Fox, Peter --- "Indigenous Land Use Agreements: a Canadian model" [2009] ALRCRefJl 17; (2009) 93 Australian Law Reform Commission Reform Journal 52

---

Indigenous land use agreements: A Canadian model

By Peter D Fox*

Comparative public policy is a central component of any thorough law reform initiative. Australia and Canada have shared a similar legal philosophy in their recognition of Indigenous land rights, and both countries have begun to address the issues of land management and resource development in the absence of clearly reconciled claims to title. These initiatives also support larger public policy goals aimed at closing the socioeconomic gap between Indigenous and non-Indigenous people in both countries. On the subject of interim Indigenous Land Use Agreements, Canberra may draw useful lessons from the constructive environment currently fostered in British Columbia, Canada.

In contrast to other provinces in Canada, the settlement of Crown and Aboriginal (First Nation) land interests in British Columbia was only partially completed through treaty negotiations. The Douglas treaties were established in Vancouver Island, and treaties were settled with the ‘Treaty 8 First Nations’ in North-Eastern British Columbia, but the majority of the Province’s 200 First Nations never moved beyond an era of litigation.¹ The British Columbia Treaty Commission was established in 1992 to conclude this process, and today roughly two-thirds of the Province’s Aboriginal population is represented at ongoing treaty negotiations.

In reality, the treaty process may take decades to complete. Standoffs occur when the Provincial Government insists on the extinguishment of Aboriginal title and when First Nations assert full title rights to their land under Delgamuukw v British Columbia. ² In the interim period of unsettled claims, British Columbia has charged its Integrated Land Management Bureau with engaging First Nations to secure access to Crown land and natural resources. Two milestone decisions in the Supreme Court of Canada—the Haida Nation v British Columbia (Minister of Forests) and Taku River Tlingit First Nation v British Columbia (Project Assessment Director) cases—guide this process with the establishment of a government duty to consult First Nations on matters that affect their interests.³

Strategic land and resource planning

Ninety-two per cent of British Columbia’s land base is still owned by the public and administered by land managers. This ensures that land is not used without first addressing the interests of all stakeholders. Access to Crown land is vital to the Province’s economy, which includes agriculture, forestry, aquaculture, mining and other activities that affect First Nations. The Integrated Land Management Bureau developed a Strategic Land and Resource Planning (SLRP) program in the early 1990s to address unresolved rights and title issues. The program’s aim was to ‘ease land use conflict among resource agencies, industry, First Nations and the public, and to deliver the Province’s Protected Areas Strategy’.⁴ It purports to engage First Nations and more efficiently address social, economic and environmental goals than previous site-by-site processes.

SLRPs and/or Strategic Land Use Agreements operate by supporting government-to-government engagements with First Nations. SLRPs may cover large regions, sub-regions, watersheds, landscapes, marine/coastal, or terrestrial geographic areas. The plans provide a forum for First Nations groups to build trust with government and other stakeholders. They define suitable land and resource use by introducing scientific and social information regarding the significance of land and resource values, biophysical capability of land and resources, human demand for accessing resources, and the impacts of alternative land and resource uses. SLRPs strive to resolve land and resource conflicts by identifying and addressing potential land and resource management issues. Lastly, SLRPs provide investment certainty through clear, structured objectives.

During the initial planning years, most First Nations invited to take part in the SLRP process chose merely to observe. Further provisions of funding, provided for in the New Relationship Trust Act, SBC 2006,⁵ encouraged greater First Nations participation in various Land Resource Management Plans (LRMPs) and joint initiatives. In recent years there has been increased LRMP engagement with First Nations, resulting in coordinated plans that address First Nations’ interests.

A government-to-government agreement in south-western British Columbia provides a recent SLRP example. In April 2008, British Columbia and the Lil’wat Nation signed a land use agreement with the Ministry of Agriculture and Lands,⁶ completing the Province’s Sea-to-Sky LRMP. The agreement will support the development, protection and management of nearly 800,000 hectares of land in a fast growing area of the Province. About 31,000 people reside in the plan area.

British Columbia’s ‘New Relationship’

Canada’s landmark ‘duty to consult’ cases resounded deeply in British Columbia, and active engagement with First Nations was an important first step in a new Aboriginal agenda. Various government discussions with the First Nations Leadership Council culminated in a new vision of reconciliation and recognition of Aboriginal and Crown titles within the Province. Under the Transformative Change Accord of November 2005, the Provincial Government no longer acts unilaterally when accessing Crown land if the interests of Aboriginal populations are affected.⁷

Moving beyond the conventional consultation process, British Columbia’s ‘New Relationship’ includes dialogue and written agreements that foster coordinated engagement with First Nations from the outset, joint delivery of planning processes, funding for First Nations participation, collaborative decision making, and consideration of specific First Nation interests.⁸

