Overseas Treaty Precedents
Lessons from Canada
Australia has much to gain from looking closely at the Canadian experience and developments in British Columbia (BC) illustrate this well.
The BC treaty process is a voluntary process of political negotiations among First Nations, Canada and British Columbia. It is intended as a constructive alternative to litigation and direct action.
The current BC treaty process began in 1990 when Canada, British Columbia and First Nations established the BC Claims Task Force to make recommendations on the scope of treaty negotiations, the organization and processes to be used, interim measures and public education. In its report, the Task Force made 19 recommendations, which were all accepted by the three parties.
Subsequently, First Nations, Canada and British Columbia signed an agreement in September 1992 to establish the BC Treaty Commission. The Treaty Commission Agreement is supported by federal and provincial legislation and by a resolution of the First Nations Summit. In December 1993, the Treaty Commission began receiving Statements of Intent from First Nations wanting to negotiate a treaty with Canada and British Columbia.
Through these political negotiations, the parties are attempting to "establish a new relationship based on mutual respect, trust, and understanding." This was a key recommendation of the BC Claims Task Force report.
The Task Force report
listed elements it considered essential to successful treaty negotiations
in BC:
- the parties should be committed to the treaty process and have adequate resources to reach agreements;
- the process should be managed in BC; · it should provide a level playing field for all parties;
- Canada, BC and First Nations should be equal partners in the management of the process; and
- the treaty process should encourage effective and efficient negotiations.
Toward these ends, the parties have generally attempted to adopt an interest-based
approach to negotiations. They try to explore, understand and creatively
accommodate the interests and needs that underlie each other's positions.
The issues being addressed in BC treaty negotiations are complex and sometimes
contentious. Treaties will differ from "table to table." However, they
are generally expected to cover three broad subject areas:
- First Nations government jurisdictions, services and structures and related financial arrangements;
- jurisdiction over and ownership of lands, waters and resources;
- cash settlements.
Treaties will also be expected to set out the processes for resolving disputes and making changes to the treaty.
Treaty negotiations in BC pass through six stages:
Stage One: Statement of Intent. A First Nation wanting to initiate treaty negotiations must file a statement of intent with the Treaty Commission.
Stage Two: Preparation for Negotiations. The three parties confirm their commitment to negotiate a treaty, establish that they have the authority and resources to commence negotiations, have a means of developing their mandates and broadly outline what each of them wishes to negotiate.
Stage Three: Negotiation of a Framework Agreement. The Framework Agreement defines the issues the parties have agreed to negotiate, establishes the objectives of the negotiation, identifies the procedures that will be followed and sets out a timetable for negotiations.
Stage Four: Negotiation of an Agreement in Principle. Substantive treaty negotiations take place in this stage. The Agreement in Principle sets out the key objectives and elements to be part of the treaty.
Stage Five: Negotiation to Finalize a Treaty. At this stage, outstanding legal and technical issues are resolved.
Stage Six: Treaty Implementation. The plans to implement the treaty are put into effect or phased in as agreed.
The BC treaty process is open to all First Nations in BC, but not all First Nation groups have chosen to engage in treaty negotiations. Some First Nations oppose the treaty process, preferring instead to negotiate separately and directly with the federal and provincial governments. Other First Nations will enter the process as they become organized to do so. Still others will wait and see what can be achieved before committing themselves.
Further information:
British Columbia Treaty Commission
