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The Truth About BC-FN Reconciliation Agreements 04-02-13

The Truth About BC-FN Reconciliation Agreements 04-02-13

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Published by Russell Diabo
Another version of Non-Assertion of rights Model.
Another version of Non-Assertion of rights Model.

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Categories:Types, Research
Published by: Russell Diabo on Apr 08, 2013
Copyright:Attribution Non-commercial

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04/08/2013

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Truth about Reconciliation
 
(agreements)
Ryan DayBA Economics (SFU)MA Indigenous Governance Candidate (UVic)
 
 
The following is a summary and comments regarding current pre-treaty agreements being negotiated by First Nations taking part in the British ColumbiaTreaty Commission (BCTC) process. The Snuneymuxw signed the latest of theseagreements Tuesday March 26, 2013. The title of this agreement is officially the
Snuneymuxw First Nation Reconciliation Agreement
. Despite it’s name
it follows very closely with other recent
Incremental Treaty Agreements
 signed by the
 Nazko
on June 29, 2012;
Tla-o-qui-aht 
on November 16, 2012;
 Kitselas
and
 Kitsumkalum
on January 31, 2013; and
 Malahat, Scia’new,
 Snaw-naw-as, Songhees,
and
T’souke
on February 26, 2013. Because theseagreements are near identical I will use the most recent
 Snuneymuxw
 agreement as the example as the most recent can be taken as the going precedent.The importance of understanding these agreements and their implications for allcommunities whether involved or not in the BCTC process cannot be overstated,as they will severely compromise the ability to assert our Inherent Rights asIndigenous peoples and the caretakers of the land in which our Ancestors restand the water which gives it life.
“ 
Reconciliation:
The Snuneymuxw First Nation acknowledges and agrees that,in the spirit of the New Relationship, the Lands transferred to the Snuneymuxw First Nation in accordance with this Agreement constitute a contribution by the
Province towards the reconciliation of the Province’s and the Snuneymuxw First Nation’s interests
 
[rights and title to lands and waters]
and, as such, thebenefits provided to the Snuneymuxw First Nation under this agreement will be
counted as a portion of the Province’s contribution towards any Final 
Reconciliation Agreement 
 
[outcome of BCTC process]
that the Parties and Canada may conclude
.” 
 
[square brackets are my additions]
 
 
Reconciliation in this context is not referring to the
Truth and  Reconciliation Commission
process regarding Residential Schools.
 
Reconciliation in the context of the BCTC refers to reconciling the crown’s
assertion of title rooted in the assertion of British sovereignty (which is based on the Doctrine of Discovery. In short, because Indigenous people were not Christians, these lands were considered
terra nullius
, vacant, andthus sovereignty could be asserted.), and aboriginal title (I will use theterm aboriginal throughout as not to be confusing). Aboriginal title of course is rooted in the existence of our ancestors bones in the very ground we walk on, however in terms of Canadian law our
“existing aborigina
and treaty rights are hereby recognized and 
affirmed” 
in the
Constitution Act 1982.
These rights are further articulated as including title in the 1997Supreme Court of Canada (SCC)
 Delgamuukw
decision. In the
 
Snuneymuxw situation this reconciliation also refers to their DouglasTreaty.
 
In sum, it means to reconcile who holds the title and who holds whichrights associated with that title, which will then create
economiccertainty 
for the province, the Snuneymuxw and the private sector (I willreturn to this later).
 
Furthermore, the lands in question are part of the possible landstransferred in a final agreement and so do not constitute additional lands but an
advance.
 
 
However, should a final agreement be signed, the Lands in this agreementmay not necessarily become treaty lands.
 
This agreement involves 877 hectares of the 98 000 hectares of Traditional
Snuneymuxw Territory, that’s 0.89%.
 
One of the single most important aspects to this agreement is laid out inthe first article (1.2.h) stating that for the purposes of this agreement theChief and Council represent the Snuneymuxw First Nation.
 
