The BC

Looking west? Look east.The only governments with thestrength to negotiate with indigenousnations are the federal and Britishcrowns. The idea of dealing with theprovince regarding land issues has alwaysbeen unacceptable to our peoples andancestors. Only the federal governmentcan enter into nation to nation agreementsand we have to force them to resolve theland question. Remember! - PPage 8

As Indigenous peoples we have inherentjurisdiction - and the province wants touse this legislation to claim jurisdictionover our territories.Our right to self-determination does not need provincial recognition.The provincial recognition legisalation isan empty shell for indigenous people,and has a hidden pearl for the provinceto secure hidden access to indigenousterritories. Legal Pointers - Page 16-118

The architects of the proposed Recognition andReconciliation Legislation -lawyer Geoff Plant, PremierGordon Campbell, and theFirst Nations LeadershipCouncil, are promisinggreater certainty for thirdparty interests with this newlegislation.These people have been tour-ing the mining associationsand industry stakeholders toexplain how much better itwill be for them.

Like in Forest and RangeAgreements, the governmentwill be able to prescribe thelimits of shared decision

making and the ceilings onbenefits agreements. This isfor the certainty of industry -and government revenues.

There is no way thatCanada and BC governmentswould be negotiating treatiesunder the British ColumbiaTreaty Commission if we didnot own our territories.

The proposed provin-cial Recognition Act in itscurrent form would securerecognition of the province ofBritish Columbia and theircontrol over our territories butwe can reverse that if westand up. The BritishColumbia government andthe First Nation LeadershipCouncil have opened the door

on the recognition of ourAboriginal Title. We need totake control. We need to usethis opportunity to shift frompoverty and servitude toreturn to being self-reliantand owners of our territories.

The choice is ours asIndigenous Peoples. Whatthe province has put on thetable is garbage but that doesnot mean we cannot changethat. You and your action,energy and ingenuity areneeded. The struggle has laidthese choices before you.Words of the People-Page 19

Summer 2009

The First Nations Leadership Council is collaborating with the province torecognize crown title in BC. They promise a province-wide benefits sharing agreement.Who is the province to pretend they canrecognize indigenous rights? We do notneed the province to recognize ourrights, but the province needs indigenouspeoples to recognize them, because theyhave no jurisdiction over our traditionalterritories.

In this Special Edition of the BC TreatyNegotiating Times, we bring you insight,international comparisons, and criticism.

Industry is not afraid of this.

The Latest Power Grab

Treaty Negotiating Times

Words of the PeopleThroughout this paper they remind uswhy our ancestors never engaged with theprovince and why this provincial recogni-tion act is so dangerous.In The Words of The Hereditary Chiefsquotes throughout from across the nations

Recognize anyone here?Who are they

to recognize crown title on our unceded lands?

It’s not about the money,it’s about the land.We hear that “recognition legislation”will mean big bucks for First Nations.The BC government keeps tellingindustry it won’t change a thing. BC wants to negotiate becausethey just can’t win in court anymore.Poverty - PPage 10

Recognition of BC?

If the tribes acknowledge crown title, what willbecome of the land? This pictograph in Stein Valleyshows how everything depends on Mother Earth.

Assimiliation Again?Surely there will be no more BC Treaty Commission extinguishment treaties.As aboriginal people gain a strongerunderstanding of the international strength of their title, BC and the FirstNations Summit moves to legislatemunicipal status on the nations.Recognizing the Child of BCTC - PPage 2

When the provincecomes to the table to talkabout the Recognition Act,what they are really seeking isrecognition of the province.

This has come to passbecause our ancestors stoodstrong and never gave BC abill-of-sale. They neversigned any agreement. Thereis no way that the BritishColumbia government wouldhave engaged the formerAttorney General Geoff Plantto negotiate the RecognitionAct if we did not own BritishColumbia.

Hill

The BC Treaty Negotiating Times

By Russell Diabo, Mohawk, First Nations Policy Consultant

For those of you tooyoung to remember, in 1969 thefederal government proposed a"White Paper" on Indian Policy.A "White Paper" in federalterms is supposed to be a dis-cussion paper, but the federalgovernment announced the"1969 White Paper on IndianPolicy" as a federal policy.Essentially, the main objectivesof the federal government in1969 were as follows:

Eliminate the legislative andconstitutional recognition ofIndian status. Abolish Indian

Reserves & impose taxation.Dismantle Historic Treaties.Off-load federal Indian pro-grams and services ontoprovinces, municipalities andFirst Nation communities.Entrench economic underdevel-opment (the socio-economicgap between Indians and whiteCanadians).

In response to the pro-posed Policy of assimilationand termination of rights, FirstNations and their leaders organ-ized opposition to the 1969White Paper and formed associ-ations at regional and nationallevels. Continued Page 17

Page 2 Fall 2007

The Proposed “Recogntion Act” will likely facillitate

In the words of the Hereditary Haisla Hemas

In this IssueGeoff Plant: advisor to .BC on the legislation

Page 4Community-mindedaction needed Page 5

Grand Chief StewartPhillip, UBCIC President

Page 6Robert Shintah, UBCIC VP

Page 7Nation to nation Page 8Counter Resolution Page 9FNLC Chiefs Page 10Legal Alternatives Page 11Discussion Paper

Pages12&13Criticism Pages14&15Precedents of despair - theconsultation quo Page 20History Repeating Page 21The New Relationship andAll Our Relations Page 22Timeline Page 23The wisdom of the past

Page 24

March 10, 2009Dear Ed John and StewartPhillip

Today I received theattached document re: imple-menting the new relationship.This document talks aboutAboriginal Title and Rights.

The Haisla HereditaryChiefs do not speak of theirongoing ownership of HaislaLands and Waters in the past

tense as referred to by theCanadian contrived word,"Aboriginal". If you break thisword aboriginal down into itscomponent parts it goes likethis, ab - original. ab meaning -"used to be" so the word abo-riginal really means - used tobe original. Haisla HereditaryChiefs cannot agree with this.We will never agree that weused to be original but now weare a remnant of our originality.Instead we continue to holdourselves out as the originalpeople of our territory and thusstill the true Indigenous ownersof our ancestral territory.

Under “RecognitionPrinciples,” this documentstates, “That the Crown Titleexists with Aboriginal Titlethroughout British Columbia.”We cannot agree with this state-ment. First you and yourrespective organizations havenever sought and were nevergiven a mandate from HaislaHereditary Chiefs to discussand or negotiate such a positionon our behalf with theProvince. The authority to rec-ognize or not recognize BCCrown Title lies only with theHaisla Hereditary Chiefs. I askyou and your organization toprovide evidence that crown

“We need traditionalists

to step up and shut this initiative

down and relegate itto where it belongs,namely on the trash

heap of history.”

- Morris Amos, Haisla

Chief Michael Robinson, spokesman for Chief Jasee, Haisla.

title exists in Haisla AncestralHomelands. We hold you to thestrictest of proof.

Under "Interim," it states,"Prior to comprehensive agree-ments being in place with anIndigenous Nation the Interimlevel of engagement wouldinvolve the application of therecognition principles throughshared decision-making andrevenue-sharing agreements tocertain specified categories ofdevelopment projects anddefined "strategic decisions".

The Haisla HereditaryChiefs cannot agree to thisstatement as it will tie us in torecognizing BC ownershipthrough Crown Title as thestarting point for any futurenegotiation of comprehensiveagreements. This is a nonstarter for Haisla HereditaryChiefs.

Further on your docu-ment states, "At the interimlevel statutory decision makerswill be enabled to exercise theirdiscretion in accordance withagreements with an IndigenousNation. Again HaislaHereditary Chiefs cannot agreewith this statement. This in factgives recognition to "statutorydecision makers" as CrownTitle owners of our ancestral

lands and therefore authorityholders even before and inaccordance with future agree-ments.

It has been brought toour attention that negotiation ofthis document has been goingon for one year already beforewe hear anything. Because ofthe issues herein contained andothers we do not have confi-dence in you and your organi-zation to properly represent thetrue soveran interests of theHaisla Nation and respectfullyask you to stand down in thisendeavor until our issues can beaddressed in the proper forum.

Morris AmosChair, Haisla Hereditary ChiefsStrategic Alliance Committee

the Federal "1969 White Paper"Objectives and Endanger First NationsAboriginal Title & Rights

Previous attempts at extinguishment with consent:

1857 – Act for the Gradual Civilizationof the Indian Tribes in the Canadas1876 - Indian Act; unilateral imposi-tion of conditions so bad that manyrefused to register as “Status Indians.” 1926 – judicial technical review of BCland question is disposed of in Ottawaas irrelevant and not justiceable1969 - White Paper Policy1974, ‘86 - Comprehensive Claims Policy - attempts purchase of extin-guishment by aboriginal title holders1993-present - BC Treaty Commission,agreements indemnify BC, Canada,and cede aboriginal title for fee simple2000 - First Nations Governance Act;Ottawa determines native government2009 - Recognition and reconciliation

legislation

The BC Treaty Negotiating Times Page 3Summer 2009

Provincial Recognition Legislation

lookat

this:The FirstNations Summitcommunicationsmanager con-firms that theupcoming meet-ings scheduled,six dates, are an

opportunity for the FNLC to updateChiefs and “get feedback.” Surelythis is a little after the fact, consider-ing the Council was prepared to havethat legislation go through Parliamenttwo months ago.

And what can they providefeedback on? A discussion paper. “Noone gets to see draft legislation,” saysColin Braker, FNS.

Will there be a criteria of con-sent from at least a majority of tribesor communities before this legislativeproposal continues moving forward?

Chief Stewart Phillip says no to thisquestion. There is no notice of a vot-ing date for All Chiefs. None of theLeadership Council has put their jobon the block and called for an elec-tion within their respective assembly.Ryneld Starr, of the AFN BC, says,“the meetings are informational, somembers of the communities cancome out and hear more about therecognition legislation.”

But why do we need to knowthis information if our opinions areirreleveant to BC and the Council?

Six regional meetings scheduled after theLeadership Council supported BC to table thelegislation before May 12?

How they are trying to sell it to you:

And what you stand to lose:

The proposed legislation is promoted as recognizing yourAboriginal Title. The Canadian courts have already recog-nized Aboriginal Title and Rights we do not need theprovince to recognize our title through legislation.

In exchange for the recognition of Aboriginal Title, theprovince demands that indigenous peoples have to recognize Crown title. This is a big concession – our ancestors taught us that we can never allow theprovince to have a say in our territories.

The proposed provincial recognition legislation will not takeaway from federal and provincial government powers.

The proposed legislation does not recognize indigenous sov-ereignty over our territories, but forces us to share our ter-ritory with the province.

The First Nations Leadership Council tells you that followingthe legislation you will no longer have to go to court toprove your Aboriginal Title and Rights.

Don’t be misled – this is only true as long as you participateunder the proposed provincial processes. If you do notagree with the province on something and assert yourAboriginal Title, the province will still argue against the exis-tence of your Aboriginal Title and Rights in court.

The First Nations Leadership council says the key advantageof the proposed legislation is that the province will engagein processes for shared decision-making and revenue andbenefit-sharing.

We own our land and resources and do not have to sharewith the province. The revenue and benefit-sharing theprovince proposes would be under provincial law and oper-ate according to a formula determined by the province .

Joint decision-making is not a veto right for indigenous peo-ples, the provincial government will maintain final decision-making authority.

As indigenous peoples you have sovereignty over your terri-tories, this means no development can happen withoutyour free prior informed consent.

Nobody knows how the money is going to be shared. TheFirst Nations Leadership Council cannot even tell you howmuch money the province will put on the table.

The First Nations Leadership council is asking you to handcontrol over your territory to the province without anythingin return. The province will control which and how muchmoney they will give us under these processes.

The First Nations Leadership Council asks you to standbehind them because business does not like the proposedprovincial recognition act.

Industry stands to benefit the most from the legislation as itis proposed now, because it will secure them access toindigenous territories and deliver the “certainty” they havebeen calling for. The Association for Mineral Exploration ofBC has already endorsed the proposed legislation.

The provincial legislation foresees a “nation-rebuildingprocess”. The discussion paper describes a re-constitutednation as “one political structure with a mandate to enterinto shared decision-making and revenue and benefit shar-ing agreements with the Crown, the Indigenous Nation willbe considered to be reconstituted for the purposes of thisAct.” Emphasis added

As indigenous peoples we have our own inherent governingstructures and authentic decision-making processes. Theproposed provincial legislation would allow for amalgama-tion of Indian Act bands (First Nations). The province willdecide which entities they are ready to negotiate with andwill favor Aboriginal organizations that mirror governmentbureaucracies and corporate structures. This underminesour sovereignty and is an attempt to assimilate indigenouspeoples.

The BC Treaty Negotiating TimesPage 4 Issue #3

Who is developingthis legislation?

lookat

this

He argued Terra Nullius inDelgamuukw. As a crown prosecu-tor in 1994, he addressed a BCcourt and said that the Líl’wathave no recognizable title or rightthat would justify their roadblock-ing logging operations, and theyare simply guilty of contempt ofcourt. He said there is no constitu-tional question; there are no con-stitutional issues at play, that theprovincial Crown does not recog-nize Aboriginal Title and Rightsbecause they do not exist. He suedBC in protest of the Nisga’a extin-guishment agreement - because itafforded some municipal powersof self-government.

It must be strange, then, todiscover that he is the one engi-neering the so-called “Recognitionand Reconciliation” legislation.Well, he is certainly familiar withthe issues. He defended the crown

against the houses of theGitxsan and Wetsuwetenin Delgamuukw.

Mr. Plant was oneof three who sued BC forcreating a land claims settlementwith Nisga’a that gave them(minimal) self-government pow-ers, comparable to those a munici-pality would have. The other twonamed in the case were GordonCampbell, now Premier of BC,and Mike deJong, now Minister ofAboriginal Affairs andReconciliation.

They have not abandonedtheir sense of humour in namingthe Ministry responsible for abo-riginal issues “MAAR,” or “mar,”which means to disfigure andmake unrecognizable.

Geoff Plant resigned fromthe office of the Attorney Generalin 2005, after four years in which

he cut legal aid to shreds andwalked away from teachers, andamid considerable controversy todo with issues of missing and/ormurdered aboriginal women,women’s rights in general, anddeal-making at Sun Peaks skiresort. He continues as a lawyer atbar.

In 2001 when theSkewelkwek’welt ProtectionCenter was fighting to stop theexpansion of Sun Peaks Ski

Resort, Geoff Plant was theAttorney General of BC. GeoffPlant arranged a meeting withArthur Manuel who was one of afew chiefs who supportedSkwelkwek’welt ProtectionCenter at Sun Peaks.

Plant asked that theSecwepemc Peoples should leavethe mountain and negotiate.Manuel told Plant that only thepeople who were up the mountaincould decide that. When Manuelrelayed the message from Plant,the Skwelkwek’welt ProtectionCenter said that they will agree toleave the mountain if the provincewould impose a moratorium on theexpansion of Sun Peaks whennegotiations were happening.Plant refused to impose a morato-rium and told Chief Manuel hewas disappointed that they couldnot come up with an agreement.

Roadblockers were laterarrested, and Sun Peaks expanded.

To Plant’s work on the leg-islation, Minister Mike deJongtold a CPAC debate a year ago,“His inclusion as part of the gov-ernment team was welcomed byfirst nations, and they see that as apositive development.” Whoeversupports this legislation under hisdirection must be either very for-getful or very ambitious.

The natural progression ofa career in Indian fighting doeslead to government, Plant followsin the highly regrettable footstepsof such genocidal maniacs of BCas Amor deCosmos, JosephTrutch, and Ujjal Dossanjh. Andso does a career in selling out thegrassroots aboriginal title holderslead to political advancement.

By Kerry Coast

“In fact the proposalacknowledgesprovincialauthority tomake decisionsand to infringeaboriginal rightsand title.”

