First Nations’ access and rights to resources

1. First Nations’ access and rights to resources • Topics for Week 3 … • Who are First Nations? • First Nations’ concerns with regard to access and rights to natural resources • The difference between Aboriginal rights and title • Identify laws and legal cases affecting First Nations’ rights and access to resources

2. First Nations, land & resources • “Because it’s home” ..this explains the Aboriginal relationship with land and natural resources • It also a source of conflict and uncertainty over Aboriginal access and rights to land and resources • It’s a longstanding but still evolving story of cases, confrontations, negotiations and legal challenges • Ultimately, a question of interpretation .. “according to whom?”

3. Who are the First Nations? Basic Terminology 101 ‘Indian’ and ‘Aboriginal’ are recognized political and legal terms for First Nations Aboriginal: Indian, Inuit, Métis The term “First Nations” has no legal basis, and is used popularly The term ‘native’ is no longer used legally, politically or popularly

4. Who are the First Nations? This is a complex question, and key to understanding the conflict over Aboriginal rights to natural resources Origins still debated…Asia or North America?... Timescale?... Long-term occupancy is vitally important to identity, and to assure legal claim to land and resources Lumping all First Nations in Canada together is as misleading as lumping Scots and Poles together as Europeans

5. Who are the First Nations? From a Canadian legal perspective, Aboriginal peoples are a single entity and are treated as such Legal challenges initiated by individual Nations regarding their rights to lands and resources are considered to be legal precedent for all First Nations Canadian Aboriginals were never formally conquered by the invading Europeans (as they were in the United States) Rather, their loss of control over land came through subtler means: treaties, dependency on fur trade, diseases and alcoholism, betrayal, immigration by Europeans, etc.

6. Who are the First Nations? Indian and Northern Affairs Canada (INAC) legally recognizes Aboriginal groups, and determines who holds status as an Indian or Inuit Only those recognized receive special benefits (free health care, rights to hunt and gather for subsistence on Crown lands) Originally, a status aboriginal could lose his/her status by marrying, buying property, attending university, or joining the army Legally reinstated in the 1985 amendment to Indian Act

7. How many, where? 2001 census: 1,064,300 Aboriginal people, incl. 633,600 registered Indians, 46,200 Inuit and 274,200 Métis High population growth. Doubled in 20 years, expected to grow sharply to 1,566,900 by 2026 Ontario: largest concentration (22.8%), British Columbia (16.4%), Manitoba (15.9%) Bands (or separate political entities): total of 612 recognized by Canadian government; 198 in British Columbia; 125 in Ontario 2666 reserves in Canada (federal lands)

9. Aboriginal Title & Rights Aboriginal title and rights originate from the uncontested fact that Aboriginals were present prior to arrival of Europeans However, ‘title’ is not in the Constitution, thus it stems from a larger collection of ‘rights’ On the other hand, some believe ‘title’ is the basis for all other rights

10. On Aboriginal ‘title’ Calder legal decision (1973): Aboriginal title had never been extinguished by European occupation Delgamuukw (1997) made the rationale for Aboriginal title, since the Supreme Court judge defined title as the right to the land itself Yet each nation faces an uphill battle in demonstrating that they possess Aboriginal title to a piece of land Federal versus provincial jurisdiction and Aboriginal rights Sparrow (1990): need to be ‘compelling and substantial reasons’ for infringing on established rights Recent court cases limiting government’s right to infringe on Aboriginal access to or use of natural resources

11. Treaties and Claims Treaties are legally binding agreements between recognized governments. Historic (or numbered) treaties (with Britain and Canada prior to 1924), extinguishing ‘title’ to the land in exchange for rights to hunt and fish, etc. Modern treaties, post-1974, with Canada (and jointly with provinces)… in the form of land claims agreements Comprehensive (title) versus specific (unfulfilled obligations) land claims agreements James Bay & Northern Quebec land claim (1975): surrendered title in exchange for cash, hunting rights, etc. Aboriginals in Non-treaty areas (e.g., Lubicon Cree)

12. First Nations and the Law The Royal Proclamation (1763), the basis for much subsequent legislation regarding First Nations. Identified ‘Aboriginal title’ and set the stage for the reserve system. The Constitution Act (1867) made the federal government responsible for aboriginals and reserves The Indian Act (1876) laid out who was recognized as an Indian by the government, as well as the conditions by which Indians could become enfranchised, or Canadian citizens (and lose government recognition as an Indian) The Constitution Act (1982) section 35 recognizes and constitutionally guarantees Aboriginal and treaty rights of Aboriginals peoples. Includes Inuit and Métis, along with Indians.

