At the current pace of treaty making in B.C. – about one a decade – it could take 1,970 years before the B.C. and federal governments have finalized treaties with all 200 First Nations in B.C.
Given the glacial pace of treaty making in B.C., and the uncertainty that persists over aboriginal title, one can understand why the B.C. government – first under the Liberals, and more recently under the NDP – has been opting to negotiate short-cut deals: interim treaty agreements, reconciliation agreements, co-management agreements, revenue-sharing and collaboration agreements, and memorandums of understanding on aboriginal rights, title and governance.
While they may settle some issues and address the uncertainty that has hung over B.C. for decades, they are beginning to raise some red flags for resource industries, say lawyers for McMillan LLP law firm in a legal bulletin on indigenous law in B.C.
“While there may be some benefits to non-treaty agreements, they also raise numerous risks and concerns that businesses in the natural resources sector (which rely heavily on government permitting and land use planning) may not be aware of,” the bulletin warns.
Say what you will about the BC Treaty process, it at least provides oversight, transparency, and engagement with non-aboriginal stakeholders so that stakeholders know what to expect.
Non-treaty agreements, on the other hand, are negotiated mostly behind closed doors by bureaucrats, often with little or no engagement with stakeholders other than the individual First Nation in question.
In the case of an agreement signed with Wet’suwet’en hereditary chiefs that recognizes Wet'suwet'en rights and title, even elected Wet’suwet’en band councillors were excluded from the initial negotiations.
Moreover, many non-treaty agreements don't require passage by the B.C. Legislative Assembly, so there may be little political scrutiny or debate.
“I wouldn’t say that there’s never any consultation, but it’s minimal compared to the treaty process,” said Robin Junger, one of the bulletin's authors.
That could become a problem for resource companies that suddenly find their permits have been delayed or rejected because the rules have suddenly changed.
“These ‘non-treaty’ agreements (and the processes used to negotiate them) do not benefit from oversight by the B.C. Treaty Commission, so they can raise greater risks for businesses and tenure holders,” McMillan says in its bulletin, What the B.C. Natural Resource Sector Should Know about ‘Non-Treaty’ Agreements.
In B.C., historical treaties were never signed with the majority of First Nations, which left a legal vacuum, since most First Nations never ceded title.
A series of Supreme Court of Canada decisions confirmed that aboriginal title exists and that First Nations never surrendered rights and title to traditional territories. This prompted the B.C. and Canadian governments and B.C. First Nation organizations to agree to set up the BC Treaty Commission in 1992 to negotiate modern-day treaties.
As the McMillan brief notes, “after more than 30 years, and more than a billion dollars in negotiating costs, the treaty commission process has produced limited success. It has yielded only three modern treaties that are in implementation today.”
(The Nisga’a agreement pre-dates the BC Treaty process, and the most recent treaty agreement with the Yale First Nation has been ratified but not yet implemented.)
Slow though it may be, the BC Treaty process at least provides engagement opportunities that include Regional Advisory Councils (RAC) and Treaty Negotiation Advisory Committees.
These bodies allow various stakeholders (businesses, private landowners, regional and municipal governments) within the territory to have input on negotiations. Non-treaty agreements typically provide no such engagement process.
“Unlike the treaty commission process, there is no structured process for negotiating non-treaty agreements and there is no corresponding process to ensure engagement with potentially affected third parties,” the McMillan brief notes.
“Instead, the decision about whether and how to engage third parties is left entirely to the discretion of government (usually non-elected officials). This has led to numerous cases where third party consultation has been nonexistent or insufficient. Moreover, trying to fix problems after the agreement has been signed is, not surprisingly, extremely difficult.”
While it was the Liberal government under Christy Clark that started the trend of negotiating interim treaty agreements, the use of non-treaty agreements has expanded under the NDP government.
“In principle, I don’t see a problem with that – I see benefits to that,” Junger said. “The only question becomes: Do you jettison all procedural safeguards?”
One of the concerns for resource companies that non-treaty agreements may pose is greater uncertainty and increased complexity for permitting.
“Permit applications previously administered by government (both federal and provincial) subject to the Crown’s duty to consult, can now (where a non-treaty agreement exists) fall into a more complex and lengthy process that the applicant is neither a participant in nor privy to,” the bulletin notes.
“Government may seek to impose unsolicited amendments on permit holders, following confidential discussions that occur between the government and Indigenous groups under a non-treaty agreement. From the permit holder’s perspective, they can come ‘out of the blue’ and may not have any grounding in law.”
Michael Lee, BC United (formerly BC Liberal) shadow cabinet critic of Indigenous Relations and Reconciliation, said the government could do a better job at engagement and transparency.
“I appreciate that this is a government-to-government discussion, but this government – any government – has a responsibility to ensure that the public’s interests are balanced,” Lee said.
Ultimately, McMillan says resource companies need to be vigilant when it comes to agreements that may affect their operations, and to remind government it has obligations to treat businesses fairly.
“State clearly and consistently your expectation that government officials comply with common law principles of administrative fairness, and noting that government cannot by mere agreement (with an Indigenous group or anyone) override those legal obligations owed to third parties.”