Geoff Plant, Partner in the law firm HeenanBlaikie, is shown here speaking at the April 27, 2009 Association for MineralExploration British Columbia Speaker Seriesevent. It’s on their website, amebc.ca.Photo by Jonathan Buchanan.

The same guys who sued BC, Canada andNisga’a because “no aboriginal right to self-government exists” are now trying to convince you to “share decisions” with them, using “aboriginal laws”

In 2000, today’s Minister of AboriginalAffairs and Reconciliation, the Premier of BC,and the now legal advisor of the recognition leg-islation were just as busy trying to eradicate theforce of aboriginal title from the face of BC asthey are now that they are the government.

Michael deJong, Gordon Campbell andGeoffrey Plant sued the Attorney General ofBritish Columbia, the Attorney General ofCanada, and the Nisga’a Nation. They arguedagainst, “… those portions of the treaty whichallocate legislative power in the Nisga’aGovernment, ...The heart of this argument is thatany right to such self-government or legislative

power was extinguished at the time ofConfederation. ...They say that in 1867, whenthe then British North America Act was enacted,although other aboriginal rights including abo-riginal title survived, any right to self-govern-ment did not. …leaving no legislative powersfor aboriginal people and their governments.”(Williamson J’s reasons, Supreme Court of BC)

Perhaps this sheds light on their legisla-tive plan that any new forms of First Nations“government,” or, “rebuilding” could only hap-pen under a provincially sponsored commission.It’s also a insightful into the government’smeaning when it says “shared decision makingmeans we both bring our laws to the table.”

The judge disagreed with their view anddismissed the case. This may further explain thegovernment’s preference to get away from thecourts - there’s nothing like extinguishment withconsent, negotiated fair and square.

Geoff Plant is a professional Indian fighter. He is now advising the government of BC, of which hewas Attorney General in 2001,on the Recognition andReconciliation Act.

The BC Treaty Negotiating Times Page 5Summer 2009

There are many reasonswhy we, as the people of the land,should not support the recognitionact proposed by the Provincialgovernment, Union of BC IndianChiefs and the Summit and the BCAFN. This act, if passed, willbecome legislation and the peopleit directly affects know the impli-cations and consequences. Thisproposed “recognition” act wascrafted in secrecy without theknowledge and consent of the peo-ple who will be the most affected.

It was crafted by individu-als who cannot make decisions onbehalf of our future generations.

It is clear (see the FNLC’sletter of congratulations to GordonCampbell after the recent election)that the UBCIC, the Summit, andthe BC AFN support the LiberalParty. They must understand thatin supporting this governmentthey are supporting economicexploitation of the land in all itsmany forms – mining, fish farm-ing, hydro projects on creeks andstream, mass scale tourism, andthe list goes on.

Supporting this govern-ment means supporting the crimi-nalization of the people who tookstrong stands to protect our landsfrom destruction. All of this con-tributes to the extinguishment ofTitle and Rights and the extinctionof us as peoples of the land

When the UBCIC,Summit, and BC AFN recognizethe jurisdiction of the province,they are undermining the strongposition traditionally taken by ourElders to protect our land andresponsibilities to the land. Wemust not accept the decisionsmade on our behalf by a smallgroup of individuals, when thesedecisions are so detrimental to thefuture of the land.

The position of ourSecwepemc Elders has alwaysbeen strong. Within theSecwepemc and OkanaganNations, our position comes fromthe Confederated Traditional

Okanagan-Shuswap Declarationwhich, in part, states, “We havenever knowingly sold our title toour land or the rights to use or theresources on it. We never madeany Agreements which give anyother Nation the right to take anyof these Lands and Resources intotheir possession.”

Our Elders have repeatedlysaid, “we never signed our namesto anything”. We know that theprovince has no deed – no proof ofhow they obtained their assumedownership to the land. How canthey make offers of resource shar-ing on what they do not own. Weknow we are coming from a placeof strength and they, as settlers, arecoming from a place of weakness.We know we don’t have to proveanything.

The provincial govern-ment, on the other hand, knowsthat they do not have title to ourlands. Hence their obsession withland and resource uncertainty andloss of socio-economic opportuni-ties. The goal of the province hasalways been theft of the land anddevelopment of the “resources”on it. Geoff Plant in his Silk Purseor Sow’s Ear? clearly illustratesthe intentions of the province. Hestates, “Fundamentally this under-taking is not about changing own-ership or jurisdiction, but aboutfinding new ways of engaging andbetter processes for deciding whathappens on the land.” He furtherstates, “In fact, the proposalacknowledges provincial authorityto make decisions and the abilityto infringe aboriginal rights andtitle.” He promises that, “existingland interests including fee simpleare fully protected,” and, “crowntitle is expressly protected.”Clearly, the province has alreadydecided on how this new arrange-ment will work.

Plant’s whole commentarysmacks of paternalism and superi-ority. This recognition legislationoffers to, “provide tools to assist inthe process of Nation re-building.”

Surely, we must be able to under-take Nation building ourselveswithin our respective Nations. Wemust remember how their tools ofcolonization (including gover-nance) are still impacting us today.

Within this proposed legis-lation, how would our people befully involved when Plants saysthings like “shared-decision mak-ing should not be confused withjoint decision-making. In particu-lar, shared decision does not auto-matically mean that both partieshave to agree before some action isundertaken.” We should knowfrom experience whose actionswill be promoted. It certainlywon’t be ours.

We have to clearly under-stand the consequences of agree-ing to such legislation. One ofwhich is recognizing the provinceas the legitimate owner of the landand resources. This will surely setthe tone for the work needed torestore our traditional territories.

Geoff Plant comments“crown title is expressly protect-ed,” so does this mean that “crownland” will be forever protected bylegislation? As we know, theentire province is carved up intofee simple, parks, forestry andmining tenures, cattle grazing,recreation areas, and “crownland”. So what land will be left to

take back into our control? Are weto be satisfied with “revenue shar-ing”, remain on our little reserves,and let them assume ownership ofthe land?

So what are we, the peopleoutside of the decision-makingbodies, to do? Our first prioritymust be to protect the land and theculture and language emanatingfrom the land.

We must restore ourIndigenous values and beliefs toguide us in all our decisions. Wemust rebuild our traditional formsof governance based on our way oflife. We must dismantle colonialand neo-colonial institutionswhich continue to colonize andoppress us. We must assert anduphold our responsibility, asIndigenous peoples, to protect theland and what it provides for us.We can achieve this through sus-tainable practices rather thanaccepting “dirty money” fromindustries which destroy the land.

Our goal must be self-determination. That was one of theoriginal goals of the UBCIC. Thiswill mean developing uncompro-mising leaders committed to free-dom. Our leaders must be ethical,principled, have the moral authori-ty to lead, and consider the effectsof decisions on the next seven gen-erations. Our governance modelsmust be responsive to the needs ofthe people. Collective, not indi-vidual, decisions must be made.Our governance models must benon-hierarchical, non-coercive andnon-authoritarian.

When we take the time towork on rebuilding our Nationsourselves, others will no longermake decisions on our behalf. Asis stands, the UBCIC, the Summit,and the BC AFN collaborated withthe province in this proposedrecognition legislation withoutinput of the people.

Now regional meetings arebeing set up. It is kind of late forthat, especially with the provincialgovernment’s confidence that itwill become legislation. If theFNLC were sincere about involv-ing the people, it should have hap-pened from the onset.

Secwepemc

“We must restore our Indigenous values and beliefs to guide us in all our decisions. We must rebuild our traditional forms of governance based on our way of life. We must dismantle colonialand neo-colonial institutionswhich continue to oppress us. We must assert and upholdour responsibility, as Indigenous peoples, to protect the land and what it provides for us. We can achieve this through sustainable practicesrather than by accepting “dirty money” from industrieswhich destroy the land.”

In the words of Janice BillyWhose Land Is This?We Should Not Accept the Proposed Act

The BC Treaty Negotiating TimesPage 6 Issue #3

May 19,2009In an interview by phone with Kerry Coast, Editor, The St'át'imc Runner newspaper

Coast: What is the objective ofthese six meetings you haveplanned regarding the recognitionlegislation?Phillip: We're going out to get theinformation to the people, to dispelsome rumours that have comeabout. There was a discussionpaper by Louise Mandell and aresponse to that by Arthur Manuel,and we just want to respond tosome of the recurring concerns.…We attended a meeting inSpallumcheen, with theSecwepemc Chiefs and Arthur wasthere. Concerns were raised andwe answered those.

I've also been meeting withthe Mining Association, theMinerals Association and industry,talking about this legislation. I justspoke at Fort St. James to a confer-ence of the Mining Association ofCanada, there were over 300 dele-gates there. When big industrytakes issue with this, it tells mewe're moving in the right direc-tion. They're scared, they don'twant it, they're going to have to dosome things differently.Coast: You mean by the way of

sharing economic ben efitsof resource development.

Phillip: Yes, we will have to be compensated and included.

Coast: If there’s no legislation available for people to see and read, what are people at the upcoming meetings supposed to respond to?

Philip: You’re absolutely right thelegislation isn’t drafted, we’ll talkabout the legislative proposal.

Coast: What was the impetus for this legislative proposal?

Phillip: Well, it's a hundred andfifty year long process. (ChiefPhilip recounted a history of the

Allied Tribes, Nisga'a Chiefsgoing to England, the formation ofthe Union, and several other land-marks)

In 2004, after Haida andTaku River Tlingit, those were bigwins for us, then Attorney GeneralGeoff Plant and Premier Campbellcame to a regularly scheduledmeeting of the UBCIC and said,"there must be a better way ofdoing this."

That conversation wascontinued later, on our part we hada regularly scheduled UBCICAnnual General Assembly sched-uled for October of 2004. A day ortwo before our meeting, there wasa triple murder in Penticton, relat-ed to selling drugs. Ittore the communityapart. That meetingwas delayed untilDecember. The mur-ders had torn throughour community, andthrough all of ourcommunities, and itwas a very emotionalmeeting. We said thatwe need to put ourdifferences aside andwork togetherbecause of what ishappening in our communities,and we had better think about ourchildren.

It was decided at thatUBCIC AGA that we needed tostrike a working organizationbetween the Assembly of FirstNations, the First Nations Summitand the Union.

In February 2005 we wentto the First Nations Summit'smeeting and presented some reso-lutions for developing our formalrelationship. It was at that point wefound out about their work withthe province on this new approach.I was asked point blank, "are youin?" I thought of my grandchil-dren, and said, "I'm in." That workthey were doing became known asthe New Relationship.

All of us were sitting at thesame table, which hadn't happenedsince 1969.

The essence of what thelegislation seeks to do is imple-ment the second line of the NewRelationship document, after youget past "We're all here to stay," itsays, “We agree to a new govern-ment-to-government relationshipbased on respect, recognition andaccommodation of aboriginal titleand rights.”

The legislation wouldaffect all other legislation. So, forinstance, the EnvironmentalAssessment process would have torecognize aboriginal title.Originally Campbell wanted to

have it legislatedbefore the election,but because of thebacklash from busi-ness and industry,they pulled it.

Coast: I'm sureyou're aware ofstatements thePremier has made inpublic, like at 100Mile House wherehe informed thetown that the recog-

nition legislation would have noeffect on their developments, thatthe Fish Lake mine was sure to goahead. Meanwhile, that mine hasnot even come through anEnvironmental Assessment. Thenyou have Geoff Plant's lettersabout the legislation, assuringeveryone that it will not effective-ly change business as usual. Howdo you feel about that?Phillip: It doesn't surprise me. Itwas an election. Campbell is just apolitician. He says what he needsto to get elected.As for Fish Lake, the Prosperitymine that wants to turn it into atailings pond, that is a horrendousprospect and we will fight themagain, we won on Kemess North.The worst thing that can happen to

us is apathy. This legislation hasbrought out a lot of controversy.

Coast: When will it be tabled?Phillip: There are a thousand sto-ries on that; quickly, not quickly.Am I concerned about the Premiergoing around the province talkingout of both sides of his mouth? No.

Coast: Currently we have somecourt rulings that say aboriginaltitle exists, and that the crownmust protect that interest, but itcan rely on the socio-economicmores of the majority of the popu-lation to justify infringement. Ican't help wondering, if you, theFirst Nations Leadership Council,acknowledge crown title here,what would make them bother jus-tifying infringement anymore?Phillip: (silence) I've heard thisquestion before. I can't recall whatthe response is to that question. Ihaven't heard anything up to thispoint.

Coast: Why are you continuing topromote the legislation when thereis such widespread opposition to itfrom many of the tribes?Phillip: I don't think there's a lotof opposition, I think there's a lotof concern, and that's why we'regoing around to these meetings.

Coast: At the Spallumcheen meet-ing, were peoples' concernsanswered? Did they leave thatmeeting satisfied?Phillip: All concerns are expresslynoted, and in the event of a con-cern that has not been addressed,it's got to change the process.People just can't get beyond a deepmistrust of the government. IfLouise wasn't involved as closelyand deeply as she is, and with herlong history with us, I wouldn't beso confident.

Coast: Do you have some mini-mum criteria for popular supportamong the tribes for this legisla-tion before you proceed with this?Phillip: No. The governmentwanted it done before the election.

Grand Chief Stewart Phillip in conversation

Question:“Do you have some minimum criteria for popularsupport among the tribes for this legislation beforeyou proceed further with it?”

Grand Chief Phillip: “No.”

Penticton, Okanagan, President, Union of BC Indian Chiefs

Coast: If you, the First Nations

Leadership Council,acknowledge crown title,what would make them

bother justifying infringement anymore?

Phillip: (silence) I've heard

this question before.I can't recall

what the response is.

The BC Treaty Negotiating Times Page 7Summer 2009

“I can’t recognize crowntitle. Back in the day when they firstcame here, they were talking aboutthe one third – one third – one thirdsharing of the land, one to us, one tothe government, and one for thepeople. Now they’re talking aboutjust a little bit for that recognition,like in the Forest and RangeAgreements.

You know how I feel aboutthe governments? They always usethe big “G” for themselves, and forour governments they always usethe little “g.” Ours should have thebig “G,” and both of theirs shouldonly have little “g”s. This recogni-tion legislation is just like what hap-pened with the Children andFamilies legislation – none of whatwent into that was the First Nations’doing, it all came from the govern-ment, and then Tom Christensenwent ahead to put on the table inparliament, and I had to talk itdown. I went to a long house meet-ing on Vancouver Island to explainto those people why we did what wedid, because they were in favour ofit, but they were the only ones whowere.

Stewart and those guys haveall gone to school to learn to bepolitically correct. I never had thatopportunity. I get into troublebecause of my mouth. The Elderscan see I speak straight from myheart. Some of those Elders comeup to me and call me Kukwpi7(Chief), and that’s the best kind ofrecognition I could ever want.The First Nations LeadershipCouncil does not have the first andfinal say for all BC, they are sup-posed to be advocates that open thedoor for the nations. I’ve alwayswanted for us all to work together,but it’s got to go to the communi-ties.

In 1995/96 when I first was elected,that’s when we were in the treatyprocess and I guess those guysthought they were going to groomme. But then I decided I had tostand up for the people and the com-munity. My people don’t belong tome, I belong to them. In August2001, CNN came to do an interviewwith me at home. They asked aquestion about crown land, and Itold her, there’s no crown landaround here. I’m tired of the waythe other St’át’imc chiefs talk aboutme and my activities in theLeadership Council. I’m not a “yes”boy in there.I can never accept crown title. I toldthose guys (FNLC executive) inVancouver at a meeting. I even readfrom the Declarations and thememorials, but I don’t think theywere listening. Even at the KelownaAccord, when they got all the rightwords they wanted on the paper,they were about to have Andy Scott,Minister of Indian Affairs, to signoff on it. I stopped them, and said,“I want the prime Minister’s signa-ture on that.” So we got that. I don’tneed a special title to do what I do.If I was the president I would be thesame way.One time a group of teachers fromthe Cariboo stopped by our store ontheir way home from a meeting.They had wanted me at that meet-ing, but I was busy. They came toask if I would run for MLA in the

Cariboo. Not only natives there hadheard of me and liked what I wasdoing, but non-natives too. Theysaid I could get voted in, they askedme to run. I said I couldn’t do thatbecause I’m not Canadian. Had Idone that, I could have talked theway I talk, I could have got supportfrom them, but in my heart I wouldsee myself as a sell-out. It wouldhave been good money, a good pen-sion, but that’s not where I neededto be.

