First Nations II

1. First Nations II

2. announcements • Office hours today 1:30-2:30 • Thursday October 2, 12:30-1:30, Room TBA: Gabrielle study tutorial/ discussion group focusing on Pralle, “Branching out, digging in” reading

3. Discuss What does the “reconciliation” in the context of settler-aboriginal relations mean to you? Should First Nations have a veto over resource projects in their traditional territories?

4. Discuss What does the “reconciliation” in the context of settler-aboriginal relations mean to you? Should First Nations have a veto over resource projects in their traditional territories?

5. Outline • Organization of First Nations • Evolution of Aboriginal Law • BC Treaty Process • Recent Developments in Aboriginal Law • Delgamuukw • Haida • Thursday • William (Tsilhqot’in) • UN Declaration • BC Liberals Policy Initiatives • referendum • accommodation through FROs • The New Relationship

6. Section 35 Canadian Constitution (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "Aboriginal Peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

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 • Guide to reporting: • Facts of case • Previous court decisions • Major findings

8. Tsilhqot’in (William) 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

9. 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

10. 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

11. Supreme CourtTsilhqot’in Nation v. British Columbia • June 2014 • First case to grant aboriginal title in BC Chief Roger Willem

12. Supreme CourtTsilhqot’in– establishing title The claimant group must show (1) “sufficient occupation” of the land claimed to establish title at the time of assertion of European sovereignty; (2) continuity of occupation (3) exclusive historic occupation. • Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty. Paragraph 50

13. Supreme CourtTsilhqot’in– significance of title Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. (paragraph 88)

14. Supreme CourtTsilhqot’in- infringement The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982. (paragraph 76)

15. Supreme CourtTsilhqot’in- infringement To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group(paragraph 77)

16. Supreme CourtTsilhqot’in– new confusion Fiduciary duty, in Canadian aboriginal law, simply means balancing aboriginal rights with other interests What the 3rd condition adds is uncertain, and how this decision changes the balance of rights, is uncertain and will only be clarified by future court decisions

17. Supreme CourtTsilhqot’in- federalism • Reversed lower court decision • The BC Forest Act and other BC legislation still applies • New rules apply to activities that infringe (e.g. forest tenures in title land)

18. Outline • Organization of First Nations • Evolution of Aboriginal Law • BC Treaty Process • Recent Developments in Aboriginal Law • Delgamuukw • Haida • Thursday • William (Tsilhqot’in) • UN Declaration • BC Liberals Policy Initiatives • referendum • accommodation through FROs • The New Relationship

19. 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.

20. 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.”

21. Discuss What does the “reconciliation” in the context of settler-aboriginal relations mean to you? Should First Nations have a veto over resource projects in their traditional territories?

22. Outline • Organization of First Nations • Evolution of Aboriginal Law • BC Treaty Process • Recent Developments in Aboriginal Law • Delgamuukw • Haida • Thursday • William (Tsilhqot’in) • UN Declaration • BC Liberals Policy Initiatives • referendum • accommodation through FROs • The New Relationship

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

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

25. 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 to directly award a forest tenure to a First Nation • Forest Revitalization Plan provisions for • AAC Redistribution (8% to FNs) • Revenue Sharing

26. 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

27. 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

29. 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

30. Legal, 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

31. Outline • Organization of First Nations • Evolution of Aboriginal Law • BC Treaty Process • Recent Developments in Aboriginal Law • Delgamuukw • Haida • Thursday • William (Tsilhqot’in) • UN Declaration • BC Liberals Policy Initiatives • Referendum • UN Declaration • accommodation through FROs • The New Relationship

32. 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

33. 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

34. Reconciliation agreements • Coastal First Nations • Haida • Different expressions for relationship • “shared” – strong effort for consensus but if an impasse Crown decides • Joint requires First Nations consent

35. 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.

36. New Tenure and Agreement structure (2010) • FRA/FRO replaced by Forest Consultation and Revenue Sharing Agreement (managed by the Ministry of Aboriginal Relations and Reconciliation) • Forest tenures now awarded in Forest Tenure Opportunity Agreements (FTOA) • non-replaceable and replaceable volume based forest tenures • FTOA "C" – replaceable area based forest tenures (i.e. First Nations Woodland Licence)

37. The core question How to reconcile pre-existing Aboriginal title (occupation, sovereignty) with Crown sovereignty

38. All Chiefs MeetingSeptember 11, 2014 – FN position • First Nations proposed four foundations to guide a new path forward: • We acknowledge that all our relationships are based on recognition and implementation of the existence of Indigenous peoples’ inherent title and rights, and pre-confederation, historic and modern treaties, throughout British Columbia. • We acknowledge that Indigenous systems of governance and laws are essential to the regulation of lands and resources throughout British Columbia. • We acknowledge the mutual responsibility that all of our government systems shall shift to relationships, negotiations and agreements based on recognition. • This means we immediately must move to consent based decision making and title based fiscal relations, including revenue sharing, in our relationships, negotiations and agreements.

39. All Chiefs MeetingSeptember 11, 2014 – BC response “The Government of British Columbia is committed to working with B.C. First Nations through the establishment of an annual gathering and through ongoing, government-to-government engagement” BC government media release, Sep 11, 2014

40. All Chiefs MeetingSep 11, 2014 – First Nations Response The First Nations Leadership Council is disappointed that the Province declined to commit today on these key foundations for moving forward, recognizing this is our first political meeting on these fundamental political and legal questions. This work is too important to delay, and the First Nations Leadership Council and First Nations in BC await and look forward to a timely response regarding the foundations of our work together. Regardless, First Nations remain resolute in exercising our respective title and rights, and treaty rights according to these foundations for the benefit of the current and future generations. We will steward our lands and ensure that they are responsibly managed and work toward building strong First Nations governments, communities and economies.

42. 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 • Challenging to find new equilibrium • But terms have yet to be resolved, and conflict continues

43. Next week – Interest Groups • Sarah Pralle, Branching Out, Digging In: Environmental Advocacy and Agenda-Setting. Washington, DC: Georgetown University Press, 2005), Chapter 1 (pp 13-31). (reading packet) • Tuesday: Meet in your groups when you come to class