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First Nations II
First Nations II
Discuss
What does the “reconciliation” in the context of settler-aboriginal relations mean to you?
September 19, 2013 2
The core question for this class How to reconcile pre-existing
Aboriginal title (occupation, sovereignty) with Crown sovereignty
September 19, 2013 3
2nd most important British Columbian in 2000s?
September 19, 2013 4
Guujaaw, President, Haida Nation
Outline Organization of First Nations Evolution of Aboriginal Law BC Treaty Process Recent Developments in Aboriginal Law
Delgamuukw Haida Williams
Does UN Declaration change Canadian law? BC Liberals Policy Initiatives
referendum accommodation through FROs The New Relationship
September 19, 2013 5
Haida Case (Nov 04)
Replacement and transfer of Tree Farm Licence 39
No “meaningful consultation”
Haida Nation v. BC (MoF)
Taku River Tlingit Nation v. BC (EA Office)
September 19, 2013 6
How to read a Supreme Court case Be not afraid – despite
jargon, they are typically highly logical and well written
Summary (or “headnote”) useful guide to core findings
Major cases frequently summarized by law firms
Don’t worry about the material in here about “interlocutory injunction” (para 12-15)
Guide to reporting:
1. Facts of case2. Previous court
decisions3. Major findings
September 19, 2013 7
Haida – Ruling (1) Province has a duty to consult
and accommodate First Nations prior to treaty or legal proof of rights and title
sources of duty: the honour of the crown
Third parties, such as the forest industry, do not – “the honour of the crown cannot be delegated”
September 19, 2013 8
Haida – Ruling (2) A spectrum of obligations proportionate
to: Strength of the First Nations’ claims and Significance of the infringement to the rights
or title claimed Consultation may require changes to
policy or development proposals Does not require agreement – does not
grant a veto (para 48) Elaborated in Taku
September 19, 2013 9
Tsilhqot’in (Williams) case: Tsilhqot’in Nation v. Britis
h Columbia, 2007 BCSC 1700 (November 2007)
BC Supreme Court Case First Canadian case to
hold that a First Nation has demonstrated Aboriginal title to specific lands
Non-binding opinion, because of a technicality: pleadings asked for title over the entire area
September 19, 2013 10
William Case: Division of Powers Forest Act would not apply to Aboriginal
title lands Tenures are for Crown land only
Aboriginal title can be infringed for valid government objectives (including forestry), but only by the Federal government
Forest Act continues to apply to land where title is claimed but not yet proven
September 19, 2013 11
William Case – BC Court of Appeal (July 2012) Overruled BC supreme court decision
No need to take “all or nothing” approach
But used wrong test for aboriginal title▪ Needs to be “site specific”, not territorial
Trial took 559 days, 5 years 8 years later:
2 important legal clarifications No progress towards settlement
September 19, 2013 12
Outline Organization of First Nations Evolution of Aboriginal Law BC Treaty Process Recent Developments in Aboriginal Law
Delgamuukw Haida Williams
Does UN Declaration change Canadian law? BC Liberals Policy Initiatives
referendum accommodation through FROs The New Relationship
September 19, 2013 13
United Nations Declaration on the Rights of Indigenous Peoples
Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Article 26: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
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United Nations Declaration on the Rights of Indigenous Peoples
Canada has only given qualified endorsement November 2010
objects to the provision of “free, prior and informed consent when used as a veto.”
“We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.”
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Outline Organization of First Nations Evolution of Aboriginal Law BC Treaty Process Recent Developments in Aboriginal Law
Delgamuukw Haida Williams
Does UN Declaration change Canadian law? BC Liberals Policy Initiatives
referendum accommodation through FROs The New Relationship
September 19, 2013 16
Campbell Government Policies
challenged constitutionality of the Nisga’s Treaty (in opposition)
Referendum Consultation and
Accommodation Reconciliation
September 19, 2013 17
BC Liberal Policies I: Treaty Referendum
Spring 2002Lots of protests, spoiled ballots
About 1/ 3rd votedOverwhelming majority in support (80-90%)
September 19, 2013 18
BC Liberal Policies II 2001 election platform: Work to expedite
interim measures agreements with First Nations, to provide greater certainty during treaty talks.
