First Nations I

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The core question

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

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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

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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

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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

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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

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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

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Early Aboriginal Law

BC’s Distinctiveness

Terra nullius - “empty land”

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Repression

1884-1951 -- Potlatch banned

1927-1951 – banned organizations from pursuing land claims

Residential schools until 1969

UBC Forestry video

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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

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Discuss

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

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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

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Attempting to “establish a new relationship based on mutual respect, trust and understanding”

BC Treaty Process – Steps Explained

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Parliament of Canada

Provincial Legislature

Final Agreement

2. Readiness

3. Negotiate Framework Agreement

1. Statement of Intent

4. Agreement in Principle5. Ratification

6. Implementation

1st in 1993

Teams, background info, topics for negotiation and consultation mechanisms.

Topics Process Timing

Discuss topics in FA and forms the basis of the treaty

BC Treaty Process - Progress

60 First Nations, 104 Indian Act bands

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Completed Final Agreements = 3 Advanced Final Negotiations = 2Completed Agreements in Principle =1Advanced Agreement in Principle =9Active Treaty Negotiations = 24Not currently Negotiating = 19

As of Spring 2013 from

BCTC Website

Implemented AgreementsTsawwassen, Maa-nulth, Yale

BC Treaty Process - Progress

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Process created in 1992 has only produced a total of 3 fully ratified and implemented treaties.

However, 2 have completed agreements with partial ratification:• Lheidli T’enneh First Nation (second vote considered)• Sliammon First Nation (ratified by First Nation, July 10, 2012)

Nisga'a Memorial Lava Bed Provincial Park

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about 240 years ago, a lava dome erupting killing approximately 2000 Nisga’a

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

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Delgamuukw - Background

Gitksan and Wet'suwet'en claim rejected by lower courts Supreme Court of Canada decision

1997

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Delgamuukw - Establishing Title

occupation as proof of possession at time when sovereignty was asserted

(1846) must show continuity (not absolute)

allows oral history

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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

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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

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Next

Wednesday – join me at TRC Thursday –

reflection on TRC Haida Case + Campbell government

policy

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