Land and water: Is there anything more important to us as First Nations peoples? Perhaps not. Throughout First Nations communities in the twenty-first century there is much discussion of the importance of and the opportunities through the use of land and water. How we deal with lands and the waters that run through them is as important as what we do with these vast resources. With regard to reserve lands, there are certain schools of thought these days making a compelling case for the relationship between property rights and access to prosperity for Canada’s First Nations.
This debate is an important one, with ramifications that reach far outside the domain of Aboriginal affairs. It’s of critical importance to First Nations peoples. It’s of equal consequence to Canada – and it’s about time that such a debate got underway. The vastness of Canada’s land, its wealth in natural resources and the fabric of the Indian Act reserve system are fundamentally interwoven in a manner that precious few Canadians comprehend – except perhaps for those who work in Aboriginal law and have a created a cottage industry around navigation outside the Indian Act.
The notion of rights around property in respect of the Indian Act is by no means new. It’s a fact long obscured by the sands of time that in 1873, then Minister of Interior, David Laird, admonished that “the great aim of the Government should be to give each Indian his individual property as soon as possible.”
While it cannot be forgotten that the aim of the Indian Act was based in the notion of assimilation, there was school of thought that the extension of property rights would help safeguard the interests of Aboriginal peoples into Canadian society.
Nearly one-hundred and thirty years later, the litany of failures around so many aspects of the Indian Act should compel us to actively consider matters around First Nations property rights.
Former Chief of the Kamloops Indian Band and current Chief of the First Nations Tax Commission, Manny Jules, echoes the same thinking as cited in “Beyond The Indian Act: Restoring The Indian Act. “ Chief Jules believes that the extension of property rights combined with permanent First Nations jurisdiction – including the granting of taxation powers — are essential to First Nations home ownership, wealth building and economic development. The flipside to this is simple; without property rights the status quo succeeds – and that works in no one`s favour. The progressive minds in Canada`s Aboriginal affairs need to embrace this thinking and work to create a groundswell that will lead to the development of legislation to enable First Nations private property rights.
The resistance to changing the Indian Act might be expected from some leaders intensely reluctant to pursue more accountable, transparent and economically sustainable governance.
What has begun to occur though is the notion of incremental, progressive change coming from within First Nations leadership. Names like Manny Jules, Chief Clarence Louie and activist Calvin Helin are becoming known as representative of the future of First Nations and Aboriginal affairs in Canada. Their views are raising eyebrows, provoking debate and pulling thought around Aboriginal public policy kicking and screaming into the twenty-first century – and not a moment too soon.
Restoring property rights to First Nations is the right thing to do for both moral and economic reasons. It`s an effective means to ending a system of dependency on government that has served no one. With regard to rights, there is also a fermenting point of view that chooses to link the rights entitlement agenda with efforts to take action to help ensure First Nations have safe, clean drinking water.
The importance of protecting Aboriginal and Treaty rights under Section 35 of the Constitution is of great significance. But so is making sure that one of the most basic necessities of life – the availability of clean and safe drinking water — is provided for. Balancing rights against the health and wellbeing of people is often a difficult process. But not in this instance. The need for clean and safe drinking water must trump any political effort that seeks to gain leverage for the larger debate around rights for resources.
This is a moral issue and one that deals with the most fundamental services any government delivers to its citizens: providing clean and safe drinking water for on-reserve First Nations people. Prime Minister Harper’s government is moving forward with legislation to deal with ensuring the safety of drinking water, the effective treatment of wastewater and the protection of sources of drinking water. There has been productive and open dialogue with First Nations in addressing these fundamental water issues. This dialogue and collective progress in respect of it will continue.
The goal in this endeavour is to work with First Nations to develop and implement regulatory standards, to build capacity within the communities so that they can meet the water health and safety needs so necessary to ensure healthy communities.
If there is anything remotely related in this matter to rights and entitlements it would be this: nearly all other Canadian communities are protected by water quality regulations.
This proposed legislative endeavour seeks to fill the regulatory gap that has left onreserve communities without protective measures for water quality – something to which First Nations citizens living in reserve communities are certainly entitled. An old proverb teaches “filthy water cannot be washed” and so we seek together to develop ways, means and processes through which the waters of First Nations might be “as right as rain.”
Lands and resources they contain are part of the fabric that has woven First Nations communities for centuries. They are both a part of our tradition and a key to our future. We are both connected to them and our prosperity remains linked to the sustainable application of them as levers to a better way of life. We’re a part of nature and not set apart from it. As Canada and First Nations continue the dialogue and debate around new, innovative means around land and natural resources, we must work to continually recognize our shared role as custodians and stewards of the gifts we have been left to attend to.

