BC is subject to Aboriginal title and rights, including Treaty rights. BC is unique within Canada and our interests are different than for other Nations across Canada. Our interests with regard to addressing the ‘land question’ require strong leadership at both the provincial and national level. Settlement of the land question remains fundamental to the overall success for our Nations in BC. Without adequate access to land and resources our Nations will never reach our full potential. In addition to sustaining our traditional practices, access to land and access to resources provides our capital - our equity - and therefore our ability to build our economies and support our governance.
Our Nations currently do not have fair access to their lands and resources. However, building on the work of the leaders that have come before us, the opportunity to change this now exists. For example, there are now hundreds of land and resource agreements that our Nations have entered into known as ‘benefits’ agreements (also known as interim measures, project support, cooperation, development, protection and benefit, market access, standard-setting or certification, participation and accommodation). We need to be strategic and work together to maximize these opportunities and ensure all Nations have access to land and resources whether through benefits agreements or other arrangements.
Our Nations are demonstrating success in implementing aboriginal title and rights on the ground through these interrelated approaches:
Our Nations are playing different roles in what is becoming a collective approach to moving forward. We need to build on our experiences and support one another in developing a collective strategy; the result of which will be each Nation strengthening its own relationship with Canada and BC.
BC First Nations would not be so far ahead with the recognition of title and rights and settling the ‘land question’ had it not been for litigation. Litigation drives negotiations and sets the bar for agreements. We have made significant progress through the courts with title and rights cases such as Calder (Nisga’a), Delgamuukw-Gisday’wa (Gitxsan & Wet’suwet’en), Haida, Taku, Sparrow (Musqueam) and Nuu-chah-nulth fishing and title case. There are dozens of cases of which many are still before the Courts and there are many more to come.
One of the biggest legal successes we have had in recent years is Justice Vicker’s trial decision in William, otherwise known as Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700. In this case the Xeni Gwet'in, as caretakers of part of the Tsilhqot'in Nation’s territory, argued they had aboriginal title and rights to and over 438,000 hectares of land. This was no small undertaking. We all truly appreciate the dedication and effort put into this case by the Xeni Gwet’in and Tsilhqot’in people. Although only a trial level decision and being appealed, the William case is the first time any our Nations has proven its aboriginal title in court and to a substantial portion of its claimed territory (40%). In addition they won by having their trapping and other aboriginal rights being recognized over the entire claimed area. While the judge fell short of issuing a declaration for the title proven for technical reasons the opportunities this case creates are huge.
Since the decision we have been meeting regularly in BC as First Nations to develop a litigation strategy as we move forward collectively in advancing Aboriginal title and rights through the Courts and to enhance our negotiating position. BCAFN is optimistic about the impact of the Tsilhqot’in decision and other recent aboriginal title and rights cases are having. As a result of cases like William and the Haida and Taku cases dealing with consultation and accommodation we are already seeing our Nations entering into benefits agreements and shared decision-making arrangements with third parties and the Crown.
A number of our Nations are favouring getting behind the Tsilhqot’in and pooling our resources to help them conclude their legal battle; the outcome of which will have far-reaching consequences for all our Nations. Title cases are mammoth in scale and require years of planning and much evidence. It simply makes good sense for other First Nations to rally behind the best title cases which can advance our issues in a cost-effective and organized manner. The BCAFN has conveyed support to the Xeni Gwet’in people and how important this case is for all First Nations. The BCAFN will continue to work with our leaders as we develop and refine our litigation strategy which must include supporting and promoting the Tsilhqot’in case, among other cases.
Whether involved in litigation or not, at some point all Nations will end up at a negotiating table negotiating arrangements with the Crown respecting the recognition and implementation of their aboriginal title and rights.
Some of our Nations in BC have been able to reach accommodation with the Crown by adhering to pre-existing treaties, such as the First Nations that are signatories to Treaty 8 (Blueberry River First Nation, Doig River First Nation, Fort Nelson First Nation, Halfway River First Nation, McLeod Lake/Tsekani First Nation, Prophet River Band, Saulteau First Nations, and West Moberly First Nations). Others have concluded modern treaties outside of the BC Treaty Process (such as the four communities that form the Nisga’a Lisims government), and others have completed treaties under the BC treaty making process (Tsawwassen First Nation and the five First Nations who form the Maa-Nulth). Still other Nations have historic treaties (i.e. the 14 Douglas Treaties on Vancouver Island). For Nations that have a treaty, the challenge has been and now becomes one of implementation and ensuring that the Crown lives up to their end of the agreement and that there is capacity in the Nation to recognize and build upon their opportunities.
