British Columbia’s Specific Claims: A Unique History

1. British Columbia’s Specific Claims:A Unique History

2. Specific Claims in BC British Columbia Specific Claims are unique in Canada because BC Has: • Fewer treaties • Unique pre-confederation circumstances (e.g. Douglas claims/reserves) • A distinctive reserve history and character • Many bands • Hundreds of different cultures

3. Treaties in Canada

4. BC’s Unique Circumstances Few Treaties

5. BC’s Unique CircumstancesNumber of Bands in Canada By Province

6. BC’s Unique CircumstancesNumber of Reserves In Canada by Province

7. BC’s Unique CircumstancesAverage Reserve Sizes and on-Reserve Populations by Province

8. BC’s Unique CircumstancesReserve Land (in Hectares) by Province

9. BC’s Unique CircumstancesFirst Nations Cultures in BC

10. How BC’s Unique Circumstances Relate to Specific Claims

11. Specific Claims in BC Total Claims in the Specific Claims Branch by Province

12. Specific Claims in BC Understanding Where Claims Bottleneck Claims that are under review are reported as being at one of five different stages: 1. Under review by SCB 2. Research 3. SCB report with claimant 4. With the Department of Justice 5. Legal opinion has been signed

13. Specific Claims in BC National Summary of Specific Claims Listed as Under Review

14. Specific Claims in BC Claims in the Backlog by Province

15. The annual budget for claims settlement in Canada is currently $75 million. But this amount is already reduced by commitments to previous settled claims. For example, a claim which settles for $100 million is paid out at $25 million/year for four years. For that four year period, this leaves only $50m/year to settle other claims. Specific Claims in BC Settlements Funding

16. Specific Claims in BC Claims Settlement Amounts by Province Provincial Breakdown of Specific Claims Settlements to Date Province $ MillionPercentage Yukon $2.7 M 0.22 NWT/Nunavut $29.9 M 2.42 NS $1.1 M 0.10 NB $9.8 M 0.79 Quebec $26.4 M 2.14 Ontario $80.8 M 6.55 Manitoba $105.7 M 8.56 Sask$511.3 M 41.44 Alberta$351.3 M 28.48 BC $114.6 M 9.29

17. Specific Claims in BC Diversity of Recent Claims Settlements in BC Two claims which recently settled illustrate how a $7 million cap does not reflect the diversity of claims in BC. • The Okanagan Band recently settled a claim valued at $6 million • The Squamish Band settled a claim valued at $20 million.

18. Specific Claims in BC Relevant BC Court Cases Several extremely important court cases have served to strengthen Aboriginal title and rights and may have direct implications for specific claims work. These cases challenge current definitions of specific claims and support First Nations contentions that the Crown’s outstanding lawful obligations extend beyond what is currently accepted for review by the Specific Claims Branch. They also highlight the Crown’s duty to consult, the timeliness of the court actions, and the great costs incurred by settling these issues in court.

19. Specific Claims in BC Relevant BC Court Cases Haida Nation v. British Columbia (Ministry of Forests) The BC Court of Appeal found that the Crown and Weyerhaeuser had a duty to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people and the short term and long term objectives of the Crown and Weyerhaeuser to manage the area in dispute.

20. Specific Claims in BC Relevant BC Court Cases Roger William on behalf of the T’silhqot’in Nation v. Her Majesty the Queen and Riverside Forest Products Limited, Lignum Limited and the Attorney General of Canada • Roger William is seeking a declaration that the T’silhqot’in has an existing aboriginal title to the whole of the Trapline Territory and a declaration that the Xeni Gwet’in have an existing aboriginal right to carry on trapping activates within the Trapline Territory. • Roger William seeks similar declarations to lands in the Cariboo Forest Region. • In both actions, Roger William seeks other relief including declarations concerning the issuance and use of certain forest licenses, injunctions restraining the issuing of cutting permits, damages for infringement of aboriginal title and aboriginal rights and compensation for breach of fiduciary duty. • This case is currently before the BC Court of Appeal

21. Specific Claims in BC Relevant BC Court Cases Osoyoos Indian Band v. the Town of Oliver • This case surrounds a Section 35 taking of a strip of land for a canal for public purposes. • The Supreme Court of Canada found the Crown had the right to use the lands for public purposes, but also had a fiduciary duty to grant only the minimum interest required to meet the public purpose. • The canal was regarded as having been granted through statutory easement to the province, thus the canal land was still in reserve for taxation purposes

22. Specific Claims in BC Relevant BC Court Cases Ross River Indian Band v. Canada et al In Ross River, the Supreme Court of Canada addressed the means by which reserves have been/are created and whether the Ross River Band established their land as a reserve under the Indian Act. While the Court did not find in favour of the band, it affirmed that reserve creation occurs in a number of ways that must be considered in historical context. The Court also affirmed the necessity of considering whether it was reasonable that First Nations people at the relevant time believed land to be reserved for them by a granting authority.

23. Specific Claims in BC Relevant BC Court Cases Squamish v. CPR BC Court of Appeal confirmed that when reserve lands taken under the Railway Act for railway purposes are no longer needed for those purposes, the land is restored to the use and benefit of the band as a reserve. Seabird Island v. BC Tel Federal Court of Appeal confirmed that reserve lands taken for provincial road purposes do not extinguish the Indian interest in the reserve and a fibre optic cable running through the right-of-way is subject to band taxation bylaws.

24. Concluding Remarks Recent court decisions, like those discussed in this presentation, and direct action strategies like the protests at Sun Peaks and Melvin Creek highlight how much is going on in this province in terms of Aboriginal title and rights. These cases and direct action strategies have direct bearing on specific claims work in BC. Not only do they often arise out of rejected specific claims, they are sometimes launched in the belief that the current specific claims process (and the recent drafted legislation designed to amend it), are significantly flawed. These actions also challenge and redefine the limited boundaries of current specific claims procedures.