First Nations I

1. First Nations I

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

6. Outline • Organization of First Nations • Evolution of Aboriginal Law • BC Treaty Process • Thursday: • Recent Developments in Aboriginal Law • Delgamuukw • Haida • Williams • BC Liberals Policy Initiatives • referendum • accommodation through FROs • The New Relationship

7. September 18 • “F” (for Forestry) section of the Coliseum – come proudly wearing your UBC Forestry t-shirts. • Highlights of the program that include powerful presentations crucial for gaining understanding of the issues include: • 9am The Welcome and Opening Ceremonies • 11am Be the Change: Young People Healing the Past and Building the Future • 1pm Commissioners Sharing Panel • 3pm Expressions of Reconciliation, including UBC President, Professor Toope • Throughout the day, you may view exhibits and participate in other ways as well. • The full program is available at http://irsi.aboriginal.ubc.ca/files/2013/09/TRCprogram.pdf

8. readings • Jason Forsyth, George Hoberg, and Laura Bird, “In Search of Certainty:  A Decade of Shifting Strategies for Accommodating First Nations in Forest Policy, 2001-11,” in Aboriginal Peoples and Forest Lands in Canada, edited by D.B. Tindall, Ronald L. Trosper and Pamela Perreault., UBC Press 2013 • Most important reading of the term: Haida case

9. Political Organization of BC First Nations • Individual band and First Nations level • elected chiefs • Indian Act • hereditary chiefs • Tribal Councils • Provincial Associations • Union of BC Indian Chiefs • Not in Treaty • Stewart Phillip • First Nations Summit • In Treaty talks • BC First Nations Forest Council • National Associations • Assembly of First Nations

10. Early Aboriginal Law • Royal Proclamation of 1763 • recognizes Aboriginals as “Nations or Tribes” • extends British Sovereignty over Aboriginals to the west of existing colonies • acknowledges Aboriginals as continuing to own the lands which they have used and occupied • therefore… currently interpreted to mean First Nations hold continuing rights to their lands except where those rights have been extinguished by voluntary cession • Key point of dispute with respect to BC was whether or not the proclamation applied to the Province which was not yet in existence

11. Early Aboriginal Law • BC’s Distinctiveness • Terra nullius - “empty land”

12. Repression • 1884-1951 -- Potlatch banned • 1927-1951 – banned organizations from pursuing land claims • Residential schools until 1969 • UBC Forestry video

13. Early Aboriginal Law • R. v. Calder (1973) - aboriginal title recognized • Where claims to title have not been “extinguished” through treaty, title still exists • 1984 Meares Island case: title could not be rejected until claim resolved - injunction

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

15. BC Treaty Process- background • 1990 - BC Claims Task Force Formed • 1991 – Six step negotiation process • 1992 – BC Treaty Commission between 3 parties • Supported by federal and provincial legislation • Resolution at the First Nations Summit Attempting to “establish a new relationship based on mutual respect, trust and understanding”

16. BC Treaty Process – Steps Explained 1. Statement of Intent 1st in 1993 Teams, background info, topics for negotiation and consultation mechanisms. 2. Readiness Topics Process Timing 3. Negotiate Framework Agreement 4. Agreement in Principle Discuss topics in FA and forms the basis of the treaty 5. Ratification Provincial Legislature Final Agreement Parliament of Canada 6. Implementation

17. BC Treaty Process - Progress • 60 First Nations, 104 Indian Act bands Completed Final Agreements = 3 Advanced Final Negotiations = 2 Completed Agreements in Principle =1 Advanced Agreement in Principle =9 Active Treaty Negotiations = 24 Not currently Negotiating = 19 As of Spring 2013 from BCTC Website Implemented Agreements Tsawwassen,Maa-nulth, Yale

18. BC Treaty Process - Progress • Process created in 1992 has only produced a total of 3 fully ratified and implemented treaties. • However, 2 have completed agreements with partial ratification: • LheidliT’enneh First Nation (second vote considered) • Sliammon First Nation (ratified by First Nation, July 10, 2012)

19. Nisga'a Memorial Lava Bed Provincial Park about 240 years ago, a lava dome erupting killing approximately 2000 Nisga’a

20. Nisga’a Agreement (2000) • 2000 sq km “Nisga’a Land” • 5 year transition period to fee simple • existing tenures transferred • Forest Practices standards “must meet or exceed” BC rules • AAC set for 8 years, after that up to Nisga’a

21. Delgamuukw - Background • Gitksan and Wet'suwet'en • claim rejected by lower courts • Supreme Court of Canada decision 1997

22. Delgamuukw - Establishing Title • occupation as proof of possession • at time when sovereignty was asserted (1846) • must show continuity (not absolute) • allows oral history

23. Delgamuukw – Title • Aboriginal title is sui generis (not fee simple) • It is inalienable and cannot be transferred, sold or surrendered to anyone other than the Crown. • held communally

24. Delgamuukw – Title (cont) • right to exclusive use • need not be central to aboriginal culture • must not be irreconcilable with the cultural attachment to lands • it can be infringed by the crown for certain purposes • furtherance of a legislative objective that is compelling and substantial (explicitly includes forestry) • requires consultation and compensation

25. Next • Wednesday – join me at TRC • Thursday – • reflection on TRC • Haida Case + Campbell government policy