While a handful of other communities may be able to reach accommodations through the current BC Treaty process, the vast majority of First Nations negotiating treaties (there are 49 Treaty Tables representing 2/3s of the First Nations in BC) will not be able to complete agreements unless the federal and provincial governments move significantly on their negotiating mandates. Because of the inability of some First Nations to resolve difficult treaty issues at their individual tables, 63 First Nations joined in a ‘Common Table’ to press six fundamental barriers to settling the land question through the Treaty process (Recognition/certainty, including overlapping claims/shared territories; constitutional status of lands; governance; co-management throughout traditional territories, including structures for shared decision-making; fiscal relations, including own source revenue and taxation; and fisheries). The BCAFN would argue that these are essentially the same issues that Nations outside of the treaty process are also facing in their discussions with the Crown in other venues.
There is, in short, a lot of negotiating going on in BC and it is important that we continue to share our experiences as we each develop our own negotiating positions to take to whatever rights and title table we are sitting at. While we may have dozens of negotiating teams around the Province, at the end of the day, decisions made by BC and Canada are really made by a small group of people who are very familiar with what is happening at all our individual Nation’s negotiations. Working together we can share our experiences and be stronger at our individual negotiating tables. It was for this reason that the approach taken by the Nations participating in the ‘Common Table’ should be supported.
BCAFN will convene regular assemblies to facilitate information sharing and strategy development among our Nations.
The ‘just do it’ strategy. Instead of going to Court and proving that title and rights exist or negotiating a settlement, some Nations are simply choosing to exercise their rights and title and encourage their citizens to do so. This means using the land and resources in a suitable and sustainable way to, for example, harvest timber, carry out traditional practices such as hunting, fishing, trapping or gathering. For others it means using or redirecting water sources or building cabins or homes on ‘Crown Land’. For some Nations, exercising rights is also about exercising governance within a Nation’s traditional territory, such as land use planning. In all these situations where a Nation or its citizens are exercising rights it becomes incumbent on the Crown to try and stop the activity or prove there is no right to carry out the activity. The ‘onus of proof’ shifts to the Crown and in many cases the Crown turns a ‘blind eye’ for fear of losing. Where our Nations have been successful in simply exercising their rights and title in a controlled and disciplined manner our Nations are becoming empowered and stronger. We need to continue and expand this approach.
Underlying all strategies to benefit from our aboriginal title and rights there is a fundamental question of “who is the proper title holder?” In court, First Nations claiming aboriginal title have to establish they are the proper title holders or have the agreement of the proper title holder to be bringing the action. In negotiations, there has sometimes been the requirement for some proof of title (i.e. the federal “Comprehensive Claims” process) and in other circumstances not. For instance the BC Treaty Process is a “political process” where Nations submitting Statements of Intent to negotiate a treaty did not have to prove title. In exercising rights on the ground, a Nation would presumably only exercise rights where it understands it has title or the right to use a resource (such as to hunt or fish). The question of proper title holder has intensified over the last number of years as we are beginning to see the benefits of accommodation agreements and other arrangements where there may be ‘overlaps’ or ‘shared territories’ with other Nations also claiming title.
“Who is the proper title holder?” and “Who has the right to negotiate?” are not easy questions to answer. There are no simple answers. Before our Nations will collectively be able to enjoy the full recognition of our title and rights, these questions will, nevertheless, have to be answered one way or another. An example of the complexity of the issue was the rejected ‘discussion paper’ for the proposed Recognition and Reconciliation Act developed by the Leadership Council. The discussion paper suggested that there needs to be a reconstitution of our Nations into approximately thirty Indigenous Nations based on linguistic and cultural affiliation. This approach, ironically, did not consider individual indigenous laws and the proper title holder but was a proposed ‘political fix’ to a complex legal reality.
The BCAFN will work with our leaders to explore options for addressing how our Nations can sort out the proper title holder question amongst ourselves. There are already a number of protocol arrangements between communities as between tribes and we can look to build on this success. This issue is a priority and needs to be worked out in processes that are acceptable to our Nations and that do not involve BC or Canada other than to provide financial assistance.