Copyright 2010, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Aboriginal Law, January 2010
The first part of 2009 witnessed the province's failed effort to experiment with legislation to address the long unresolved matter of aboriginal land rights in B.C. By the fall of 2009, the province had returned to the principles set out in its 2005 New Relationship document to re-calibrate the path forward on aboriginal relations. In the last days of December 2009, the province announced four different legally binding agreements, or "reconciliation protocols", with various First Nations groups, primarily located on the West Coast. These agreements indicate what the future will bring on this ever-changing landscape in B.C. And, often, what B.C. leads with, other provinces will follow.
Notably, all of these agreements build on existing agreements between the province and First Nations. They also share two common themes: (i) they are focussed on mechanisms to collaborate on land and resource use decision-making (with varying degrees of specificity); and (ii) they set out broad yet tailor-made goals for resource-revenue sharing and infrastructure building, including specific measures around forest tenures, carbon offsets, and alternative energy considerations. The province explains that with these protocols, it is aiming to avoid disputes and litigation with First Nations and to allow statutory decisionmakers to act with certainty around consultation. The writer understands that these protocols are intended to deal primarily with land use decisions outside of the provincial environmental assessment process.
What is the impact of these agreements on the current role of third parties in dealing with First Nations consultation/accommodation? A review of these agreements indicates that the province intends to continue to delegate certain procedural aspects of consultation to third parties and that third parties are expected to continue to have a role in providing economic benefits from resource projects to First Nations.
HAIDA PROTOCOL (SIGNED DECEMBER 11, 2009)
The province emphasizes that this "one-of-a-kind" protocol was negotiated as a result of the litigation history and strong claim to aboriginal title of the Queen Charlotte Islands, or Haida Gwaii, that the Haida Nation (the Haida) hold. Without ever mentioning the word "treaty", the protocol states that it is part of the incremental process the parties have agreed on for the negotiation of a "Reconciliation Agreement" (defined to be a more comprehensive agreement). Most importantly, each of the province and the Haida House of Assembly are committed to passing legislation to assist with the implementation of the protocol. The province has targeted the spring of 2010 for this legislation. To implement the protocol over five years, the province will fund the Haida Nation with a payment of C$600,000 per year, and a C$200,000 payment upon signing.
Building on a 2007 Strategic Land Use Agreement between the Haida and the province, which established land use zones for both economic activity and ecosystem protection, the protocol creates a Joint Management Council to make shared resource use decisions. The Joint Council consists of five members, two appointed by each of the province and the Haida, with a jointly appointed Chair holding a tie vote. The protocol does not provide detail as to what the Council will manage other than to focus on strategic-level matters (highlighted further below). As such, this protocol is enabling only based on a framework set out in the attached Schedule B, which will be developed with additional frameworks and implementation plans. Progress is to be measured by July 2010. By consensus decision-making, the Council is responsible for joint decision-making relating to specified strategic-level matters, such as:
- Implementation and amendment of the Haida Gwaii Strategic Land Use Agreement;
- Establishment, implementation and amendment of Land Use Objectives for forest practices and determination and approval of the Allowable Annual Cut for Haida Gwaii; and
- Developing policies and standards for the identification and conservation of heritage sites.
Other matters that the protocol deals with are:
- Carbon Offset Sharing and Resource-Revenue Sharing. Schedule C of the protocol outlines a framework for the parties to agree to share carbon offsets, initially focussed on forest offsets. The essence of this approach is that there will be a further agreement, an "Offset Sharing Agreement", to be negotiated by September 30, 2010, that will establish the basis for qualifying and sharing carbon offsets. The parties also agree to pursue additional revenue sharing opportunities related to new major natural resource development projects.
- Forest Tenures and Other Economic Opportunities. In Schedule D of the protocol, the province reaffirms its 2005 commitment to provide a forest tenure of 120,000 cubic metres to the Haida. Additionally, the province agrees to pay C$10-million to the Haida for the purpose of acquiring forest tenure. This funding is a credit against future reconciliation payments.