Robert Shintah Political Chief Tsk’wáy’lacw, St’át’imc Vice President, Union of BC Indian Chiefs

lookat

this:

“I can’t recognize crown title.Elders come up to me and call me Kukwpi7 (Chief), and that’s the best kind ofrecognition I could ever want.”

Chief Shintah is pictured hereat last year’s St’át’imcGathering, with Chief MarilynBaptiste of Xeni Gwetin,Tsilhqot’in; Chief Rose Hallerof High Bar, Secwepemc;Dorothy Voight, Tsilhqot’in,and Rose Smith, Samáhquam,St’át’imc.

What is the First NationsLeadership Council?

This Council is the executiveof the First Nations Summit,the Assembly of FirstNations, BC region, and theUnion of BC Indian Chiefs.Three Members are from theUnion, President GrandChief Stewart Phillip,Okanagan; Vice PresidentRobert Shintah, St'át'imc;

and Secretary Lynda Price,Secwepemc. For the Summitthere is Chief Doug Kelly,Sto:lo, Dan Smith, CapeMudge, and Grand ChiefEdward John, CarrierSekani. For AFN, regionalChief Shawn Atleo, Ahousat.There are some major differ-ences in the mandates ofthese organizations.The Summit was formed in1993 to provide a council for

all First Nations involved inthe BC treaty process. TheUnion was formed in 1969 tounite leadership in opposi-tion to the Trudaeu /Chretien federal White PaperPolicy, aimed at makingIndian Status irrelevant andexisting treaties andReserves null. The AFN isthe transformed NationalIndian Brotherhood, incorpo-rated in 1974 - then trans-

forming from the Federation.In 1982 the name waschanged and federal sponsor-ship was provided. Theincorporation remains thesame.It seems that each entity pro-vided resolutions from themembership to form thiscoalition in 2005. The ques-tion that remains is, whatwould they have in common?

The BC Treaty Negotiating TimesPage 8 Issue #3

Provincial Recognition andReconciliation Legislation – Isthis the Bill of sale for ourlands and resources?

1911 Memorial to Frank Oliver“Premier McBride, speak-

ing for the B.C. government, said“We Indians had no right or titleto the unsurrendered lands of theprovince.” We can not possiblyhave rights in any surrenderedlands, because in the first placethey would not be ours if we sur-rendered them, and secondly, wehave never surrendered any lands.This means that the B.C. govern-ment asserts that we have noclaim or title to the lands of thiscountry. Our tribal territorieswhich we have held from timeimmemorial, often at cost ofblood, are ours no longer ifPremier McBride is correct.

We are all beggars, andlandless in our own country. Wetold him through one of our chiefswe were of the opposite opinionfrom him, and claimed our coun-tries as hitherto.

We asked that the questionbetween us be submitted for set-tlement to the highest courts, forhow otherwise can it now be set-tled? His answer was: “There wasno question to settle or submit tothe courts.”

Now how can this be?”

Our leaders in 1910 and 1911clearly stated that the Provincehas no claim of ownership; thatour relationship was Nation toNation with the Federal govern-ment. We have for the past 100years advocated to Ottawa, to theUnited Kingdom and to the courtsby way of declarations, petitionsand other legal and politicalprocesses that our relationship hasalways been with the Federalcrown, first established with theRoyal Proclamation of 1763.. Why is it that for the lasttwenty years that First Nationspolitical organizations haveinstead focused on negotiatingwith the provincial government?In the BCTC, removing the fedgov from their legal resp to createa Nation to Nation process whereour Nations can participate on anequally footing? The BC Treatyprocess is a legislative means toextinguish our title to our home-

lands. We have never seen the BCgovernment as the entity onwhich we would focus our atten-tion related the land question. TheBC government for 150 years hasstolen our lands from us; stolenall our resources, removed ourchildren, imposed laws on us toforce us off our lands andresources, and banned our spiritu-al practices.

Over the past 20 years wehave seen the Indian politicalleadership of the First NationsSummit and the BCAFN immersethemselves in negotiating theextinguishment of aboriginal title. Then the UBCIC joined in andbecame a part of this process vis avis the Leadership Council. TheLeadership Council is more con-cerned about money than title andrights for Indigenous citizens. . Almost three decades ago Ispoke about how Section 35, ifleft un-defined, was an emptybox; that the courts would defineour title and rights. Similarly, thisprovincial legislation, if left unde-fined by us, is an empty legisla-tion that only exists to recognizeProvincial claims of title. It givesthe Premier economic certaintyover our lands and resources. Wewill remain in poverty, landless inour country. The LeadershipCouncil has effectively given BCthe Bill of Sale to our territoriesand resources. The reverse onusof proof where our ancestors havealways requested “show me theBill of Sale for our lands?” is nolonger on the table.

We maintain a sacred dutyto those yet unborn and our futuregenerations to maintain ourindigenous peoples’ rights and to

engage only in processes that arebased on a nation-to-nation rela-tionship and that ensure therecognition of indigenous peo-ples’ rights rather than the legit-imization of claims of the provin-cial government.

What can you do as anordinary Indian who lives off theland and our wealth, to continueto use your lands, your traditionsand ceremonies to reconnect towho you are? What do you haveto do to never ever let an outsidepolitical leader, whether Indian orwhite, sell your title for mere trin-kets and beads, or this ‘recogni-tion legislation,’ that creates theillusion of recognition; whilebusiness as usual continues as ourlands, water and resources aresold right from under our feet?

You can get involved.

When they first came among usthere were only Indians here. Theyfound the people of each tribesupreme in their own territory, andhaving tribal boundaries knownand recognized by all. The countryof each tribe was just the same asa very large farm or ranch(belonging to all the people of thetribe) from which they gatheredtheir food and clothing, etc., fishwhich they got in plenty for food,grass and vegetation on whichtheir horses grazed and the gamelived, and much of which fur-nished materials for manufactures.Thus all the necessaries of lifewere obtained in abundance fromthe lands of each tribe, and all thepeople had equal rights of accessto everything they required. Youwill see the ranch of each tribewas the same as its life; without itthe people could not have lived.

In the words of Kukpi7 Wayne ChristianSplatsín, SecwepemcSpokesperson,Shuswap Nation Tribal Council

“We do not consider your letter an appropriate response to the

concerns raised by our people at theSplatsin community meeting.

We refuse to allow our concerns to beminimized and reduced to the

selective list of issues that wereincluded in your letter.”

The Secwepemc Chiefs invited the LeadershipCouncil to Splatsín to explain the recognitionlegislation, and answer their questions.

“As the British Columbia Government through Mr. McBride hasrefused to consider any means of settling these matters legally, we call

on the Dominion Government at Ottawa—the central and supremeGovernment of Canada—to have the question of title to our lands of

this country brought into court and settled. We appeal to you for whatwe consider justice, and what we think you would yourself considerjustice if you were in our position. Who has the power to help us in

this matter? Only the Federal Government, and we look to them.”1911 Memorial to Frank Oliver

The BC Treaty Negotiating Times Page 9Summer 2009

DRAFT RESOLUTIONRe: Proposed ProvincialRecognition and ReconciliationLegislationWHEREAS as IndigenousPeopleswe are nations who holdsupreme authority over our land,resources, and all people in our ter-ritories. We have our own gover-nance systems, laws, customs andtraditions since time immemorialand therefore cannot be subject tothe colonial doctrines of discovery,including terra nullius. It is basedon these illegal doctrines that theCrown has claimed jurisdiction andownership over our territories. Thedoctrine of terra nullius has nowbeen rejected by the SupremeCourt of Canada and internationalhuman rights bodies have chal-lenged the doctrines of discovery.Still the Crown has not been ableto reconcile or remedy their illegit-imate title and jurisdiction. WHEREAS as Indigenous Peopleswe have never ceded, nor sold, norsurrendered our control over ourterritories, peoples, lands andresources. We have always assertedour right to self-determination andto engage with the federal Crownon a nation-to-nation basis.WHEREAS the CanadianConstitution, in the British NorthAmerica Act (1867) sets out thedivision of powers between thefederal and provincial governmentsin Sections 91 and 92 respectively.This division of powers has beenused to date by these governmentsto claim mutually exclusive juris-diction over our territories, therebyviolating our human rights asindigenous peoples, especially ourright to self-determination underinternational law. WHEREAS the scope of the pro-posed recognition and reconcilia-tion legislation entrenches businessas usual by not altering the divisionof powers between the federal andprovincial government to recognizeIndigenous Peoples as an equalpower. Instead the current scopesets out that “nothing in this Actalters, or can be interpreted to alter,either negatively or positively, thefederal and provincial division ofpowers or the jurisdiction of eitherthe province of British Columbiaor any indigenous nation under theconstitution of Canada”. WHEREAS the courts have ruledthat the province has no jurisdic-tion and control over AboriginalTitle lands and Section 91(24)lands. In turn the province is now

seeking to justify such a claimthrough the consent of FirstNations provincial political organi-zations to this proposed legislativeprocess, although they are not therightful title holders. WHEREAS representatives ofFirst Nations provincial politicalorganizations, and the First NationsLeadership Council, do not havejurisdiction over indigenous territo-ries and resources, since these arecollectively held by IndigenousPeoples as the rightful title holdersaccording to indigenous laws andbased on our own inherent politicalgoverning systems. The FirstNations provincial political organi-zations are not the agents ofindigenous peoples, they have noteven sought the consent of therightful title holders and therebyviolate indigenous peoples’ inher-ent right to self-determination.WHEREAS through this processset up between the province ofBritish Columbia and First Nationsprovincial political organizations,they attempt to bestow upon eachother jurisdiction and control thatneither of them have. WHEREAS the proposed provin-cial recognition and reconciliationlegislation is an attempt to remedy,consolidate, reconcile, and recog-nize provincial title over indige-nous territories. Through theprocess, endorsed by the FirstNations Leadership Council, theprovince is attempting to usurp leg-islative power to control and nar-rowly define Aboriginal Title andRights and make it subject toprovincial jurisdiction. The pro-posed legislation does not provideany additional protection forindigenous rights, rather it ensurescertainty for the province, industryand third parties.WHEREAS as Indigenous Peopleswe have international rights,including the right to self-determi-nation that states are obligated torespect. Our ancestors have trav-elled to England to raise concernswith the King and Queen and ourpeoples have sought and achievedthe recognition of our indigenousrights by the United Nations. WHEREAS our ancestors under-stood the dangers of having ourAboriginal Title and rights abrogat-ed domestically and having ourpeoples assimilated under theprovincial government system. TheUnion of British Columbia IndianChiefs was founded in oppositionto the 1969 White Paper attempting

to transfer authority over Indiansand lands reserved for Indians tothe province of British Columbia.Our elders organized under thetheme “our land is our culture” andalways reminded us not to recog-nize provincial title. WHEREAS we also opposed thepatriation of the Constitution ofCanada in 1980 and 1981 byorganizing the ConstitutionExpress to Ottawa, the UnitedNations and Europe, asserting thatthere were three founding nationsof Canada: Aboriginal peoples, theFrench, and the English. WHEREAS we secured recogni-tion and protection of Aboriginaland treaty rights in Section 35(1)of the Constitution of Canada(1982), which has since been usedby the courts, but not implementedby the federal and provincial gov-ernments who continue to claimmutually exclusive jurisdiction andtitle over our territories. This vio-lates the rule of law and constitutesa breach of the constitution ofCanada, since the executive branchviolates the highest law of Canadaand the direction of the highestcourts.WHEREAS Canada is the onlycountry in the world to twice havevoted against the UN Declarationon the Rights of IndigenousPeoples(UNDRIP), adopted by theUN General Assembly onSeptember 13, 2007, which sets outinternational principles and mini-mum standards for the protectionof indigenous rights, including theright to self-determination, indige-nous land rights and human rights. THEREFORE BE ITRESOLVED that neither theprovince of British Columbia, norrepresentatives of First Nationsprovincial political organizationshave jurisdiction or direct or dele-gated decision-making power overour Aboriginal Title and Rights. THEREFORE BE IT FURTHERRESOLVED that provincial legis-lation on reconciliation and recog-nition will only consolidate provin-cial jurisdiction and undermineindigenous jurisdiction, since itviolates the nation-to-nation princi-ple that mandates that we engagewith the federal Crown on anation-to-nation basis, rather thanwith lower level governments thathold no powers under internationallaw and have no jurisdiction inregard to our Aboriginal Title andRights.THEREFORE BE IT FURTHERRESOLVED that the first step hasto be to secure federal legislativerecognition of Aboriginal Title andRights based on the adoption of

UN Declaration on the Rights ofIndigenous Peoples and the princi-ples enshrined in it. This has toinclude the revision of the federalComprehensive Claims Policy cur-rently aiming at de facto extin-guishment of Aboriginal Title. THEREFORE BE ITRESOLVED that we reject thecurrent scope of the proposedprovincial legislation that entrench-es business as usual by not alteringthe division of powers between thefederal and provincial governmentto recognize indigenous jurisdicTHEREFORE BE IT FURTHERRESOLVED that we refuse to becoerced into the proposed processunder the current timeline, dictatedby the provincial government’selection schedule and platform.The current process does not allowfor any time to engage IndigenousPeoples as the rightful title holders.Neither can any informed decisionbe taken if any legislation affectingIndigenous Peoples is not tabledand open for amendment directlyby indigenous peoples. The repre-sentatives of the First Nationspolitical provincial organizationsand the all-chiefs forums (2007-2009) organized by them do nothave the authority and jurisdictionto make decisions over AboriginalTitle and Rights. THEREFORE BE IT FURTHERRESOLVED that we will seek alegal opinion regarding the consti-tutional validity of the proposedprovincial reconciliation and recog-nition legislation and the impact itwill have on Aboriginal Title andRights and on the ability of futuregenerations to benefit from our ter-ritories and resources. The draftlegislation will also be analyzed inlight of the principles and mini-mum standards set out in the UNDeclaration on the Rights ofIndigenous Peoples. THEREFORE BE IT FINALLYRESOLVED that we maintain asacred duty to those yet unborn andour future generations to maintainour indigenous peoples’ rights andto engage only in processes that arebased on a nation-to-nation rela-tionship and that ensure the recog-nition of indigenous peoples’ rightsrather than the legitimization ofclaims of the provincial govern-ment. We will therefore use thetime in the lead-up to the 2010Winter Olympic Games to pressurethe government of Canada and theprovince of British Columbia toensure full recognition ofAboriginal Title and Rights and theadoption of the UN Declaration onthe Rights of Indigenous Peoples.

A Resolution to Affirm Our Nation to Nation Relationship with CanadaThe Shuswap Nation Tribal Council passed this resolution in April.The St’át’imc Chiefs Council unanimously adopted this resolution during

their regular meeting in April this year.

