations, fulfilling its legal duties to consult and making qualified commitments to future action on issues such as revenue sharing.
What lessons can be drawn from the BC experience depends on one’s perspective. Indigenous nations outside BC, other governments and nongovernmental actors such as industry will each draw different conclusions.
Many of BC’s Indigenous nations have been tactical and methodical in advancing a strategy to protect their rights to traditional territories, to have their inherent governance powers recognized and to access public revenues for that purpose. Some have chosen the route of tripartite modern treaty making, but many have pursued bilateral arrangements — either as interim steps toward an eventual tripartite treaty or as ends in themselves.
The bilateral mechanisms reflect commitments to share and work from the same information, to collaborate on respective plans and to work toward shared goals that are worthwhile. Some of the agreements, particularly those linked to economically valuable projects, offer a route to Indigenous economic development.73 They can defuse misunderstandings or disagreements before they reach the point of conflict and foster mutual recognition and respect. In taking the bilateral route, Indigenous nations have also avoided giving up or modifying their core rights — as is often the case with modern treaties.
However, unlike most modern treaties, the bilateral agreements do not significantly advance Indigenous self-determination (not least because they lack the constitutional protection of such treaties). BC has not recognized the full range of Indigenous governance powers or fully accommodated Indigenous nations in public decision-making. In some respects, the provincial government has been bolder than some other governments by creating joint mechanisms and using the language of shared decision-making. However, given that BC remains the ultimate decision-maker, the bilateral agreements do not appear to constitute truly shared decision-making by partners with equal power.
Where Indigenous rights and governance powers on traditional territories are acknowledged, the province has relied on general rather than specific recognition. The result, therefore, has been practical arrangements to work together, but with neither side changing its legal views.
In the immediate term, Indigenous nations in BC have achieved important steps toward their policy agenda, while keeping their legal powder dry for the future. Lessons have been learned on both sides — Indigenous and non-Indigenous — from their efforts at collaborative policy development and crafting new mechanisms to work together.
BC has shown an openness to dialogue and collaboration with Indigenous people that departs from over a century of disrespect. It remains to be seen how the multiple processes and mechanisms emerging from bilateral arrangements play out in practice. In particular, how well will they operate when BC takes decisions driven by its own policy agenda but not agreed to by an Indigenous nation?74
Indigenous nations may also want to reflect on how well the bilateral arrangements position them for success in the modern Canadian economy. Access to renewable resource allocations, some revenue sharing and marketable carbon credits are not unimportant. However, Indigenous peoples have been subject to agreements that locked them into past visions of the economy. For example, most nineteenth-century treaties assumed that Indians would either continue a traditional economy based on renewable resource harvesting or become an agrarian yeomanry through the provision of land, livestock and plows. With a few exceptions, this did not happen. In many ways, modern treaties and bilateral arrangements reflect an economic vision of BC as primarily a resource-based economy without obvious attention to the reality that it is largely a service-based economy.
It is therefore debatable whether the benefits available under the bilateral arrangements are the ones most conducive to Indigenous success in the global economy. Some groups have the good fortune to occupy economically advantageous locations, but for others, it is hard to see how the current bilateral arrangements on offer will significantly change their socio-economic situations.
For Indigenous nations, this poses questions. Is the current generation of bilateral arrangements offered by BC the best route to exercise their rights in ways that equip them for modern success? How should such arrangements play into broader strategic issues such as managing potential conflicts among nations in shared geographic areas or along land corridors under development pressures? Since bilateral arrangements are necessarily limited by provincial jurisdiction, are they preferred models for bilateral or multilateral agreements with the federal government? What is the best way to engage the private sector in a broader strategy for change?
The previous Liberal government was pragmatic in its efforts to find workable arrangements on the ground, but in ways that left public lawmakers as the ultimate decision-makers. BC has used the language of shared decision-making, but in ways that are manageable and nonthreatening to existing authorities. Even where the BC government was willing to be a bit more innovative, it was driven by specific economic imperatives rather than a coherent policy vision of the place of Indigenous nations.
The emphasis on economic development for the benefit of all British Columbians, combined with the relatively modest revenues shared under the agreements, may have muted potential public opposition. Instead, public discourse focuses on broad concepts, such as reconciliation, or specific issues, such as services for Indigenous children, rather than debating the place of Indigenous nations in exercising self-determination.
For governments, a fundamental question remains. Are arrangements such as the ones BC has pursued primarily tools to protect the Crown’s interests under Canada’s current laws? Or should they be a vehicle to define a new place for Indigenous nations in the country’s social order, economy and governance? Can the arrangements serve both objectives?
