BC is subject to Aboriginal title and rights, including treaty rights. Our interests with regard to addressing the ‘land question’ require strong leadership, both at the provincial and national level. Settlement of the land question remains fundamental to the overall success for our Nations in BC. Without adequate access to land and resources our Nations will never reach our full potential. In addition to sustaining our traditional practices, access to land and access to resources provides our capital – our equity – and therefore our ability to build our economies and support our governance.
Our Nations currently do not have fair access to their lands and resources. However, building on the work of the leaders that have come before us, the opportunity to change this now exists. For example, there are now hundreds of land and resource agreements that our Nations have entered into known as ‘benefits’ agreements (also known as interim measures, project support, cooperation, development, protection and benefit, market access, standard-setting or certification, participation and accommodation).
Our Nations are demonstrating success in implementing Aboriginal title and rights, including treaty rights, on the ground through three interrelated approaches: 1) Litigation 2) Negotiations and 3) the Exercise of rights. Our Nations are playing different roles in what is becoming a collective approach to moving forward.
While we cannot and will not lose sight of our governance reform objectives and will continue to manage, support and advance the many governance related initiatives that are well underway, the next three years will be a time of renewed political debate about the future of BC and the need to settle the land question. There will be an increased level of public discourse around ‘land claims’ and the impact of Aboriginal title and rights, including treaty rights, as major industrial development projects, such as the Site C dam, Prosperity Mine and most notably the Enbridge and Kinder Morgan pipelines, seek regulatory approval to proceed. There will also be more debate around the issue of private property as witnessed by the events around c̓əsnaʔəm (commonly known as the Eburne Site, Marpole Midden or Great Fraser Midden). We must, and will be, prepared.
BCAFN continues to bring our leaders together and develop strategies to work collaboratively to maximize our opportunities and ensure all Nations have fair access to land and resources whether through benefits agreements or other arrangements.
Our Nations are demonstrating success in implementing aboriginal title and rights on the ground through these interrelated approaches:
BC First Nations would not be so far ahead with the recognition of title and rights and settling the ‘land question’ had it not been for litigation. Litigation drives negotiations and sets the bar for agreements. We have made significant progress through the courts with title and rights cases such as Calder (Nisga’a), Delgamuukw-Gisday’wa (Gitxsan & Wet’suwet’en), Haida, Taku and Sparrow (Musqueam) etc. There have been dozens of cases, with many still before the courts and many more to come.
One of the biggest causes for optimism in recent years was Justice Vicker’s trial decision in William, otherwise known as Tsilhqot’in Nation v. British Columbia, 2007. As caretakers of part of the Tsilhqot'in Nation’s territory, the Xeni Gwet'in argued they had Aboriginal title and rights to and over 438,000 hectares of land. This was no small undertaking and we all truly appreciate the dedication and effort put into this case by the Xeni Gwet’in and Tsilhqot’in people. This was the first time any our Nations had proven its Aboriginal title in court and to a substantial portion of its claimed territory (40%). In addition the court recognized their trapping, among other Aboriginal rights, over the entire area claimed. While the trial judge fell short of issuing a declaration of title citing technical reasons, it was hoped that on appeal the BC Court of Appeal would issue the first declaration of title. Unfortunately it did not. In July of 2012, the BC Court of Appeal found that Aboriginal title is not as extensive as the trial judge found it to be and does not cover large areas of traditional territory but rather is limited to small spots such as village sites, salt licks and gardens. A leave application to the Supreme Court of Canada has been filed by the Xeni Gwet’in and Tsilhqot’in.
A number of our Nations support getting behind the Tsilhqot’in and pooling our resources to help them conclude their legal battle in the Supreme Court; the outcome of which will have far-reaching consequences for all our Nations. Title cases are mammoth in scale and require years of planning and much evidence. It simply makes good sense for other First Nations to rally behind the best title and rights cases which can advance our issues in a cost-effective and organized manner. The BCAFN has conveyed support to the Xeni Gwet’in people, written a support affidavit for their leave application to the Supreme Court of Canada, and generally how important we feel this case is for all First Nations.
