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How Do BC’s Two Treaty Breakthroughs Change the Landscape?

A wave of less extensive reconciliation agreements also ‘raise all boats,’ say experts.

Amanda Follett Hosgood 9 Jul 2024The Tyee

Amanda Follett Hosgood is The Tyee’s northern B.C. reporter. She lives in Wet’suwet’en territory. Find her on X @amandajfollett.

There was an unmistakable air of celebration in Terrace last month as representatives descended on the small northern city to mark two historic treaties with First Nations.

At back-to-back events on June 24 and 25, leaders with Kitselas and Kitsumkalum First Nations took turns at the microphone with federal and provincial politicians to talk about their new treaties.

They recognized the decades-long path to the historic agreements, the difficulties in getting there and the benefits expected from the first modern treaties in B.C. in a decade.

“I am hopeful that today's occasion will mark a turning point for our people and be a positive note for our own history,” Kitselas First Nation Chief Coun. Glenn Bennett told those gathered June 24 at Kitselas Canyon, a national historic site with cultural significance going back more than 6,000 years.

“This is one more step forward, away from the repressive, outdated Indian Act and its representatives.”

Bennett said the treaty would bring self-reliance, economic development and decision-making power over natural resource development to the nation.

The agreements, between federal and provincial governments and the two First Nations, were negotiated separately but at the same table. They also hand control over things like child welfare, education and law-making to the nations.

Over the past decade, B.C.’s Ministry of Indigenous Relations and Reconciliation has signed “hundreds” of agreements with First Nations related to rights and title, according to a ministry spokesperson.

In recent years, they include interim revenue-sharing agreements from power generation with the Ktunaxa, Secwépemc and Syilx Okanagan First Nations, the return of ranch lands to the Stswecem'c Xget'tem First Nation as part of treaty negotiations, and an “incremental” agreement to return culturally significant land to the Lyackson First Nation and Cowichan Tribes.

But they were not treaties

B.C. has also begun signing agreements under the province’s Declaration on the Rights of Indigenous Peoples Act, including two Section 7 agreements with the Tahltan Nation.

Agreements can be as specific as recognizing the Cowichan Tribes’ authority over child welfare and as broad as the Haida title agreement this spring to recognize the nation’s title over its traditional territory.

Each agreement varies in breadth and scope and is tailored to the individual First Nation. Some mark an incremental step on the road to reconciliation.

Others, like modern treaties, provide a detailed package that provides significant control over a defined area.

“It’s hard to know what the wisdom is between any one path, other than you have to respect the self-determination of individual First Nations to make those choices,” says Merle Alexander, a Hereditary Chief of the Kitasoo Xai’xais First Nation who practises Indigenous resource law.

In the cases of Kitselas and Kitsumkalum, it took more than 30 years of negotiations with Canada and B.C. But now the nations will be able to offer citizenship — rather than band membership, regulated under the federal Indian Act — and it will be up to each nation to determine who qualifies.

All of this hinges on their members endorsing the treaties. They will have the coming year to review the agreements; if they are approved, it will then be up to Canada and B.C. to ratify them through legislation.

The process could take years. B.C.’s most recent modern treaty, signed with the Tla’amin Nation in 2014, came into effect two years later.

Why are modern treaties significant?

A word frequently used to describe modern-day treaties is “comprehensive.”

“A modern-day treaty essentially tries to address the entirety of the constitutional division of powers,” Alexander says.

The first modern-day treaty was signed with the Nisga’a Nation in 2000.

Since then, the Tsawwassen First Nation, Maa-nulth First Nations (including the Huu-ay-aht First Nations, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations, Toquaht Nation, Uchucklesaht Tribe and Yuułuʔiłʔatḥ government) and Tla’amin Nation have signed their own modern treaties.

They are an all-in-one package, including a land transfer (from the province) and financial package (Canada’s responsibility) to implement self-government and everything that goes with that — including child welfare, education, law-making and land-use decisions. They define the details of self-government, something that can take decades of negotiation and years to implement.

The shift to self-government means a relatively quick increase in capacity for the nation, something that creates not just independence but also jobs.

“On the whole, the amount of investment in building out a government is much greater in treaty, just because you’re getting the entirety of your compensation package to establish an actual, fulsome government,” Alexander says. “Over time you definitely see a significant change in the socio-economic profile of treaty nations.”

