First Nations II

1. First Nations II

2. Discuss • What does the “reconciliation” in the context of settler-aboriginal relations mean to you?

3. The core question for this class • How to reconcile pre-existing Aboriginal title (occupation, sovereignty) with Crown sovereignty

4. 2nd most important British Columbian in 2000s? Guujaaw, President, Haida Nation

5. 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

6. 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)

7. 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: • Facts of case • Previous court decisions • Major findings

8. 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”

9. 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

10. Tsilhqot’in (Williams) case: • Tsilhqot’in Nation v. British 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

11. 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

12. 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

13. 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

14. 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.

15. 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.”

16. 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

17. Campbell Government Policies • challenged constitutionality of the Nisga’s Treaty (in opposition) • Referendum • Consultation and Accommodation • Reconciliation

18. BC Liberal Policies I: Treaty Referendum • Spring 2002 • Lots of protests, spoiled ballots • About 1/ 3rd voted • Overwhelming majority in support (80-90%)

19. 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

20. BC Liberal Policies IIAAC 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

21. BC Liberal Policies IINew 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 Agreementallows the FN community or group of communities access to both timber volumes and revenues

23. BC Liberals Policy IISample 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. http: www.for.gov.bc.ca haa Docs Gitgaat_IM.pdf

24. 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

25. 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

26. 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

27. 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

28. 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

29. GBR + HaidaGwaii agreements • Gitga’tSLUPA • “shared” – strong effort for consensus but if an impasse Crown decides • Joint requires First Nations consent

30. Shared? vs. Joint 2009 agreements here CFN Reconciliation Agreement HaidaGwaii 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 HaidaGwaii Management Council will vote on all motions of the Council where consensus has not been achieved. 2.5.2 The Chair of the HaidaGwaii Management Council will vote only when a vote of the Council results in a tie vote. • 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.

31. 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