“The Sparrow ruling was a major factor in moving the provincial government to negotiate with First Nations,” said Sophie Pierre, chief commissioner of the BC Treaty Commission. “It put an end to 130 years of denial of aboriginal rights by the BC Government.” Musqueam Nation member Ronald Sparrow was charged with fishing for salmon with a net larger than legally allowed by the Fisheries Act. The case went all the way to the Supreme Court, which ruled on May 31, 1990 that aboriginal rights exist and were not extinguished by federal fisheries regulations.

The Sparrow case was also the genesis for the Aboriginal Fishing Strategy, which provides First Nations with special commercial salmon licences.

The Supreme Court decision has played a significant role in subsequent aboriginal rights cases. The Van der Peet ruling in 1996 set out the factors that determine when an aboriginal practice constitutes an aboriginal right. The Delgamuukw case in 1997 affirmed the Crown has a duty to consult with First Nations when the actions of the Crown infringe upon aboriginal title, and set out a test for proving title. The Haida and Taku River Tlingit cases in 2004 established that government has a duty to consult and possibly accommodate even when aboriginal title has not been determined.

Still, these legal decisions have not resolved all the issues of aboriginal rights and title in BC and First Nations continue to launch legal actions to preserve their aboriginal rights when a perceived threat exists.

“We recognize that litigation has informed treaty negotiations and continues to do so. But a government-to-government relationship, with all its complexities must be negotiated,” said Pierre. “We understand that First Nations may feel forced to take legal action to protect interests they do not see being addressed at the treaty table. That’s a delicate balance. All governments must recognize that relationships cannot be built in court.”

The Treaty Commission has been encouraging all governments to make treaty completion a priority and First Nations to resolve their territorial issues and prepare for self government. Several First Nations are close to concluding final agreements, including In-SHUCK-ch Nation, Sliammon First Nation and Yekooche Nation. Yale First Nation is preparing for a ratification vote by its members.

Nine First Nations are moving to conclude agreements in principle including K’omoks First Nation, Namgis Nation, Nazko First Nation, Northern Shuswap Treaty Society, Oweekeno Nation, Te’Mexw First Nation, Tla-o-qui-aht First Nation, and two of the Tsimshian First Nations.

About the BC Treaty Commission

The Treaty Commission is the independent body responsible for overseeing treaty negotiations among the governments of Canada, BC and First Nations in BC. It has three roles: facilitation, funding, and public information and education.

Established in 1992, the Treaty Commission and six-stage treaty process are designed to advance treaty negotiations. The Treaty Commission comprises a provincial appointee, a federal appointee, two First Nations Summit appointees and a chief commissioner chosen by agreement of all three parties. For more information about the BC Treaty Commission, please visit bctreaty.net.

A local figure in British Columbia’s First Nations leadership has announced he is stepping aside from his provincial role in hopes that doing so will help inspire greater unity.

“We are at a low tide with B.C. First Nations unity,” Grand Chief Doug Kelly wrote in an open letter Tuesday as he announced he will not run again for executive of the First Nations Summit.

“In many respects, I think we’ve lost our way,” the Soowahlie band member added in an interview Thursday, speaking of a collection of leaders called the First Nations Leadership Council.

“I think it’s time for some of the younger leaders to step up, to join the Leadership Council, to take the work, the challenges, the opportunities and move them forward,” said Kelly, who next month turns 50.

Kelly said the fracturing of First Nations in B.C. stems from two major events.

The first, he said, was the election of Shawn Atleo as the national chief of the Assembly of First Nations.

Kelly said the community was not fully unified on the decision, and he believes that rift has carried forward since. He added that Atleo served as a “facilitator and peacemaker” among B.C. leaders, and that no other members have been able to fill that role now that Atleo is gone.

The second issue, he said, was blowback last year from within the First Nations community over a proposed provincial Recognition and Reconciliation Act, which would have recognized aboriginal land claims throughout the province.

Last August, First Nations chiefs from across the province decided not only to kill the proposed legislation, but also to review the leadership structure that had led to its creation.

