This week, the B.C. premier, cabinet and First Nations leaders will gather for their annual meeting in Vancouver, where they will grapple with some of the most challenging political and public-policy issues our province faces — that of Crown-First Nations relations generally, and the urgent need for recognition and implementation of aboriginal title and rights.
The past year has been witness to a deepening and amplification of First Nations protest on the ground against development undertaken without their consent, and new legal action seeking legal declarations of aboriginal title across B.C.
We have never had a clearer understanding of the past that has configured the reality of Crown-First Nations issues. The national Truth and Reconciliation Commission concluded its work last winter and issued a six-volume report on the history of residential schools, the ideas at the foundation of them and how they have harmed First Nations.
The commission called upon us all to act in reconciliation to build a different and just future. It called upon Canada to adopt the UN Declaration on the Rights of Indigenous Peoples as the framework of reconciliation.
The Trudeau government has embraced and adopted the UN declaration without qualification and has said it will be fully implemented. This is nothing less than a defining moment for Canada. How the nation responds and acts in this time will be recorded in the history books and in the oral histories of indigenous peoples.
More than 160 years ago, there was a brief period of treaty-making — from 1850 to 1854 — that was premised on the then-uncontroversial idea that aboriginal title must be taken seriously. It was replaced by a policy of denial of aboriginal rights and title that grew ugly and deep roots in indigenous soil across British Columbia.
It was a decision made long ago, but it has been further entrenched and renewed with every passing decade, and every government that has adopted this status quo. This history of denial has brought us to the current reality of profound uncertainty that threatens the well-being of all.
The loss of connection and control over territories and resources has unjustly impoverished First Nations and led to more than a century of First Nations advocacy around the so-call Indian land question.
June 26, 2014, provided a full answer to that historic question, and marks a sharp rupture in Canadian history, law, society and economics. On that day, a unanimous Supreme Court of Canada became the first court in Canadian history to legally declare the existence of aboriginal title on the ground in the Tsilhqot’in Nation decision.
Aboriginal title is a unique form of legal relationship to territory — lands and waters — that the courts tell us came into existence the moment the Crown asserted sovereignty over indigenous lands. It has been there ever since.
The court decided, once and for all, that aboriginal title is, in fact, territorial in scope, firmly rejecting the Crown’s impoverished theory of title as being limited to “small spots” intensively used by aboriginal peoples. The “full beneficial interest” in the land and the right to proactively manage and decide how the land is to be used are two of the hallmarks of title. So, too, is a duty to future generations to safeguard and preserve the title for their benefit.
The implications of the decision are breathtaking in their scope and sweeping in their significance. In acknowledging this deep uncertainty, the court makes clear that the only way to overcome it is for the Crown to immediately shift its decision-making to one based on a requirement for First Nations consent, rather than mere consultation.
The breadth of the longer-term consequences can be appreciated by reflecting upon the reality that every Crown law and policy is built upon the foundation of denial. So, too, is the assertion of Crown ownership over much of the land in B.C. premised on this same idea that aboriginal title does not matter. The Supreme Court cast these old notions and views aside as incorrect as a matter of law.
This is the challenge Premier Christy Clark and the cabinet face. This is the challenge faced by every First Nation. The status quo is broken; the deep roots of denial have been torn out, leaving an ugly wound upon the land. The wound needs attention and healing.
More than two years have passed since the decision. Our collective work is urgent and can wait no longer. The Trudeau government has made it clear it intends to lead and act. The provincial government should do the same if reconciliation and social and economic strength, rather than conflict and uncertainty, are to be the future of British Columbia.
Douglas White III Kwulasultun is a Snuneymuxw First Nation councillor, lawyer, director of the Centre for Pre-Confederation Treaties and Reconciliation at Vancouver Island University, and a former member of the B.C. First Nations Leadership Council.