The BC Treaty Negotiating TimesPage 10 Issue #3

Grand Chief Doug Kelly, Sto:lo:“I don’t need to be told how tolisten and who to listen to. I don’teven know enough about theLaurier Memorial. By continuingto reflect on documents from1910, how does that stop theprovince of BC from doing whatthey want to do? It has notstopped them to date! We canassert our laws all we want, evencreate a court case, but they willnot come. I think about money,my community is broke, becauseof the social housing programmeand because of the fights we havewith the province, we cannot takethem to court, we do not have themoney. Delgamuukw came down,we were dancing in the streetsand nothing changed. Haida camedown four years ago and wedanced again and I said – wait aminute, we were there before; andwe again waited for the province

to change their laws and it did notwork. So I do not know what dowe do? Hit our head or go tocourt and celebrate an empty vic-tory? The question is, do youwant to keep your people inpoverty? Look at the high-sound-ing principles (Declarations) andlook at the (economic) opportuni-ties available and you have theanswer to these questions.” TheChief was speaking at the firstcommunity meeting on the sub-ject, hosted by Splatsin, andSecwepemc Chiefs.

The First NationsLeadership Council recentlyreleased three short, nearly identi-cal, videos promoting the legisla-tion. The First Nations Summithired NATIONAL public relationsand consulting firm to coordinatetheir communications strategy.Grand Chief Ed John is shown

in the movie saying he believesthat, “when the government said,you don’t have to go to the courts,you don’t have to drag yourElders through the courts, youdon’t need to hire lawyers andyou don’t need this inaccessiblelegal system to exist and haveyour rights recognized, it lifted ahuge burden off my shoulders,personally.”

The narrator picksup, saying, “fewer court battles –that will be better for everyone,including business.”

Shawn Atleo, AFN region-al Chief, adds, “I think the otherside of the equation is, what kindof business has been lost due tothis conflict? How many investorsdid not come to this part of theworld because of the conflict thatexists between First Nations andbusiness and industry and govern-ment in Canada, in particular in

British Columbia, this act will seta new tone of mutual responsibili-ty and respect.” The narrator ofthe six minute video, coordinatedby NATIONAL, says,“Recognition and reconciliation –the promise of greater prosperityfor all British Columbians…”

“As for the recognitionlegislation, I see the Union of BCIndian Chiefs has passed a motionto go along with it. That organiza-tion was started 40 years ago byChiefs uniting to fight the White

in the words of First Nations Leadership Council Chiefs

lookat

this:Paper Policy, which is effectivelyexactly the same as this recogni-tion legislation, recognizingcrown title.” – Hereditary and Elected ChiefDon Harris, Xaxtsa7, St’át’imc

Chief Shawn Atleo, Ahousat

Grand Chief Stewart Phillip:“When I started out, I was

a very angry young man withbraids, red headband and fatigues.My worldview has changed, I haveeight grandchildren; we have terri-ble conditions of poverty on ourreserves and INAC comesnowhere near accommodating that.

“When I see the loads oflogs going by without any revenueto our people, realize we need totake every opportunity to share inthe revenue.”

Poverty. will BC legislation change it?

Forest and Range Agreementsare the only model of BC-ledbenefits sharing we have to lookto as an example of what mightcome.

The poverty of aboriginalcommunities seems to be the cor-nerstone of the argument forrecognition legislation. We are allvery aware of how the Forest andRange Agreement style of benefitsharing has “helped.” As this isthe only model of BC govern-ment-styled benefit sharing, it isunclear where the faith in provin-cially moderated benefits sharingagreements comes from. FRA’s, now Forest and RangeOpportunities, contribute $500

per on-Reserve head. This is com-pensation for all forestry activityon the traditional territory of thecommunity, overlapping or not.

This is a blanket policy,regardless of the First Nation’ssituation within timber supply –coastal red cedar or interiormountain pine beetle kill. It is notbased on the amount of timberremoved.

The economic benefitscalculations do not rely on theamount of timber harvested fromthe territory in question, only onthe number of people living onthe Reserve(s) in question.

One of the clauses in theagreement is that there will be no

disruption of forestry activity, orelse economic benefits will cease.The same goes for court action.Upon launching a court action,the given First Nation will be cutoff from the provincially con-trolled revenues. As well, theagreements are a signed statementthat all economic interests havebeen accommodated.

The agreements are notaccompanied by an agreed state-ment of logging plans, nor apromise to keep within any five-year projections or agreementsthat may exist at the time of sign-ing.

Minister Mike deJong,now Aboriginal Affairs Minister,

was Minister of Forests andRange when the FRAs were initi-ated.

The report of the FirstNations Forestry Council, itselfan FNLC body, dated March 4,2008:"It is true that a few firstnations have achieved modestsuccess in forestry. But this is notthe case for the vast majority….The job creation record of firstnations…is about 3 percent ofindustry standards. Cash receivedfrom government was inadequateto the real cost of developingthese tenures. These agreementsin themselves have judicial andpolitical origins."

The BC Treaty Negotiating Times Page 11Summer 2009

By Nicole Schabus The alternative approach is

to secure fundamental change andrecognize inherent jurisdiction ofindigenous peoples. This is knownas legal pluralism, wherein thenational constitution foresees thatstate and indigenous jurisdictioncoexist on equal footing.

This model has beenrecently implemented in a numberof new Latin American constitu-tions, that provide constitutionalprotection for indigenous peoplesand create a framework for theexercise of their jurisdiction andindigenous rights. The postulate ofa true pluralist model is thatindigenous peoples’ jurisdictionand rights are recognized and pro-tected in the constitution, creatinga framework for their self-determi-nation that is different from butequal to state powers, allowing forparallel jurisdiction and coexis-tence.

In this context even limit-ing clauses, introduced in many ofthe above mentioned constitution-al provisions, recognizing indige-nous rights as long as they con-form with the constitution ornational legislation, are problemat-ic and have been fought by indige-nous peoples. Even more so in thecontext of implementation legisla-tion, when there were attempts to

define indigenous rights in a limit-ing way or even more problematicto define or transcribe indigenouslaws falling back into the dis-course of the “recognition of cus-tomary law” of the 1980s, whereindigenous laws would be definedor limited through Western laws.

Indigenous peoples inLatin America have fought clauseslimiting their indigenous jurisdic-tion and have secured implemen-tation of legal pluralism on theground. Recently the governmentof Bolivia ratified the Declarationon the Rights of IndigenousPeoples into national law andannounced a further reform of itsconstitution to secure full recogni-tion of indigenous jurisdiction.

The proposed BC recogni-tion legislation is an example ofextremely limiting legislation.First and foremost we are onlydealing with provincial legislation,which is at a much lower level inthe Western legal system than con-stitutional law. The proposedmodel is not one of legal plural-ism, it wants to maintain the cur-rent nation state system and stipu-lates that the legislation will notchange anything in the currentmutually exclusive distribution ofpowers between the federal andprovincial government.

Take instead the example

of Australia, where the High Courtrecognized Native Title in the1992 Mabo Decision. Then PrimeMinister Keating remindedAustralians that for too long theyhad failed to ask themselves howwould they have felt if this hadhappened to them; and announcedlegislative changes to implementNative Title.

The result was the 1993Native Title Act, but the Labourgovernment was defeated in thefollowing election, by JohnHoward and his allies who prom-ised “bucketloads of extinguish-ment.” As Prime Minister, Howardannounced his 10 point plan toroll-back and limit the Native TitleAct, when he did not have the nec-essary majority to pass it, he ran adouble-dissolution election andpassed the amendments to the Act.

The revised legislation wascondemned by the United NationsHuman Rights Committee and

Australia threatened to withdrawfrom it. Some describe the decadeof Howard’s rule as transportingindigenous politics back into the1950’s and the dark ages of assim-ilation and discrimination.

This serves as an examplehow legislation can easily bechanged by a government opposedto indigenous rights. When theHoward government was defeatedlast year, the new Labour govern-ment under Prime Minister Ruddannounced important changes. InApril 2009 the Australian govern-ment signed on to the UNDeclaration on the Rights ofIndigenous Peoples, leaving theUS, Canada, and New Zealand theonly countries opposed. The gov-ernment is now considering a pro-posal by Australian Chief JusticeRobert French to reserve the bur-den of proof and no longer requireindigenous peoples to prove theirNative Title to their territories.

Alternative Approaches that truly recognize indigenous jurisdiction

“The alternativeapproach is known as

“legal pluralism,”where state and

indigenousjurisdiction coexiston equal footing.”

Canadian politicians at every level go on and on about howadvanced Canadais at accommodating aboriginal title. They export the comprehensive claimsprocess and the BC treatyprocess around the world, particularly to Africa.It’s not really somethingto brag about.

lookat

this:Federal Minister of Indian andNorthern Affairs Chuck Strahl wasin Lillooet in December of 2007,shortly after Canada refused to rat-ify the UN Declaration on theRights of Indigenous Peoples.

KC: When will Canada sign on to the Declaration? Strahl: I don't know when. We hadsome problems with parts of it thatwere inconsistent with ourConstitution and legislation. Wewere concerned with the balancing

of rights with non-natives. Forexample, rights to traditional terri-tory.

The courts have said thereis aboriginal rights and title, and sitdown and negotiate with the rest ofthe people. There's nothing aboutother people's rights in theDeclaration.

Indigenous peoples herehave never legally gained title toland.KC: Tsawwassen settled for $14 ahectare, while local real estate

"You say you want to sign something in thebest interests of all the people. Well, the FirstNations Education Steering Committee sayswe need more self-esteem, more pride, morelanguage and culture, so sign on to thatUnited Nations Declaration! That's what weneed for positive relations.” - Laureen Weget Whitney, Gitxsan, St’át’imc

to Minister Strahl

starts at $200 per square foot.Strahl:Who am I to say it's not agood deal? Tsawwassen Chief KimBaird got up in the legislature andliterally did a dance, she was sohappy to have a treaty. Who am Ito say she's wrong? And we arelooking at other possibilities, possi-bly a beefed up treaty process,alternatives in land use planning.As for aboriginal title, I admit it'sthere, I agree it's there. Whensomeone says, 'I want to deal withtitle,' I say, 'Let's talk.'"

The BC Treaty Negotiating TimesPage 12 Issue #3

Discussion Paper onInstructions forImplementing the NewRelationship

ContextIn 2005 the Province and the FirstNations Leadership Councilentered into a New Relationshipbased on respect, recognition andaccommodation of aboriginal titleand rights; respect for each othersrespective laws and responsibili-ties; and for the reconciliation ofAboriginal and Crown titles andjurisdictions. The parties agreed toestablish new processes and insti-tutions for shared decision-makingregarding land and resources andfor revenue and benefit sharing.The Parties wish to further imple-ment the commitments of the NewRelationship. This will be accom-plished through the enactment of alegislative package which includesthe development of regulations,template shared decision-makingand revenue and benefit sharingagreements and the issuance of aProclamation.

The parties propose tomove forward on the followingbasis:

LegislationThe Province will enact legislationconsisting of the following ele-ments:

PurposeThe purpose of the legisla-

tion will be to:

• recognize that Aboriginal rightsand title exist in British Columbiathroughout the territory of eachIndigenous Nation that is the prop-er title and rights holder, withoutrequirement of proof or strength ofclaim;• enable and guide the establish-ment of mechanisms for shared

decision-making inregard to planning, managementand tenuring decisions over landsand resources;• enable and guide the completionof revenue and benefit sharingagreements between IndigenousNations and the Province;• set out a vision of re-buildingIndigenous Nations and establish anew institution to support andfacilitate the process;• establish processes, mechanismsor a new institution to assist inresolving any disputes than mayarise regarding the interpretationor implementation of the legisla-tion, regulations or any agree-ments concluded pursuant to thelegislation.

Implementation of the Actis intended to foster reconciliation,cooperation and partnership andcontribute to certainty forIndigenous Nations and third par-ties.

ScopeThe Act will apply to all

ministries and provincial agencies,in particular those that have anydirect or indirect role in the man-agement of lands and resources inthe province and will take priorityover all other provincial statutesdealing with these subject matters.

The Act would make clearthat:• constitutional and common lawof Aboriginal rights and title andtreaty rights, including availableremedies, are unaffected by theAct.• the Act is not intended to affectthe status of existing provincialcrown granted interests or tenuresin land or resources, including feesimple title;• nothing in the Act creates anynew constitutional rights or law-making authority; and• nothing in the Act alters, or canbe interpreted to alter, either nega-

tively or positively, the federal andprovincial division of powers orthe jurisdiction of either theProvince of British Columbia orany Indigenous Nation under theConstitution of Canada.

Recognition PrinciplesThe Province would adopt

as a guiding standard for all of itsconduct and negotiations withIndigenous Nations, including thecreation and implementation of allenactments, policies and mandatesaffecting lands and resources, thefollowing recognition principles:

• That Indigenous Nations andpeoples pre-existed and continueto exist today and have theirown laws, governments, politicalstructures, territories and rightsinherited from theirancestors. The Crown recognizesthis without requirement of proof;• That Aboriginal rights and titleexist in British Columbia through-out the territory of eachIndigenous Nation that is the prop-er title and rights holder. TheCrown recognizes andaffirms this without requirement ofproof or strength of claim;• That Crown title exists withAboriginal title throughout BritishColumbia;• That both Aboriginal and Crowntitle come with obligations andresponsibilities;• That Aboriginal title is a pre-existing interest in land, is heldcollectively and includes ajurisdictional and economic com-ponent;• That there are existing treatyrights that exist in BritishColumbia and these must behonourably implemented; and• That the relationship betweenIndigenous Nations and the Crownis a government-togovernmentrelationship in which both partiesexercise authority to make deci-

sions including about how thelands and resources will be usedand the resources shared.

Indigenous Nation-Rebuilding

The reconstitution ofIndigenous Nations and the identi-fication of the proper title andrights holders are keys to achiev-ing certainty and the effectivefunctioning of the framework forshared decision-making and rev-enue and benefit sharing contem-plated by this Act.

In the Tsilhqot’in decision,the Court identified the proper titleand rights holder by reference tothe four common threads of lan-guage, customs, traditions andshared history. In that case, theproper title and rights holder wasthe Tsilhqot’in Nation and not anIndian Band.

Where the proper title andrights holders of an IndigenousNation are represented by onepolitical structure with a mandateto enter into shared decision-mak-ing and revenue and benefit shar-ing agreements with the Crown,the Indigenous Nation will be con-sidered to be reconstituted forthe purposes of this Act.

The Act will support andfacilitate the reconstitution ofIndigenous Nations by providingfor the establishment of anIndigenous Nation Commission.

Indigenous NationCommission

The legislation will estab-lish the Indigenous NationCommission, developed collabora-tively with the First NationsLeadership Council.

The Commission willfacilitate the identification, forma-tion or reconstitution of the politi-cal structures of IndigenousNations and confirm that suchpolitical structures have mandates

In the words of The Discussion PaperThis is the formal Discussion Paperregarding the proposedRecognition and ReconciliationAct. It was written by a FirstNations Leadership Council work-ing group over this year, with abudget provided by BC specificallyfor this purpose. The Discussion Paper comes out ofthe legislative proposal that wasdeveloped by the First Nations

Leadership Council and providedto BC Minister of Aboriginal Affairsand Reconciliation Mike deJong inFebruary of 2008.

This Paper was endorsed by theparticipants at an All-Chiefs meet-ing held by the First NationsLeadership Council in March ofthis year. Each of the Council’smember organizations voted to

endorse this paper.That is, the Union of BC IndianChiefs, the Assembly of FirstNations, and the First NationsSummit.

The representation at that meet-ing did not constitute 50% of theIndian Bands in British Columbia,all of whom would presumably beaffected by the legislation.

The BC Treaty Negotiating Times Page 13Summer 2009

from the proper title and rightsholders to enter into shared deci-sion-making and revenue andbenefit sharing agreements withthe Crown. The Commission couldalso work with Indigenous Nationsto resolve issues of overlaps andshared territories.

Shared Decision-Makingand Revenue and BenefitSharing

The Act would enable threelevels of engagement between theProvince and Indigenous or FirstNations: Comprehensive, Interim,and Default. The three levelswould have different elementsin terms of: statutory triggers,forms of Indigenous Nation build-ing, shared decision-makingoutcomes and revenue-sharingoutcomes.

