On Thursday, September 11, 2014, all eyes will be on Vancouver and the meeting of the Chiefs of BC and the Cabinet of the BC Government while they try and determine matters and methods to deal with aboriginal title following the Tsilhqot’in case at the Supreme Court of Canada.
Tsilhqot’in was a real shake up for the BC and Canadian Governments. After over 22 years of not providing sufficient mandates at the treaty tables and thinking they would never have to really deal fairly with First Nations, the court has said differently.
For once, the First Nations are in a position of power, holding the hammer in these negotiations. Aboriginal title of each 190 First Nations (203 First Nations in BC, 8 Treaty 8 First Nations and 5 Modern treaties-Tsilhqot’in can go back to court for rest of their territory) can go to court and tie up the courts for a long time and create huge uncertainties in development in the province. Or they can figure out creative and innovative ways to work together.
The First Nations and province need to resolve the big issues (there are many other issues that arise from the case) like:
a) Identifying and establishing aboriginal title lands for First Nations
b) Recognizing aboriginal title includes all the resources within it and First Nations can develop them within their values with future generations in mind.
c) Resource development within their aboriginal title lands-past, proposed and future
d) Revenue sharing of any and all existing and future developments within aboriginal title lands-not just predetermined formulas of BC
e) How will Fee Simple/Private lands with aboriginal title be resolved? Compensation? Receive taxes or portion thereof etc.
f) Aboriginal title necessarily includes the title to water-how will this be resolved especially since the province didn’t consult much on their new Water Sustainability act.
g) Jurisdiction of First Nations on aboriginal title lands and whether Provincial laws can apply.
Looking at the proposed agenda of the September 11th meeting, (wonder if that date was chosen deliberately) the first half of the day will be political pontificating. Provincial First Nations Leaders and Cabinet members making statements, then opening the floor for the last half of the morning to the Chiefs and other cabinet ministers that may want to say something. Political statements are necessary I suppose but the need to get down to business on some critical issues is more important.
I have been at these kinds of meetings before. We had 3 or 4 of First Nations Summit Chiefs (half as many as there will be on Thursday) and Cabinet meetings in the early days of Gordon Campbell’s regime when we spoke and our words crossed in the air. The last one we tried breaking into discussion groups that deteriorated quickly and no consensus achieved. After that there were no more of those kinds of meetings. The second half of Thursday is breaking into small groups to discuss two very large topics. Lots of people, lots of agendas, lots of issues. Can anything concrete be accomplished on Thursday? I am hoping so.
The Chiefs met for two days in August and are meeting two days this week to prepare. I would hope that they would have a position paper that would lay out some options on the big issues as outlined above like how aboriginal title lands could be identified and returned back to each First Nation. Lay out possible proposed processes. The First Nations can decide if this will need to be in or outside the treaty process depending on the choice of the Nation.
Not only should their be processes put in place but there should be dispute resolution processes put in place when the First Nation and the province hit the wall. And they will. Possibly a body could be put in place to provide advice and direction to the parties as they try and resolve identifying quantity and quality of lands and how the lands will be held- Aboriginal title lands-not fee simple. A body of indigenous experts that could provide facilitation and mediation, that could determine bad faith negotiations and how that could be changed. A body that has teeth with defined powers to intervene when necessary. I note the agenda talks about dispute resolution for Shared/overlap territories but that doesn’t even begin to address where true dispute resolution is needed, between the Province and the First Nation.
There needs to be decisions on how development will take place within aboriginal title lands, how projects approved but not yet developed are to be re-visited, and how existing projects continue to operate and any revenue sharing, etc. This too could be subject to dispute resolution. Dispute resolution that can be done on the terms of the First Nations laws and protocols and not the legalistic mediation and arbitration in BC Law.
The agenda encompasses this somewhat by saying the “Future of land, resource negotiations, treaties and other constructive arrangements”: Negotiations that must take place, on principles and processes consented to by First Nations.
I am quite concerned about some of the agenda items. I have not been at the Chiefs meetings and am only looking at the agenda as is, but I see some pitfalls in what is there. Some of these Items caused the New Relationship to fail. An item called “Determination of Proper Rights and Title Holder” is one of them. This brought in the reconstitution of Nations and did away with First Nations on their own. It grouped First Nations in ways they were not historically constructed. My concern was and is that it will likely be the governments determining or having last say on who the proper rights and title holder is. Hope lessons were learned when that process fell apart and people will not repeat those mistakes again. Tsilhqot’in does talk about this but again, the process must be from the First Nation perspective and their own histories, protocols and laws.
Another agenda item is “Shared decision making-moving towards consent”. Shared decision making is consent. Shared decision making in its purest form means both parties make a decision collectively. Only the province of BC believes that shared decision making means that they have the final say even if there was consensus of a joint working group. With what is contained in Tsilhqot’in on consent, I am surprised the First Nations Chiefs agreed to how this agenda item is put-from a weakened position. Tsilhqot’in must be used to its fullest and the Chief Justice advised getting the First Nations consent.
Another agenda items that catches my eye is “Capacity Building/rebuilding: Mechanism for legal Recognition of Nations and establishment of Reconciliation Framework.” Why do First Nations need legal recognition from the colonizer state? A lot of what is being proposed falls within the legal ambit of Canadian law. Where are indigenous laws and processes and protocols? First Nations are the first order of Government in Canada, pre-existing Canada and the provincial laws. It is a fact.
I want to raise the issues of the desire of many First Nations to be involved in developing clean and renewable energy. At the moment, the BC government offers very limited opportunties to do so. Tsilhqot'in should open those opportunities as ownership of those resources are now with First Nations with aboriginal title.
I also want to raise the issue of burial sites/heritage sites and sacred areas that has been a source of contention with the province. In light of Tsilhqot'in, the ownership of these sites lie with the First Nation. This is a serious issues that also needs to be discussed at length and solutions found. As I said, many, many issues that I will not go into here.
The Tsilqot’in decision has raised a new level of need to negotiate in good faith. The Haida decision said that governments have a moral and legal duty to negotiate in good faith. Good faith is required. Thursday is a start. Laying a good foundation to which further discussions can take place will also be important. Watching what happens and the political willingness of the province will be very interesting.
In the end, any decision on aboriginal title lands, resources within aboriginal title lands, development, revenue sharing rests with the individual Nation that holds title. Their members need to be fully involved in approving processes and negotiations and final results. At the higher level, setting in place principles and proposed processes is what can happen.
The courts are clear that aboriginal title is a collective right of all the people now and into the future. Our leaders are forging a path for trying to resolve the issue of aboriginal title. So much work ahead. So many complex issues. I hope the strength of the ancestors will be with our Chiefs, I hope the strength of the land is with them. I hope our future generations will stand with them. I hope they have the wisdom of the ages with them for the big picture, the future of our lands and resources lies with them and they are accountable to the people who put them in those positions.
I hope the BC Cabinet has the political will to take very seriously the directions of the Supreme Court of Canada and enter into good faith negotiations. Failing that, this province will be in turmoil for many, many years. Can First Nations and BC forge a respectful future? Only time will tell.