Canada: Reconciliation Protocols - British Columbia's New Way Of Doing Business With First Nations

Copyright 2010, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Aboriginal Law, January 2010

The first part of 2009 witnessed the province's failed effort to experiment with legislation to address the long unresolved matter of aboriginal land rights in B.C. By the fall of 2009, the province had returned to the principles set out in its 2005 New Relationship document to re-calibrate the path forward on aboriginal relations. In the last days of December 2009, the province announced four different legally binding agreements, or "reconciliation protocols", with various First Nations groups, primarily located on the West Coast. These agreements indicate what the future will bring on this ever-changing landscape in B.C. And, often, what B.C. leads with, other provinces will follow.

Notably, all of these agreements build on existing agreements between the province and First Nations. They also share two common themes: (i) they are focussed on mechanisms to collaborate on land and resource use decision-making (with varying degrees of specificity); and (ii) they set out broad yet tailor-made goals for resource-revenue sharing and infrastructure building, including specific measures around forest tenures, carbon offsets, and alternative energy considerations. The province explains that with these protocols, it is aiming to avoid disputes and litigation with First Nations and to allow statutory decisionmakers to act with certainty around consultation. The writer understands that these protocols are intended to deal primarily with land use decisions outside of the provincial environmental assessment process.

What is the impact of these agreements on the current role of third parties in dealing with First Nations consultation/accommodation? A review of these agreements indicates that the province intends to continue to delegate certain procedural aspects of consultation to third parties and that third parties are expected to continue to have a role in providing economic benefits from resource projects to First Nations.


The province emphasizes that this "one-of-a-kind" protocol was negotiated as a result of the litigation history and strong claim to aboriginal title of the Queen Charlotte Islands, or Haida Gwaii, that the Haida Nation (the Haida) hold. Without ever mentioning the word "treaty", the protocol states that it is part of the incremental process the parties have agreed on for the negotiation of a "Reconciliation Agreement" (defined to be a more comprehensive agreement). Most importantly, each of the province and the Haida House of Assembly are committed to passing legislation to assist with the implementation of the protocol. The province has targeted the spring of 2010 for this legislation. To implement the protocol over five years, the province will fund the Haida Nation with a payment of C$600,000 per year, and a C$200,000 payment upon signing.

Building on a 2007 Strategic Land Use Agreement between the Haida and the province, which established land use zones for both economic activity and ecosystem protection, the protocol creates a Joint Management Council to make shared resource use decisions. The Joint Council consists of five members, two appointed by each of the province and the Haida, with a jointly appointed Chair holding a tie vote. The protocol does not provide detail as to what the Council will manage other than to focus on strategic-level matters (highlighted further below). As such, this protocol is enabling only based on a framework set out in the attached Schedule B, which will be developed with additional frameworks and implementation plans. Progress is to be measured by July 2010. By consensus decision-making, the Council is responsible for joint decision-making relating to specified strategic-level matters, such as:

  1. Implementation and amendment of the Haida Gwaii Strategic Land Use Agreement;
  2. Establishment, implementation and amendment of Land Use Objectives for forest practices and determination and approval of the Allowable Annual Cut for Haida Gwaii; and
  3. Developing policies and standards for the identification and conservation of heritage sites.

Other matters that the protocol deals with are:

  • Carbon Offset Sharing and Resource-Revenue Sharing. Schedule C of the protocol outlines a framework for the parties to agree to share carbon offsets, initially focussed on forest offsets. The essence of this approach is that there will be a further agreement, an "Offset Sharing Agreement", to be negotiated by September 30, 2010, that will establish the basis for qualifying and sharing carbon offsets. The parties also agree to pursue additional revenue sharing opportunities related to new major natural resource development projects.
  • Forest Tenures and Other Economic Opportunities. In Schedule D of the protocol, the province reaffirms its 2005 commitment to provide a forest tenure of 120,000 cubic metres to the Haida. Additionally, the province agrees to pay C$10-million to the Haida for the purpose of acquiring forest tenure. This funding is a credit against future reconciliation payments.
  • Enhancement of Socio-Economic Wellbeing. This is the most vague part of the protocol as there is no accompanying schedule and no timelines. The parties state that they are committed to "an approach", which recognizes and strengthens the inter-relationship between environmental, social wellbeing and economic development. In addition, a socio-economic approach, with children and families at the centre, will be developed by the Haida.