(a) ComprehensiveThe Comprehensive Level ofengagement would involve thecomprehensive application ofrecognition principles throughshared decision-making and rev-enue-sharing agreements through-out an Indigenous Nation’s territo-ry. Engagement at the comprehen-sive level would be triggered byreconstitution of an IndigenousNation and put into affect byagreements respecting planning,management, tenuring and rev-enue and benefit sharing.

The purpose of the agree-ments would be to achieve the har-monization of Crown andIndigenous Nation processes anddecisions. Agreements will bebased on templates/models to beadopted by regulation and collabo-ratively developed.

(b) InterimPrior to comprehensive

agreements being in place with anIndigenous Nation, the Interimlevel of engagement wouldinvolve the application of therecognition principles throughshared decision-making and rev-enue-sharing agreements to certainspecified categories of develop-ment projects and defined “strate-gic decisions”. The categories ofdecisions which will trigger thislevel of engagement will be agreedupon by the First NationsLeadership Council and theProvince, and listed in regulation.The agreements will be guided bythe principle that processes andmechanisms for making decisionswill be designed to accommodate

and not compromise the interestsof the parties.

At the interim level statu-tory decision makers will beenabled to exercise their discretionin accordance with agreementswith an Indigenous Nation.

The Province is committedto revenue-sharing for sharing por-tions of provincial revenuesrelated only to the specific projectsor decision.

(c) DefaultThe Default Level would

apply in all other cases where thecourts would now apply honour ofthe crown principles. In this levelthe Province would engage on thebasis of a consistent cross govern-ment approach to the applicationof the recognition principlesrespecting Aboriginal rights andtitle and treaty rights. The objec-tive is a clear improvement in thestatus quo.

A Policy Frameworkwould be jointly developed withFNLC representatives. TheFramework would prescribe howprovincial engagement wouldfocus on analyzing impacts onaboriginal rights and title andtreaty rights, and not on thestrength of rights or title claims.

Enabling StatutoryDecision Makers to Honourthe Engagement Principles

Notwithstanding any otherenactment, statutory decision mak-ers can enter into agreements ortake any actions to give effect tothe recognition principles in mak-ing agreements and acting withinagreements. Statutory decision-makers may enter into agreementswith other statutory decision-mak-ers who have authority respectingrelated subject matters connectedto a land or resource developmentso that the decision-makers cantogether carry out a unified deci-sionmaking process with, or enterinto a decision-making agreementwith, an Indigenous Nation orother First Nation entity respectingthe matters.

Council of Indigenous Nations

The BC Constitution Actwill be amended to enable theLieutenant Governor in Council tocreate a Council of IndigenousNations. The Council ofIndigenous Nations would have amandate agreed by the FNLC andthe Executive Council and imple-

mented by regulation. TheCouncil of Indigenous Nationswould be comprised of leaders ofreconstituted Indigenous Nationsand initially may include represen-tatives of the member politicalorganizations of the First NationsLeadership Council.

Dispute ResolutionThe legislation would

enable dispute resolution. Disputeresolution processes should reflectthe mutual expectation that mostdisagreements would be resolvedthrough informal or political dis-cussions. In the event that formalmechanisms are required the par-ties should undertake a graduatedapproach from local to more seniorlevels of authority until resolutionis achieved. Mediation of a disputearising from the interpretation andimplementation of the Act, anyregulations or agreement madehereunder may be undertaken,including establishing a tribunalfor such purposes.

ProclamationA Proclamation will be

issued that speaks to the history ofthe Province of British Columbia,from pre-contact times through tothe implementation of colonialpolicies that have had longstand-ing negative impacts and haveserved to create adversarialprovincial Crown-IndigenousNation relations.

The Proclamation woulddescribe how we are at a point inour collective history where thereis huge opportunity to turn thepage of history and establish a newrelationship of respect andrecognition.

The Proclamation wouldserve to set out a joint vision of thefuture and future Crown-Indigenous Nations relations. Aswell, it would envision the rebuild-ing of Indigenous Nations as a keypart of the decolonization process,and as a necessary element ofimproving Crown-IndigenousNation relations. Appended to theproclamation would be a listingand description of key historicalevents. (An attached map portraysthe Indigenous Nations of BritishColumbia.)

The Proclamation shouldbe eloquent and poetic. It shouldserve the purposes of fosteringreconciliation and educating thebroader population.

Ratification of InstructionsThis Discussion Paper on

Instructions for Implementing theNew Relationship is the result ofwork undertaken by representa-tives of First Nations politicalorganizations and senior represen-tatives of the Government ofBritish Columbia. The two partiesmust now take it to their Principalsfor review and consideration.

“Notwithstanding anyother enactment,

statutory decisionmakers can enter into

agreements ortake any actions to

give effect to therecognition principlesin making agreements

and acting withinagreements. Statutorydecision-makers mayenter into agreements

with other statutorydecision-makers who

have authorityrespecting related

subject matters con-nected to a land or

resource developmentso that the decision-makers can together

carry out a unifieddecisionmaking

process with, or enterinto a decision-mak-ing agreement with,

an Indigenous Nationor

other First Nationentity respecting the

matters.”

The BC Treaty Negotiating TimesPage 14 Issue #3

To: Indigenous Peoples From: Arthur Manuel, INET Date: 29 February 2009 Re: First Nation LeadershipCouncil British ColumbiaRecognition Legislation

If this provincial legisla-tion is adopted, it will have a veryserious impact on your HumanRights as Indigenous Peoples andhow land and resources are man-aged in your traditional territories.The First Nations LeadershipCouncil did get mandates fromtheir respective organizations to“pursue the enactment of provin-cial recognition legislation”.

Endorsing ProvincialLegislation

The real striking matterabout the Recognition Act is that itis proposed as a provincial legisla-tion. The federal government isnot even mentioned in this legisla-tive scheme. Our Elders alwaysmade it clear that our relationshipis with the federal Crown, that theprovince is a lower level govern-ment. BC does not have power tosign international treaties and doesnot have sovereignty likeIndigenous Peoples.

Nothing the province everdid extinguished Aboriginal Title.That includes issuing “fee simple”titles. Endorsing the RecognitionAct would change this and clearlyput the province in control ofdefining Aboriginal Title andRights. The First NationLeadership Council does not seemto know the history of whyIndigenous Peoples have alwaysengaged with federal and notprovincial governments.

Vaughn Palmer in an interview

with Premier Gordon Campbellasked about the “NewRelationship” and the change inhis position, and Gordon Campbellanswered that his position onAboriginal rights had not changedat all, the ones to be commendedare indigenous leaders who havestarted working with the provin-cial government and who are stick-ing their head out.

Federal Devolution

Indigenous Peoples’ issues(“Indian and Lands Reserved forIndians”) are federal mattersbecause our proprietary interestsare in direct competition with theprovincial government. The oldTreaty relationships are with thefederal government because onlythey can sign treaties under inter-national law. The federal govern-ment has always been trying toshift their responsibility toIndigenous Peoples to the provin-cial government in order to makeus ordinary Canadians. This wasthe purpose behind the 1969 WhitePaper Policy. In fact the Union ofBritish Columbia Indian Chiefs(UBCIC) was formed inKamloops in 1969 to fight againstour federal Indian reserves becom-ing provincial municipalities.Therefore it is very contradictorythat the UBCIC is proposing theRecognition Act which would givethe province the power to defineAboriginal Title and Rights.

We Got Recognition

The Recognition Act does notoffer more than what has alreadybeen judicially recognized by thecourts. In fact judicial recognitionhas resulted in a number of otherdecisions which resulted in the

“Referral” and “Consultation andAccommodation” processes. Thefact that BC government has notbeen recognizing Aboriginal Titledespite judicial recognition makesthem look stupidly stubborn andout of touch with reality. TheRecognition Act is really a politi-cal plus for the province especiallyif they can get us to give them con-trol so they can narrowly definewhat Aboriginal Rights reallymean. The real question is: Whatwill Indigenous Peoples get out ofit?

CommentsOn the Discussion Paper onInstructions for Implementing theNew Relationship

Context:

The context of theRecognition Act is to pick upwhere the BCTC Treaty Processfailed to “secure” a major settle-ment with regard to AboriginalTitle and Rights.

It is ironic that the term“New Relationship” was firstintroduced in the first annualreport of the BC TreatyCommission in 1994. Ten yearslater the newer New Relationshipserved as life support for thestalled treaty process and as win-dow-dressing in the lead-up to the2010 Winter Olympics.

I suppose the only strikingdifference between the presentNew Relationship and the pastNew Relationship is that the Unionof BC Indian Chiefs and the BCAssembly of First Nations areinvolved in present NewRelationship. It is also importantto think about the present NewRelationship in view of the pastNew Relationship because some of

the parties in past NewRelationship are involved in thepresent New Relationship. Thepresent New Relationship will bemanifested through a provinciallegislative package that “includesthe development of regulations,template shared decision-makingand revenue and benefit sharingagreements and the issuance of aProclamation” regardingAboriginal Title and Rights. Thelatter will not take the form of alaw and will therefore serve moreas a political publicity stunt than asubstantive commitment.

Purpose:

The primary purpose of theRecognition Act is to provide eco-nomic certainty by giving theprovince the power to establish anengagement framework for recog-nition of Aboriginal Title andRights. This framework concedesthat British Columbia can continueon with business-as-usual and thatunder some specific circumstancesa recognition process may be trig-gered that will decide if AboriginalTitle and Rights will apply on theground for specific IndigenousNations. Establishing the triggerpoint for Aboriginal Title willrequire research, proposal writingand negotiations even though theDiscussion Paper says that noproof is necessary.

The implementation of theRecognition Act is supposed to“contribute to certainty forIndigenous Nations and third par-ties”. It is very slick how theprovince has shifted provincialgovernment uncertainty to certain-ty for Indigenous Nations and thirdparties. In fact third parties areputting pressure on the provincial

In the words of Arthur ManuelFormer Chief of Neskonlith, SecwepemcIndigenous Network on Economies and Trade,Spokesperson

“True recognition would be to have indigenous territories recognized and to provide for exclusive use areasthat will not be under either the federal or provincial governments because they will exclusively be held under section 35 of the Canadian Constitution 1982.”

The BC Treaty Negotiating Times Page 15Summer 2009

government because third partiesare the bodies that took defectivetitle under provincial governmentlaws. Provincial governmentuncertainty actually equals thevalue of Aboriginal Title becausethis kind of uncertainty cannot beeconomically dealt with by provin-cial law making powers. The costof removing provincial govern-ment uncertainty and the benefitIndigenous Peoples get will definein economic terms the value ofAboriginal Title in terms of estab-lishing access and benefit to ourtraditional territories.

The real question is do youwant the provincial governmentdetermining what your AboriginalTitle and Rights are? The provincereally limited the possibility ofsuccess in negotiations at theBritish Columbia TreatyCommission by limiting indige-nous rights and aiming at theirextinguishment and it will take asimilar position in negotiationsregarding implementation of theRecognition Act.

ScopeThe scope of the Recognition

Act is very limited. It basicallygives the province a foot in thedoor when it comes to legislative-ly or legally talk about whatAboriginal Title and Rights but itdoes not change the status quo.True recognition of AboriginalTitle would require real and sub-stantive changes to existingprovincially created propertyinterests including fee simple andthe distribution of powers betweenthe federal and provincial govern-ments to include IndigenousPeoples. The fact that theRecognition Act clearly does notinclude these kinds of changesmeans that the province is not real-ly interested in substantively rec-ognizing Aboriginal Title andRights. The downside of agreeingto exclude these essential aspectsof recognizing Aboriginal Titleand Rights means we have agreedde facto to limit the scope of ourAboriginal Title and Rights to con-form to the process.

The scope of theRecognition Act looks a lot likethe federal and provincial man-dates that Aboriginal treaty nego-tiators have recently been com-plaining about, namely that thefederal and provincial govern-ments are coming to the table with“fixed bottom line positions”. Thereason the federal and provincialgovernments come to the tablewith fixed bottom line positions is

because they have agreed to main-tain the existing distribution ofpowers under the CanadianConstitution 1982. This meansthat Aboriginal Title and Rightsthat are protected under section 35of the Canadian Constitution willnot increase because the federaland provincial government powerswill not correspondingly decreaseand allow recognition ofAboriginal Title and Rights to pro-portionately increase. We are talk-ing about our traditional territoriesand recognition of Aboriginal Titleand Rights means that the federaland provincial governments needto give up power over ourland in order to achieve real recog-nition, otherwise it is counterpro-ductive and dangerous to endorse aprovincial governmentRecognition Act that is purelysymbolic in scope.

Recognition PrinciplesThese Recognition

Principles really do not even go asfar as the courts have gone in rec-ognizing Aboriginal Title andRights but in turn the Province hasus endorsing provincial Crowntitle as existing in our AboriginalTitle territories. Provincial Crowntitle does not exist where federalCrown title exists nor does it existin our exclusive use areas. Truerecognition would be to haveindigenous territories recognizedand to provide for exclusive useareas that will not be under eitherthe federal or provincial govern-ments because they will exclusive-ly be held under section 35 of theCanadian Constitution 1982.

These Recognition Principles

are affirmed “without requirementof proof or strength of claim”.This may sound like you are get-ting something for nothing, buteverything has its price. Goodresearch and being prepared isalways essential when fighting toget your land back. This kind ofpromise makes us sound a littleelementary. This provision alsocontradicts the provision of estab-lishing the research that will beneeded to identify the “proper titleand rights holders” under theIndigenous Nation-Rebuildingsection of the Recognition Act.

Indigenous Nation“Rebuilding”

This aspect of the RecognitionAct would actually be funny if itwasn’t real. The Recognition Actwill give the provincial govern-ment the right to define what ourIndigenous Nations are.

The Recognition Act willdefine what an Indigenous Nationis according to the “ four commonthreads of language, customs, tra-ditions and shared history”. In theTsilhqot’in case the Nation and notthe Band were considered therightful title holders. Under theRecognition Act the province willbe looking to create “one politicalstructure” or “nation” to enter intorecognition agreements with.

Rebuilding our Nations isour business, not the responsibilityof the provincial government.

Indigenous NationCommission

The recognition act willcreate an Indigenous Nation

Commission which would “facili-tate the identification, formation orreconstitution of the politicalstructures of Indigenous Nations”.Our nationhood is an AboriginalRight and cannot be subject toprovincial legislation.

The Canadian Constitution1982 section 35 (1) states that thefederal and provincial govern-ments will recognize and affirmexisting Aboriginal and Treatyrights. This would mean thatestablishing the Indigenous NationCommission would be unconstitu-tional especially since it clearlyinvolves the internal constitutionsand governments of IndigenousNations based on AboriginalRights.

Shared Decision-Making andRevenue and Benefit Sharing

The Recognition Act willestablish three levels of engage-ment under Comprehensive,Interim and Default processes.The specific policies for theengagement processes were notelaborated in these documents,except to say that they will bedeveloped by the First NationLeadership Council and BritishColumbia government in a topdown approach.

“Enabling Statutory DecisionsMakers to Honour theEngagement Principles”

The Recognition Act wouldallow provincial bureaucrats thatfollow the recognition principlesto make decisions and take actionso that they can make agreementswith Indigenous Nations.

lookat

this:One of the serious results ofour self-determination asIndigenous Peoples is that ourchoices will be binding on ourchildren, grandchildren andchildren yet unborn. BritishColumbia and the First Nations

Will recognition legislation really help our grandchildren?