Unlike a Final Agreement outcome of the BCTC, which requiresa referendum, this agreement requires only the decision of theChief and Council.
In fact, the agreement requires the pre-existence of aBand Council Resolution that permits the Chief and Council the authority to sign the agreement (5.1).
 
Furthermore, the Lands will not be transferred directly to the Nation, butto a
 Designated Company
owned by the Nation
.
“3.3
Termination on Litigation. Notwithstanding 3.2 
[termination of theagreement],
the Province may terminate this Agreement, including the transfer of any Lands which have not been completed, in the event the Snuneymuxw First Nation commences any action or other proceeding relating to any Governmental 
 Action within the Traditional Territory” 
[
where Governmental Action means: allland and resource-related processes, decisions, authorizations, permits,licenses, approvals, Crown land dispositions, agreements and other actionswhatsoever issued, granted, entered into or otherwise taken by a ProvincialOfficial either before or after the date of this Agreement]
 
To be clear, this means if the Snuneymuxw object to anything the Provincedoes regarding lands in their Traditional Territory (the other 99.11%) thereis nothing they can do about it either through direct action or litigation, orthe Province will terminate this agreement.
 
If the Snuneymuxw still choose to take the province to court, by article13.3 they are required first to go through a Dispute Resolution process inarticle 17.
 
 Additionally, by article 13.1 the Snuneymuxw will suspend any litigationagainst the Province until March 9, 2022 or the signing of a Final Agreement. If a Final Agreement is signed, then by article 13.2 thelitigation will be terminated.
 
“3.4 Survival of Lands Conditions. Notwithstanding 3.2 
 
[termination of theagreement]
, and subject to a Final Reconciliation Agreement, where any of theLands are transferred under this Agreement, Articles 7, 10 and 12 will survive thecompletion of the transfers or the termination of this Agreement and, for greater 
certainty, will continue to apply to the Lands.” 
 
 
This clause says that even if the province terminates this agreement (3.2), by Article 7 the Snuneymuxw are still on the hook for any environmentalliabilities and damage both above and below ground.
 
By article 10b the Lands cannot be added to and designated as reservelands as in section 91(24) of the
Constitution Act 
 
1867.
 
 
 Also by Article 10.1(c):
“the Lands are subject to provincial and local government laws, including 
applicable zoning, land use, land development and property tax laws, andat no time after Closing will the Snuneymuxw First Nation challenge the
applicability of provincial laws to the Lands.” 
 
 
This article speaks for itself. So the Lands, bound by the provincial andlocal laws, will be transferred from the Province to a Designated Company, bound by the laws of the province, owned by the Snuneymuxw. This is nodifferent than if the crown was to turn land over to a private company,save for the fact that the Snuneymuxw are on the hook for any potentialenvironmental liabilities.
 
For even further clarity this means giving up ANY existingaboriginal rights to that land and being under the complete jurisdiction of the settler government.
This is why these agreementsshould be held to a referendum just as a final agreement would be; it
extinguishes
the aboriginal rights held by all Snuneymuxw.
That’s not all.
 
 
The agreement also outlines “Permitted Encumbrances,” which
essentially means no interference with any existing title registered under the
 Land Title Act 
, any exceptions contained in any previous Crown grant of theland, water licenses, grants and rights under the
 Mineral Tenure Act, Coal  Act 
or
 Petroleum and Natural Gas Act 
among other things.To add to this point,
 
in article 5.2, the Snuneymuxw are required to terminate any objectionsthey have with ANY and ALL referrals from the province(due to the
crown’s “duty to consult”
First Nations, when issuing a permit for anythingthey must send a
referral 
to the associated First Nation whose rights couldpotentially be infringed upon by the granting of said permit).Furthermore, by article 4.1(e), the Province has fulfilled its duty-to-consult with regards to all Lands and all Permitted Encumbrances.
 
Finally, throughout the agreement
aboriginal rights
are referred to inseveral articles:

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