Land has spiritual, economic and political significance for First Nations peoples. First Nations traditional territory—land occupied and used historically—is integral to their identity and survival as a distinct nation.
Under the Indian Act, First Nations are wards of the federal government, living on reserve land to which they have no ownership. Indian reserves cover just 0.4 per cent of the BC land base—a tiny portion of First Nations traditional territory. In some cases, reserve land is not even within a nation's traditional territory.
When a First Nation enters the BC treaty process they submit a statement of intent outlining their traditional territory. This establishes the parameters for land to be included in a final treaty. For most First Nations, treaty settlement lands—area of land that will be owned and managed by First Nations pursuant to a treaty—will likely comprise only a percentage of their traditional territory. For example, land included within the Nisga'a Treaty comprises approximately eight per cent of the nation's traditional territory.
Through treaties, BC First Nation's will finally attain the ability to have what non-aboriginal Canadians have had since day one—land ownership.
Aboriginal Title and Crown Title
In 1997, the Supreme Court of Canada ruled in the Delgamuukw case that aboriginal title is a right to the land itself—not just the right to hunt, fish and gather. Crown title refers to the provincial or the federal government's interest in land. Almost all Crown land in BC is held by the province.
Delgamuukw confirmed that aboriginal title still exists in BC and that when dealing with Crown land the government must consult with and may have to compensate First Nations whose rights are affected. Aboriginal title is often referred to as a burden on Crown title.
Who can own the land? Aboriginal title is a communal right; an individual cannot hold aboriginal title.
What limits are there on land use? Because aboriginal title is based on a First Nations relationship with the land, these lands cannot be used for a purpose that may impair traditional use of the land by future generations.
Can the owner sell the land? Aboriginal title land can only be sold to the federal government.
What laws protect aboriginal title? Ordinary land ownership is protected by common law and provincial statutes. Aboriginal title has the additional protection of the Canadian Constitution, as do all aboriginal rights—those that exist now and those that may be acquired in a treaty.
The BC treaty process has always been guided by the principle that private property (fee simple land) is not on the negotiation table, except on a willing-buyer, willing-seller basis.
In urban areas where Crown land is limited, private property available from willing sellers will be critical to achieving final treaties. It is important to consider the land issue within the following context:
- In most cases, it will be Crown lands and resources transferred under treaties.
- Numerous economic studies have concluded that increased control by First Nations will boost their self-sufficiency and result in joint venture and partnership business opportunities for non-aboriginal people as well.
- The transfer of land and resources will enable First Nations to develop their own businesses and create taxable revenues.
First Nations are watching potential treaty settlement land being developed by forestry, mining and other businesses, while not sharing in decision making or business opportunities. Some development is occurring within sensitive archaeological areas and areas with spiritual significance to First Nations.
Protecting land that will ultimately be part of a final treaty settlement is crucial to restoring First Nations faith in the treaty process and to ensuring that an acceptable land package can be delivered when a final treaty is reached. Land protection agreements, a type of interim measures agreement among Canada, BC and a First Nation, are important building blocks to final treaties.
In March 2001, Cowichan Tribes, Hul'qumi'num Treaty Group, Canada and BC signed an agreement to protect 1, 700 hectares of land between Duncan and Lake Cowichan known as the Hw'teshutsun or the Hill 60 sacred site. According to Cowichan creation myths Hw'teshutsun is the area where people first fell from the sky.
In its Review of the BC Treaty Process, the Treaty Commission strongly urged the governments of Canada and BC to negotiate more land protection agreements.
In July 2002, Canada and BC signed an agreement with Yale First Nation to set aside 181 hectares of land for potential inclusion in an eventual treaty settlement. The land, located in the Hills Bar area, is important to Yale's cultural heritage and a significant archaeological site. Under the three-year agreement, an existing mineral licence was honoured but no new forestry, mining or land development licenses were issued. The agreement was extended in 2005.
