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55-616: As of 2022, Ɂakisq̓nuk First Nation was in Stage 5 of the BC Treaty Process . This First Nations in Canada –related article is a stub . You can help Misplaced Pages by expanding it . This Canadian politics –related article is a stub . You can help Misplaced Pages by expanding it . This British Columbia -related article is a stub . You can help Misplaced Pages by expanding it . BC Treaty Process The British Columbia Treaty Process ( BCTP )

110-773: A Gitxsan Indigenous rights leader, as one of the Hereditary Chiefs in the Office of the Hereditary Chiefs of the Wetʼsuwetʼen , and as a representative for the joint Tribal Council of the Gitxsan and Wet’suwet’en nations. In 1997, for the purpose of the court proceedings, 'Delgamuukw', then 61, had his name anglicized as 'Earl Muldoe'. In 2010, Muldoe was also designated as a ' Companion of The Order of Canada ' for his paintings and artistry. Delgamuukw died on January 3, 2022, at

165-409: A sui generis right arising from the prior occupation of the land by Indigenous people; it is not fee simple ownership. The inherent limit (that the protected uses not be irreconcilable with the nature of the group's attachment to the land) is derived from one of the purposes of Aboriginal title: maintaining "the relationship of an aboriginal community with its land here is that it applies not only to

220-596: A blueprint for the current process. To represent the interests of First Nations involved with the process, the First Nations Summit was created. There are officially 60% of First Nations bands in the process, but only 20% are said to be making progress. About 40% of First Nations are not involved in the treaty process. Because the Royal Proclamation of 1763 stated that the Crown must negotiate and sign treaties with

275-567: A fiduciary duty: "to permit aboriginal people, but subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land is dedicated to another purpose." He also dismissed the province's counterclaims for a declaration that the Gitxsan and Wet’suwet’en have no right or interest in the territory and for a declaration that their only claim for compensation could be against Canada. This decision has been criticized for both its treatment of

330-505: A new trial because of deficiencies relating to the pleadings and treatment of evidence. In this decision, the Court went on to describe the "nature and scope" of the protection given to Aboriginal title under section 35 of the Constitution Act, 1982 , defined how a claimant can prove Aboriginal title, and clarified how the justification test from R v Sparrow applies when Aboriginal title

385-679: A non-binding opinion that the Xeni Gwetʼin could demonstrate Aboriginal title to half of the Nemaiah Valley , and that the province had no power over these lands. Under the BC treaty process, negotiating nations have received 5% of their claimed land recognized. Grand Chief Stewart Phillip , president of the Union of B.C. Indian Chiefs , called the court ruling a "nail in the coffin" of the B.C. treaty process. Notwithstanding such legal rulings (sustained later in

440-464: A second trial in this case. The Gitxsan and Wet’suwet’en peoples had attempted to negotiate jurisdiction, recognition of ownership, and self-government since Europeans first began settling on their traditional lands in the 1800s. The Canadian federal government received the Gitxsan declaration of claim in 1977, but British Columbia would not participate in the land claims process. By 1984, British Columbia had begun to allow clear-cut logging in

495-554: A treaty settlement instead. The province suspended those negotiations in February 1996 and the parties revived their litigation. The appeal was heard at the Supreme Court of Canada on June 16 and 17, 1997. The six justices announced their decision on December 11, 1997. The opinion of Chief Justice Lamer attracted a majority: Justices Cory and Major joined; Justice McLachlin concurred. The concurring opinion of Justice La Forest

550-522: Is a land claims negotiation process started in 1993 to resolve outstanding issues, including claims to un-extinguished indigenous rights , with British Columbia 's First Nations . Three treaties have been implemented under the BCTP. The Nisga'a Final Agreement is considered separate from the Treaty Process because those negotiations began before the BC treaty process was started, and it has been called

605-523: Is infringed. The decision is also important for its treatment of oral testimony as evidence of historic occupation. While much of the decision is technically obiter dicta (since a new trial was ordered due to errors in how the evidence and pleadings were treated), the principles from Delgamuukw were restated and summarized in Tsilhqot'in Nation v British Columbia , 2014 SCC 44. There has not yet been

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660-403: Is infringed: the duty to consult (which varies with the degree of the infringement), and the requirement to provide fair compensation. The court said that the trial did not yield sufficient evidence to give any opinion regarding the right to self-government. The court held that the province does not have the power to extinguish Aboriginal rights, neither directly (because of Section 91(24) of

715-542: The Constitution Act, 1867 ) nor indirectly through laws of general applicability (because they could not indicate clear and plain intent). Both opinions concluded by encouraging all parties to pursue negotiated agreements through good faith negotiations. [T]he Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by

