WHY THE TREATY PROCESS?
Throughout the rest of Canada, treaties were negotiated as non-native settlement occurred. These early treaties had a formula of 640 acres per family with cash and other provisions.
Britain recognized aboriginal title through the Royal Proclamation of 1763, which stated that only the British Crown could acquire land from First Nations and such acquisitions would happen through treaties.
When BC joined confederation in 1871, one of the directives from Canada was to justly resolve the aboriginal rights and title issue. What instead happened is BC aboriginals received small reserves which were continually being carved down in the period of 1915-1920.
The Provincial policy on aboriginal land title did nothing to address numerous groups of aboriginals who traveled to Victoria to voice their dissatisfaction over the treaty process.
Section 35 of the Constitution Act 1982, affirmed that aboriginal title, and the rights that go along with it, exist whether or not there is a treaty. Continued uncertainty about how and where these rights apply discouraged investment and economic development in BC.
B.C. needed treaties to clearly define aboriginal rights and title, thereby bringing certainty to ownership of BC’s land and resources. The process of negotiations has been challenging with only the Nisga’a, Tsawwassen and Maa Nulth reaching modern day treaties in the first decade of 2000.
Sliammon has been working with B.C. and Canada through the B.C. Treaty process to address the outstanding land question by borrowing money and reaching stage 5 of stage 6. A community vote was held in 2001 on an agreement in principle. This was a split vote – 51% voted no 49% voted yes. Again the community voted in 2003 on an agreement in principle and this passed by 63% yes, 37% no.
It is anticipated Sliammon will be voting in 2010 on a Final Agreement.
Comprehensive Claims (Treaty) vs. Specific Claims
Sliammon is currently engaged in parallel processes to resolve rights and title and historical issues. We are in the Comprehensive Claims and the Specific Claims processes. Comprehensive Claims are Treaty negotiations. The federal government started the Comprehensive Claims process to deal with parts of the country where historic Treaties were never signed. British Columbia has the highest number of unresolved Treaties of any province in Canada.
Comprehensive claims usually involve Self-Government, Land, Fishing and Hunting Rights and Cash. For B.C. the federal and provincial governments and the First Nations Summit developed the B.C. Treaty Commission process. In 1993, Canada, BC, and First Nations in the province established the British Columbia Treaty Commission (BCTC) to facilitate the negotiation of treaties. Its main function is to act as an independent third party, a keeper of the process on behalf of First Nations and governments.
The BCTC process is slightly different from the Comprehensive Claims process in the rest of Canada. Unlike the Comprehensive Claims process the BCTC process does not require First Nations to provide proof of rights and title before they can be accepted into the process. This is positive in some ways but has also resulted in numerous overlaps from First Nations claiming expansive Territories, sometimes without much historical evidence. Sliammon is currently involved in the comprehensive land claims process through the BCTC process. For more information on the BCTC process, you can go to their web-site at www.bctreaty.net.
Specific Claims Are Based on Specific Historic Losses, Usually Reserves.
The federal Specific Claims process deals with specific instances where the federal government failed to fulfill a legal obligation to a First Nation, or breached its fiduciary duties. Indian and Northern Affairs Canada recognizes the following as grounds for specific claims:
- The non-fulfillment of a treaty or another agreement between First Nations and the Crown;
- The breach of an Indian Act or other statutory responsibility;
- The breach of an obligation arising out of government administration of First Nations funds or other assets; or
- An illegal sale or other disposition of First Nation land by government.
Aboriginal rights and title cannot be dealt with through Specific Claims.
Sliammon currently has 6 specific claims files which are being pursued by Sliammon Chief and Council and the negotiation team. For some of them our Specific Claims lawyer, Allan Donovan, has completed a revised or new legal opinion to make sure we put forward our strongest case. Our specific claims include:
- Wilde Road (which has been initially rejected by Canada),
- Southview Beach/ Scuttle Bay (which has only been partially accepted by Canada)
- Klahannie (Lot 29)
- Lund Road (which was revised and submitted)
- Tees-Kwat (which has recently been submitted and has been initially rejected)
The biggest of our specific claims is for Tees-Kwat. Council submitted our Specific Claim for Tees-Kwat stating that this should have been a Reserve. Our lawyers, Allan Donovan and Murray Browne, advised when we submitted the claim that Tees-Kwat is a difficult claim to have accepted. Canada often declines to accept claims for lands that should have been Reserves. They often will only accept claims for Reserves that were originally confirmed but then taken away. It is clear that Sliammon should have had Tees-Kwat as a Reserve. Our team pulled together very strong historical and legal documents.
Despite our strong submission, on August 12, 2009, the federal Deputy Minister of Indian Affairs wrote to Chief and Council rejecting the claim. INAC gave the following reasons (excuses) for the initial rejection:
- Canada never had possession or jurisdiction over Lot 450. It was under the control of the Province so it is B.C.’s fault that the Sliammon members were forced from the village at Tees-Kwat and the land was sold to make way for the mill.
- Canada had not duty to create a Reserve at Tees-Kwat in part because Sliammon never mentioned to the Reserve Commission that Sliammon wanted a Reserve there.
- Sliammon’s claim is based on aboriginal title and is not appropriate for a specific claim.
Sliammon now has three options. We can try to negotiate to deal with Tees-Kwat in Treaty, appeal the decision to the new independent Specific Claims Tribunal, or go to court.
#1 – Treaty
Sliammon Council and the Treaty team have tried to negotiate compensation for Tees-Kwat in Treaty. The negotiation team is working with Council and the community to put forward proposals to deal with Tees-Kwat in or alongside Treaty. The initial proposals have focused on some form of recognition and compensation as well as a plan to bring sockeye salmon back to Powell Lake. Unfortunately, the federal government currently refuses to negotiate fisheries issues in Treaty. It may be that Sliammon is not able to negotiate anything in Treaty for Tees-Kwat despite the best efforts of Council and the Treaty team.
#2 – Legal
Sliammon has filed a legal writ for a title claim to Tees-Kwat to keep legal options open. Court cases can be long and expensive. However, Sliammon is keeping this option open as a last resort.
#3 – Specific Claims Tribunal
The timing is good for an appeal to the new Specific Claims Tribunal if necessary because the federal government has already passed the legislation for the new tribunal. Unlike the past Indian Claims Commission which could only make recommendations, the new tribunal will have judges that can make binding decisions on Canada.
Council and the Treaty team will sit down with our lawyers to review the options and choose the best path forward. Any community input would be welcome.
Sliammon is hoping to complete all of most of our Specific Claims and bring the offers to the community to vote on before the Treaty is completed. However, the federal government is notoriously slow for accepting and negotiating Specific Claims. If Sliammon is not able to complete the Specific Claims prior to Treaty, we will make sure that all valid claims are kept open for negotiation after Treaty.