Recognition and Implementation of Rights “Background & Context” (June 26, 2018) Musqueam, Xʷməθkʷəy̓əm, Territory, Richmond Executive Inn, 7311 Westminster Highway, Richmond, BC

Overview This presentation will cover the following: Introduction 2009 Recognition and Reconciliation Legislative Initiative Recent Developments Supporting Shift to Recognition Federal Developments Provincial Developments April 2018 Recognition and Implementation of Rights Session (including 4 high-level principles) Common Ground (*gap analysis & next steps to be picked up by second portion of presentation by Louise Mandell)

Introduction Follow-up - April 2018: the purpose of today’s session is to continue the dialogue on Recognition and Implementation of Rights, as instructed by the Chiefs and Leadership at the April 2018 session. Main message delivered: In spite of the Constitution, many court decisions and initiatives regarding the existence of Aboriginal title and rights we continue to be challenged by an invisible, yet consistent obstacle: The Crown’s assertion of de facto control, ownership and jurisdiction over all of the lands and resources, denial of the existence of Aboriginal title and its constitutional consequences.

Introduction Cont’d At the April 2018 session the Chiefs and Leadership considered the federal recognition framework in light of the following questions – which continue to be relevant for us to consider today: What does recognition and implementation of Indigenous rights look like from your community perspective? What is the scope of what is recognized (e.g. title, self-government, self-determination?) Are we prepared to recognize one another as Nations to support our respective efforts to Nation-rebuild?

2009 Recognition and Reconciliation Legislative Initiative March 2005 – The New Relationship: the provincial government and First Nations enter into a “New Relationship” with a commitment to recognize Aboriginal title and rights and to reconcile Aboriginal and Crown titles, legal systems and jurisdictions. 2007-2008 – Implementation: Resolutions of the FNS (#0907.20), UBCIC (#2008-12) and the BCAFN (#12/2008) mandate FNLC to begin organizing Chiefs and Leadership assemblies and engagements to work toward implementing the New Relationship through preparing draft recognition and reconciliation legislation (the “Proposed Legislation”), regulations and related tools.

2009 Recognition and Reconciliation Legislative Initiative Cont’d The Discussion Paper, 2009: BC and FNLC release jointly developed “Discussion Paper on Instructions for Implementing the New Relationship” at the February 2009 All Chiefs’ Assembly. The paper includes various concepts, in particular: BC agreed to recognize Aboriginal Title existing throughout the Province without proof or strength of claim, but wanted recognition of co-existing titles and implementation of a long- term stable relationship with the proper title and rights holders. Summer of 2009 Engagement: the First Nations Leadership Council embarked on extensive regional engagement sessions with First Nations to review and discuss the paper. Many First Nations and their lawyers expressed support, but not all widely supported legislative drafting based on the concepts set out in the Discussion Paper. Lawyers and Policy Caucus: Lawyers and policy support representing First Nations formed a lawyers and policy caucus and prepared their own “Concepts Paper” which they presented at the August 2009 All Chiefs’ Assembly.

2009 Recognition and Reconciliation Legislative Initiative Cont’d December 2009: the FNLC and the Province of BC set to work on draft of Recognition and Reconciliation Legislation (the “Proposed Legislation”), regulations, templates for shared decision making and revenue and benefit sharing agreements and a Proclamation. Ultimately, the proposed 2009 Recognition and Reconciliation legislative initiative did not find broad support of First Nations and their legal counsel and was therefore discontinued before the drafting had completed.

2009 Recognition and Reconciliation Legislative Initiative Cont’d Preamble: high-level statements, including reference to the new relationship founded on principles of recognition and reconciliation of respective rights, title and jurisdiction, and to the proclamation. Definitions: key definitions to be relied upon through-out the document Recognition Principles: high-level principles, statements regarding the recognition of Aboriginal rights and title and treaty rights, in particular, recognition that Aboriginal rights and title exist in British Columbia throughout the territory of each Indigenous Nation, without requirement of proof or strength of claim Application of Principles: recognition principles will apply to all provincial ministries and agencies involved in the management of lands and resources and will take priority over all other provincial statutes dealing with these subject matters.