The Ministry of Aboriginal Relations and Reconciliation, established by the government of British Columbia, is directed to implement the ‘New Relationship’, in addition to negotiating treaties and other agreements with First Nations. Accordingly, First Nations entirely outside the treaty process—roughly 40%—may still engage government in negotiations about resource and land use within their traditional territories. Informal discussions build relationships, resolve conflicts, and address territorial concerns. Provincial government line agencies or government ministries take part individually.⁹

British Columbia has committed itself to a ‘relationship based on respect, recognition and accommodation of aboriginal title and rights’, including a constitutionally guaranteed ‘inherent right for the community to make decisions as to the use of the land and therefore the right to have a political structure for making those decisions’.¹⁰ Prominently outlined within this vision of sustainable land and resource development are the following goals:

1) achieving First Nations self-determination through the exercise of their Aboriginal title, including realising the economic component of Aboriginal title, and exercising jurisdiction over the use of land and resources through their own structures; and
2) ensuring that land and resources are managed in accordance with First Nations laws, knowledge and values, and that resource development is carried out in a sustainable manner, including the primary responsibility of preserving healthy land, resources and ecosystems for present and future generations.¹¹

A joint management committee of senior officials identifies issues, allocates resources, directs working groups, and engages the Government of Canada.

Recent land use agreements signed by British Columbia include:

• Forest and Range Opportunity agreements with 130 First Nations, providing $165.5 million in revenue;
• A revenue-sharing framework for the development of Crown lands within traditional Osoyoos Indian Band territory to expand a ski resort area; and
• An economic benefits agreement between the Province and four Treaty 8 First Nations regarding natural resource development and land use in northeast British Columbia.¹²

Conclusion

The result of British Columbia’s ‘New Relationship’ agenda is a collaborative environment that moves beyond the government’s duty to consult. The provinces promote collective decision making with First Nations and shared benefits from the development of Crown land. Aboriginal people partake meaningfully in land and resource management and address social and economic disparities in the process.

The Australian Government is currently embarking on its own reform agenda to address structural problems affecting the interests of Aboriginal and Torres Strait Islander people. If it aspires to help close its own socioeconomic gaps through voluntary land use and management agreements with Indigenous peoples, it may benefit from consideration of the British Columbian model.

* Peter D Fox is a student at the University of Maryland School of Law and a former intern at the Australian Law Reform Commission.

Endnotes

1 L Brownsey, Deputy Minister of British Columbia’s Ministry of Aboriginal Relations and

Reconciliation, New Relationship: Reconciling Aboriginal Rights, Networked Government (2005) <www.networkedgovernment.ca/cp.asp?pid=135> at 11 November 2008.

2 In Delgamuukw v British Columbia (1997) 3 SCR 1010, the Supreme Court of Canada definitively recognised the survival of legal Aboriginal title, including full ownership of natural resources. Justice Antonio Lamer famously proclaimed, ‘[l]et us face it, we are all here to stay’.

3 Haida Nation v British Columbia (Minister of Forests), (2004) 3 SCR 511; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), (2004) 3 SCR 550.

4 History of Strategic Land and Resource Planning, BC Integrated Land Management Bureau, at <http://ilmbwww.gov.bc.ca/slrp/history.html> at 11 November 2008.

5 The New Relationship Trust Act provided $100 million to fund long-term capacity-building for First Nations.

6 Province and Lil’wat sign historic land-use agreement, News Release, 11 April 2008, at <http://www2.news.gov.bc.ca/news_ releases_2005-2009/2008AL0014-000516.htm> at 11 November 2008.

7 Transformative Change Accord, 25 November 2005, <www.ubcic.bc.ca/files/PDF/Transforma tiveChangeAccord_112505.pdf> at 11 November 2008.

8 For an example of a recent engagement protocol, see Engagement Protocol, Her Majesty the Queen, Regional District of East Kootenay, and Ktunaxa Nation, 24 April 2008, at <http://ilmbwww.gov. bc.ca/slrp/files/ktunaxa_protocol.pdf> at 11 November 2008.

9. Examples of negotiations conducted outside of the treaty process are cut-off claims by First Nations, which arise from the excision of sections of reserves that occurred after the 1913–16 McKenna-McBride Commission. Specific claims are based on the alleged failure of the government to meet either the terms of an existing agreement or a legal obligation of one party to act in the best interests of another.

10 2005 Statement of Vision, BC Integrated Land Management Bureau, at 1, <http://clients. tmnewmedia.com/1489/external/srmp/docu ments/new_relationship.pdf> at 11 November 2008.

11 Ibid, 2.

12 Links to Key Agreements on Land and Resources can be found at <www.gov.bc.ca/arr/treaty/key/ default.html> at 11 November 2008.