• 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
September 25, 2014 2

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?
September 25, 2014 3

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?
September 25, 2014 4

• 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
September 25, 2014 5

(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.
September 23, 2014 6

• 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:
1. Facts of case
2. Previous court decisions
3. Major findings
September 25, 2014 7

• 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
September 25, 2014 8

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 25, 2014 9

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
September 25, 2014 10

Supreme Court
Tsilhqot’in Nation v. British Columbia
• June 2014
• First case to grant aboriginal title in BC
Chief Roger Willem
11 September 25, 2014

Supreme Court
Tsilhqot’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
September 25, 2014 12

Supreme Court
Tsilhqot’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)
September 25, 2014 13

Supreme Court
Tsilhqot’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)
September 25, 2014 14

Supreme Court
Tsilhqot’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)
September 25, 2014 15

Supreme Court
Tsilhqot’in – new confusion
Fiduciary duty , in Canadian aboriginal law, simply means balancing aboriginal rights with other interests
What the 3 rd condition adds is uncertain, and how this decision changes the balance of rights, is uncertain and will only be clarified by future court decisions
September 25, 2014 16

Supreme Court
Tsilhqot’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)
September 25, 2014 17

• 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
September 25, 2014 18

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.
19

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.”
20

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?
September 25, 2014 21

• 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
September 25, 2014 22

Campbell Government Policies
• challenged constitutionality of the
Nisga’s Treaty (in opposition)
• Referendum
• Consultation and
Accommodation
• Reconciliation
September 25, 2014 23

BC Liberal Policies I: Treaty Referendum
• Spring 2002
• Lots of protests, spoiled ballots
• About 1/ 3 rd voted
• Overwhelming majority in support
(80-90%)
September 25, 2014 24

• 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
September 25, 2014 25

BC Liberal Policies II
• 8 % (~ 5.5 million m 3 ) 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 25, 2014 26

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 25, 2014 27

Table 1. Summary of Forestry Agreements signed by the BC Liberals
Agreement Type # of Agreements
Signed
Ave Term Ave Volume
(m 3 year)
Direct Award: IMA
Direct Award: FNWA
Direct Award: MPB
Forest and Range
Agreement (FRA
FRO)
29
6
42
129
5 years
3 years
5 years
5 years
48,000
43,500
48,500
41,000
Ave Funding ($ year)
-
-
-
38,405
September 25, 2014 28

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.
http: www.for.gov.bc.ca haa Docs Gitgaat_IM.pdf
September 25, 2014 29

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
September 25, 2014 30

• 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
September 25, 2014 31

BC Liberals Policy III
Reconciliation
• ...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 25, 2014 32

BC Liberals Policy III
The 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 25, 2014 33

• Coastal First Nations
• Haida
• Different expressions for relationship
– “shared” – strong effort for consensus but if an impasse Crown decides
– Joint requires First
Nations consent
September 25, 2014 34

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 25, 2014 35

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 )
September 25, 2014 36

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

All Chiefs Meeting
September 11, 2014 – FN position
• First Nations proposed four foundations to guide a new path forward:
1.
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.
2.
We acknowledge that Indigenous systems of governance and laws are essential to the regulation of lands and resources throughout
British Columbia.
3.
We acknowledge the mutual responsibility that all of our government systems shall shift to relationships, negotiations and agreements based on recognition.
4.
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.
September 25, 2014 38

All Chiefs Meeting
September 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, governmentto-government engagement”
BC government media release , Sep 11, 2014
September 25, 2014 39

All Chiefs Meeting
Sep 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.
September 25, 2014 40

• 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
September 25, 2014 42

• 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
September 25, 2014 43