In the cases of Kitselas and Kitsumkalum, the treaty negotiations that began in the early 1990s could soon mean a huge shift. The agreements come with more than 80,000 hectares of land for the two nations, and more than $100 million for each to establish governments and related services.

Alexander adds the treaties’ land transfer terms are somewhere between a “fee-simple” transfer, in which the nation takes sole ownership, and an arrangement that reflects members’ right to use the lands.

“It has some of the strengths of a fee-simple ownership, but then it also has a collective-right component, which generally fee-simple doesn’t,” he says.

The result is generally “greater jurisdiction over a smaller land base,” Alexander says. In the case of the 2000 Nisga’a treaty, the first modern agreement, the nation secured just eight per cent of its traditional territory.

The percentage of land offered to First Nations as part of a modern treaty has continued to fall, he adds.

“One of the reasons that First Nations have pulled away from the modern-day treaty process is because the land quantum offering has actually, on the whole, shrunk,” he says. “They might have a greater say on those lands, but they might also have to give away their ability to assert rights throughout the entire territory.”

B.C.’s Indigenous Relations Ministry didn’t directly respond to a question about the percentage of traditional territory included in the Kitselas and Kitsumkalum agreements.

Several people sit in a row of chairs in an outdoor setting clapping their hands.
BC Minister of Indigenous Relations and Reconciliation Murray Rankin, centre, sits with federal Crown-Indigenous Relations Minister Gary Anandasangaree, right of Rankin, and Kitselas Chief Coun. Glenn Bennett, far right, at the initialling of the Kitselas First Nation’s modern treaty agreement on June 24. Photo via BC government.

The certainty of modern treaties also comes with a downside. As case law evolves and other nations sign more favourable agreements, some First Nations might feel locked into outdated treaties.

Federal Crown-Indigenous Relations Minister Gary Anandasangaree says governments are working to address the issue. Both he and his provincial counterpart, B.C. Indigenous Relations Minister Murray Rankin, describe modern treaties as “living documents.”

“There are outlets built into the treaty to continuously negotiate on issues that arise,” Anandasangaree told The Tyee. “It’s a modern and different way of looking at it and trying to decolonize the way Canada has acted in the past.”

Rankin echoes the comments.

“It used to be that treaties were final,” he says. “The good news is that every 15 years or so there’s the ability to reopen and have a conversation about things that might have changed in the interim.”

B.C. has taken other steps to try to make modern treaties more appealing.

In March 2022, it signed the Shared Priorities Framework with the Alliance of BC Modern Treaty Nations, a collective of the eight modern treaty nations in B.C. The agreement allows the parties to continue to work together on treaty implementation.

With more than 200 First Nations in B.C., eight of them covered under Treaty 8 in northeastern B.C., many nations continue to work through the process of defining their rights and title.

Last week B.C. also announced “new policy approaches” to support the process, including an updated capacity funding model for treaty implementation and changes allowing modern treaty nations to self-determine property tax on their lands.

Rankin believes modern treaties are gaining momentum. Two additional announcements are expected in the coming months, including an agreement with K’ómoks First Nation that is expected before August.

“I honestly predict we’re going to see more modern treaties,” he says, but adds that “we’re interested in agreements of many kinds.”

Reconciliation agreements: The incremental approach

Alexander disagrees that modern treaty agreements are on the rise.

While they provide self-government, other, less extensive agreements between B.C. and First Nations create the building blocks to independence by addressing one issue at a time, from land use to social services.

That provides the opportunity to advance without the onerous and costly process of completing a modern treaty negotiation.

Alexander believes that, once First Nations currently invested in treaty negotiations complete that process, the trend will be toward reconciliation agreements.

“A lot of First Nations have left the treaty process because they felt that they could do more in the category of ‘other agreements’ than they could at the treaty table,” he says. “I think lots of nations were finding that they felt like they could get more out of the incremental approach than they could at the treaty table.”

Alexander adds that signing reconciliation agreements rather than modern treaties also allows First Nations to “maintain the geographic scope of your entire territory.”

A significant example is the Haida land title agreement. The nation is only the second in B.C. to receive formal recognition of title over its entire territory. The first, the Tŝilhqot’in Nation, won its title through a Supreme Court of Canada decision a decade ago.

While the Haida agreement offers title to the nation’s entire territory, there is “almost no definition” to the agreement, Alexander says.

