IN THE FALL of 1997, I had the opportunity to work with the
Sto:lo Nation of the Fraser Valley of BC. Sto:lo comprised 19 First
Nations at that time, and had just created a business arm, Sto:lo
Development Corp., whose mandate was to create economic
opportunities in its territory.
It was during this time that the landmark Delgamuukw v.
BC ruling was handed down by the Supreme Court of Canada.
First Nations across Canada saw this important judgment to be a
major victory, as it confirmed that Aboriginal title did indeed
exist and that title included a right to the land itself.
Delgamuukw required both levels of government to
consult with First Nations, and where required,
accommodate their interests. Thus, the era of the
"consultation and accommodation" began.
I recall it being an exciting and hopeful time for BC First
Nations, as it provided an opportunity to redefine their
relationship with BC and Canada, and also provided an eye-opener
for the BC Treaty Process, which was then five years old but slow
to get off the ground.
While Delgamuukw identified the need for consultation
and accommodation, it didn't speak to how this process should
work. The BC government began to develop its policies, while First
Nations established their own expectations. This is where the
challenges began. First Nations viewed BC's consultation
approach as too limiting, as discussions focused on specific areas
and were restricted to traditional activities. First Nations grew
frustrated with a process that was viewed as unilateral and not
fully representative of their interests.
The consultation discussion was again bolstered by the
Haida/Taku decision in 2004. These cases added an
additional "economic component" to the accommodation
discussions. And directly on their heels was the "New
Relationship Agreement" between BC and First Nations. This
agreement set out a path for new institutions and processes to be
created that allowed for shared decision-making and revenue-sharing
between the two. While this agreement was an obvious step forward,
First Nations generally found the implementation of the agreement
For First Nations, shared decision-making meant the province
shared their decision when they made it — in other words,
unilaterally. In terms of the sharing of resource revenue, this was
again seen as unsatisfactory. BC determined which revenues would be
shared – forestry: yes, gaming: no – and offered on a
Caught in the middle of all of this was industry, which simply
wanted to understand the rules of the game. Who should they talk
to? How and when were decisions going to be made? This obviously
created an air of uncertainty and increased risk.
Moving forward, add another landmark ruling in the Supreme Court
of Canada. The Tsilhqot'in Nation v. BC decision in June
granted Aboriginal title to the Tsilhqot'in Nation of 1,900
square kilometres, a large portion of its traditional territory.
The case began with a forestry-related consultation matter on
Tsilhqot'in Nation territory. The ruling will have a major
impact on the future of the Tsilhqot'in people, but the case
will also affect relations between Crown and First Nations across
Canada (see "Game Changer," page 72).
It is unquestionably clear that change is required. In 1996,
shortly after the start of the Treaty Process in BC, First Nations
living on reserve were earning only 49 per cent of what the
province's non-Aboriginal population earned. By 2011, the
situation hadn't improved, but worsened — First Nations
living on reserve were earning only 46 per cent of what
Most expect changes to the current consultation and
accommodation processes in BC, along with the Treaty Process. No
longer will discussion be narrowly focused on specific areas or
traditional activities, but will instead fall within the context of
Aboriginal title within traditional territories. My non-legal view
of the case leads me to believe that BC and other jurisdictions
will view the risks as too high to continue with past consultation
and accommodation practices. There will be an opportunity to engage
First Nations, either through project consultations or through the
Treaty Process, in a new manner respecting the recent legal
The consultation and accommodation process, along with the BC
Treaty Process, are complicated, evolving areas. Recent
developments provide an invitation for all parties – First
Nations, government, and industry – to assess successes and
failures, and move forward in a positive manner.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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