Leadership Council haveput recognition ofAboriginal Title on thetable. We need to nowmake a choice about stand-ing up for our inherentAboriginal Title to our tra-ditional territories or theprovince will impose theirpower over our AboriginalTitle and territories. Youcan either: let the provincetake control and exploit ourland; or you can take con-trol and ensure the econom-ic security for our peopleforever. That is yourchoice! - Arthur Manuel

The BC Treaty Negotiating TimesPage 16 Issue #3

Indigenous peoples inBritish Columbia and worldwidehave the right to self-determina-tion. This means we have sover-eignty and jurisdiction over ourterritories, lands and resources.

This distinctive politicalstatus is rooted in our inherentrights, which grow from our ongo-ing connection with our land. Wehave inherited this status from ourancestors who never ceded ourland and stood strong againstexploitation of the land by govern-ments and third party (business)interests. The province of BritishColumbia has been a historicadversary to indigenous peoples,because they claim jurisdictionover the same territories.

Under Canada’s constitu-tion, Aboriginal peoples have aunique constitutional status anddistinctive jurisdictional powers.Section 35 protects Aboriginal andTreaty Rights and forms the basisfor an independent and equal, butcoexisting, third head of power forindigenous peoples. This meansthat we stand on equal footing withthe federal government and haveconstitutional powers.

The province has no con-stitutional power to legislate andregulate indigenous rights.“Indians and lands reserved forIndians” fall under Section 91(24),the federal head of power.Aboriginal Title is the only proper-ty right that is protected under theconstitution of Canada. TheSupreme Court of Canada hasruled that Aboriginal Title is pro-tected by Section 35 and that theProvince of British Columbia hasno jurisdiction over AboriginalTitle lands. This goes directlyagainst the province’s claim ofexclusive jurisdiction over landsand resources under Section92(13) and (16) (the provincialhead of power) and Section 109.

Our inherent rights survivetoday.

As indigenous peoples, wehave an inherent political statusthat comes from our relationship to

the land. It is not granted by anystate, nor do we have to get recog-nition at the national level.

We have governed our peo-ples and controlled our territoriessince time immemorial. Ourindigenous sovereignty has notbeen diminished by unilateralattempts of governments to claimexclusive jurisdiction over our ter-ritories or to colonize us.

Rather states have illegiti-mately denied our sovereignty andattempted to consolidate theirpower by seeking extinguishmentof our land rights and assimilatingus into mainstream society.

We have been discriminat-ed against politically by govern-ments claiming exclusive jurisdic-tion over our lands and resourcesand not recognizing us as indige-nous peoples with inherent rightsto maintain our indigenous gov-erning structures and to benefitfrom our territories.

Our indigenous right toself-determination has been inter-nationally recognized and mostrecently enshrined in the UNDeclaration on the Rights ofIndigenous Peoples. Canada is theonly country in the world to twicehave voted against the UNDeclaration on the Rights ofIndigenous Peoples, because theirlaws and processes, especially inregard to land rights, are not con-sistent with the minimum guaran-tees enshrined in the Declaration,including free prior informed con-sent.

Our relationship with Canada isbilateral. Our relationship withthe province is only indirect,through Canada.

The relationship of indige-nous peoples and states likeCanada is a bilateral relationship.This means Canada must respectour territorial rights and our own-ership and jurisdiction over land.

The province is not part ofthis relationship. At the interna-tional level this is recognizedthrough the right to self-determi-nation and the requirement of free

prior informed consent, whichstipulates that we have full deci-sion-making power over anydevelopments that happen in ourtraditional territories.

Free prior informed con-sent is a substantive, not a proce-dural right. This means thatindigenous peoples can exclusive-ly make final decisions about whatcan and cannot happen in their ter-ritories.

How we make those deci-sions is enshrined in our indige-nous laws. Indigenous rights arecollectively held and all decisionshave to be taken collectively byindigenous peoples according totheir inherent decision-makingauthority and traditional governingstructures.

In Canada, the courts haveinterpreted the proper rights holderfor Aboriginal Title to be the pres-ent generations of indigenous peo-ples connected to their territoriesthrough their ancestors. It intro-duces a cultural definition ofindigenous nations that looksmainly at language, culture andhistory.

Indigenous Peoples have stand-ing under international law,provinces do not.

We know that proof ofAboriginal Title is a jurisdictionalouster for the province, becauseAboriginal title is an exclusiveright with both a jurisdictional andan economic component. It is con-stitutionally protected underSection 35 and the province has nojurisdiction over Aboriginal Titlelands.

As indigenous peoples aregetting closer and closer to prov-ing Aboriginal Title in the courts,the province is running out of timeand legal wiggling room. Theirsolution: the provincial recogni-tion act which would secure that:“Crown title exists withAboriginal Title throughoutBritish Columbia”. This is not howthe courts have defined AboriginalTitle, which is an exclusive right.

Through this new legisla-

tive definition the province tries topatch up its claim of jurisdictionthroughout the province. But froman international, indigenous andconstitutional perspective theprovince is in no position to claimjurisdiction over indigenous terri-tories.

The provincial recognitionact is a fraudulent attempt tooverextend provincial jurisdictionand constitutionally the act wouldbe ultra vires. Indigenous peopleshave inherent jurisdiction on anequal footing with the federalCrown. We have sovereignty andstanding under international law.Provinces do not have standingunder international law, they aremerely sub-units of the state.

The federal governmenthas been complicit in the attemptof the province to claim jurisdic-tion over indigenous territories.This is in violation of their fiduci-ary and international obligation toprotect the rights and interests ofindigenous peoples. The federalgovernment does not want to rec-ognize that indigenous peoples area third head of power, with inde-pendent, inherent jurisdiction overour territories.

The federal governmenthas long tried to delegate responsi-bility for indigenous issues to theprovince, because that wouldassimilate indigenous peoplesunder a lesser constitutionalpower, where all authority is dele-gated and not inherent.

This is an attempt todomesticate indigenous rights,deny our international standingand lower our decision-makingauthority to a lesser level than theprovince.

The Latest Power Grab This overview is provided for your consideration by the

editorial and legal team at The BC Treaty Negotiating Times.

As Indigenous peoples we have inherent jurisdiction- aand the province wants to use this legislation toclaim jurisdiction over our territories.Our right to self-ddeterminationdoes not need provincial recognition.

“This is anattempt to

domesticateindigenous rights,

deny our internationalstanding and lower our

decision-makingauthority to a lesser

level than the province.”

The BC Treaty Negotiating Times Page 17Summer 2009

Indigenous Peoples, notAboriginal political organiza-tions, have authentic governancestructures with decision makingauthority regarding our territo-ries.

Indigenous peoples are thecollective decision-making authori-ty and this authority cannot be takenfrom them by Aboriginal politicalorganizations that are organizedprovincially and comprised ofIndian Act chiefs that hold only del-egated authority under the federalIndian Act.

Indigenous peoples are notFirst Nations, a misleading termadopted by the government and theFirst Nations Leadership Council torefer to Indian bands and pretendthat they are nations. These organi-zations or bodies, are not traditionalgoverning structures, they do notrepresent or have the mandate torepresent indigenous peoples. Theyare not organized according toindigenous laws and do not followinherent indigenous decision-mak-ing processes.

Much rather they mimicWestern political organizations andbureaucracies. Aboriginal politicalorganizations are also not foundedin indigenous sovereignty; ratherthey are funded by the provincialand federal governments. It is aconflict of interest for them to pre-tend to represent indigenous peo-ples in dealings with the province,by setting up the New Relationshipand the First Nations LeadershipCouncil.

Aboriginal political organi-zations cannot exercise the indige-nous right to self-determination, norare they the proper rights holder. Itis therefore illegitimate for them toengage with the provincial govern-ment and negotiate the proposedprovincial recognition legislation.

Indigenous peoples have exclusivefinal decision-making authority,Aboriginal political organizationsillegitimately claim to representus in dealings with the province.

International law stipulatesthe requirement of free priorinformed consent of indigenouspeoples to the development andenactment of any legislation thataffects indigenous rights.

Indigenous peoples inBritish Columbia have never giventheir free prior informed consent toallow for the development of theproposed provincial recognitionlegislation. Indigenous peoples arethe exclusive final decision-makingauthority regarding any such legis-

lation. Still Aboriginal provincialpolitical organizations, namely theFirst Nations Summit (FNS), theUnion of British Columbia IndianChiefs (UBCIC) and the BritishColumbia Assembly of FirstNations (BC AFN), re-inventingthemselves as the First NationsLeadership Council (FNLC), havecovertly pushed for this so-calledprovincial recognition legislation,to further consolidate their powerand take it away from indigenouspeoples, the proper rights holder.

These organizations arepositioning themselves, through theproposed provincial recognitionlegislation, to set up an indigenousbureaucracy that mirrors provincialadministrative processes and eco-nomic development models thatreplicate corporate exploitationregimes. These organizations effec-tively undermine the inherent juris-diction of indigenous peoples ornations, and are ready to claim thejurisdiction rightfully held byindigenous peoples, just to turnaround and collaborate with theprovince through mainstreamadministrative and corporateprocesses that undermine indige-nous rights.

The legislation and process-es it will set out will take awaypower from the people on theground and consolidate power in theAboriginal political organizationsand the province.

Canada’s constitution instructs itto respect our title and rights, inSection 35. The province ofBritish Columbia must followCanada’s constitution, as well asinternational human rights law.Instead of ever doing that, BCpasses meaningless acts andproclamations to legitimize itsactions, like what it is doing rightnow with the recognition legisla-tion.

Louise Mandell, counsel forthe FNLC, at the Splatsin communi-ty meeting, argued that the provinceis operating under Section 35 whenengaging in shared decision-mak-ing. Contrary to that, many indige-nous peoples see Section 35 solelyas the basis for indigenous jurisdic-tion. The province is not operatingunder Section 35 or implementing itwhen they engage in joint decision-making and revenue-sharing, theyare just trying to solidify/justifytheir claim of jurisdiction over landsand resources under s. 92 of theconstitution.

The proposed provincialrecognition legislation is not going

to result in indigenous peoplesregaining lands and resources thathave wrongfully been taken, butwill only dictate how the Provincewill behave while continuing tocontrol them and decide who ulti-mately benefits from development.

Once you analyze this pro-posed framework in detail you willsee that it offers recognition ofprovincial crown title and no affir-mation of the constitutionally pro-tected Aboriginal Title and rightsunder Section 35.

So why are the provincial govern-ment and the First NationsLeadership Council pushing forprovincial recognition legislation?

The province is not the con-stitutional body to recognizeindigenous rights. Indigenousrights are collectively held byindigenous peoples and are definedthrough indigenous laws; they can-not be defined through provinciallegislation.

In turn the province has nointerest in recognizing and protect-ing indigenous rights. They want toset up processes that secure accessto indigenous territories throughprovincial legislation. Once FirstNations become involved in theprocesses, they subject themselvesto the provincial legislation andthey do not have the final say, orveto as industry has been saying.

These are just consultationand accommodation processes.There is no requirement for freeprior informed consent of indige-nous peoples to any developmentstaking place or impacting our tradi-tional territories as stipulated underinternational law.

Under these processesagreements will be made that ineffect break open indigenous terri-tories for development and thatwill lead to privatization of ourlands, waters and resources by cor-porate entities. Aboriginal politicalorganizations are becoming corpo-rate players in the mainstream eco-nomic system, thereby undermin-ing indigenous peoples’ economicdiversity and traditional and cur-rent land use.

“Recognition and Reconciliation”is not an accurate title for the pro-posed legislation.

The province and the FirstNations Leadership Council havebeen pushing for provincial recog-nition legislation. The name of thelegislation, entitled the“Recognition and ReconciliationAct”, is misleading. It is promotedas an act to recognize indigenousland rights, when in reality it is

LEGAL POINTERS ON THE PROVINCIAL RECOGNITION LEGISLATION

about setting up provincial process-es that secure corporate access toindigenous territories.

After indigenous peopleshave long been calling for fullrecognition of our Aboriginal Titleand Rights, the use of the terms“recognition and reconciliation” ismeant to (mis)lead you to believethat there will be meaningfulchange and reform. All the Act real-ly does is set up self-servingprocesses for the province andAboriginal political organizations,that cannibalize the land and under-mine our rights as indigenous peo-ples.

The proposed ‘enabling legisla-tion’ is an empty shell.

Little is known about thecontent of the proposed provincialrecognition act, because we havenot seen the draft legislation thatthe “Recognition Working Group”has been elaborating. This meansthat the lawyers have a draft inhand, but indigenous peoples havenot seen it. All that has been offi-cially tabled is a discussion paperon the implementation of the newrelationship.

It sets out “recognition prin-ciples” amongst them that:“Aboriginal Title and rights existthroughout the territory of eachIndigenous Nation that is the prop-er rights holder. The Crown recog-nizes and affirms this without therequirement of proof or strength ofclaim.” Although made to soundlike one, this is not a real conces-sion, because the courts havealready recognized AboriginalTitle.

In turn the discussion paperstipulates that Aboriginal Peopleshave to recognize that “Crown Titleexists with Aboriginal Titlethroughout British Columbia”, thiswould be a big concession, one thatindigenous peoples have nevermade to date. Until now we havefought provincial jurisdiction overindigenous territories and havebeen successful in court.

The BC Treaty Negotiating TimesPage 18 Issue #3

The scope of the act is so limit-ed, it does not recognize indige-nous jurisdiction.

How limited the scope ofthe provincial recognition act is, isalso made clear in the discussionpaper, which sets out that:constitutional and common law ofAboriginal rights and title andtreaty rights, including availableremedies, are unaffected by theAct;the Act is not intended to affect thestatus of existing provincial crowngranted interests or tenures in landor resources, including fee simpletitle;nothing in the Act creates any newconstitutional rights or law-mak-ing authority; andnothing in the Act alters, or can beinterpreted to alter, either nega-tively or positively, the federal andprovincial division of powers orthe jurisdiction of either theProvince of British Columbia orany Indigenous Nation under theConstitution of Canada.

The Province will not rec-ognize Section 35 as an independ-ent third head of power for indige-nous peoples and interact with uson an equal footing. You willeither participate in their provin-cial processes under the provincialhead of power or you will have tofight the province like before. Theprovince is not stepping awayfrom claiming exclusive jurisdic-tion over lands and resourcesthroughout the province. Theycontinue to claims that only theprovincial and federal govern-ments have mutually exclusivejurisdiction. The discussion papersays as much when it sets out thatthe act will not alter the federaland provincial division of power,still leaving no room for an inde-pendent indigenous head of power.

If you assert your AboriginalTitle and rights outside theprovincial processes, theprovince will still deny that youhave Aboriginal Title rights incourt.

Louise Mandell, as legalcounsel for the First NationsLeadership Council, in theirresponse to the memorandum ofArthur Manuel on the Recognitionand Reconciliation Legislation,goes even further to say that thoseprovisions on scope only consti-tute non-derogation clauses:

“meaning that if a nationwants to go to court to seeka remedy based on exclu-sive Aboriginal Title, or its

constitutional conse-quences,... the Non-Recognition Act functionslike a “without prejudice”clause, in the sense thatmaking arguments beforethe court, neither party canrely on the passage of theAct or what is says to arguefor an outcome one way oranother.”

So on the one hand the FirstNations Leadership Council istelling you, you will no longerhave to prove your AboriginalTitle in court, the province willrecognize it without the require-ment of proof, but on the otherhand as soon as you decide to takea matter to court that is off thetable. You will still be required toprove your Aboriginal Title.

Really the province onlypretends to pro forma recognizeyour Aboriginal Title and rights tolure you into their provincialprocesses. If you want to assertyour Aboriginal Title on theground or implement your indige-nous laws outside those provincialprocesses, the province will fightyou in court like before and denyyour existence as indigenous peo-ples and that you have AboriginalTitle and Rights.

What will happen ifindigenous organizations becomeinvolved in the provincial process-es and do not like the outcome? Inthe end the final decision willalways be with the Minister, sincethe legislation does not provide forthe substantive requirement of freeprior informed consent of indige-nous peoples. Provincial legisla-tion is under the control of theprovincial government and can bechanged and amended by theprovince.