2009 Recognition and Reconciliation Legislative Initiative Cont’d Indigenous Nation Commission: establishment of an Indigenous Nations Commission, to support Nation reconstitution, identification of Nations for the purposes of recognition and to assist with dispute resolution (e.g. assisting with disputes regarding the interpretation or implementation of legislation, regulations or any agreements concluded pursuant to the legislation which impact upon Aboriginal rights and title). Shared decision-making and revenue and benefit sharing agreements: enable and guide the establishment of mechanisms for the development of minimum requirements and negotiation of such agreements. Policy framework: support for the development of a framework that could be implemented to support shared decision-making. Dispute Resolution: support for the establishment of dispute resolution tools to assist in various disputes nation-to-nation, inter-nation issues and between Crown-Indigenous Nations.

Recent Developments Supporting Shift to Recognition Truth and Reconciliation 94 Calls to Action and TRC’s Reconciliation Principles Among other things, the “Calls to Action" call for a new Nation-to-Nation relationship and call for a new Royal Proclamation, Indigenous sovereignty and recognition of Aboriginal title and rights; In particular, the Calls to Action identify the UN Declaration as the ”framework for reconciliation” United Nations Declaration on the Rights of Indigenous Peoples: May 2016 - Canada becomes a full supporter of the UN Declaration, without qualification, with BC supporting adoption in 2017; Minimum standards for "the survival, dignity and well-being of the Indigenous peoples of the world”; and Recognizes the right to self-determination, self-government and highlights Indigenous peoples inherent right to homelands, resources.

Recent Developments Supporting Shift to Recognition Cont’d Bill C-262 - An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples: A private members bill setting out elements of a legislative framework for the implementation of the UN Declaration, including: repudiation of colonialism and doctrines of superiority; affirmation that the standards set out in the UN Declaration have application in Canadian law; review and reform of federal legislation to ensure consistency with the minimum standards set out in the UN Declaration; and requirement that a national action plan be developed in joint collaboration with Indigenous peoples. Federal Recognition and Implementation of Indigenous Rights Engagement: Minister Bennett’s engagement sessions; Recognition and Implementation of Rights Forum (April 11-13, 2018); Feb 14, 2018, Prime Minister Trudeau announced Canada’s intention to embark on a Nationwide engagement strategy to develop a new recognition and implementation of rights framework; Development of framework and legislation, including the 2017 release of 10 Principles, “Principles respecting the Government of Canada’s relationship with Indigenous Peoples”

Recent Developments Supporting Shift to Recognition Cont’d BC efforts toward recognition of Indigenous rights: Premier’s mandate letters: issued to Cabinet ministers to implement UN Declaration, TRC Calls to Action and Tsilhqot’in; Commitment Document: update to capture BC’s commitments to UN Declaration, TRC Calls to Action and Tsilhqot’in; Intention to develop a reconciliation framework, including the 2018 release of 10 Principles, “Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples”; and Commitment to review provincial laws and policies.

Recent Developments Supporting Shift to Recognition Cont’d First Nations ”Four Principles” (2014) Chiefs and Leadership’s collective response to SCC decision recognizing Aboriginal title in Tsilhqot’in : Acknowledgement 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 BC. Acknowledgement that Indigenous systems of governance and laws are essential to the regulation of lands and resources throughout BC. Acknowledgement of the mutual responsibility that all of our government systems shall shift to relationships, negotiations and agreements based on recognition. We immediately must move to consent based decision-making and title based fiscal relations, including revenue sharing, in our relationships, negotiations and agreements.

Recent Developments Supporting Shift to Recognition Cont’d April 2018 Recognition and Implementation of Rights Session: Chiefs and Leadership in attendance at the April 2018 session identified a number of initial, high-level recommendations regarding principles, minimum requirements and scope of what a recognition and implementation of rights framework must include. These recommendations have been compiled into this rolling draft document. The draft recommendations are intended to serve as a contribution to the development of a framework on the recognition and implementation of rights, they are not intended to replace or override existing activities, engagement or input from respective First Nations.

