Rights & Title Recognition

Rights & Title Recognition

August 25, 2009 - 8:12am

July 10, 2009

Via Fax to:

Minister of Aboriginal Relations and Reconciliation

Victoria, BC

Attention: Honourable Minister George Abbot

Dear Sir:

RE: Rights and Title Recognition Legislation

I. INTRODUCTION

We write to advise you that the Haisla Nation cannot support the rights and title recognition initiative as presently constituted. We have serious concerns with respect to both the procedure by which the legislation is being developed and with what we know about the proposed content of the legislation.

Our aboriginal rights and title have existed since time immemorial. As explained by the Supreme Court of Canada in decisions from Sparrow (R. v. Sparrow, [1990] 1 S.C.R. 1075), to Delgamuukw (Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010), to Haida Nation (Haida Nation v. Minister of Forests et al., [2004] 3 S.C.R. 511), our aboriginal rights and title have always been recognized in law. Since 1982, our aboriginal rights and aborginal title have been constitutionally protected.

II. THE CROWN'S DUTY TO CONSULT AND ACCOMODATE

British Columbia has proposed some form of legislative initiave to to recognize the aboriginal rights and title of First Nations within British Columbia. It is self-evident that this initiative will have an impact, whether practical or legal, on First Nations and aboriginal rights and title. Accordingly, the Crown must consult meaningfully with First Nations and demonstrably integrate their concerns before moving forward with any such legislative initiative.

To date, your consultation process has been profoundly flawed. You have not met with the Haisla Nation to discuss this initiative. Instead, you have met with representives of three aboriginal political organizations. The way in which consultation is being undertaken on this initiative prevents the Haisla Nation from representing Haisla Nation interests and concerns in a meaninful manner. We have never delegated the fiduciary duty to that we owe our Haisla people to any aboriginal political organization. We have never granted authority to negotiate on Haisla's behalf to any aboriginal political organization. On the contrary, we have made it clear that all negotiations affecting Haisla Nation's aboriginal rights and title must be undertaken with the Haisla Nation directly.

III. THE FLAWED PROCESS

In addition to the fundamental issue of authority, the process by which you are involving the three aboriginal political organizations is also profoundly flawed. We understand, from public statements by provincal officials, that British Columbia is in the process of drafting this legisltation. It appears that either you have prevented the aboriginal political organizations from viewing the draft legislation or you have insisted that these organizations keep the legislation confidential. This is not a meaningful or honourable method of negotiating with respect to our constitutionally-protected aboriginal rights and aboriginal title.

In order to move forward with any initiative that will affect our aboriginal rights and our aboriginal title, you need to speak with us. This entire consultation/negotiation process needs to be reconceived in a way that involves First Nations directly. This new process of negotiation must provide proper funding for the involvement of First Nations and their legal and technical advisors. This funding should be viewed as a modest request, given that British Columbia now recognizes that, for nearly a century and a half, it has been unlawfully infringing the aboriginal rights and title of First Nations throughout this Province.

IV. SUBSTANTIVE CONCERNS

It is difficult for us to comment, in detail, on the substance of this initiative because we have not been involved in any meaningful consultation process. Having said this, it is apparent from public statements that British Columbia does not propose to actually recognize aboriginal title.

Aboriginal title, as the Supreme Court of Canada has explained, is a right to exclusive occupation of the territory. British Columbia has proposed to implement some form of revenue-sharing and some form of First Nation involvement in land use decisions. This is not the same thing as recognizing aboriginal title.

Further, it is entirely unclear what the Province is offering. Revenue sharing could be token or substantial. Shared decision-making could be token or substantial. We have no idea what the Province is proposing because negotiations are taking place behind closed doors.

It also appears that British Columbia is intent on forcing First Nations to "reconstitute themselves" in order to qualify for rights recognition. This suggestion may be prompted by British Columbia's desire to deal with a smaller number of larger aboriginal groups. The fact that British Columbia would find it more convenient to address issues with a smaller number of aboriginal groups is, with respect, entirely irrelevant. British Columbia has no more right to demand that First Nations reconstitute themselves than we have to demand that British Columbia reconstitute itself.

We have no opposition to British Columbia recognizing and affirming our aboriginal rights and title. Indeed, British Columbia is required by Canada's Constitution to do as much. We cannot accept, however, any process which purports to deal with our aboriginal rights and title without involving us. We cannot accept any process that would see others negotiating on our behalf. We request that this initiative be redesigned so as to directly involve all British Columbia First Nations.

We look to our aboriginal organizations to facilitate this process and to provide valuable advice and guidance to their member First Nations. The negotiations, however, must be conducted by the First Nations themselves.

We ask that you contact our office at your earliest convenience to arrange a mutually-convenient time and place to advance this discussion.

CC:

Grand Chief Edward John, First Nations Summit

Grand Chief Doug Kelly, First Nations Summit

Dan Smith, First Nations Summit

Grand Chief Stewart Phillip, President, Union of BC Indian Chiefs' Assembly

Shawn Atleo, Regional Chief, BC Assembly of First Nations

British Columbia First Nations