Bill 41 Minister of Forests given authority directly
award a forest tenure to a First Nation Forest Revitalization Plan provisions for
AAC Redistribution (8% to FNs) Revenue Sharing
September 19, 2013 19
BC Liberal Policies II
AAC Redistribution 8 % (~ 5.5 million m3) of Provincial
AAC to be awarded to First Nations rationale: proportion of First Nation
people in the rural population Used as basis for accommodation
policy
September 19, 2013 20
BC Liberal Policies II
New Tenures Under Liberals: A Main Component of Consultation and Accommodation
Direct awards allows the FN community or group of communities access to timber volumes
Forest and Range Agreement allows the FN community or group of communities access to both timber volumes and revenues
September 19, 2013 21
September 19, 2013 22
Table 1. Summary of Forestry Agreements signed by the BC Liberals
Agreement Type # of Agreements Signed
Ave Term Ave Volume(m3 year)
Ave Funding ($ year)
Direct Award: IMA
29 5 years 48,000 -
Direct Award: FNWA
6 3 years 43,500 -
Direct Award: MPB
42 5 years 48,500 -
Forest and Range Agreement (FRA FRO)
129 5 years 41,000 38,405
BC Liberals Policy II
Sample Accommodation Agreement – Gitga’at
During the term of this agreement, the Gitga’at agree that the Government of BC has fulfilled its duties to consult and seek interim workable accommodation with respect to the economic component of potential infringements of the Gitga’at’s Aboriginal Interests in the context of Operational Plan decisions that the Gov. of BC will make and the development activities that occurs as a result of those decisions.
September 19, 2013 23
http: www.for.gov.bc.ca haa Docs Gitgaat_IM.pdf
Political Response Ruled inconsistent
with obligations by BC Supreme Court
Haida protest (Spring 2005) led to a significantly different deal
New Relationship document explicitly called for reconsideration
September 19, 2013 24
Outline Organization of First Nations Evolution of Aboriginal Law BC Treaty Process Recent Developments in Aboriginal Law
Delgamuukw Haida Williams
Does UN Declaration change Canadian law? BC Liberals Policy Initiatives
referendum accommodation through FROs The New Relationship
September 19, 2013 25
BC Liberals Policy IIIReconciliation ...we will forge new relations with
First Nations, founded on reconciliation, recognition and respect of aboriginal rights and title.
Premier Gordon Campbell, Cabinet Swearing-in Ceremony, June 16, 2005
September 19, 2013 26
BC Liberals Policy IIIThe New Relationship “We agree to establish
processes and institutions for shared decision-making about the land and resources”
Proposed Recognition and Reconciliation Act
The legal dilemma FN distrust Crown until the NR
gets a legal foundation in legislation
Crown reluctant to commit to legislation acceptable to FN
September 19, 2013 27
BC Liberals Policy IVRoundtable Commitment Report: give First Nations
larger, more secure area-based tenures
press conference: Minister Bell said that they intend to increase FN + CF from the current 10% to 20%
Unclear from where the new land or harvesting rights would come
September 19, 2013 28
GBR + Haida Gwaii agreements Gitga’t SLUPA
“shared” – strong effort for consensus but if an impasse Crown decides
Joint requires First Nations consent
September 19, 2013 29
Shared? vs. Joint 2009 agreements here
CFN RECONCILIATION AGREEMENT 6.6. Following the exchange of
information in 6.5, and within the identified timeframe in Table 1, the Parties will review the Representatives’ recommendations, and other relevant information, and may proceed to have further discussion and/or make a decision in accordance with their respective laws, regulations, policies, customs and traditions; but before doing so will inform the other Parties.
HAIDA GWAII RECONCILIATION AGREEMENT Should the Council members
not reach consensus, the decision will be made by a vote of the Council. 2.5.1 Each member, but not the
chair, of the Haida Gwaii Management Council will vote on all motions of the Council where consensus has not been achieved.
2.5.2 The Chair of the Haida Gwaii Management Council will vote only when a vote of the Council results in a tie vote.
September 19, 2013 30
First Nations - Conclusion
History from active repression to formal efforts at reconciliation
First Nations are strategic actors choosing venues Judicial victories have
dramatically increased their power
On the cusp of truly profound changes in governance
But terms have yet to be resolved, and conflict continues
September 19, 2013 31