- Enhancement of Socio-Economic Wellbeing. This is the most vague part of the protocol as there is no accompanying schedule and no timelines. The parties state that they are committed to "an approach", which recognizes and strengthens the inter-relationship between environmental, social wellbeing and economic development. In addition, a socio-economic approach, with children and families at the centre, will be developed by the Haida.
COASTAL FIRST NATIONS PROTOCOL (SIGNED DECEMBER 10, 2009)
This protocol is between the province and six Indian bands from the Central and North Coast area. It has elements that are both parallel to and different than the Haida Protocol. Like the Haida Protocol, this protocol builds on pre-existing land use agreements from 2001 and 2006. The implementation funding of this protocol is identical to that provided under the Haida Protocol.
A centerpiece of this protocol is a framework for shared land use and resource decision-making. However, this protocol is much more prescriptive. It sets out an "Engagement Framework" that is to be implemented during the next six months.This framework has five different levels of decision processes and timelines, depending on the type of potential impact that a permit application may have. Interestingly, the protocol states that it is "not intended to affect any obligations that tenure or permit holders or other third parties may have with First Nations."
Other key elements of this protocol are:
- Carbon Offsets Sharing and Resource-Revenue Sharing. The protocol contains a schedule identical to the Haida Protocol on this topic. Also, like the Haida Protocol, the parties also agree to pursue additional resource-revenue sharing opportunities around major natural resource developments.
- Economic Opportunities and Economic Strategies. To facilitate the defined economic opportunities and strategies in the protocol, the Coastal First Nations have established the Great Bear Business Corporation. These economic goals deal with forest tenure volume allocations, recreational tourism and the development of an Alternative Energy Action Plan, to be worked on collaboratively by the province, independent power producers and First Nations.
NANWAKOLAS FRAMEWORK AGREEMENT (SIGNED DECEMBER 16, 2009)
The province entered into a Framework Agreement with six First Nations, covering a land base from Port Alberni (Vancouver Island) to the north-eastern part of Vancouver Island and over into the Knight Inlet area of the central coast of the mainland. The province provides a three-year funding commitment to the Nanwakolas Council of C$685,000 per year, with a C$215,000 initial payment for 2009. This protocol establishes the Nanwakolas Strategic Forum, as the body with overall implementation authority.
This Framework Agreement is very similar in approach to the Coastal First Nations Protocol in that it sets out in considerable detail an engagement matrix for different types of resource decision-making. This matrix is even more detailed than the Coastal First Nations Protocol as it approaches the process by statutory type (i.e., a permit under the Wildlife Act or the Environmental Management Act). Plus, six different provincial agencies are also parties to it, unlike the above two protocols (simply represented by the Minister of Aboriginal Relations and Reconciliation).
The economic imperatives of this Framework Agreement are broader than those discussed in the previous two protocols. This agreement directs the Strategic Forum to pursue opportunities to achieve the closing of the social and economic gap between the Nanwakolas First Nations and other British Columbians. It also sets out that, through the Strategic Forum, the parties are to reach agreement on finfish aquaculture, a regional renewable energy strategy and guide outfitting.
TREATY 8 FIRST NATIONS PROTOCOL (SIGNED ON DECEMBER 17, 2009)
The province and three Treaty 8 First Nations (Doig River, West Moberly and Prophet River) entered into five different agreements which, collectively, provide somewhat similar components to the above protocols. However, the focal point of these collection of agreements is the amendment of an existing Economic Benefits Agreement (the Amended EBA) that previously included the Fort Nelson First Nation.
As part and parcel of this Amended EBA, three agreements dealing with land use decisions – being a Parks Collaborative Management Agreement, a Wildlife Collaborative Management Agreement and a Strategic Land and Resource Planning Agreement – were signed. These agreements are largely process- and goal-oriented and parallel the Haida Protocol in that specific decisionmaking frameworks are yet to be developed. In addition, given the withdrawal of the Fort Nelson First Nation, an adjustment to the Amended EBA was made to reduce the equity payments to the First Nations by 25%. Also, by signing the other related agreements that are a part of the land use decision-making parcel, the three Treaty 8 First Nations will receive that additional equity payment of about C$3-million as set out in the Amended EBA. Copies of all of these reconciliation protocols are available on the province's website (www.newrelationship.gov.bc.ca/website).
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.