The province will alsoadminister and remain in controlof the processes established underit they will be the ones collectingall the revenue and deciding, attheir discretion, which amountsare to be shared with indigenouspeoples. Due to the non-deroga-tion clause, meaning that you can-not raise the Act in court, agree-ments reached under the act mightnot even be subject to judicialscrutiny or challenge.

Take a closer look at thesupposed recognition principlestogether with the non-derogationclauses and all the limitations inthe scope of the act set out above,

and it becomes clear, that the pro-posed recognition legislation – orthe recognition shell – is empty.She says as much in her responseto the point raised by ArthurManuel that the Act does not offermore than what has already beenjudicially recognized by thecourts. She said: “It is correct thatthe content of Aboriginal rightsand title recognized by the pro-posed legislation will not begreater than what is protected bysection 35 and the courts.However, the key advantage of theproposed legislation is that theprovince will engage in processesfor shared decision-making andrevenue and benefit-sharing.”

So there you have it. The legislation

is not really aboutrights, it is all about

processes. The legislation

is not about recognizing your

rights - it is about processes

that legitimize BC access

to your territories for development.

All the details to do with revenue and benefit-sharing willbe left to provincial regulation,they have not even been discussed yet!

Now you will say – wellhow would those processes forshared decision making and rev-enue and benefit-sharing work?

Some of those questionswere raised at the Splatsin commu-nity meeting and Louise Mandellas legal counsel for the FNLCsaid: “some of the questions youwill raise will be: What streams ofrevenue will be shared? What arethe distribution principles amongFirst Nations communities? Whatis the policy framework if noshared decision making or com-prehensive arrangement is in

place? What models will we workwith? Who will control the com-mission (for nation rebuilding) andhow will it work? How willnations be identified as beingavailable and ready to go on thecomprehensive level?

“These are the questionswe have not sat down and workedon, this is what will have to bedetermined through regulationsand we have not had any discus-sion with the government aboutthat at all yet. We do not know theanswer yet. If the legislation pass-es, what will be passed is, what Icall a recognition shell, the shell ofrecognition principles, the princi-ple that there has to be a realign-ment with other provincial lawsand policies and negotiating man-dates; commitment to shared deci-sion-making and revenue and ben-efit-sharing at the three levels Italked about and also a commit-ment in terms of the Commission.That is what the act will look likeand then there will have to beanother process, to go back to thechiefs in assembly, to go back tothe other features which we havenot done yet.”

So the processes will noteven be inscribed in the provinciallegislation, they will be definedthrough and relegated to provin-cial regulations and agreements.On top of it the First NationsLeadership Council proposes topass the “recognition shell” legis-lation before ever even workingout the substantive details like therevenues to be shared.

So they want indigenouspeoples to agree to pass the emptyrecognition legislation and recog-nize that Crown title existsthroughout Aboriginal Title terri-tories, in exchange for the unse-cured promise that processes forshared decision making and rev-enue sharing will be put in placelater.

So you would provide theprovince with economic securityand then leave it to their discretionwhat will be put on the table interms of revenue sharing.

If those processes are the“key advantage”, is it not absolute-ly reckless and self-defeating interms of negotiating dynamics topropose to sign off on legislationthat secures recognition of theprovince, before they ever puttheir cards on the table regardingrevenue sharing?

Legal Points continued from previous page

The BC Treaty Negotiating Times Page 19Summer 2009

Chief Judy Wilson of Neskonlith Indian Band,

“Critical questions arebeing raised. My mother is MinnieKenoras, my father is Joe Manueland George Manuel is my uncle.

We have been taught todebate and talk with each otherand to work together. We know thelaws of our land and those are thelaws of creation that we have, wecannot get rid of those laws. Theyare what we are as a people, it isembedded in our laws and culture.

We just talked about thattoday at the Lakes Arrowheaddivision meeting and consideredquestion around regulation andjurisdiction. We are creating ourown regulatory framework thatpushes the ministry and industry toour table.

We are dealing withMinistry of Highways about the 4-laning of the highway and CPRregarding double-tracking (theycall it side lining but same thing);and also with BC Hydro (dam atRevelstoke) about the transmis-sion lines and independent powerof the river facilities and alterna-tive energies and biofuels.

The question we are debat-ing goes to jurisdiction, we haveinherent title, I grew up with that, Icannot question that, no one cantake it away from us or our chil-dren, that is why the government isat the table, I do not want anythingdiluting that.

I do not want our title dilut-ed in any way shape or form.

When we negotiate we talkto the Queen, the federal Crown,nation to nation, not the provincialCrown with only delegated author-ity. Will this be certainty for all

parties or is it really certainty forthe province who has been tryingto get access to our land andresources? And you have seen thatslide that showed the territoriesthat are unceded. My people took avery strong position against thetreaty process because of some ofthose principles.

So I want clarification onthose, our nation is standing up forthose now. The First NationsLeadership Council, nor theUBCIC, have the right to take ourinherent rights away from us. TheSecwepemc people are alwaysvery cautious because we have thegenerations in front of us to thinkabout. If this was all about money,you do not see any deals that any-one signed just for money, wewant to make sure, it is aboutcleaning up our overdevelopedLakes.

It affects everyone, allwalks of life are impacted, ourcustomary laws and spiritual wayshave a lot of meaning, we do notwant to be a mirror of the govern-ment, we assert our governanceand jurisdiction.

We do not want to be areconstituted government, wewant to realign our own govern-ment and jurisdiction. We havealready forced recognition intoregulatory frameworks. We haveanalyzed a lot of the comprehen-sive agreements in our territoryand a lot of that language isalready recognizing AboriginalTitle in those documents. Why arewe asking for something we havealready, rather than going to thenext level, and getting full recog-nition for indigenous laws notdiluting any of our title.

Eric Mitchell, Okanagan Indian Band

I do not want recognitionand reconciliation put together andpushed down our throat; that doesnot go down my throat. The twothings have to be pulled apart; weare talking recognition here (forgetreconciliation for now); go back tothe date when the province joinedconfederation. The province has torecognize who we are and look atme and who I am.

I want them to say I amsorry as a white government and Irecognize who you are, what weare in now. The Laurier Memorialsets out the principles, we giftedpeople when they came here and inour culture something has to begiven back. They have to say thankyou for feeding us when they werestarving; thank you for showing usthe way.

You three leaders (FNLC)have to start to listen and takesome direction. You have beentalking about this Recognition actin the news, before you even cometo talk to us, there is somethingwrong with that.

The Recognition Act talksabout 20 nations, but we have 25nations and languages, you guyshave been around long enough tomake sure they do not miss any-one. Old Tommy (Gregoire) talkedabout the flag, the flag is just onething, but it is about every time thesun comes up and every time webreathe to live we have to remem-ber that. When they say I recog-nize your title, they recognize meand everything in this universe thatbelongs to us lock stock and bar-rell– the ground my grandfatherstood on.

Not only will they share, Ido not even want to talk about thatyet, they first have to recognizethat they stole the land andresources and they are even suck-ing the air out of us. That is allwrong, I do not want you guys(First Nations Leadership Council)to give away anything that is ours.

When they say share theymean 50% is theirs, no I do notwant that. Until we have an apolo-gy there is no point talking aboutsharing, once we accept it, we

might. You guys (FNLC) can tellthem what it means to apologizeand help them apologize but do notgive them anything.

They have to recognize100% otherwise we are no betteroff than before, they have to recog-nize us for who we are. Then bringup the Laurier Memorial – we fedthem, we brought them into fami-lies – they have to learn to livetogether in a better way.

Let them do the recogni-tion and then we will let themknow if we will accept it. Then wewill take time to talk to each other.

There are too manyassumptions in what you propose:they talk about chiefs; who sayswe will agree to elect a leader?Wayne might still come out on topas a leader but through our tradi-tional system. Some will come tothe top, others will not.

Indian Act band electionsdo not work, very few participate,in band councils they go by major-ity vote under their law. Should wekeep the thinking (ways) that keptus here for thousands of years orthe 150 year way that damn nearkilled us – there is no contestthere!

The white man’s way is notworking not even for them. Theworld needs us, the teachings arein our languages! It is time tomove to the next part of the meet-ing that you talked about, whenyou listen and we give you direc-tion. You guys put your names up,you have done enough talking;now you listen and we tell youwhat to do.

I would expect that weback off from that stuff and recol-lect ourselves, take the time weneed to be able to stand up to anygovernment. This is what we wantyou to do. The white people oweus clean water, good air and at thesame time I know the people arethe same as the elders in 1910 and1911. The white people who camehere do not have country to goback to, this is why they are here,we have to teach them. I thank youfrom the bottom of my heart.

In the words of The PeopleHere is what people had to say to the LeadershipCouncil at the Splatsin community meeting:

The BC Treaty Negotiating TimesPage 20 Issue #3

By Kerry CoastParticipating in consultations withgovernment is a double-sidedsword for Aboriginal peoples. Wealready know that the governmentand the courts find aboriginallaws of upholding the sustainabil-ity and sacredness of the land tobe “unreasonable conditions.’ Ifwe do not participate, or walkaway, Aboriginal peoples aredescribed as unreasonable - and ifwe do participate, we are stuckwithin a process that the govern-ment dominates.

“Political participation bythe marginalised cannot makesense when the rules of engage-ment are determined by the pow-erful.” - Obyerodhyambo.

Even when Bands or FirstNations bring court cases follow-ing “negotiations” that disregardtheir input, their assertion of theirown laws and duty to upholdthem are unacceptable in BCcourts. Halfway River, 1999, givesus this.

Halfway River contested

that logging had infringed theirway of life to an unjustifiableextent. The Halfway casefoundthe province free to infringe theirTreaty 8.

Halfway also concluded inan obligation on the part ofAboriginal peoples to participatein the consultation process, andnot frustrate it with such “unrea-sonable” demands as those of sus-tainability, regardless of the fore-gone-conclusion nature of suchBC-led procedures.

In Taku River Tlingit,2005, the people were suing BCfor going ahead with permitting amining access road over theirsacred mountain, right throughthe hunting grounds. Taku hadparticipated extensively in consul-tation procedures and the environ-mental impact assessment. Thegovernment did not respect theirposition that the road had to beredirected, and permitted it as pre-ceded the legal challenge. Thecourt found that Taku had beenadequately consulted and accom-

modated, since they had been partof the development process, andthat their proper course of actionwas to continue in negotiations tomitigate the impact of the road ata site-by-site specific level. Thiswas the first case to test the dutyto consult and accommodate, itcame down at the same time asHaida.

We have a final angle inDouglas, 2007. It was found thatthe Department of Fisheries andOceans had not only fulfilled theirduty to consult, but also upheldtheir obligation to the aboriginalfood fishing priority when theyopened a sports fishery on EarlyStuart sockeye in the Fraser, fiveyears earlier.

The Department had faxedand telephoned a few invitationsto meet on the subject to theCheam Band prior to the open-ings. Cheam had not been able toparticipate in the processes on theschedule DFO offered.Nevermind, the fact that DFOoffered them meetings fulfilledtheir duty to consult and accom-modate, ruled the judge. Andsince the Department has the priv-ilege of managing the fishery, nonotices of later management

changes were necessary.What this would seem to

mean to BC is that: First Nationsmust participate in the consulta-tion process; once they have beenconsulted, anything goes; and aslittle communication as an unan-swered fax and a phone call canaccomplish the consultation andjustify the decisions made by gov-ernment ministries. The “mean-ingful” part of this “consultationand accommodation” is that BC isthe boss, anyway.

Are these the parametersof the “shared decision making”contemplated by the recognitionlegislation?

“I’ll see you in court!”

in the words of Guujaw HaidaElected President and Hereditary Chief

In an effort to understandthe motives and consequence ofthis thing, the most telling part isthat the 'title' Legislation as stated,doesn't affect Aboriginal Rightsand Title. Consider having 'title'that doesn't affect 'Title;’ and a'small t' title, because it doesn'teven affect "fee simple" and "thirdparty interests,” which we already

do without even having estab-lished Title.

With no burden of proof,there is a real danger of mischiefand confusion as to the true Titleholder.

A good guess is that this isan attempt to pacify us with a sim-ilar, and yet far lesser degree ofsmall t 'title'.

Consultation Standards in BC- or -

The Trilogy of DespairHalfway River, Taku River Tlingit, and Douglashave brought consultation standards spirallingdown to a single unreturned phonecall

“The combined effect ofthese three cases would

seem to mean to BC that:First Nations must

participate in the BCconsultation process;once they have been

consulted, anything goes;and as little as an

unanswered fax and aphone call can accomplish the

consultation and justifythe decisions made by

government ministries.”

“Aboriginal Rights and Title are already recognized andaffirmed in Canadian Constitutional Law, therefore there is no need for new legislation in BC.”

The BC Treaty Negotiating Times Page 21Summer 2009

Continued from Page 2

At the national level theNational Indian Brotherhood wasformed, and in 1982 it was re-organized into the Assembly ofFirst Nations. In B.C. the Union ofB.C. Indian Chiefs was formed todefend the Aboriginal Title andRights of First Nations.

Years later the coastal FirstNations led a number of communi-ties out of the UBCIC and formeda separate organization, which hada number of names but eventuallybecame the "First NationsSummit".

In the face of widespreadopposition from First Nations andsectors of the Canadian public, thefederal government publiclyannounced it wasn't going to pro-ceed with the "1969 White Paper."But internal documents from with-in the Department of IndianAffairs bureaucracy at the timerevealed the federal governmentstill believed in the objectives ofthe "1969 White Paper", and sim-ply adopted a policy of implemen-tation by stealth where possible.

In 1973, the federal gov-ernment announced its land claimspolicies, which were:

Specific Claims: These types of claims are basedupon "lawful obligations", such asillegal disposition of Indian lands,mismanagement of Indian trustfunds, breaches of historic treaties.Comprehensive Claims: Thesetypes of claims are based uponclaims made by "Native Groups"of unsurrendered Aboriginal Titlein parts of Canada where no his-toric treaties were made.Claims of Another Kind:These types of claims are basedupon claims arising from theRoyal Proclamation of 1763.

The land claims policieswere designed to end outstandingland claims. The ComprehensiveClaims policy had the objective ofextinguishing Aboriginal Title inorder to give the federal-provin-cial-territorial governments cleartitle to the land and resources.

In 1980, the federal gov-ernment announced it was going tochange the constitution of Canada.In 1982, a new constitution wasadopted based in part on the effortsof the UBCIC's ConstitutionExpress train. In the 1980's therewere four constitutional confer-ences on Aboriginal Mattersbetween the four national aborigi-nal organizations, the Prime

Minister of Canada, the Premiersof the provinces and the Leaders ofthe territorial governments.

Unfortunately, these con-stitutional talks ended in failure.There was no political agreementon the meaning of "aboriginal andtreaty rights" between theAboriginal organizations and thefederal or provincial governments.

This is the main source ofthe problem of non-recognition ofaboriginal title today: in Canadathere is no legal or political cer-tainty on the scope and content of"existing aboriginal and treatyrights" within section 35 ofCanada's constitution. With nopolitical agreement on the mean-ing of section 35 rights, theSupreme Court of Canada, startingin 1990 with the Sparrow case,began to set out legal tests for

interpreting section 35 when "abo-riginal rights" are claimed. TheSupreme Court of Canada hasgone on to issue a number of courtdecisions that have created a legalframework for analysis of claimsrights under section 35.

It is costly and risky forFirst Nations to collect the evi-dence to prove their rights in courtand sustain a constitutional legalchallenge to the Crown govern-ments in defense or protection of"aboriginal or treaty rights".