Parks and Protected Areas
The concept of "parks" and "protected" areas runs contrary to First Nations holistic approach to responsible land stewardship—all land is treated with equal respect. However, as lands, resources and archaeological sites are increasingly threatened within First Nations' traditional territories, setting aside specific areas to protect them from development and degradation has gained support from many First Nations.
For example, Tsleil-Waututh Nation signed the Cates Park/Whey-ah-Wichen Agreement with the District of North Vancouver (2001) to protect archaeological resources in Cates Park and work towards mutually beneficial economic opportunities.
Treaties may include provisions for First Nations to be directly involved in the planning, staffing and operation of parks within their traditional territory. Some treaties may include a portion of settlement lands set aside as protected areas.
Land Use Planning
Because First Nations' culture and spiritually is intrinsically tied to their traditional territory, treaties may also include co-management rights on traditional territory outside of treaty settlement land.
In 1992, the BC government established a land use planning process that led to the development of land and resource management plans (LRMPs). The first LRMPs were complete in 1995. However, in many parts of the province the LRMP initiative preceded treaty making and in most cases did not involve First Nations. Furthermore, though these plans were developed without prejudice to aboriginal rights and title, most First Nations chose not to participate in these stakeholder processes, preferring government-to-government negotiations on land issues.
Today, among First Nations there is recognition of the need to define their rights and title by developing a land use plan for their territory. Land use plans are seen as an essential tool for setting out the First Nation's vision for land and resources and reflecting the priorities and values of its people. These plans describe lands and resources of the territory; identify land use issues, challenges and opportunities that are of concern to the community, and that need to be addressed; articulate a vision for the future of where First Nations people want to go with their land and resources; summarize community priorities for protection and development of resources; and provides direction for what activities are acceptable, where activities should occur and where they should not be carried out.
Reconciling existing land and resource management plans with First Nation land use plans is beginning to be addressed. In February 2006, First Nations and the BC government came to a land use decision in the North and Central Coasts. The combined Central Coast and North Coast Land and Resource Management Plan covers approximately 6.4 million hectares from north of Vancouver Island to the Alaska Panhandle, protects 1.8 million hectares, and special logging regulations apply wherever forestry is allowed in the area.
Comprehensive Community Planning
Treaties will bring significant changes to current land management practices, governance authorities and the economic make-up of First Nations communities and regions. Comprehensive community planning is one way First Nations can take control of the development, maintenance and growth of their own communities leading up-to and after treaty.
Comprehensive community planning allows a community to plan for all elements of its community in an integrated way, including: governance, culture, health, land use, environment, economic and social development and physical infrastructure.
Comprehensive community planning will be especially important where First Nations have close non-aboriginal neighbours. Development in non-aboriginal communities can have a huge impact on First Nation communities and, similarly, development by a First Nation can have a huge impact on its neighbours.
To help prepare First Nations and their neighbouring local and regional governments for this new reality, the Treaty Commission has initiated a pilot project on intergovernmental community planning among Sliammon First Nation, the Corporation of the District of Powell River and the Powell River Regional District. The four phase project comprises development of a Sliammon community plan, comparison of Sliammon and local/regional plans, amendment of plans and implementation and monitory.
Like fish and forests, wildlife are critical to First Nations culture, lifestyle and self-sufficiency. As development continues within First Nations' traditional territory, wildlife are increasingly threatened. First Nations want to protect their right to continue responsible wildlife stewardship and hunting as they have for thousands of years.
Treaties will balance the right of aboriginal people to continue traditional hunting with the need to protect wildlife. For example, the initialled Nuu-chah-nulth agreement in principle includes rights to harvest wildlife and migratory birds for food, social and ceremonial purposes limited by conservation, public health and public safety.
In addition, Nuu-chah-nulth received interim measures funding to participate in a multi-stakeholder West Coast of Vancouver Island Wildlife Management Committee. The committee will allow Nuu-chah-nulth to have an advisory role on wildlife management within their traditional territory.