770-632: The Nuu-chah-nulth Tribal Council likewise rejected their AIP. The five Maa-nulth First Nations of the Nuu-chah-nulth ratified their treaty in October 2007. The BC government has ratified the final agreement which is yet to be ratified in the federal parliament. Ditidaht First Nation has subsequently taken legal action against the Maa-nulth in a dispute over land and resource ownership. In 2002,

825-627: The Social Credit Party to the New Democratic Party . The new government abandoned the position taken at trial on the issue of extinguishment, so amici curiae were appointed to assist the court on that issue. On June 25, 1993, five members of the British Columbia Court of Appeal unanimously rejected Justice McEachern's ruling that all of the plaintiffs' Aboriginal rights had been extinguished. The Court of Appeal ordered

880-511: The Supreme Court of Canada that contains its first comprehensive account of Aboriginal title (a distinct kind of Aboriginal right) in Canada . The Gitxsan and Wet’suwet’en peoples claimed Aboriginal title and jurisdiction over 58,000 square kilometers in northwest British Columbia . The plaintiffs lost the case at trial, but the Supreme Court of Canada allowed the appeal in part and ordered

935-588: The provincial government , and First Nations . A combination of contribution (grant) funding and loans are provided to First Nations on cost-share basis by the federal and provincial governments to support negotiation efforts. The British Columbia Treaty Commission accepts First Nations into the process, allocates negotiation support funding and monitors the progress of negotiations. The process: The voice of criticisms have come from different angles in Indigenous communities across British Columbia and Canada, and from

990-462: The 2015 Supreme Court of Canada decision, Tsilhqotʼin Nation v British Columbia ), the BC Treaty Process continues, as more than half of all First Nations in BC continue through the stages of the process. As of 2016, 4 Nations had completed and were implementing treaties; 7 were in Stage 5, and 42 were in Stage 4. The treaty process is a six-stage negotiation between the federal government ,

1045-492: The Court described Aboriginal title as a sui generis right, not found elsewhere in property law. In Canadian Pacific Ltd v Paul , the Court elaborated, "it is more than the right to enjoyment and occupancy, although, … it is difficult to describe what more in traditional property law terminology." In R v Adams , the Court said that Aboriginal title is a kind of Aboriginal right. Until Delgamuukw , no Canadian court had defined in detail what Aboriginal title means. And, at

1100-499: The Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land." The second trial that was ordered has never happened, so the claim in this case remains unresolved. In the years soon after the decision, the province largely maintained its negotiating position, only changing it minimally. The decision did not order

1155-517: The Gitxsan and Wet’suwet’en territory without permission from the hereditary chiefs. On October 24, 1984, thirty-five Gitxsan and thirteen Wet’suwet’en hereditary chiefs filed their statement of claim with the British Columbia Supreme Court. By the 1970s, the courts had "begun to acknowledge the existence of Aboriginal legal rights in the land other than those provided for by treaty or statute." In Calder v British Columbia (AG) ,

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1210-570: The Indigenous people before land could be ceded to a colony, the Numbered Treaties were negotiated in most parts of the Prairie Provinces . The Government of the Colony of British Columbia , however, failed to negotiate many treaties and as a result, most of the province's land is not covered by treaties. The few exceptions are the 14 Douglas Treaties on Vancouver Island , Treaty 8 (1899) in

1265-655: The Northeast of B.C., and the 2000 Nisgaʼa Final Agreement. Relations between Indigenous peoples and the B.C. government worsened over time, as the McKenna–McBride Royal Commission led to the redistribution of reserve lands and the Allied Tribes of British Columbia was essentially dissolved by an amendment to the Indian Act . First Nations were not allowed to organize or raise money to pursue land claims. In

1320-491: The Supreme Court recognized that Aboriginal title to land was based in "historic occupation and possession" of their traditional territories and "does not depend on treaty, executive order or legislative enactment." [T]he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means... In Guerin v The Queen ,

1375-516: The Tsawwassen reserve, provided a one-time capital transfer of CA$ 13.9 million, $ 2 million for relinquishing mineral rights under English Bluff, $ 13.5 million for startup and transition costs, $ 7.3 million for a number of funds for the purposes of resource management and economic development and $ 2.6 annually for ongoing programs and services, and reserves a portion of the Fraser River salmon catch to

1430-532: The Tsawwassen. In return, the Tsawwassen abandoned other land claims and will eventually pay taxes. The Temexw Treaty Association , whose members are signatories to the Douglas Treaties, is also attempting to negotiate within the BC Treaty Process. A November 2007 court ruling for the Xeni Gwetʼin First Nation called future participation in the process into question. The judge's ruling included

