ONE YEAR POST TSILHQOT’IN TITLE DECISION: Has anything changed in BC?

One year ago today, on June 26, 2014, the Supreme Court of Canada ruled that Tsilhqot’in title existed within 1700 square kilometers of land within their territory.  It was a decision that rocked BC and still continues to rock it today although the Federal and Provincial governments are sticking their heads in the sand and hoping the issue goes away. The Tsilhqot’in title case was a decision that undoubtedly frightened all levels of governments to think that the land within BC, the resources and revenues that flow from it may not be theirs and would not have jurisdiction. In the words of Chief Joe Alphonse, Tribal Chairman of the Tsilhqot’in National Government  “It is a big pill for them to swallow”.  

Tsilhqot'in is a decision that impacts on resource development and has the business community agitated about what they can do to achieve certainty so they can carry on business on title lands. Companies are hesitant to invest money in a project that may or may not proceed due to unresolved rights and title issues. The Tsilhqot’in decision was and is a decision of major proportions so people need to know what is happening with the application of it. 

June 26, 2014 was an empowering, uplifting, and encouraging day for First Nations in BC who have aboriginal title as the struggle to assert our title has been on going since contact, has been fought in the courts since the Calder decision in 1973, and in on going negotiations with the BC Treaty Process since 1994. It was a day of renewed hope and finally gave leverage to First Nations at negotiations tables and they will not allow the Governments to bury their heads for long.

With respect to the Tsilhqot’in, they report that there is a five year negotiations plan that they have arrived at with the province. Chief Joe Alphonse was on CBC’s Almanac today and said they would not move forward with this plan without the approval of their people.  In a press release, the Tsilhqot’in have said that the federal government has not come to the table and has shown no leadership on the most pressing issues. Tsilhqot'in further state that they are concerned that they have not been able to reach agreement with the province on some major items in negotiations that causes them to wonder whether BC is truly committed to transforming its relationships with First Nations in this province.  Very tellingly Chief Joe Alphonse says “We are considering whether the province is truly committed to moving forward in a positive way.  The history of mistrust is still very real for us.”

It will be interesting to know what is in this 5 year negotiations plan and whether the parties will be able to continue to work together especially if BC cannot meet the Tsilhqot’in aspirations on major issues. Progress is needed.

As to other First Nations that have title in this province, there seemingly hasn’t been any efforts to implement Tsilhqot’in in any way and could be subject to many lawsuits on title from First Nations if there is no process or progress on negotiations on title, jurisdiction and revenue. There have not been any more Shared Decision making agreements or new Reconciliation agreements. Court cases would be extremely expensive, time consuming and tie up the courts for years but it may be one of the only options.

The BC Cabinet did meet with Chiefs in September 2014 to discuss where to from here following the Tsilhqot’in decision.  There was no agreed upon path or any agreements of any kind other than to meet again in a year. The Chiefs put forward 4 foundational principles to work together as the basis for recognition and reconciliation.  These principles are:

  1. Acknowledgement that all our relationships are based on recognition and implementation of the existence of indigenous peoples’ inherent title and rights, and pre-confederation, historic and modern treaties throughout British Columbia.
  2. Acknowledgement that Indigenous systems of governance and laws are essential to the regulation of lands and resources throughout British Columbia.
  3. Acknowledgement of the mutual responsibility that all of our government systems shall shift to relationships, negotiations and agreements based on recognition.
  4. We immediately must move to consent based decision-making and title based fiscal relations, including revenue sharing, in our relationships, negotiations and agreements; 

The BC Government did not agree to these foundational principles and First Nations stand by these principles. September is quickly approaching and there may be fireworks over no progress if there are no concrete proposals on how to move forward with all First Nations in the province.

Speaking with several First Nations in the province that I consider to be progressive and innovative, they tell me they are frustrated at the lack of progress on Tsilhqot’in issues with the BC government.  They have put forward proposals on how to work together on important issues they want to advance and have not had a positive response.

There have been a fair number of revenue sharing agreements signed in the past year, especially LNG, but revenue sharing is not based on aboriginal title as should be. It is considered accommodation and asks First Nations to agree they have been fully consulted and accommodated and there is no liability with the government of BC.

With respect to natural resource development in the province, the government of BC has not changed its process for consulting let alone obtaining consent of First Nations on major projects.  Kinder Morgan Transmountain pipeline does not have the consent of Tseil-Waututh for the location of their facility and pipelines to the coast or the tankers. Instead Tseil-Waututh is in court against the project. Enbridge Northern Gateway project did not have consent of many First Nations and it was not revisited as the Tsilhqot’in decision directed with respect to aboriginal title.  The Lax kw’alaams First Nation are opposed to the Petronas LNG terminal in the mouth of the Skeena River. Yet BC goes ahead and will propose legislation in July to approve an agreement with Petronas.  The BC Government has not changed its way of doing business since Tsilhqot’in. They just push projects ahead without the consent of First Nations.  This has resulted in many court cases and objections on the land.

In this environment, is it any wonder businesses in BC are worried about investing a lot of money in developing businesses when they don’t have First Nations on their side? They can listen to the assurances of the government of BC that projects will go ahead even if First Nations are objecting or they can listen to First Nations and try and work with them about their concerns and mitigate adverse impacts or move the location of the project or just don’t develop.  Companies seem unsure how to proceed but as I said right after the decision, you have to work with First Nations from the very beginning of the concept of the business and make sure the location is ok and impacts are mitigated. 

The issue of aboriginal title continues to plague the Federal and provincial governments in many respects but most importantly in uncertainty in the ownership of lands and resources.  I commented after the Tsilhqot’in case that I bet Canada and BC regretted not getting serious about treaty negotiations and settling aboriginal title before this case came down as now expectations are much greater. If they don’t act and act quickly they will undoubtedly regret their inaction in not taking aboriginal title and the Supreme Court of Canada’s ruling as a priority.  If the 5 year negotiation plan of the Tsilhqot’in and BC isn’t approved, what next? Or if they cannot achieve agreement in 5 years? This is such an important issue to be left to chance and those that downplay the decision are in for a rude awakening.  Swallow that bitter pill quickly governments, it is time to get to the brass tacks and settle how you took the land without legal means and maybe on two year anniversary of Tsilhqot'in there will be better news.

 

 

 

 

 

 

 

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