DECADE AFTER DECADE, WILL TITLE AND RIGHTS EVER BE RESOLVED?

On the first day of this new decade, I reflect on what progress has been made on Indigenous Rights and Title in the past decade and what the new decade may have in store. 

Upon this reflection one must ask “Were there positive moves forward, or are we still standing in the same place fighting the same battles?”

What were the highlights of the twenty teens decade? I am sure there are many but I would like to elaborate on a few.

In November 2013, 5 Nuu-chah-nulth Nations won a decisive Court of Appeal victory that ruled they had a commercial right to the fishery.  The Supreme Court of Canada denied an appeal which confirmed the Court of Appeal decision.  The court gave them 2 years to negotiate.  Over ten years later, the court case has not been implemented and fisherman have not been able to exercise their rights that the court defined.  The 5 Nuu-chah-nulth Nations were forced to commence another court case on whether DFO was infringing on their rights through their laws and policies.  The Court of Appeal heard the Nuu-chah-nulth appeal almost 11 months ago and are still awaiting their decision.  The Department of Fisheries and Oceans has still not negotiated implementation of the original decision on what the Commercial right looks like.  

Governments have not been good at implementing court decisions and the next decade will only bring further frustrations for First Nations if governments continue to ignore court rulings.  It takes a lot of time and money for First Nations to bring a court case and then to have the governments refuse to implement a win is unjust.  Courts are one tool First Nations have been able to use but if it becomes unuseable, First Nations will be forced to assert their rights without government agreement in order to attain the rights and this will create an atmosphere where reconciliation cannot be achieved.

In June 2014, a day that shook BC, the Supreme Court of Canada ruled that Tsilhqot’in title exists in part of their territory. There had never been a ruling that aboriginal title exists so it was a significant ruling to indigenous peoples in BC.  The law that puts the onus on First Nations to prove our title when we were here first and our lands were taken illegally. Such legal opinions is contrary to Indigenous laws. The BC Government committed to recognizing title and now has to implement UNDRIP, which recognizes title.  But over 5 years have passed since the Tsilhqo’tin case and it remains at the negotiation table as to what title means.  If BC cannot come to an agreement with Tsilhqot’in who have had their title recognized by the Supreme Court of Canada, how will they work with the rest of First Nations in BC? As uncertainty over title affects development, resolving title is key for this decade. BC has also said they denounce terra nullius and discovery but have not said how they will do away with them in law and in practice. Or how they will respect First Nations law that recognize our own title.

In June 2015, the Truth and Reconciliation Commission released its final report and its 94 Calls to action heralding in a new era of reconciliation.  Since then, governments and institutions have been trying to work on Declaration.  Some actions are without starting with First Nations and asking what is it they need for governments to make things rights.  Or assuming that First Nations need to reconcile with governments.  First Nations have not been the ones that did wrong, so they do not need to make things rights and this is often misunderstood.  Reconciliation has to be driven by First Nations and what they need and want or reconciliation will never be achieved.  Governments have been negotiating reconciliation agreements with some First Nations but they do not represent a complete reconciliation but on specific issues that need to be resolved.  Reconciliation has become an overused word, one without meaning and the next decade should be dedicated to honest, good faith negotiations so First Nations know that reconciliation is a. concrete things with real actions achieved according to what First Nations want.  

In June 2019 the Final Report of the Inquiry on Missing Indigenous Women and Girls was released.  The Inquiry was one commitment made by the Federal Government that was actually fulfilled.  The success of this report will be ensuring that all recommendations are put into action, prevention measures are put in place and indigenous women and girls no longer go missing or murdered.  A full action plan being developed and enacted would go a long way to success in the next decade.

What dominated the past decade was the imposition of developments on First Nations territories such as Site C, LNG and TransMountain pipeline. The Transmountain pipeline continues to be a continuing issue as First Nations have brought more court cases on improper consultations on how this pipeline will affect their lands and resources. The fact that the federal government bought this pipeline creates a huge conflict of interest on their approval processes for any permits or licenses. The approval process of the Federal government is under scrutiny for lack of proper consultation and does not even begin to address the free, prior and informed consent required in UNDRIP, as the federal government promised to implement. This pipeline will continue to dominate the next decade as First Nation oppose the pipeline and the federal government interest is to make money to get back their billions of dollar investment in buying the project. This will make for an interesting decade as what free, prior and informed consent means will continue to be debated. If governments continue to approve projects in the public interest, instead of following UNDRIP including FPIC, or protecting rights and title, this decade will look like the last.  There is a chance to turn this around by working with First Nations, getting their consent before any developments.

What is at the root of these developments is the impact of climate change on the rights of indigenous peoples and on the ecosystems that support those rights.  Transmountain and Site C, LNG and so many other projects governments are approving are adding to Green house gas emissions that contribute to global warming. Unless governments can work with First Nations on reducing Green House gasses and taking other appropriate, immediate actions, the next decade could be pretty rocky. Climate Action, Free, Prior and informed consent are two very critical actions to tackle in the next decade.  

In November 2018, in BC, one highlight was the agreement between BC and First Nations on gaming revenue sharing.  After some thirty plus years, this was finally achieved.  A bright spot in the decade.

In November 2019, the BC Government passed a new law entitled the Universal Declaration of Indigenous Rights Act.  That all laws must now be in line with the principles of the Declaration. An action plan must be put in place on how this can be done.  How successful this will be will be determined by the method that the BC government uses to work with First Nations.  If they work with all 203 First Nations in the province that would be in line with the right of self-determination.  If they continue to only work with the Leadership Council to put this plan in place without the consent of First Nations, this work could be derailed.  A big question mark will dominate the decade as terms such as self-determination, free prior and informed consent, redress including restitution, compensation, ownership, are defined and negotiated.

The challenges for the next decade are real and could be positive if governments actually take action, work respectfully with First Nations and take their legal, ethical and moral obligations seriously.  This is no small task. First Nation in BC have always been willing to work with governments to find solutions, take positive action and move the agenda forward.  Are the governments up to this task? Do they understand the enormity of what they have committed themselves to? Using the past decade as a foundation, as a chance to learn from past mistakes or inaction, could mean the next decade would have unprecedented progress.  Can we use the tools that are in place, create new ones, be innovative in order to meet the challenges in front of us in building a better tomorrow for future generations. Are we standing still and fighting the same battles? If there is no political will and action, we will definitely be standing still.  If First Nations and governments work together, then the next decade could be one of real reconciliation, finally resolving title over lands and resources, and one that could benefit First Nations on non First Nations people alike.  I am tired of putting energy into battles. Lets use that energy for building a positive future for all.

 

Article 26 of the UN Declaration of Indigenous Rights.

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or other- wise used or acquired. 

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by rea- son 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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