Alternatives to TreatiesCBA Aboriginal Law Conference

Winnipeg April 2011

Presented by W. Ming SongSongbird Law Corporation

Introduction

British Columbia’s New Relationship with BC First Nations

To address title and rights issues

To address consultation and accommodation

Settle Court decisions

Introduction

British Columbia’s New Relationship with BC First Nations

Reconciliation Agreements

Reconciliation, Settlement and Benefits Agreements

Reconciliation Protocol

Introduction

British Columbia’s New Relationship with BC First Nations

Government to Government Protocols

Economic Benefits Agreements

Strategic Land and Resource Management/Planning Agreements

Introduction

British Columbia’s New Relationship with BC First Nations

Incremental Treaties

Strategic Engagement Agreements

Economic and Community Development Agreements

Reconciliation Agreements

Coastal First Nations Reconciliation Protocol

Haida Reconciliation Protocol

Doig River, West Moberly and Prophet River First Nations Reconciliation Agreement

Musqueam Reconciliation, Settlement and Benefits Agreement

Reconciliation Agreements

Purpose

Confirm government to government relationshipEstablish a framework for shared and joint decision makingEstablish a process for revenue sharing and/or other economic benefits and opportunities

Treaty 8 Reconciliation Agreement

Doig River First Nation, West Moberly First Nation and Prophet River First NationMay 20, 2010 – Final Agreement and 4 resource management agreementsFinal Agreement links 8 resource management agreements to the Amended Economic Benefits Agreements signed in December 2009These agreements build on 5 agreements concluded in 2009

Treaty 8 Reconciliation Agreement

Five agreements concluded in May 2010:

Final AgreementHeritage Conservation MOULong-term Oil and Gas AgreementCrown Land Management AgreementForest and Range Resource Management Agreement

Treaty 8 Reconciliation Agreement

Effect of May 2010 Agreements

Trigger final payment of $3.5M$17.3M one-time equity paymentRevenue sharing for 15 years ($2.6-$10.2M per year)Consultation process

Treaty 8 Reconciliation Agreement

Five agreements concluded in 2009:

Parks Collaborative Management AgreementWildlife Collaborative Management AgreementStrategic Land and Resources Planning AgreementGovernment to Government Protocol AgreementAmended Economic Benefits Agreement

Incremental Treaties

Purpose

Access to money, land, resources prior to final treatyDoes not replace a treatyMotivates moving forwardProvides certainty

Incremental Treaties - Tla-o-qui-aht First Nations

Signed November 2008First incremental treaty between First Nation and BCfour year agreement63 hectares of land and capacity building and communications funding totalling $600,000. An advance by B.C. of a portion of the provincial share of a future treaty settlement

Incremental Treaties - Klahoose First Nations

Signed March 2009$2.1 million to purchase Tree Farm$150,000 in two instalments to advance treaty negotiations and build economic development capacity.

Land & Resource Agreements

PurposeIntegrate First Nation perspective in land use planning and resource related activitiesTo enhance economic development opportunities, social development, and treaty negotiations (where appropriate)

Land & Resource Agreements

Examples

Forest Consultation and Revenue Sharing Agreements

Strategic Engagement Agreements

Economic and Community Development Agreements

Land & Resource Agreements - Forest Consultation and Revenue Sharing Agreements

Moricetown Band – signed December 20, 2010Sts’ailes First Nation – signed December 17, 2010Lil’wat Nation – signed December 14, 2010Penelakut First Nation – signed December 8, 2010 Yale First Nation – signed December 3, 2010

Land & Resource Agreements - Forest Consultation and Revenue Sharing Agreements

New type of forestry agreement

Provides economic benefits directly to communities based on harvest activities in traditional territory

revenue sharing model will reflect “on the ground” activities

Land & Resource Agreements – Strategic Engagement Agreements

to encourage a positive and respectful government-to-government relationshipstrengthen B.C.’s investment climateestablish mutually agreed upon procedures for consultation and accommodationact as an incremental step towards treaty.to support the New Relationship and Transformative Change Accord objectives.

Land & Resource Agreements – Strategic Engagement Agreements

Ktunaxa Strategic Engagement Agreement

signed October 22, 2010$1.65 million will result in more co-operative decision-makinglead to increased certainty for resource activities

Land & Resource Agreements – Strategic Engagement Agreements

Tsilhqot'in Strategic Engagement Agreement

. signed December 17, 2009

. $1.26 million

. will streamline consultation on natural resource decision

. provide increased certainty for investors

. build on government's New Relationship with B.C. Aboriginal communities.

Land & Resource Agreements – Strategic Engagement Agreements

Nanwakolas Strategic Engagement Agreement

signed September 29, 2010$2.25-million agreementwill streamline consultation on natural resource decisionsprovide increased certainty for investorsbuild on government's New Relationship with B.C. Aboriginal communities.

Land & Resource Agreements – Economic and Community Development Agreements

for sharing the direct mineral tax revenue on new mines and major mine expansions.to create certainty on the land and to make First Nations partners in resource development. A way to address the socio-economic gap between aboriginal and non-aboriginal citizens by working in partnership with aboriginal communities. entered into on a case-by-case basis with the impacted First Nations

Land & Resource Agreements – Economic and Community Development Agreements

McLeod Lake Indian Band Economic and Community Development Agreement – signed August 25, 2010A revenue-sharing agreement between the Province of British Columbia and the McLeod Lake Indian Band to share mineral tax royalties from the Mt. Milligan Mine.

Stk'emlupsemc of the Secwepemc Nation Economic and Community Development Agreement – signed August 24, 2010 A mining revenue-sharing agreement between the Province of British Columbia and the Stk'emlupsemc of the Secwepemc Nation to share mineral tax royalties from the New Afton Mine.

Land & Resource Agreements – Economic and Community Development Agreements

Tse Key Nay Agreement for Reclamation, Remediation and Monitoring of Mine Sitessigned February 25, 2009 to develop and implement a Reclamation, Remediation and Monitoring Plan to address current and historic mining sites within the asserted territories of the Takla Lake, Kwadacha and Tsay Key Dene First Nations.

Land & Resource Agreements – Economic and Community Development Agreements

Upper Similkameen Indian Band Mining and Minerals Protocol Agreementsigned July 27, 2006establishes a means for communication and information-sharing ensures mining development done in an environmentally and culturally sustainable manner.regulation of mineral resource developmentallows the Province to assist the band in developing the capacity to participate in, and benefit from, mining activities within its territory.

Conclusion

Unique agreementsStep in the right directionConsultation and accommodationCase by case basis

THANK YOU!