“Chiefs rejected the top-down process that saw only three members of the Leadership Council negotiating the proposed legislation,” Kelly wrote in his letter.

“Chiefs did not have confidence in this negotiation team to represent and protect First Nations interests at the negotiation table,” he added.

After that decision in August, First Nations leaders established an All Chiefs Task Force to review the structure of the Leadership Council.

Beverley Clifton Percival is chair of that task force and said her group finished three days of meetings on Thursday. “We all agree there’s strength in us being unified and advancing things together,” she said, adding the group is making good progress and will continue its work to determine how this can best be accomplished.

Kelly said he will continue to be involved with the leadership of his local first nation, and will take on other roles as well.

Ministry of Aboriginal Relations and Reconciliation

VICTORIA – The Province and three Treaty 8 First Nations – Doig River First Nation, West Moberly First Nations, and Prophet River First Nation – signed a final agreement and four resource management agreements today, announced George Abbott, Minister of Aboriginal Relations and Reconciliation. This final agreement links eight resource management agreements to the Amended Economic Benefits Agreement signed in December 2009.

Victoria, British Columbia – May 20, 2010 -

NEWS RELEASE
For Immediate Release
2010ARR0007-000595
May 20, 2010

The agreements benefit the region by establishing a process for consultation and collaborative management of lands and resources between Treaty 8 First Nations and the Province. These agreements build on the five agreements concluded in 2009 and will contribute to stability and certainty on the land base and will help stimulate investment in northeastern B.C.

Today’s signing of five agreements triggers a final equity payment of $3.5 million for reaching the milestone of concluding four more consultation agreements and a final agreement. The First Nations will receive a total of $17.3 million in one-time equity payments (including the $3.5 million) to enable them to participate in the local economy. The First Nations will also receive annual revenue-sharing payments for 15 years that will float between $2.6 million and $10.2 million per year, depending on provincial revenues and activity in the region.

Also in attendance to sign the agreements were Minister of Energy, Mines and Petroleum Resources Blair Lekstrom, Minister of Forests and Range and Minister Responsible for Integrated Land Management Bureau Pat Bell, Minister of Agriculture and Lands Steve Thomson and Minister of Tourism, Culture and the Arts Kevin Krueger.

“This final agreement and suite of resource management agreements signify the resolution of longstanding issues and the beginning of a new and ongoing relationship founded on the basis of mutual respect and understanding,” said Abbott. “These agreements will provide certainty around economic opportunities, resource development, land stewardship and heritage conservation in the traditional territory of these Treaty 8 First Nations.”

The five agreements signed today are:

- Final Agreement.

- Crown Land Management Agreement.

- Heritage Conservation Memorandum of Understanding.

- Long-term Oil and Gas Agreement.

- Forests and Range Resource Management Agreement.

The five additional agreements, signed in December 2009, are:

- Parks Collaborative Management Agreement.

- Wildlife Collaborative Management Agreement.

- Strategic Land and Resources Planning Agreement.

- Government to Government Protocol Agreement.

- Amended Economic Benefits Agreement.

“Each of the Treaty 8 First Nations has rich and enduring traditions that date back thousands of years,” said Doig River First Nation Chief Norman Davis. “The Heritage Conservation MOU highlights the importance of protecting our heritage and culture for future generations and gives us the opportunity to provide valuable recommendations that the government must address when deciding on the permits for resource development.”

“It is important that our people share in the economic wealth of our traditional territory,” said Prophet River First Nation Chief Lynette Tsakoza. “The Long-Term Oil and Gas Agreement will ensure we continue to play a key role in the stewardship of the land, while giving us increased confidence and certainty about our economic future.”

“This Forestry Agreement will allow Treaty 8 First Nations and B.C. to enhance and promote sound forest management, as well as support job-sharing and other training and employment initiatives that are crucial for the well-being of our members,” said West Moberly First Nations Chief Roland Willson. “We are increasing opportunities for participation in the forestry sector while ensuring that we can continue to exercise our Treaty 8 First Nations’ rights.”

“Being involved and informed at the early stages of potential development within our traditional territory will play a critical role for both Treaty 8 and B.C. in providing good decision-making regarding the Crown land application process outlined in the Crown Land Management Agreement,” said Tribal Chief Liz Logan. “The signing of the final agreement wraps-up the eight side agreements we’ve been negotiating for the past six years and we see this as a historic milestone for Treaty 8 First Nations. This entire process provides us with a clear roadmap that will help us create the balance we are looking for and provide certainty around culture, land stewardship, resource development and economic benefits while preserving our Treaty 8 rights.”