We have been meeting regularly in BC as First Nations to develop a legal/political strategy as we move forward collectively in advancing Aboriginal title and rights, including treaty rights, through the Courts and to enhance our negotiating positions. Since 2009, BCAFN has been committed to develop a litigation strategy. In 2012, following discussion at Special Chiefs’ Assemblies in Westbank and Richmond, our Chiefs endorsed the BCAFN Legal/Political Strategy. The strategy now sets out how we can inform one another, work together and sets out a clear role for the Regional Chief and the BCAFN in supporting our Nations. The purposes of our Legal/Political Strategy are as follows:
We need to continue to build on our experiences and support one another in implementing and further refining our BCAFN Legal/Political strategy; the result of which will be each Nation strengthening its own relationship with Canada and BC.
BCAFN continues to refine and update the 2012 – BCAFN Legal/Political Strategy and continue to support and promote our Nations who are seeking redress in the courts.
Despite the recent court of appeal decision in William, we are optimistic about the impact recent Aboriginal title and rights cases are having. As a result of cases like William and the Haida and Taku cases dealing with consultation and accommodation we are already seeing our Nations entering into benefits agreements and shared decision-making arrangements with third parties and the Crown.
One of the biggest challenges facing First Nations in the next three years will be onslaught of proposed major development in our territories, not least of which is the Northern Gateway and Kinder Morgan pipelines. BCAFN has supported, and will continue support, the right of Nations to be consulted and accommodated on these and other proposed major industrial development projects. Free, prior and informed consent of those Nations affected is required before development can proceed. To this end, in 2011, the Leadership Council on the direction of the chiefs established a Consultation and Accommodation working group chaired by Chief Doug White, to look at how to ensure that all our Nations are aware of their rights and are properly consulted and accommodated.
BCAFN continues to support the work of the Consultation and Accommodation Working Group and assist where I can in working with our leaders to develop more efficient mechanisms to ensure our respective Nations title and rights are respected and accommodated.
Whether involved in litigation or not, at some point all Nations will end up at a negotiating table negotiating arrangements with the Crown respecting the recognition and implementation of their Aboriginal title and rights, including treaty rights.
Some of our Nations in BC have been able to reach accommodation with the Crown by adhering to pre-existing treaties, such as the First Nations that are signatories to Treaty 8 (Blueberry River First Nation, Doig River First Nation, Fort Nelson First Nation, Halfway River First Nation, McLeod Lake/Tsekani First Nation, Prophet River Band, Saulteau First Nations, and West Moberly First Nations). Others have concluded modern treaties outside of the BC Treaty Process (such as the four communities that form the Nisga’a Lisims government), and others have completed treaties under the BC treaty-making process (Tsawwassen First Nation and the five First Nations who form the Maa-Nulth). Still other Nations have historic treaties (i.e., the 14 Douglas Treaties on Vancouver Island). For Nations that have a treaty, the challenge has been and now becomes one of implementation and ensuring that the Crown lives up to their end of the agreement and that there is capacity in the Nation to recognize and build upon their opportunities.
While a handful of other communities may be able to reach accommodations through the current BC Treaty process, the vast majority of First Nations negotiating treaties (there are approximately 57 Treaty Tables representing 60 First Nations (104 Indian Act bands) in BC may not be able to complete agreements unless the federal and provincial governments move significantly on their negotiating mandates. Because of the inability of some First Nations to resolve difficult treaty issues at their individual tables, 60+ First Nations joined in a ‘Common Table’ to press six fundamental barriers to settling the land question through the treaty process (Recognition/certainty, including overlapping claims/shared territories; constitutional status of lands; governance; co-management throughout traditional territories, including structures for shared decision-making; fiscal relations, including own source revenue and taxation; and fisheries). These are essentially the same issues that Nations outside of the treaty process are also facing in their discussions with the Crown in other venues.
There is, in short, a lot of negotiating going on in BC and it is important that we continue to share our experiences as we each develop our own negotiating positions to take to whatever rights and title table we are sitting at. While we may have dozens of negotiating teams around the Province, at the end of the day, decisions made by BC and Canada are really made by a small group of people who are very familiar with what is happening at all our individual Nation’s negotiations. Working together we can share our experiences and be stronger at our individual negotiating tables. It was for this reason that we look to the approach taken by the Nations participating in the ‘Common Table’ and are encouraged that the Common Table has resumed after a brief hiatus.