Common Ground (Among First Nations Chiefs and Leadership in BC) High-level principles arising from the internal April 2018 Recognition and Implementation of Rights Session: Chiefs and Leadership’s Four Principles: New Crown legislation and policy regarding Indigenous rights must take the Four Principles as its foundation. A principled framework for reconciliation: must be collaboratively developed and embedded in solemn and binding agreements, legislation, policy and practice, and inclusive of the free, prior and informed consent of Indigenous Nations.

Common Ground (Among First Nations Chiefs and Leadership in BC) Cont’d High-level principles (developed from internal April 2018 Recognition and Implementation of Rights Session): Aboriginal title and rights are inherent, not contingent: on recognition by the Crown or others and are not dependent on the Constitution, court declaration or agreement for their existence or application. Rather, they are reflected in and supported by section 35 of the Constitution Act, 1982 and other key instruments such as the United Nations Declaration on the Rights of Indigenous Peoples and the American Declaration on the Rights of Indigenous Peoples. Self-determining: Respective First Nations are free to determine their own political status, organization, whether to aggregate or not, economic, social and cultural development.

Common Ground (Among First Nations Chiefs and Leadership in BC) Cont’d High-level principles (developed from internal April 2018 Recognition and Implementation of Rights Session): A new fiscal relationship: First Nations are owners of respective homelands, resources and waters, this includes an inescapable economic component and necessary revenue streams to fully support the full and effective implementation of the right to self-determination and self-government. Recognition of Legal Pluralism: Indigenous legal systems and jurisdictions are a third order of government. [Additional principles to be advanced by Chiefs and Leadership]

Gap Analysis There are gaps in the positions expressed by Canada and the rolling draft: Litigation mandates Negotiation mandates Jurisdiction, Laws and Legal Orders Recognition Title: The Economic Component Compensation and Restitution for the Past

Mechanisms and Approaches to Close the Gap Endorse the 4 principles: One option is to continue to endorse and support this position in response to the governments’ principles and framework, given that the 4 principles came from the Chiefs and leadership and go far beyond the governments’ principles and framework in terms of realizing Indigenous title and rights, and treaty rights. For Litigation Mandates: seeking from the Crown a changed litigation mandate which provides that the Crown admit Aboriginal title exists throughout BC without proof of strength of claim and agreeing to consent orders where Aboriginal title is in litigation, provided there are no overlapping claims or internal issues about proper title and rights holders. A mechanism can be developed for these conditions to be signed off on, with a stable future envisioned, where admissions of title will become the norm and litigation will address, as necessary, new problems associated with reconciling titles and jurisdictions.

Mechanisms and Approaches to Close the Gap Cont’d For negotiation mandates: extinguishment is a barrier to concluding treaties and agreements. One option might be to seek a commitment that extinguishment (including set out in historic treaties) be revisited in the spirit of ending denial. In addition, the Chiefs and leaders would finalize a list of other negotiation positions that need to change to remove barriers and achieve reconciliation agreements. Recognition Legislation: There appears to be common ground on the benefits of a short recognition legislation. Areas of commonality could include: A preamble: which rejects denial and affirms recognition of Aboriginal title and rights and treaty rights, the UN Declaration and the 94 TRC Calls to Action, especially the right to self-determination. A purpose section: to bind governments to recognition, aligning Crown legislation and discretion found in Crown legislation and policies, to recognition.

Mechanisms and Approaches to Close the Gap Cont’d Recognition Legislation cont’d: An interpretation section: that would amend the Interpretation Act, to ensure consistency of all legislation with the UN Declaration and to Section 35 rights implementation. Mechanisms: that would create a new indigenous institution, completely co- developed/co-designed with Indigenous Peoples, to deal with proper title and rights holder issues, shared and overlapping territories, and a new dispute resolution mechanism. To facilitate this in a timely manner, the scope of the commitment to create new institutions could be placed in the legislation, with the details to follow in regulations to be promulgated under the Act.