Industry and the holders of permits, licences and property interests are not parties to the bilateral arrangements, but they must live and work with the consequences. Industry is experienced in pursuing its own efforts at reconciliation,75 but it must rely on public governments to address structural questions about governance, how land and resources are shared and the spending of public funds.
In the meantime, private interests are left to their own devices — either to negotiate arrangements with Indigenous nations or to seek remedy from the courts in the event of conflict. But at the same time, Indigenous nations’ expectations with regard to private arrangements will be shaped by their agreements with governments or, conversely, by what governments fail to deliver (e.g., closing socio-economic gaps).
For nongovernmental actors, this poses a question. If Indigenous nations’ visions of their role in governing traditional territories are not met by governments, will they look to the private sector to help satisfy their expectations of self-determination and socio-economic development?
Since the 1970s, Canadians have seen major and rapid changes in the place of Indigenous nations in Canada’s legal and constitutional order. A combination of Indigenous aspirations, judicial willingness to carve out a place for them and sometimes reluctant but responsive government policy changes have likely made the direction of change irreversible. However, it remains to be seen what further steps Canada will take to define a new place for Indigenous peoples. In the meantime, BC’s quite extensive experimentation with bilateral arrangements is potentially instructive elsewhere in Canada.
Indigenous and non-Indigenous people are unavoidably partners in BC’s success. The tripartite treaty route remains open to those prepared to take it, but bilateral arrangements with the provincial government will likely remain a major vehicle to govern relations with Indigenous nations. These arrangements, most quite recent, demonstrate a willingness to explore new forms of governance — within Indigenous nations and, in particular, between them and the provincial government. The agreements reflect the various nations’ differing circumstances and priorities, and they may be modified over time — as some have been already. Although their potential to foster the economic development of Indigenous nations remains to be proven, the agreements are steps toward reconciliation with Indigenous peoples.
To date, the parties to the agreements have largely focused on finding ways to bridge gaps in their legal views and to work toward shared common goals. However, if the current generation of bilateral agreements, which do not have constitutional protection, come to be seen as the best that can be achieved, there is a risk of complacency. This would not bode well for longer-term reconciliation with Indigenous peoples in BC. Indigenous expectations are likely to rise as the meaning and impact of UNDRIP — particularly core concepts such as self-determination — gain ground in Canada’s policy space. The corresponding adaptation in governance arrangements of various forms will take time; some of the ones now in place will probably evolve in light of experience and changes in circumstances.
Although bilateral agreements have served to bridge the gap in expectations between the province and Indigenous nations, they are unlikely to be the final chapter in how their relationship evolves. As this proceeds, creative thinking and accommodation on all sides will be needed to find new ways to bridge both existing and new gaps and to chart the next steps forward.
Michael Hudson filled many leadership roles over his 32-year career with Justice Canada. His focus on Crown-Indigenous relations coincided with the evolution of Canadian law driven by section 35 of the Constitution Act, 1982. He led Justice Canada’s Task Force on Constitutional Relations with Indigenous Nations in 2016-17, and he was a special adviser to the Australian prime minister’s department in 2005. He now provides strategic and tactical advice to clients in the public and private sectors.
IRPP Insight is an occasional publication consisting of concise policy analyses or critiques on timely topics by experts in the field. This publication is part of the Canada’s Changing Federal Community research program, under the direction of F. Leslie Seidle. All publications are available on our website at irpp.org. If you have questions about our publications, please contact firstname.lastname@example.org.
To cite this study: Michael Hudson, British Columbia-Indigenous Nation Agreements: Lessons for Reconciliation? IRPP Insight 20 (March 2018). Montreal: Institute for Research on Public Policy. DOI: https://doi.org/10.26070/rj0g-jk03
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Date of publication: March 2018
ISSN 2291-7748 (Online)
Montreal – Bilateral agreements with Indigenous nations in British Columbia are steps toward reconciliation that provide lessons for the rest of Canada, says Michael Hudson in a new publication from the Institute for Research on Public Policy.
There are few historic or modern treaties with Indigenous nations in British Columbia. The tripartite BC Treaty Process, established in 1992 by the federal government, the provincial government and Indigenous rights holders to resolve land disputes has had only modest success.
Adopting a different approach, since the early 2000s the BC government has signed several hundred bilateral agreements with more than 200 Indigenous nations. Most of them provide the Indigenous nation with a role in planning economic development and, in a number of cases, a share of resource revenues.
