Pictured Here are the Chiefs of the Nuu-chah-nulth Nation in 1922. They had been negotiating treaties before the Indian Act banned negotiations and hiring lawyers for land claims. My grandfather Dan Watts is in this picture, and I negotiated for a treaty from 1994-2009, and in 2014 we are still no closer to a treaty. Tsilhqot'in may mean we have aboriginal title lands and no treaty.
For many years I had a bumper sticker that I displayed in my office that said BC is Indian Land. All those years ago that bumper sticker spoke our truth and it still does today except now we have the highest court of the land agreeing with us. The Tsilhqot'in decision is worth celebrating! This decision has major implications for the treaty process in BC and I will briefly outline the differences between the final agreements and going to court to get title declared.
In 1994, the BC Treaty Commission began accepting Statements of Intent and negotiations began going through the 6 stages of the treaty process. Negotiations were political and proof of title was not required. Placing the map of your territory with your statement of intent set out the area the negotiations would cover. Overlaps were to be resolved by the First Nations themselves. The first Final Agreement under the BC Treaty process took effect on April 3, 2009 for the Tsawwassen First Nation (TWN). On April 2, 2011, the Maa-nulth First Nations (MNA) final agreement came into effect. It took a total of 15 years to conclude negotiations for the TWN and 17 years for the Maa-nulth. The Nisga’a treaty negotiated outside the BC Treaty process took 24 years.
In 2002, the court proceedings that eventually ruled in favour of aboriginal title of the Tsilhqot’in began. The court proceedings lasted for 5 years with the decision being delivered on November 20, 2007. The Tsilhqot’in people were preparing their title case for many years before the trial began. The Tsilhqot’in talk of a journey of 25 years to get their final decision at the Supreme Court of Canada on June 26, 2014. Their actual time for the court battle was 12 years.
When you consider the 12 years in courts to 15-24 years in negotiations, the court system amazingly took less time.
Through the BC Treaty Process, First Nations took out loans to finance their participation in the negotiations. Tsawwassen First Nation has to pay back $5.6 million dollars over 10 years. Maa-nulth must pay back $12.75 million over 10 years. (Maa-nulth is comprised of 5 First Nations).
In Tsilhqot’in, the court ordered the governments to pay the costs at the BC Supreme Court level and costs were not mentioned at the BC Court of Appeal or the Supreme Court of Canada decision.
HOW MUCH LAND DID FIRST NATIONS GET
Tsawwassen First Nation got 724 hectares of land held in fee simple in their final agreement. Maa-nulth obtained approximately 20,900 hectares.
Tsilhqot’in have aboriginal title over 220,000 hectares or around half of their territory. Differences between TWN, MNA and Tsilhqot’in lands are stark.
STATUS OF LANDS
The TWN, MNA and other completed Final Agreements have accepted fee simple lands with some modifications. The land for TFN and MNA are held in fee simple meaning the underlying title is with the provincial Crown. Does it still have the burden of aboriginal title? There is no mention of what happens specifically to aboriginal title but they exchanged aboriginal title lands for fee simple lands that likely means extinguishment. The final agreement says that the aboriginal title of TWN and MNA including its attributes and geographic extent, are modified, as set out in the Agreement. As I understand this, Aboriginal title has been modified to the provisions for lands set out in the treaty- that is fee simple lands.
TWN and MNA have specific law making powers regarding their lands including the power to dispose, mortgage, or lease TWN lands, or to issue licenses or permits. They also have law making power over lands, management and a land registry system. The Final Agreement is definitive as to what powers TWN and MNA has over their lands.
Contrast the lands provisions in the Final agreements to the Tsilhqot’in who now have aboriginal title lands. Aboriginal title lands means the Tsilhqot’in hold an exclusive right to decide how to use and control the land, and to benefit from those uses. It includes the use, enjoyment and occupation of the lands. They can use their lands in modern ways.
The only restrictions on aboriginal title is that it is a collective right of all the peoples and must be treated as such (Chief and Council could not sell the land or consent to a development that affects their rights without going to the people for their consent) and that it must be used in such a way that does not deprive future generations of the benefit of the land. The Tsilhqot’in are not confined to specific provisions of power under a final agreement, but can control the land and resources keeping in mind its collective nature and what they have always done-preserve and protect the land for future generations.
RIGHT OF CONSENT
The court was clear that when aboriginal title has been proved as the Tsilhqot’in have, they must consent to any development on their lands. If they do not consent to development, the government must ensure that it has fully consulted and accommodated their interest and can only do things that have compelling and substantial objectives and now have to take into account the aboriginal perspective on their actions. They must also ensure their action are consistent with their fiduciary obligation and are within the framework of s. 35 requirement. That means there will be minimal impairment to aboriginal interests and there is enough for future generations. Finally, there has to be a principled reconciliation of First Nations interests with the interests of all Canadians. Principled, a new word added by the courts for a good reason.
The Crown must reassess its prior conduct and may have to cancel projects if the continuation of the project unjustifiably infringes title. Additionally, the Crown may have to amend their laws so they do not infringe aboriginal title.
If a court finds that consultation and accommodation has been inadequate, the government decision can be suspended, quashed or damages awarded. These are very serious implications for governments.
The Chief Justice had this to say about consent:
“I add this. Governments and individuals proposing to use or exploit land, whether before of after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.” (paragraph 97 Tsilhqot’in decision.)