This protocol is between the province and six Indian bands from the Central and North Coast area. It has elements that are both parallel to and different than the Haida Protocol. Like the Haida Protocol, this protocol builds on pre-existing land use agreements from 2001 and 2006. The implementation funding of this protocol is identical to that provided under the Haida Protocol.

A centerpiece of this protocol is a framework for shared land use and resource decision-making. However, this protocol is much more prescriptive. It sets out an "Engagement Framework" that is to be implemented during the next six months.This framework has five different levels of decision processes and timelines, depending on the type of potential impact that a permit application may have. Interestingly, the protocol states that it is "not intended to affect any obligations that tenure or permit holders or other third parties may have with First Nations."

Other key elements of this protocol are:

  • Carbon Offsets Sharing and Resource-Revenue Sharing. The protocol contains a schedule identical to the Haida Protocol on this topic. Also, like the Haida Protocol, the parties also agree to pursue additional resource-revenue sharing opportunities around major natural resource developments.
  • Economic Opportunities and Economic Strategies. To facilitate the defined economic opportunities and strategies in the protocol, the Coastal First Nations have established the Great Bear Business Corporation. These economic goals deal with forest tenure volume allocations, recreational tourism and the development of an Alternative Energy Action Plan, to be worked on collaboratively by the province, independent power producers and First Nations.


The province entered into a Framework Agreement with six First Nations, covering a land base from Port Alberni (Vancouver Island) to the north-eastern part of Vancouver Island and over into the Knight Inlet area of the central coast of the mainland. The province provides a three-year funding commitment to the Nanwakolas Council of C$685,000 per year, with a C$215,000 initial payment for 2009. This protocol establishes the Nanwakolas Strategic Forum, as the body with overall implementation authority.

This Framework Agreement is very similar in approach to the Coastal First Nations Protocol in that it sets out in considerable detail an engagement matrix for different types of resource decision-making. This matrix is even more detailed than the Coastal First Nations Protocol as it approaches the process by statutory type (i.e., a permit under the Wildlife Act or the Environmental Management Act). Plus, six different provincial agencies are also parties to it, unlike the above two protocols (simply represented by the Minister of Aboriginal Relations and Reconciliation).

The economic imperatives of this Framework Agreement are broader than those discussed in the previous two protocols. This agreement directs the Strategic Forum to pursue opportunities to achieve the closing of the social and economic gap between the Nanwakolas First Nations and other British Columbians. It also sets out that, through the Strategic Forum, the parties are to reach agreement on finfish aquaculture, a regional renewable energy strategy and guide outfitting.


The province and three Treaty 8 First Nations (Doig River, West Moberly and Prophet River) entered into five different agreements which, collectively, provide somewhat similar components to the above protocols. However, the focal point of these collection of agreements is the amendment of an existing Economic Benefits Agreement (the Amended EBA) that previously included the Fort Nelson First Nation.

As part and parcel of this Amended EBA, three agreements dealing with land use decisions – being a Parks Collaborative Management Agreement, a Wildlife Collaborative Management Agreement and a Strategic Land and Resource Planning Agreement – were signed. These agreements are largely process- and goal-oriented and parallel the Haida Protocol in that specific decisionmaking frameworks are yet to be developed. In addition, given the withdrawal of the Fort Nelson First Nation, an adjustment to the Amended EBA was made to reduce the equity payments to the First Nations by 25%. Also, by signing the other related agreements that are a part of the land use decision-making parcel, the three Treaty 8 First Nations will receive that additional equity payment of about C$3-million as set out in the Amended EBA. Copies of all of these reconciliation protocols are available on the province's website (

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions