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

First Nations II

Discuss

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

September 19, 2013 2

The core question for this class

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


2nd most important British Columbian in 2000s?


Guujaaw, President, Haida Nation

Outline Organization of First Nations Evolution of Aboriginal Law BC Treaty Process Recent Developments in Aboriginal Law

Delgamuukw Haida Williams

Does UN Declaration change Canadian law? BC Liberals Policy Initiatives

referendum accommodation through FROs The New Relationship


http://www.afn.ca/

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)


http://scc.lexum.umontreal.ca/en/2004/2004scc73/2004scc73.pdf



How to read a Supreme Court case

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

Don’t worry about the material in here about “interlocutory injunction” (para 12-15)

Guide to reporting:

1. Facts of case2. Previous court

decisions3. Major findings


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”


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


http://csc.lexum.umontreal.ca/en/2004/2004scc74/2004scc74.html

Tsilhqot’in (Williams) case: Tsilhqot’in Nation v. Britis

h 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 areaSeptember 19, 2013 10

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/17/2007BCSC1700.pdf

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/17/2007BCSC1700.pdf

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


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 Trial took 559 days, 5 years 8 years later:

2 important legal clarifications No progress towards settlement







http://www.afn.ca/

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.

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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.”

15

http://www.aadnc-aandc.gc.ca/eng/1309374239861






http://www.afn.ca/

Campbell Government Policies

challenged constitutionality of the Nisga’s Treaty (in opposition)

Referendum Consultation and

Accommodation Reconciliation


http://www.courts.gov.bc.ca/jdb-txt/sc/00/11/s00-1123.htm

BC Liberal Policies I: Treaty Referendum

Spring 2002Lots of protests, spoiled ballots

About 1/ 3rd votedOverwhelming majority in support (80-90%)


BC Liberal Policies II

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 directly

award a forest tenure to a First Nation Forest Revitalization Plan provisions for

AAC Redistribution (8% to FNs) Revenue Sharing


http://www.for.gov.bc.ca/mof/plan/


AAC Redistribution

8 % (~ 5.5 million m3) 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



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


http://www.for.gov.bc.ca/haa/Docs/Accomodation_Policy_final_draft_10.pdf

http://www.for.gov.bc.ca/haa/FN_Agreements.htm

http://www.for.gov.bc.ca/haa/FN_Agreements.htm


Table 1. Summary of Forestry Agreements signed by the BC Liberals

Agreement Type # of Agreements Signed

Ave Term Ave Volume(m3 year)

Ave Funding ($ year)

Direct Award: IMA

29 5 years 48,000 -

Direct Award: FNWA

6 3 years 43,500 -

Direct Award: MPB

42 5 years 48,500 -

Forest and Range Agreement (FRA FRO)

129 5 years 41,000 38,405

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

http://www.for.gov.bc.ca/haa/Docs/Gitgaat_IM.pdf

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


http://iijcan.org/bc/cas/bcsc/2005/2005bcsc697.html

http://www.gov.bc.ca/themes/new_relationship.html






http://www.afn.ca/

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


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


BC Liberals Policy IV

Roundtable Commitment

Report: give First Nations larger, more secure area-based tenures

press conference: Minister Bell said that they intend to increase FN + CF from the current 10% to 20%

Unclear from where the new land or harvesting rights would come


http://www.vancouversun.com/news/todays-paper/Forest+round+table+report+calls+deep+changes/1372738/story.html

http://www.for.gov.bc.ca/mof/forestry_roundtable/20100120-RoundtableStatusUpdate.pdf

GBR + Haida Gwaii agreements

Gitga’t SLUPA “shared” – strong

effort for consensus but if an impasse Crown decides

Joint requires First Nations consent


http://archive.ilmb.gov.bc.ca/slrp/lrmp/nanaimo/central_north_coast/docs/Gitga'at_FN_Signed_SLUPA.pdf

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.


http://www.newrelationship.gov.bc.ca/agreements_and_leg/reconciliation.html

First Nations - Conclusion

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

But terms have yet to be resolved, and conflict continues


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

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