BCAFN continues to support the work of the Common Table.
One of the outcomes of the January 2012 Crown/First Nations Gathering was a commitment by Canada to review the Comprehensive Claims policy that is woefully out of step with the law, but still guides how Canada negotiates land claims. To facilitate this work the national AFN office has established a Comprehensive Claims Working Group. BC is well represented on this committee with strong input from our leadership, both from those Nation’s involved in the BC treaty making process and those that are not.
BCAFN will seek to ensure that BC remains well represented on the national Comprehensive Claims Working Group, as we collectively apply pressure the federal government to amend their comprehensive claims policy and to support the settlement of outstanding ‘land claims’ that are fair and just.
The Union of BC Indian Chiefs and the First Nations Summit both have as their primary mandate, resolution of the land question. In order to bring our leaders together with common purpose and resolve, it is important that the members of the Leadership Council continue to work well together and strategically as our organizations work together to implement the recommendations of the 2009 All Chiefs Task Force. The Task Force that was established to make recommendations on how our regional organizations (BCAFN, FN Summit, UBCIC and our First Nations’ councils) can work effectively together and there remains more work to see these recommendations fully implemented.
BCAFN is committed to continue to implement the recommendations of the All Chiefs Task Force and to continue to convene regular All Chiefs’ Assemblies to facilitate information sharing and strategy development among our Nations and between our respective political organizations.
The ‘just do it’ strategy. Instead of going to Court and proving that title and rights, including treaty rights, exist, or negotiating a settlement, some Nations are simply choosing to exercise their rights and title and encourage their citizens to do so. This means using the land and resources in a suitable and sustainable way to, for example, harvest timber, carry out traditional practices such as hunting, fishing, trapping or gathering. For others it means using or redirecting water sources or building cabins or homes on ‘Crown Land’. For some Nations, exercising rights is also about exercising governance within a Nation’s traditional territory, such as land use planning. In all these situations where a Nation or its citizens are exercising rights it becomes incumbent on the Crown to try and stop the activity or prove there is no right to carry out the activity. The ‘onus of proof’ shifts to the Crown and in many situations the Crown turns a ‘blind eye’ for fear of losing the issue in court. Where our Nations have been successful in simply exercising their rights and title in a controlled and disciplined manner our Nations are becoming empowered and stronger. We need to continue and expand this approach.
BCAFN will endeavor to compile a BC handbook, in cooperation with the UBCIC and FNS, of “wise practices” in the exercise of rights and title in the absence of agreements building on the successful experiences of our Nations.
Underlying all strategies to benefit from our Aboriginal title and rights there is a fundamental question of “who is the proper title holder?” In court, First Nations claiming Aboriginal title have to establish they are the proper title holders or have the agreement of the proper title holder to be bringing the action. In negotiations, there has sometimes been the requirement for some proof of title (i.e. the federal “Comprehensive Claims” process) and in other circumstances not. For instance the BC Treaty Process is a “political process” where Nations submitting Statements of Intent to negotiate a treaty do not have to prove title. In exercising rights on the ground, a Nation would presumably only exercise rights where it understands it has title or the right to use a resource (such as to hunt or fish). The question of proper title holder has intensified over the last number of years as we are beginning to see the benefits of accommodation agreements and other arrangements where there may be ‘overlaps’ or ‘shared territories’ with other Nations also claiming title.
“Who is the proper title holder?” and “Who has the right to negotiate?” are not easy questions to answer. There are no simple answers. Before our Nations will collectively be able to enjoy the full recognition of our title and rights, including treat rights, these questions will, nevertheless, have to be answered one way or another. An example of the complexity of the issue was the rejected ‘discussion paper’ for the proposed Recognition and Reconciliation Act developed by the Leadership Council. The discussion paper suggested that there needs to be a reconstitution of our Nations into approximately thirty Indigenous Nations based on linguistic and cultural affiliation.
There are already a number of protocol arrangements between communities as between tribes and we can look to build on this success. This issue is a priority and needs to be worked out in processes that are acceptable to our Nations and that do not involve BC or Canada other than to provide financial assistance.
BCAFN continues to work with the Leadership Council and our leaders to explore options for addressing how our Nations can sort out the proper title holder question amongst ourselves. This will be one of BCAFN’s priorities.