13. BC experience with Aboriginal title 1760 The area that will become B.C. is home to Aboriginal people in more than 30 tribal groups and many hundreds of communities. 1871 B.C. joins Canada and signs the Terms of Union stating that the federal government assumes responsibility for First Nations and B.C. retains authority over land and resources. 1899 Treaty 8 is extended into northeastern B.C. It is the last treaty to be concluded in the province until the Nisga'a Treaty in 2000. 1990-93 B.C., Canada and the First Nations Summit establish the B.C. Treaty Commission (BCTC) process. 1993-94 The BCTC begins the treaty negotiation process and initial meetings are held with 42 First Nations whose statements-of-intent to negotiate are accepted by the BCTC. 1999 The Sechelt Agreement-in-Principle is signed, the first in the modern BCTC process. 2000 The Nisga'a Final Agreement, negotiated outside the BCTC process, is passed by the Senate, having been ratified by all concerned.

14. A special case: the Nisga’a Treaty About 50% of the 5500 Nisga'a live in the Nass Valley in northwestern B.C., where forestry is the dominant economic activity In the late 1960's, the Tribal Council began a legal action in the B.C. Supreme Court, culminating in the Treaty signed in 2000 The Nisga'a Treaty gives the Nisga'a Government authority over administration of its own government, management of its lands and assets, Nisga'a citizenship, language and culture All Nisga'a Government laws operate alongside federal and provincial laws Land and resources that are managed by the Nisga'a Nation are specified ; existing forest tenures remain and fisheries still managed by the federal government Sets out quotas for salmon catches and grants limited allocations of moose, grizzly bear and goats

15. Subsistence versus commercial use • Aboriginal rights to resources have been restricted to use for subsistence or traditional purposes, or as otherwise necessary for cultural survival • However, at least a few cases have considered the issue of commercial rights: • Gladstone, Van der Peet cases—no commercial right to fish • Kapp case—commercial right to fish

16. Court Cases & Establishing Precedence • Legal cases have helped regain and redefine Aboriginal access to resources, including the right to profit commercially, and confirming the inextinguishable existence of Aboriginal title • Example: • Sparrow (1990) expanded the definition of rights when the courts stated that rights could ‘evolve over time’. • Any government infringement of rights must have a compelling objective • Any interpretation of rights must be broad and give ‘substantial recognition’ to Aboriginal rights that had not been specifically extinguished by a treaty • Also notable for reversing a court decision: Conflict at Burnt Church, New Brunswick over Marshall case decision (p116)

17. Strategic Land-Use and Ecosystem-based Management (EBM) on Haida Gwaii • The Strategic Land Use Agreement (SLUA) is a community-based planning process signed in 2007 between the BC government and Haida Nation. • The main purpose of the SLUA is to lay the foundation for forest use in HaidaGwaii • It is built upon the principles of Ecosystem Based Management, which include: • respecting Haida traditional values • maintaining ecological integrity, and • promoting healthy communities. • The SLUA will protect nearly half of HaidaGwaiibut allow harvesting of 800,000 m3 of wood each year. Source: http://www.sfu.ca/haida-ebm/

18. Conflict and Uncertainty Persist Treaties and court cases have established that Aboriginal peoples have rights to resources However, having the right is not the same as having access to resources Conflict and uncertainty remain: Aboriginal access to resources is a complex mix of history, law, court challenges, and judges’ decisions, most of which remain in process and unsettled. Clearly, we must continue to deal with this ongoing issue, and listening and willingness to learn are key steps (see ‘From the Field’, p118)