1485-721: The Wet’suwet’en. The claim for jurisdiction was novel. If that claim were to have succeeded, Indigenous laws would prevail in the case of conflict with provincial law. BC argued that the "plaintiffs had no right or interest in the land, and that their claim for compensation ought to be against the federal government." The trial took 374 days (318 days of evidence and 56 days of closing argument), spanning May 11, 1987, to June 30, 1990, in Vancouver and Smithers, British Columbia . The Gitxsan and Wet’suwet’en relied upon their oral histories as evidence about their historical relationship with

1540-418: The age of 85. In 1984, Gitxsan and Wet’suwet’en hereditary chiefs claimed, on behalf of their Houses, unextinguished Aboriginal title and jurisdiction over territory in northwest British Columbia totalling 58,000 square kilometres, and compensation for land already alienated . Delgamuukw (English name Earl Muldoe) was a claimant for the Gitxsan, while Gisday’wa (Alfred Joseph) was one of those representing

1595-467: The benefit of the reasons from R v Van der Peet , which says "courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards [applied in other contexts]." The Gitxsan and Wet’suwet’en appealed. In the time between the trial judgement and the appeal, the British Columbia government changed parties , from

1650-505: The case back to trial to determine the nature and scope of those Aboriginal rights. Two of the justices, in dissent, would have gone further to also allow the appeal on the issue of Aboriginal title and to send that question back to trial as well. In March 1994, the Gitxsan and Wet’suwet’en and the Province of British Columbia were granted leave to appeal to the Supreme Court of Canada. However, they obtained an adjournment in order to pursue

1705-458: The conclusion that the appellants had not demonstrated the requisite degree of occupation for "ownership". Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different. Chief Justice Lamer summarized the content of Aboriginal title: I have arrived at the conclusion that the content of aboriginal title can be summarized by two propositions: first, that aboriginal title encompasses

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1760-599: The form of loans and $ 86.4 million in the form of contributions. Of that money the Treaty Commission's total operating costs from 1993 to March 31, 2009, spent $ 34.2 million. One successfully negotiated treaty was rejected, by the Lheidli Tʼenneh First Nation, in 2007. In July 2007, the Tsawwassen First Nation members voted 70% in favour of the treaty. The treaty more than doubled the size of

1815-406: The governing BC Liberal Party mailed out ballots for a provincial referendum on principles for treaty negotiations. However, the referendum failed due to controversy over its phrasing and logistics, which generated protests and a boycott. In May 1993 the Treaty Commission allocated approximately CA$ 432 million in negotiation support funding to more than 50 First Nations: $ 345.6 million in

1870-581: The government to change its position and the decision made clear how valuable Aboriginal title is. The government adopted some interim measures that shared some of the economic benefits resulting from resource development in land-claims areas. The response from the various First Nations in British Columbia varied: some interested in the treaty negotiation process, some in the economic integration through interim measures, and some considering additional litigation. Delgamuukw has featured in discussion around

1925-592: The judgments of this Court, that we will achieve what I stated in Van der Peet to be a basic purpose of s. 35(1) -- “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. [internal citations removed] The principles established by Delgamuukw were restated and summarized in Tsilhqot'in and the inherent limit was reworded. There, the Court said that Aboriginal title "cannot be alienated except to

1980-436: The land. Sixty-one witnesses gave evidence at trial, many in their own languages, using translators. Some witnesses sang or described ceremonial songs and performance relating the adaawḵ (the personal bloodline histories) of the Gitxsan and kungax (a song or songs about trails between territories) of the Wet’suwet’en. Some of this knowledge was translated into maps. The judgement from Chief Justice Allan McEachern

2035-497: The negotiation of treaties in BC. The following year, the Supreme Court of Canada rendered its decision on Delgamuukw v British Columbia , recognizing Aboriginal title as "a right to the land itself", which derives from First Nations original occupation and possession at the time the Crown asserted sovereignty. The court also stated that the federal and provincial governments may infringe upon Aboriginal title under conditions for justification but that fair compensation would be due at

2090-515: The non-native society as well. About two-thirds of First Nations are not involved with the Treaty Process; some have formed the "Unity Protocol", calling for an overhaul of the entire process. The Fraser Institute , a Canadian think tank, released a report in 2008 criticizing the B.C. Treaty Process as "incomplete, illiberal and expensive". Several assessments of why the treaty process have been made to attempt to more effectively conclude modern-day treaties: All of these analyze chronic problems of

2145-598: The occupancy of the land is "sufficiently important to be of central significance to the culture of the claimants." As with other Aboriginal rights, Aboriginal title can be infringed. The majority in Delgamuukw clarified how the justification test developed in R v Sparrow and modified in R v Gladstone applies when Aboriginal title is infringed. The majority affirmed the broad characterization of compelling and substantial legislative objectives that might warrant an infringement: "legitimate government objectives also include