Hudson reviews the terms and effects of the agreements struck with four Indigenous nations (Haida, Musqueam, Lax Kw’alaams and Tsilhqot’in). “The arrangements, most quite recent, demonstrate a willingness to explore new forms of governance within Indigenous nations and, in particular, between them and the provincial government,” he says.
According to Hudson, bilateral arrangements will likely remain a major vehicle to govern BC’s relations with Indigenous nations. However, unlike most modern treaties, they do not significantly advance Indigenous self-determination. He concludes that there is a risk of complacency if the current generation of agreements, which do not have constitutional protection, come to be seen as the best that can be achieved.
Michael Hudson is a former associate assistant deputy minister of Aboriginal Affairs at Justice Canada. He led the department’s Task Force on Constitutional Relations with Indigenous Nations in 2016-17.
British Columbia-Indigenous Nation Agreements: Lessons for Reconciliation? by Michael Hudson, can be downloaded from the Institute’s website (irpp.org).
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The Truth and Reconciliation Commission tells us that reconciliation not only requires apologies, reparations, the relearning of Canada’s national history, and public commemoration. It also requires real social, political, and economic change — in essence, defining a new place for Canada’s Indigenous peoples.
Symbolic gestures are not unimportant. For example, the prime minister’s recent statement exonerating six B.C. First Nations chiefs accused of murdering white colonists more than 150 years ago in pre-Confederation British Columbia.
But, achieving true structural change will require Canada’s governments to meaningfully treat Indigenous people as partners in our national success. Are we ready as a country? B.C.’s experience over the past 15 years sadly suggests the answer is “no”.
In a study prepared for the Institute for Research on Public Policy, I analyzed hundreds of bilateral agreements signed by B.C. with over 200 Indigenous nations since the early 2000s. While the agreements are positive steps, they are not the structural change called for by the Truth and Reconciliation Commission. They also fail to meet the province’s stated goal of fully implementing the United Nations Declaration on the Rights of Indigenous Peoples.
The Truth and Reconciliation Commission’s vision of real change reflects emerging domestic and international norms which provide governments with a check list of “to dos” for new relations with Indigenous peoples. Top of the list for structural change are two issues — the governance and sharing the wealth of Canada.
Indigenous nations must not only be allowed to govern their own affairs, but deserve a meaningful voice in the governance of their traditional lands. They are entitled to share the benefits that flow from the development of traditional lands, but that should mean a fair portion of the general revenues generated on those lands.
Successful Indigenous nations like the Nisga’a, the Tsawwassen, the Haida, the Squamish and the Musqueam have done so because federal and provincial governments took halting and usually begrudging steps toward those goals. But most B.C. Indigenous nations are nowhere near that destination. And even nations that have hard-won gains rarely say that they have everything needed for modern success.
The previous B.C. Liberal government characterized its new relationship with Indigenous nations as “based on respect, recognition and accommodation of Indigenous title and rights; respect for each other’s laws and responsibilities; and for the reconciliation of Indigenous and Crown titles and jurisdictions.”
The reality reflected in bilateral agreements falls short of those lofty aims. The province promised to respect its legal duty to consult, but since the ultimate power to decide rests with Victoria, there is no truly shared decision making between equals. While the provincial government says that the benefits of B.C.’s rich economy are shared, the reality is that Indigenous nations get only tiny amounts of resource revenues from their traditional territories.
B.C.’s approach has focused on fostering good relations, fulfilling legal duties to consult and making qualified commitments to future action on issues such as revenue sharing. However, B.C. has not comprehensively recognized or implemented the rights of Indigenous nations in ways consistent with the Truth and Reconciliation Commission’s vision of a new Canada. To date, there are few indications that the NDP government will take a significantly different approach from the Liberals.
Creative thinking is needed to deliver structural change in the province’s governance, economy and social order. Equally importantly, all governments — Indigenous and non-Indigenous — need to start an open, honest conversation with British Columbians about how much structural change is needed if we want our children to look back to the Truth and Reconciliation Commission as a turning point in our relations.
Michael Hudson is a former associate assistant deputy minister of Aboriginal Affairs at Justice Canada and special advisor to the prime minister of Australia on Indigenous issues. He led the federal government’s Task Force on Constitutional Relations with Indigenous Nations in 2016-17. He now serves as strategic advisor to a range of governments, Indigenous nations and industries.
The rest of Canada can learn from the numerous agreements between the BC government and Indigenous nations that are helping to advance reconciliation, says Michael Hudson.