1. First Nations I

2. September 23, 2014

3. September 23, 2014

4.
September 23, 2014

5. The core question
How to reconcile pre-existing Aboriginal title (occupation, sovereignty) with Crown sovereignty

6. Outline Organization of First Nations Evolution of Aboriginal Law
BC Treaty Process
Recent Developments in Aboriginal Law
Delgamuukw
Haida
Thursday
William (Tsilhqot’in)
BC Liberals Policy Initiatives
referendum
accommodation through FROs
The New Relationship
September 23, 2014

7. readings
Jason Forsyth, George Hoberg, and Laura Bird, “In Search of Certainty:  A Decade of Shifting Strategies for Accommodating First Nations in Forest Policy, ”
Most important reading of the term: Tsilhqot’in Nation v. British Columbia
September 23, 2014

8. 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
Stewart Phillip
60 First Nations participating in the treaty process, and b/c some are working together, there are 49 negotiations taking place. This represents about 2/3 of all aboriginal people in BC (From the First Nations Summit website; Grand Chief Edward John (Akile Ch'oh) is the President of the First Nations Summit. )
Ed John
September 23, 2014

9. 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
Title comes from relation to land and occupation, not from Proclamation, but proclamation recognized it
September 23, 2014

10. Early Aboriginal Law - treaties
BC’s Distinctiveness
Terra nullius - “empty land”
September 23, 2014

11. Repression 1884-1951 -- Potlatch banned
– banned organizations from pursuing land claims
Residential schools until 1969
September 23, 2014

12. 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
Note: 2 of most pivotal law cases, Guerin and Calder, are Musqueum
September 23, 2014

13. Section 35 Canadian Constitution
(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

14. Outline Organization of First Nations Evolution of Aboriginal Law
BC Treaty Process
Recent Developments in Aboriginal Law
Delgamuukw
Haida
Thursday
William (Tsilhqot’in)
BC Liberals Policy Initiatives
referendum
accommodation through FROs
The New Relationship
September 23, 2014

15. BC Treaty Process- background
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
Attempting to “establish a new relationship based on mutual respect, trust and understanding”
September 23, 2014

16. BC Treaty Process – 6 Steps Explained
1. Statement of Intent
1st in 1993
Teams, background info, topics for negotiation and consultation mechanisms.
2. Readiness
Topics Process Timing
3. Negotiate Framework Agreement
4. Agreement in Principle
Discuss topics in FA and forms the basis of the treaty
5. Ratification
Final Agreement
Provincial Legislature
Parliament of Canada
6. Implementation
September 17, 2013

17. BC Treaty Process - Progress
61 First Nations participating who represent 104 of the 203 Indian Act bands in BC
As of Fall
2014 from BC Treaty Commission
Stage 6: Implemented treaties = 3 Stage 5: Finalizing treaty = 5 Stage 4: Agreement in principle negotiations = 44 Stage 3: Framework agreement negotiations = 2 Stage 2: Readiness to negotiate = 6
Implemented Agreements
Tsawwassen, Maa-nulth, Tla’amin Nation (April 2014)
Update according to what their website says. By my calculations there is 1 band that is in stage 1, considering they say that 61 nations are participating or have participated in the treaty process through these steps.
September 23, 2014

18. BC Treaty Process - Progress
Process created in 1992 has only produced a total of 3 fully ratified and implemented treaties.
However, 3 have completed agreements with partial ratification:
Lheidli T’enneh First Nation (not ratified by Nation)
Sliammon First Nation (ratified by First Nation, July 10, 2012)
Yale Nation (ratified by First Nation and BC, awaiting Government of Canada ratification)
The 4 FULLY ratified and implement treaties include: Tsawwassen, Maa-nulth, Tla’amin Nation. Don’t know if they count the Nisga’a treaty here, wasn’t clear from the information on the website, if they don’t the number should be up to 4 FULLY ratified and implemented.
September 23, 2014

19. Nisga'a Memorial Lava Bed Provincial Park
about 240 years ago, a lava dome erupting killing approximately 2000 Nisga’a
September 23, 2014

20. 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
For comparison about 2/3rd the size of metro vancouver
September 23, 2014

21. Discuss Thursday
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 23, 2014

22. Outline Organization of First Nations Evolution of Aboriginal Law
BC Treaty Process
Recent Developments in Aboriginal Law
Delgamuukw
Haida
Thursday
William (Tsilhqot’in)
BC Liberals Policy Initiatives
referendum
accommodation through FROs
The New Relationship
September 23, 2014

23. Delgamuukw - Background
Gitksan and Wet'suwet'en
claim rejected by lower courts
Supreme Court of Canada decision 1997

24. Delgamuukw - Establishing Title
occupation as proof of possession
at time when sovereignty was asserted (1846)
must show continuity (not absolute)
allows oral history

25. Delgamuukw – Nature of 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
right to exclusive use
need not be central to aboriginal culture
must not be irreconcilable with the cultural attachment to lands

26. Delgamuukw – Title infringement
Title 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
As developed in 'Sparrow' and further refined in 'Delgamuukw':
"The Court sets out a series of tests to determine whether infringement of aboriginal title can be justified:
First test - the infringement of aboriginal title must be in furtherance of a legislative objective that is compelling and substantial. The Court specifically stated that the development of forestry, as well as mining, hydroelectric power, agriculture and the general economic development of the interior of British Columbia, are the kinds of objectives that meet this test and in principle can justify the infringement of aboriginal title. "
Second test - relates to the Crown’s fiduciary obligations to First Nations and has the following components:
There must be adequate consultation with the affected First Nation before aboriginal title can be infringed.
In most cases, compensation will be required, because of what the Court describes as the “inescapably economic aspect” of aboriginal title.
Finally, the Court indicates that in many cases, some priority will be required to reduce economic barriers to participation by the aboriginal group.
If these tests of justification are met, the Crown (federal or provincial) may lawfully infringe aboriginal title."
hope this is what you wanted. g.

27. Haida Case (Nov 04) Replacement and transfer of Tree Farm Licence 39
No “meaningful consultation”
Haida Nation v. BC (MoF)
Taku River Tlingit Nation v. BC (EA Office)

28. Haida – Ruling (1)
Province has a duty to consult and accommodate First Nations prior to treaty or legal proof of rights and title
sources of duty: the honour of the crown
Third parties, such as the forest industry, do not – “the honour of the crown cannot be delegated”
The Court described the Crowns position at trial as an “impoverished vision” (Taku, para. 24).

29. Haida – Ruling (2) A spectrum of obligations proportionate to:
Strength of the First Nations’ claims and
Significance of the infringement to the rights or title claimed
Consultation may require changes to policy or development proposals
Does not require agreement – does not grant a veto (para 48)
Elaborated in Taku

30. Thursday William (Tsilhqot’in) BC Liberals Policy Initiatives
referendum
accommodation through FROs
The New Relationship
September 23, 2014