Treaty Negotiation & Implementation

Ratcliff & Company LLP is the most experienced law firm in British Columbia for treaty negotiation, closing and implementation, having been involved with the negotiation, closing and implementation of two of the three modern British Columbia treaties that achieved implementation. We are also currently assisting three other First Nations in negotiating their treaties as well as one other First Nation to close and implement its treaty.

Since time immemorial, First Nations governed their lands, resources and peoples in accordance with their own laws, practices and traditions.  Despite the arrival of peoples from other places, First Nations preserved and protected their traditional territories to the best of their ability. Over the past two centuries through colonization and the assertion of sovereignty by Great Britain, and later Canada, the ability of First Nations to govern in their traditional ways became virtually impossible. Their lands were taken from them, the resources and wealth were removed without their consent and even their families were torn apart. The Indian Act, which controlled much of their lives, removed from their control all but the most basic and inconsequential governance decisions. As a consequence of the Indian Act and the Indian Act system, First Nations were left politically disempowered, economically disadvantaged and culturally oppressed. This reality should be unacceptable to all Canadians.

Modern treaties and the modern treaty process offers an opportunity for Canadians and First Nations to come together to create solutions to this unacceptable reality.  One objective of treaty making is to restore governance capacity and ensure that treaty First Nation governments are fully functional and accountable. A second objective is to restore sufficient lands and resources to the treaty First Nation to enable it to construct a sound and vibrant economy. A third objective is to achieve legal certainty for all parties regarding full recognition of treaty First Nations within the Constitutional framework of Canada. Legal certainty decreases the potential for conflicts and the difficult and often repeated litigation necessary to resolve those conflicts.  Litigation has its place in addressing specific issues where government is intransigent or refuses to meet its obligations. When litigation is avoided, the significant resources necessary to support that litigation are available to the treaty First Nation to be reallocated to establishing modern systems and processes for transparent and accountable government. A modern treaty First Nation government is better equipped with the infrastructure and resources necessary to improve the lives and wellbeing of its citizens through its programs and services.  With its law-making authorities and the resources and benefits recognized in the treaty, a treaty First Nation will be in a better position to preserve and enhance its connection to the past by being able to support its history, culture and traditions. All treaty work has these objectives as its underlying motivation and guide.

Negotiating to meet these objectives involves dealing with a broad range of complex and interrelated issues. These include law-making authorities, governance structures, lands and resources, fiscal matters, harvesting rights, culture and heritage, transitioning out from under the Indian Act and the role of the treaty First Nation off its treaty lands within its traditional territory. These negotiations are complex, time consuming and require a high degree of technical expertise and assistance and, most importantly, patience and perseverance. Despite the complexity and time consuming nature of these negotiations, treaty making remains the only viable tool to comprehensively redefine aboriginal peoples’ place within the Canadian federation.

Once a treaty has been negotiated, there are numerous activities that must be completed in order to “close” and then “implement” the treaty.  “Closing activities” are activities carried out prior to the-effective date in order to prepare a First Nation for their new reality after the effective date. “Implementation activities” are activities carried out post-effective date to fully implement the treaty benefits, authorities, rights and obligations provided for in the First Nation’s treaty. Closing activities involve a high volume of activity in a relatively short period of time (usually two years) while implementation activities involve a lower volume of activity over a longer period of time (in reality, implementation activities are carried out for decades after a treaty effective date).