Crown Land Referrals Workshop II: First Nations Success Stories

Workshop Summary by Steven DeRoy

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Natives get a veto on government decisions

Vaughn Palmer, Vancouver Sun, Friday, November 01, 2002

VICTORIA - The B.C. Liberals have laid down a new policy on aboriginal interests that will affect virtually every decision involving provincially owned land and resources.

The policy, scheduled for release today, applies to all government ministries, agencies and Crown corporations.

It likewise applies to "all decisions . . . that are likely to affect aboriginal interests" -- which, keep in mind, involve First Nation claims to ownership of the entire province.

"This policy is effective immediately," declares a government document, in terms reserved for the highest-level directives from the cabinet table.

"Consistent application of this policy across government is essential. It is important that the methods outlined below are understood and applied in their entirety."

The title identifies it as a "provincial policy for consultation with First Nations," harking back to a similarly titled policy established by the New Democratic Party government in 1998. But the new policy goes well beyond anything contemplated by the New Democrats.

The previous government put the emphasis on consultation. Officials were required to hold meetings with First Nations, assess the "potential" of their claims, keep them informed, and provide them with opportunities to participate and offer advice.

The Liberals, mindful of recent court decisions, now want officials to assess the "soundness" of aboriginal interests -- i.e. the likelihood the natives might win if they went to court.

The new policy also requires officials to "accommodate" First Nations, through negotiations, side deals or other forms of agreement.

"Mere consultation," to quote the 1997 Supreme Court of Canada decision in the Delgamuukw case, is no longer enough. Instead, natives have what amounts to a veto over provincial decision-making, which is apparently what the courts intended.

The new policy sprawls over almost 40 pages. I'm told the full text will be posted, perhaps later today, on the government Web site (www.gov.bc.ca), under the Ministry of Sustainable Resource Management.

But essentially the policy lays out a multi-step process. Officials must first assess whether the decision on land or resource use will affect aboriginal interests.

If the answer is "yes," then the affected First Nations -- or nations, since many interests overlap -- should be advised "as early as possible."

"It is not likely that this assessment would result in a determination that consultation is not required except in very specific cases," warns the policy, citing measures to combat floods and epidemics as being among the few circumstances where First Nations need not be told in advance that their interests will be affected.

Once consultation is under way, further assessments are required. Which aboriginal interests will be infringed and to what extent? Can the infringement be justified in the broader public interest? Even if it can, how can the natives be compensated?

Throughout, the policy requires provincial officials to exercise an extraordinary degree of discretion. Their assessments must be "thorough." Consultation must be "diligent, meaningful, effective, and adequate." All of these are judgment calls, subject always to second-guessing by lawyers and the courts.

Indeed, the policy would appear to demand that provincial officials conduct a mini-land claims trial in some circumstances.

To assess the "soundness" of a particular aboriginal interest, they are required to consider evidence presented by First Nations as well as whatever they can assemble themselves from archeological research, historical evidence, local knowledge and legal advice.

Provincial officials are likely to spend a great deal of time closeted with lawyers, for the policy contains a number of reminders about the need to consult "the legal services branch, ministry of attorney-general."

The Liberals are optimistic that by applying these guidelines seriously, they can make some progress.

But it is hard to be optimistic, with some First Nations already complaining that the consultation guidelines were themselves produced "without adequate consultation."

"If resolution cannot be gained through negotiation, attempted accommodation or other methods," says the policy with a near-audible sigh, "it will be advisable to re-evaluate the project or decision and or seek legal advice before proceeding further."

Officials are further advised "records should be kept" on their efforts to consult and accommodate. Then if things end up in court, they can at least demonstrate to the judges that they tried.

Vaughn Palmer can be reached by e-mail at: vpalmer@direct.ca

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Paper: Developments in the Law of Consultation and Aboriginal People - 2002

by Robert Freedman and Hugh Braker, Q.C., Braker & Company
reproduced with permission and courtesy of the B.C. Aboriginal Fisheries Commission

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Tsawwassen First Nation

Referrals in an urban setting




The Tsawwassen First Nation (TFN) is located in the Lower Mainland of British Columbia. Their traditional territory, as displayed here, encompasses reaches of the Pitt and Fraser River systems, with adjacent land and foreshore, and extends across the Georgia Strait to encompass some of the Gulf Islands.

The general context in which consultation and Crown Land Referrals occur is different in the densely populated and urban interface areas of the Lower Mainland than in rural parts of the province, where forestry tends to be the main issue. In TFN’s territory, much of the land and shoreline have been developed, fee simple ownership predominates, and there exist limited opportunities for traditional pursuits aside from those that are marine based.

The Tsawwassen are consulted on proposols for activities that are to occur along the Fraser River and in coastal lands and waters. Most of the referrals fall within three broad subject areas of classification: environmental, archaeological, and crown land transfers.The TFN's GIS/Resource Analyst handles incoming referrals, doing the necessary research and then either issuing a response as is the case with environmental and archaeological referrals, or passing the referral along to others for additional input, as is the case with most land transfers.

The Tsawwassen have integrated referrals related information into a database that houses their traditional use study (TUS) information, and linked that up to a geographic information system (GIS). The GIS is based on ArcView by ESRI, and the database on Microsoft’s Access software. The two programs are connected by custom programming, developed in the Visual Basic environment. When required, information from project proponents is analyzed and/or mapped with the GIS.

To following case exemplifies how the referrals process works. Transport Canada was planning to allot parcels of land to the City of Surrey for the establishment of a park. The divestiture involved TFN traditional use land, which gave reason for concern, as when Crown land is alienated by way of transfer, it is then unavailable for inclusion in a treaty settlement. TFN specified to the Transport Canada divestiture officer the information that they required to participate in meaningful consultation, explaining their own capacity and requested that all communications be in writing. Detailed geographic information, and a history of ownership for each parcel was requested, including digital files that could be integrated with Tsawwassen’s GIS system.

Their requests were met. TFN was supplied with paper maps, and limited cadastral information. That information was digitized, and overlayed on their TUS information in ArcView. TFN then checked to see if the area is located in, on, or near an 'area of interest' for the Tsawwassen. According to Andrew Bak, the TFN's GIS/Resource Analyst, this procedure is repeated for every referral. Andrew attributed the success in having their requests met to the good relationship that was developed with the Transport Canada personnel that they worked with from Transport Canada, as well as to their investment in research and technology, which demands respect and helps to elicit a response when concerns are raised.

Copyright © 2002 - Sliammon First Nation & Ecotrust Canada