2200-481: The oral evidence and for its tone. Chief Justice McEachern described pre-contact life of the Gitxsan and Wet’suwet’en as "nasty, brutish, and short." He didn't recognize pre-contact "institutions" and instead said that "they more likely acted as they did because of survival instincts." He was "unable to accept adaawk, kungax and oral traditions as reliable bases for detailed history but they could confirm findings based on other admissible evidence." He described

2255-487: The outset of this case in 1984, Section 35 of the Constitution Act, 1982 was relatively new. Courts had not yet given meaning to subsection (1): "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed", although the meaning was fairly well developed by the time the case made it to the Supreme Court in 1997. The defendant, born May 16, 1936, as 'Delgamuukw', served as

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2310-523: The past, but to the future as well." The majority places Aboriginal title on a spectrum alongside other Aboriginal rights: The majority also lays out the test for proving Aboriginal title: "(i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive." That will be enough to demonstrate that

2365-420: The position of the Gitxsan and Wet’suwet’en as "idyllic" and "romantic". The Canadian Anthropology Society said the judgement "gratuitously dismisses scientific evidence, is laced with ethnocentric bias and is rooted in the colonial belief that white society is inherently superior." Chief Justice Lamer, writing for the majority at the Supreme Court of Canada, acknowledged that Chief Justice McEachern did not have

2420-402: The process such as lack of governmental commitment and the burden of loans taken out by First Nations to support their involvement in the unexpectedly long process of reaching final agreements. Delgamuukw v British Columbia Delgamuukw v British Columbia , [1997] 3 SCR 1010 , also known as Delgamuukw v The Queen , Delgamuukw-Gisday’wa , or simply Delgamuukw , is a ruling by

2475-461: The provincial government accepted the concept of Aboriginal rights (including the inherent right to self-government) as official policy. The Claims Task Force made 19 recommendations and suggested a six-stage process for negotiating new treaties. The British Columbia Treaty Commission is the independent body which oversees the treaty process. B.C. treaty commissioners were first appointed in April 1993, and

2530-416: The pursuit of economic and regional fairness and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups." It then goes further: the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and

2585-408: The rest of the opinion is technically obiter dicta , but it is still significant in that it has been restated and summarized in Tsilhqot'in Nation v British Columbia . The majority also found that the factual findings of the trial court could not stand because Justice McEachern's approach did not meet the principles laid out in R v Van der Peet . Notwithstanding the challenges created by

2640-401: The right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group's attachment to that land. The majority affirms that this is

2695-400: The second half of the 20th century, demands for the recognition of Aboriginal title were buoyed by various court decisions in B.C., including Calder v British Columbia (AG) and R v Sparrow . In 1990, the governments of Canada, B.C. and First Nations established the B.C. Claims Task Force to investigate how treaty negotiations might begin and what they should cover. The following year,

2750-459: The settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of Aboriginal title. The second prong of the justification test asks whether the infringement is "consistent with the special fiduciary relationship between the Crown and aboriginal peoples." This fiduciary relationship gives rise to two additional components when Aboriginal title

2805-630: The time of such an infringement. Sechelt First Nation was the first community to sign an agreement-in-principle (AIP) in 1999. Members of the Sliammon First Nation (Tlaʼamin First Nation) voted to reject their negotiated AIP in 2001, but then approved the AiP in June 2003. Tlaʼamin Nation later ratified a final agreement with BC & Canada in 2012, which is in effect as of 2016. Six of 12 member nations of

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2860-462: The treaty process officially began in December 1993. By 1996, 47 First Nations, representing more than 60% of status Indians in B.C., had decided to participate. After a few years of negotiations, the Treaty Commission released the 1997 Systems Overload Report which argued that the provincial and federal governments needed to increase their financial resources and the capacity level of First Nations for

2915-407: The use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents. The trial judge, after refusing to admit, or giving no independent weight to these oral histories, reached

2970-402: Was joined by Justice L'Heureux-Dubé ; Justice McLachlin was in substantial agreement. Both the majority and concurrence agreed that it was an error to "[amalgamate] the individual claims brought by the 51 Gitksan and Wet’suwet’en Houses into two collective claims, one by each nation, for Aboriginal title and self-government." The court found this error sufficient to call for a new trial. Thus,

3025-451: Was released on March 8, 1991. Contrary to legal precedents such as Calder v British Columbia (AG) , Judge McEachern dismissed the plaintiffs' claims to Aboriginal title, jurisdiction (self-government), and Aboriginal rights in the territories. Despite finding that Aboriginal rights of the Gitxsan and Wet’suwet’en had been extinguished, Chief Justice McEachern found that the Crown had made promises beginning in 1859 and 1860 that gave rise to

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