Through the New Relationship, government and First Nations are achieving agreements that are resulting in positive change in communities around the Province. For copies of the agreements, visit: http://www.gov.bc.ca/arr.

A backgrounder follows

—
BACKGROUNDER

For Immediate Release

2010ARR0007-000595

May 20, 2010

Ministry of Aboriginal Relations and Reconciliation

B.C. AND TREATY 8 FIRST NATIONS SIGN FIVE AGREEMENTS

B.C. and three Treaty 8 First Nations – Doig River First Nation, West Moberly First Nations and Prophet River First Nation – have reached a final agreement and suite of resource management agreements with the Province that will provide certainty around economic opportunities, resource development, land stewardship and heritage conservation in the traditional territory of three Treaty 8 First Nations.

The B.C. First Nations signatories of Treaty 8 are:

Doig River – pop. 249 – Chief Norman Davis

Prophet River – pop.223 – Chief Lynette Tsakoza

West Moberly – pop. 211 – Chief Roland Willson

The three Treaty 8 First Nations are in northeastern B.C. The approximate population of British Columbia Treaty 8 First Nations is between 2,500 and 3,000.

Final Agreement

The final agreement links all the completed agreements and resolves all outstanding issues to the satisfaction of the Province and the three First Nations. The purpose of the final agreement is to affirm a new and ongoing relationship founded on the basis of mutual respect and understanding. This final agreement is not a treaty nor a land claims agreement.

Heritage Conservation Memorandum of Understanding (MOU)

The Heritage Conservation MOU highlights the importance of heritage protection and conservation during development projects and resource extraction.

It establishes processes to effectively share information between the Province and Treaty 8 First Nations and enables the participation of Treaty 8 First Nations in heritage conservation. It provides for public education, including such things as meetings, workshops and printed materials, to educate the public and government agencies in order to increase knowledge around heritage conservation in the area and cultural sensitivity around First Nations’ heritage issues.

Long-term Oil and Gas Agreement

The Long-term Oil and Gas Agreement facilitates relationship building between the Province and Treaty 8 First Nations around oil and gas matters by improving reporting processes for Treaty 8 First Nations complaints, incidents and compliance matters, in a way that provides opportunities for Treaty 8 First Nations to have input into major policy and regulatory development, and by identifying opportunities for the Treaty 8 First Nations to become more involved in various aspects of reclamation.

Further, it sets out a consultation process that meets the obligations of B.C. to consult the Treaty 8 First Nations on oil and gas tenures issued by B.C. with respect to proposed parcels that get referred to the Treaty 8 First Nations as part of the consultation process.
Crown Land Management Agreement

This Agreement describes the framework and process by which the Crown will:

- Consult with the Treaty 8 First Nations with respect to Crown Land Applications.

- Accommodate, where appropriate, Treaty 8 First Nations’ rights recognized and affirmed by Section 35(1) of the Constitution Act, 1982.

Forests and Range Resource Management Agreement

The Forests and Range Resource Management Agreement addresses administrative and operational decisions in reconciling the rights and interests between British Columbia and Treaty 8 First Nations.

It provides the basis to increase Treaty 8 First Nations’ opportunities for participation in the forest sector and promotes the management of forests and range in a manner that:

- Promotes biodiversity and the sustainable use of British Columbia’s forest resources.

- Allows for the continued exercise of the Treaty 8 First Nations’ rights.

It establishes a clear process to facilitate collaboration between the Province and the Treaty 8 First Nations that allows them to move forward in a timely manner toward stability and compatible outcomes rather than litigation.

The agreement provides for effective, meaningful and collaborative forest and range management and planning and sets out a process for consultation re the potential impacts of administrative and operational decisions about Treaty 8 First Nations’ rights.

It provides for the improvement of communications and information between the Ministry of Forests and Range, provincial agencies and Treaty 8 First Nations, and furthers Treaty 8 First Nations’ objectives of working toward shared decision-making with respect to forest and range management and planning.

The ongoing annual payments provided under the AEBA are a form of revenue-sharing that provides these three First Nations with a share of the benefits from development in the northeast region.