Ever since the new consti-tution was adopted in Canada thefederal government has beenengaged in a protracted war towear down First Nations and theirleadership to negotiate underunfair, one-sided land claims andself-government policies. Theseare written to obtain agreementsfrom First Nations to compromisetheir section 35 rights, in exchangefor watered down rights under fed-eral and/or provincial agreements.

The Crown governmentsknow that most First Nations can'tafford to go to court, so they makethese "take it or leave it" offers.

As was the case in 1969,the federal objective is to emptyout section 35 of any significantlegal or political meaning by get-ting First Nations to sign landclaims or self-government agree-ments that transform them frombeing "Indian Act" bands into eth-nic municipalities or subordinateregional governments to theCrown governments in Canada.

If one were to look closelyat the terms and conditions of theso-called "modern treaties", onewould see that this is essentiallywhat has happened in Canada fromthe 1975 James Bay Agreement tothe recent Nisga'a and TsawwassenFinal Agreements.

In the words of Russell DiaboKahnawake, Mohawk

How can action by the province ofBritish Columbiacertain up third Party interests? Onlythe title holders can do that.BC is saying theLeadership Councilhas authority.

lookat

this:Geoff Plant, “Certainty and Fairness for All”May 11, 2009, The Vancouver Sun

“...while the constitution is clearthat aboriginal rights must be rec-ognized and affirmed, it is alsoclear that they are not absolute.Government may infringe them, ifit acts honourably.

That leads us to the discussionpaper and its proposal for a newapproach. The paper is the first timethat a process for land and resourcedecision making has been mutuallynegotiated and agreed to. This byitself represents a significant move-

ment away from uncertainty andconflict towards greater certainty.”“... in practical terms the signifi-cance of this recognition will be tofocus on the impact of development,rather than on the legalistic questionof whether particular aboriginalgroups have specific rights towardsthe question of what.”“Shared decision-making does notautomatically mean that both partieshave to agree before some action isundertaken. ... These processes willalso provide fairness and certaintyto third parties. ...this undertaking isnot about changing ownership orjurisdiction...”

“...this undertaking is not about changing ownership or jurisdiction...crown title is expressly protected.”

“The Crown governments know

that most FirstNations can't afford

to go to court, so they make these "take it or leave it"

offers.”

The BC Treaty Negotiating TimesPage 22 Issue #3

All Our RelationsA Declaration of the

Sovereign Indigenous Nations ofBritish Columbia

As the original Peoples to this land,we declare: We have Aboriginal title and rightsto our lands, waters and resourcesand that we will exercise our collec-tive, sovereign and inherent author-ities and jurisdictions over theselands, waters and resources, We respect, honour and are sus-tained by the values, teachings andlaws passed to us by our ancestorsfor governing ourselves, our lands,waters and resources. We have the right to manage andbenefit from the wealth of our terri-tories.We have the inalienable sovereignright of self-determination. Byvirtue of this right, we are free todetermine our political status andfree to pursue our economic, social,health and well-being, and culturaldevelopment.We have diverse cultures, foundedon the ways of life, traditions andvalues of our ancestors, whichinclude systems of governance, lawand social organization. We have the right to compensationand redress with regard to our terri-tories, lands and resources whichhave been confiscated, taken, occu-pied, used or damaged without ourfree, prior and informed consent. We will only negotiate on the basisof a full and complete recognitionof the existence of our title andrights throughout our entire lands,

The New Relationship2005

I. Statement of VisionWe are all here to stay. We agree toa new government-to-governmentrelationship based on respect,recognition and accommodation ofaboriginal title and rights. Ourshared vision includes respect forour respective laws and responsi-bilities. Through this new relation-ship, we commit to reconciliationof Aboriginal and Crown titles andjurisdictions.

We agree to establish

processes and institutions forshared decision-making about theland and resources and for revenueand benefit sharing, recognizing, ashas been determined in court deci-sions, that the right to aboriginaltitle “in its full form”, including theinherent right for the community tomake decisions as to the use of theland and therefore the right to havea political structure for makingthose decisions, is constitutionallyguaranteed by Section 35. Theseinherent rights flow from FirstNations’ historical and sacred rela-tionship with their territories.

The historical Aboriginal-Crown relationship in BritishColumbia has given rise to thepresent socio-economic disparitybetween First Nations and otherBritish Columbians.

We agree to work togetherin this new relationship to achievestrong governments, social justiceand economic selfsufficiency forFirst Nations which will be of ben-efit to all British Columbians andwill lead to long-term economicviability.

II. GoalsOur shared vision includes

a celebration of our diversity, andan appreciation of what we have incommon. We recognize the visionof First Nations to achieve the fol-lowing goals:1. To restore, revitalize andstrengthen First Nations and theircommunities and families to elimi-nate the gap in standards of livingwith other British Columbians,and substantially improve the cir-cumstances of First Nations peoplein areas which include: education,children and families, and health,including restoration of habitats toachieve access to traditional foodsand medicines;2. To achieve First Nations self-determination through the exerciseof their aboriginal title includingrealizing the economic componentof aboriginal title, and exercisingtheir jurisdiction over the use ofthe land and resources throughtheir own structures;3. To ensure that lands andresources are managed in accor-dance with First Nations laws,knowledge and values and thatresource development is carried outin a sustainable manner includingthe primary responsibility of pre-serving healthy lands,resources and ecosystems for pres-ent and future generations; and4. To revitalize and preserve FirstNations cultures and languages andrestore literacy and fluency in FirstNation languages to ensure that noFirst Nation language becomesextinct.

The strategic vision of theProvince for British Columbiansis:1. To make B.C. the best educated,most literate jurisdiction on thecontinent;2. To lead the way in NorthAmerica in healthy living andphysical fitness;3. To build the best system of sup-port in Canada for persons withdisabilities, specialneeds, children at risk and seniors;4. To lead the world in sustainableenvironmental management, withthe best air andwater quality, and the best fisheriesmanagement, bar none; and5. To create more jobs per capitathan anywhere else in Canada.

waters, territories and resources. We acknowledge the interdepend-ence we have with one another andrespectfully honour our commit-ment with one another where weshare lands, waters and resources.We commit to resolving theseshared lands, waters and resourcesbased on our historical relationshipthrough ceremonies and reconcilia-tion agreements. We endorse the provisions of theUN Declaration on the Rights ofIndigenous Peoples and other inter-national standards aimed at ensur-ing the dignity, survival and well-being of Indigenous peoples. We commit to: Stand united today and from thistime forward with the Tsilhqot’inand with each other in protectingour Aboriginal title and rights. Recognize and respect each other’sautonomy and support each other inexercising our respective title,rights and jurisdiction in keepingwith our continued interdependen-cy. Work together to defend and upholdthis Declaration. We, the undersigned, represent FirstNations who carry a mandate toadvance Title and Rights in ourhomelands today referred to asBritish Columbia and exercise ourauthorities in making thisDeclaration. We welcome otherFirst Nations not present today toadhere to this Declaration if they sochoose.Signed by First Nations leaders onNovember 29, 2007

In the words of the The New Relationship document

Somehow the RecognitionLegislation has been confused with the strengthof this Declaration.It was passed at an all-Chiefs Assembly inNovember of 2007, where 80 chiefs were present,immediately following thelandmark title case,Williams, or sometimescalled Tsilhqot’in, by the Xeni Gwetin community.Because of the similar timingbetween the legislative proposal, this resolution andthe development of a strategic action plan - direct,communications and legalstrategies; people have cometo think they are related.Unfortunately, the principlesput forward in theDeclaration will not be muchhelp in resource activity consultation frameworksthat are determined byBritish Columbia, as per theRecognition Legislation.

“

The BC Treaty Negotiating Times Page 23Summer 2009

2004, the Haida ruling found thatgovernment has a duty to consultwith aboriginal people whenever it"contemplates action" that mightinfringe an aboriginal right.

“In February 2005 we went to theFirst Nations Summit's meetingand presented some resolutions fordeveloping our formal relationship.It was at that point we found outabout their work with the provinceon this new approach. That becamethe new relationship.” - GrandChief Stewart Phillip, UBCICPresident, May 19, 2009

February 2008, Minister deJongreceived a copy of the draft legisla-tive proposal. The province hadbeen funding the FNLC, $2m, forthe working group to do so. - Hansard, May 2008

Westbank, March 12-13, 2008Louise Mandell and Stewart Phillippresent on legislative proposal at atitle conference to discuss Williams

November 2007, at an all-chiefsmeeting called by the LeadershipCouncil, 80 elected chiefs endorsedthe "All Our Relations" declara-tion, asserting and affirming abo-riginal title to all the tribal territo-ries.

March 2009, FNLC membershipresolved to endorse the legislation.

a brief

Timeline

Indigenous Network on Economies and TradeArthur Manuel, Spokesman11608 Palfrey Drive West,Coldstream, BritishColumbia, V1B 1A8, CANADA,Tel: +1-250-319-0688, email:amanuel@telus.net

The BC Treaty Negotiating Times is brought to you by:

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This vision can only be achieved ifFirst Nations citizens attain thesegoals. To achieve these strategicgoals, we recognize that we mustachieve First Nations economicself-sufficiency and make FirstNations a strong economic partnerin the province and the countrythrough sustainable land andresource development, throughshared decision-making andshared benefits that support FirstNations as distinct and healthycommunities. All BritishColumbians will benefit from aricher understanding of FirstNations culture and from econom-ic, political and cultural partner-ships with First Nations. We there-fore agree to the following princi-ples and action plan.

III. Principles to Guide the NewRelationship

We will mutually developprocesses and implement newinstitutions and structures toachieve the following:• integrated intergovernmentalstructures and policies to promoteco-operation, including practicaland workable arrangements forland and resource decisionmakingand sustainable development;• efficiencies in decision-makingand institutional change;• recognition of the need to pre-serve each First Nations’ decision-making authority;• financial capacity for FirstNations and resourcing for theProvince to develop newframeworks for shared land andresource decision-making and toengage in negotiations;• mutually acceptable arrange-

ments for sharing benefits, includ-ing resource revenuesharing; and• dispute resolution processeswhich are mutually determined forresolving conflictsrather than adversarial approachesto resolving conflicts.

This vision statement toestablish a new relationship hasbeen written as a measure of goodfaith by the parties to put intowords our commitment to worktogether to explore these conceptsand develop their full meaning.

IV. Action PlansWe agree to work together

to manage change and take actionon the following:1. Develop new institutions orstructures to negotiate Government-to-Government Agreements forshared decision-making regardingland use planning, management,tenuring and resource revenue andbenefit sharing;2. Identify institutional, legislativeand policy changes to implementthis vision and these action items;3. Develop additional protocols oraccords to further the implementa-tion of the vision, as required fromtime to time;4. Identify processes to ratifyagreements;5. Establish funding and distribu-tion structures/institutions to sup-port First Nations’ capacity devel-opment and effective participationin the processes establishedthrough these action items;6. Establish effective proceduresfor consultation and accommoda-tion;7. Appoint a joint working group

to review Forest and RangeAgreements and makerecommendations to the parties onoptions for amending those agree-ments, in order to make them con-sistent with the Vision andPrinciples above;8. Identify and develop newmechanisms on a priority basisfor land and resource protection,including interim agreements;9. Develop impartial dispute reso-lution processes and worktowards a decrease in conflictsleading to litigation; and10. Create an evaluation processfor monitoring and measuring theachievement of this vision andthese action items.

V. Management Committee andWorking GroupsThe parties will establish a jointmanagement committee of seniorofficials to:• develop terms of reference, pri-orities, and timelines for the man-agement committeeand the working groups by May31, 2005;• identify current issues of sub-stantial concern, and considershort and long term stepsthe parties could take to facilitatetheir resolution;• jointly develop policy frame-works;• establish joint working groupsand provide direction, timelinesand co-ordination tofurther the implementation of theaction items;• identify and allocate financialand technical resources for thework of the management commit-tee and the working groups;• make recommendations to theparties to address problems as

Splatsin First Nation5775 Old Vernon RoadMailing Address:PO Box 460Enderby, BC V0E 1V0

Web: http://www.spallumcheen.orgShuswap Nation Tribal Council

Continued from over, The New Relationship

they arise in the implementation ofthe vision; and• engage the Government of Canada.

For additional information

and updates on the

Recognition and

Reconciliation Act

go to:www.splatsin.ca .

Someadditional

documents andcomplete versions

of some of the articles are

available there.

The BC Treaty Negotiating TimesPage 24 Summer 2009 Issue #3

Negotiating?

In the words of

This pictograph tells the storyof the coming of newcomers tothe land. The land is plentiful.The circles under the figuresshow plentiful water. As the newcomers cross theland and mountains, they take,and take, and take, and takeuntil awareness happens. The lone dash between the fig-ures walking up the mountainshows the awareness. The other side of the mountain

still has the resources on theland. The water is still plenty inthe lakes and rivers. Under the figures who havetaken all the resources from theland, one water feature isalmost empty or destroyed. The other is still clean andplentiful.Between the water and moun-tain is a line that represents theawareness of the destruction.This awareness is shown in thejoining of two ways of thinking

There are two pictographs likethis in St’át’imc territory, andmore in other places in NorthAmerica, including in NorthDakota and in IroquoisConfederacy lands.

Is recognition legislation a symbol of a new awareness ofthe sacredness of the land? Oris it the seismic event whichbrings all our attention to theimportance of protecting whatwe have left?

or two groups of people; anawareness to ensure that furtherdestruction does not occur. The line represents an eventthat brings our attention tosomething. Our attention to thematter of the destruction of theland will raise our awareness ofwhich is the right thing to do,which is the right way to go.-Marie Barney, T’ít’q’etGrandmother, St’át’imcPeg’píg’lha7 TraditionalCouncil

Under the circumstances,First Nations peoples should bedemanding the brakes be put onthe proposed RecognitionLegislation. To examine the state ofAboriginal Title and Rights in B.C.will take more than "leadinglawyers. . . scholars and a jurist,"that the First Nations LeadershipCouncil has consulted.

In order for there to be FreePrior Informed Consent, FirstNations peoples will have to enterinto a broad information gatheringprocess about the state of theirlands, waters and traditional terri-tories. How can First Nations expectto have a proposed law and regula-tions developed when they don'teven have basic information aboutwhat the B.C. and federal govern-ments has allowed to occur on FirstNations territories?

Russell Diabo

when there were First Nations pre-pared to negotiate under it, as it iscurrently written.

Those First Nations acrossCanada who have agreed to negoti-ate under the federalComprehensive Land Claims policyand have collectively borrowedhundreds of millions of dollars fromthe federal government, using theirAboriginal Title and Rights as collat-eral, are among the weakest FirstNations in the country to be negoti-ating anything to do with AboriginalTitle and Rights with Crown govern-ments. This is true of the membersof First Nations Summit who arenegotiating under the BCTC processwith both B.C. and Canada.

From the discussion paperon the proposed RecognitionLegislation, it seems that in order toboost the BC treaty process and getmore "modern treaties" out of it,the B.C. First Nations LeadershipCouncil are looking for a short-cut.Instead of following the legal andpolitical process, they want aprovincial law and regulations.

Provincial recognition ofAboriginal Title and Rights maysound good on the surface, butwhat are First Nations giving up inthis process?

Under Canadian constitu-tional law there are legal principlesand tests the court has issuedregarding the interpretation of sec-tion 35 aboriginal and treaty rights.Keep in mind that the federal landclaims and self-government policiesof assimilation and termination arestill in place.

Until the proposed legisla-tion and regulations are releasedpublicly, no one can say with preci-sion how much the proposedRecognition Act and Regulationswill impact on section 35 rights.

However, there is enough inthe discussion paper for concernedFirst Nation peoples to demandcommunity level consultations andopportunities for serious jointdrafting of the proposed law andregulations from the bottom up,not the top down.

In December of 2000, thenMinister of Indian Affairs, BobNault, asked why the federal gov-ernment should change itsComprehensive Land Claims Policy

A Peg’píg’lha7Grandmother