Those details will be determined through subsequent agreements in coming years.

That approach may provide greater benefits in the long term, Alexander believes.

“The geographic substantiveness of having Aboriginal title to all of Haida Gwaii is just so significant,” he says. “But they’re also really choosing the long path.”

Five people sit in a row at a table. Near the centre, a man with a ponytail and goatee beard, wearing glasses and traditional Indigenous regalia, holds a pen as he signs a piece of paper.
Haida Nation President Gaagwiis Jason Alsop signs the historic Gaayhllxid/Gíihlagalgang ‘Rising Tide’ Haida Title Lands Agreement in April. BC Premier David Eby is on his right and Indigenous Relations Minister Murray Rankin on his left. Photo via BC government.

A beneficial outcome from the modern treaty process has been the significant financial packages that come with them.

But Alexander believes that’s shifting and other forms of agreement are providing significant benefits.

“I think the trend is toward richer reconciliation agreements and more substantial definitions of things like Aboriginal title,” Alexander says.

Another distinction between modern treaties and reconciliation agreements, as federal minister Anandasangaree notes, is that the latter are “primarily a provincial matter.” In the Haida’s case, the nation will now embark on the federal components of title, he says, looking at things like the title transfer and co-management of protected areas with Parks Canada. Bill S-16, an act to recognize the Haida Nation, is currently before the House of Commons.

Territorial overlap

While 30 years may seem like a long time to negotiate a modern treaty, the decades spent at the negotiation table pale in comparison to the complex land-use agreements that evolved over millennia between neighbouring First Nations.

Rankin describes territorial overlap as “one of the most perplexing” issues negotiators address as they work toward agreements.

As Kitselas and Kitsumkalum prepared to initial their modern treaties last month, the Gitxaaɫa Nation issued a statement saying it was “deeply distressed” that the agreements would impact its traditional territory.

The Gitxaaɫa Nation believes B.C. is rushing the process in the run-up to the provincial election. At the same time, it says the province has paused its negotiations with Gitxaaɫa.

“Gitxaaɫa Nation is an ancient village. It’s the oldest on the coast. We’ve always governed our territory through our adaawx (histories), ayaawx (laws) and gugwilx’ya’ansk (land-based inheritance), which we still practise amongst ourselves,” Sm’ooygit Txagyet, who also goes by Clarence Innis, tells The Tyee.

Among recent efforts to protect the territory is the nation’s fight against the Enbridge Northern Gateway pipeline a decade ago and efforts to bring the Mineral Tenure Act in line with B.C.’s Declaration on the Rights of Indigenous Peoples Act.

But now Txagyet says the nation feels pushed aside as B.C. rushes to celebrate its first modern treaties in a decade.

“The government is giving away our land and territory along with the governance authority on those,” he says. “In our traditional ways, there are protocols when other nations want to come in and use our territory. They would come to Gitxaaɫa and meet with our hereditary table.”

But as the treaty process moves forward, that hasn’t happened, Txagyet says. He says the nation has reached out to Kitsumkalum and Kitselas to try to come to an agreement based on ayaawx, but the issue remains unresolved.

B.C.’s Indigenous Relations Ministry didn’t directly respond when asked about pausing negotiations for the election, saying only that the province “is meeting regularly with Gitxaaɫa Nation to work on a tripartite Reconciliation Framework Agreement with Canada” and that timing for the negotiations is “worked out between the parties.”

When asked about the overlap, Anandasangaree says flexibility within the agreements and the preliminary stage of the ratification process mean the issues can still be worked through.

“Reconciliation is about being at the table and having those discussions,” the federal Crown-Indigenous relations minister says.

Rankin agrees there is time to address any overlapping territory between Kitselas, Kitsumkalum and other First Nations before the modern treaties are ratified a year or more down the road.

“In that time, we have all sorts of opportunity to figure out exactly how we can address that question, through dispute resolution, perhaps through accommodation measures,” he says. “We are prepared, on British Columbia’s side, along with Canada, to do meaningful things to address the overlap issue.”

Rankin adds that each step toward reconciliation isn’t just benefiting First Nations. He calls the wave of agreements “a tide that raises all boats.”

“It’s good not just for the First Nations — and this is a key point that often gets forgotten: the economic activity generated by treaties with all sorts of federal money coming into a community is good for everyone,” he says.  [Tyee]

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