Contrast the right of consent Tsilqot'in now has with the definition of consult that is found in TWN and MNA Final Agreements. The definition of consult means being provided with notice and sufficient information of the matter to permit the party to prepare its views on the matter, opportunity to present and have full and fair consideration of any views on the matter. TWN and MNA consent is limited to their lands with a few restrictions and no consent on lands outside their treaty lands.
TWN and MNA own the Forest resources on their lands as specified in their agreements. They also can manage them. Their lands are treated as private lands and can export any timber they cut from it.
On aboriginal title lands, crown timber does not exist any more as it is not Crown lands. Provincial forestry laws apply to general things like forest health and forest fires but would not apply to allocations of timber through licenses and other tenures. The Court states:
“the issuance of timber license on aboriginal title land is a direct transfer of aboriginal property rights to a third party and will plainly be a meaningful diminuation in the Aboriginal groups ownership right amounting to an infringement that must be justified in cases where it is done without aboriginal consent.” (See also paragraph 116)
This raises a fascinating point. The province for several years now has wanted to turn the remaining crown forests into TFL’s which we know would end up in the big forestry companies hands. Now that crown timber is First Nation timber in Tsilhqot’in lands, and the potential to be in other First Nations territories, the Province must rethink this kind of legislation or obtain the consent of First Nations.
My concern has always been that the Crown wants to alienate all the timber without settling with First Nations under treaty or other agreements. For treaties, they would have to compensate timber companies for taking back the allocations and that cost comes off the top of the treaty settlement meaning less goes to the First Nation. If BC goes ahead with such legislation, this would definitely be an infringement on aboriginal title and rights for the Tsilhqot’in and the potential infringement on those who have not yet proven title.
Effect of Aboriginal title on Fee Simple Lands and Submerged lands.
Questions Tsilhqot’in left unanswered is private or fee simple lands and submerged lands. The court said they would not address these issues as they were not part of the claim. Underlying fee simple lands is crown title that has the burden of aboriginal title as per the Supreme Court of Canada. First Nations will tell you their title underlies all lands. This is still up for negotiations as to whether First Nations will be compensated for those lands or some other solution but aboriginal title has not been extinguished on fee simple lands or submerged lands and has to addressed. Treaty mandates from the federal government are that fee simple lands are only on the table on a willing seller, willing buyer basis. This most likely will be a point of contention at treaty tables.
FULL AND FINAL SETTLEMENT FOR TWN AND MNA
TWN and MNA have provided a full and final settlement of their rights and title. Meaning they cannot now claim aboriginal title or other rights beyond what is in their final agreements.
Tsilhqot’in may now go forward with proving title to the rest of their territory if they feel it is warranted and so can every other First Nation in BC.
CHALLENGES FOR THE TREATY TABLES
I am sure First Nations will want to have aboriginal title lands in any final agreement. Land allotments so far have been relatively small in relation to their aboriginal title lands. First Nations will be advancing their territorial lands. First Nations will not settle for 8% or less lands that are being offered at the current time. Those days are gone as the Tsilqot’in have aboriginal title to 50% of their territory.
The federal and provincial governments will probably insist that title must be proved and there is no method for proof of title currently at the treaty tables. Nor would First Nations want to be proving their title to federal and provincial negotiators.
Going to court to prove title was a 12 year battle for the Tsilhqot’in. Litigation is expensive and lengthy and for First Nations who still have to pay back treaty loans, this could be costly. Can you imagine if 190 First Nations went to court to prove title? (I use 190 as there are 203 First Nations in BC, 5 are Tsilhqot’in, and 8 are treaty 8). It took 339 days over 5 years to do the trial for the Tsilhqot’in territory. Title cases will definitely grind the court system to a halt.
Other than courts, there is no method of proving title. Will First Nations and the governments be able to come up with an alternative system to prove title? Or would they want to?
One of the main issues of contention at treaty tables has been the status of lands. The governments would not allow lands to be s. 91(24) lands in the Final agreements. They would not agree to s. 35 lands. They only wanted fee simple lands and those First Nations who have final agreements finally agreed to it. This was an issue that was explored at length at the common table. The governments have no choice now but to agree to aboriginal title lands if they want treaties.
Negotiations are always possible, but will the parties be able to agree on the amount of land that the First Nations want as aboriginal title lands? Will the governments agree to consent? How seriously will they take the Supreme Court of Canada decision this time? We know after Delgamuukw there was no change of treaty mandates even though everyone thought there would be.
The risks for the province of BC and Canada are great. The economic implications for BC is immense if all First Nations went to court and got a minimum of 50% of their territories declared aboriginal title lands with ownership of the resources on those lands. 94% of British Columbia is Crown lands and those are subject to aboriginal title as are private lands.
Aboriginal title to water has never been negotiated or litigated, this a big ticket item yet to be negotiaed. I bet the province wishes they took Hupacasath offer of joint ownership of water in our territory now.
It is clear that First Nations will be asserting their title in the courts, on the land, in a lobby with governments and at negotiating tables. Clearly the existing mandates at treaty tables are too limited and must be changed to reflect the new era of aboriginal title lands. The treaty process is probably pretty close to dead unless there can be radical changes to treaty mandates that enables recognition of aboriginal title lands, consent, and all the other elements affirmed in Tsilqot’in. It is a new era for First Nations in BC. Finally, a true level playing field.