Nationhood Reasons
and Options Analysis
LEGAL, LAND RIGHTS, NEGOTIATIONS STRATEGIES
CITXW NLAKA’PAMUX ASSEMBLY
Wednesday, 24 May 2017 from 9:00 AM to
4:00 PM (PDT)
Nicola Valley Institute of Technology (NVIT)
4155 Belshaw Street Merritt, BC V1K 1P4
Mailing Address: P.O. Box 618 Merritt, British Columbia V1K 1B8
Office Address: 2187-A Coutlee Ave , Merritt British Columbia V1K 1B8
Phone: (250) 378-1864 Fax: Phone: (250) 378-2910 Website: http://www.cna-trust.ca
Nationhood Reasons and Options Analysis
May 24, 2017
2017
Contents
The Citxw Nlaka’pamux Assembly: ............................................................................................... 2
The Challenge and Opportunity: ..................................................................................................... 2
A Path Forward: .............................................................................................................................. 3
Scope of the Day: ............................................................................................................................ 4
The Paper and Panel Methodology ................................................................................................. 5
The Panel Methodology .................................................................................................................. 5
Agenda ............................................................................................................................................ 6
Lawyers, Moderator and Report Writer Backgrounder .................................................................. 7
Bill Gallagher (Strategist / Lawyer / Facilitator) ........................................................................ 7
Bruce McIvor .............................................................................................................................. 7
Merle C. Alexander ..................................................................................................................... 7
Panel Moderator: Raymond Philips ............................................................................................ 7
Bill Gallagher Legal Land Rights Negotiations Strategies ............................................................. 9
Merle Alexander Paper ................................................................................................................. 20
Bruce McIvor Rights-Holder for Aboriginal Title & Rights ....................................................... 31
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The Citxw Nlaka’pamux Assembly:
The Citxw Nlaka’pamux Assembly (CNA) was formed by eight Nlaka’pamux Bands in the
Nlaka’pamux territory for the purpose of managing and administering the Participation
Agreement and Economic Community Development Agreement for the Highland Valley
Copper Mine. The eight participating bands that form the CNA include the Ashcroft Indian
Band, Boston Bar First Nation, Coldwater Indian Band, Cook’s Ferry Indian Band, Nicomen
Indian Band, Nooaitch Indian Band, Shackan Indian Band and Siska Indian Band.
The Challenge and Opportunity:
Human beings are social animals. We suffer and fail in isolation, but thrive as a collective. It is
only in networks of relationships from small families to large societies, like Nations, that human
beings are able to survive for very long. We meet our needs by developing relationships of trade,
cooperation, reciprocity, association, governance, and security. Through such relationships, we
provide ourselves with the necessities of life and manage to accomplish our collective goals.
Nlaka’pamux people through many generations survived through the development of rules or
governance structures, just like how western society defines a nation today.
Post-contact colonization of indigenous lands and the formation of Canada and Indian Act bands
have led to a fracturing of traditional Nlaka’pamux governance and decision making structures.
To do the things we need to do to like, build a house, teach our children, defend our homes and
Territory, carry out ceremony, manage natural resources (wildlife, plants, minerals, water, forests
and lands), put food on our table, heal ourselves when ill and obtain the many things we need or
want, we need each other. We have to be able to work together effectively. But the ongoing
challenge, structurally, financially and politically, is that every time we need to do something
together terms, need to be negotiated, rules need to be decided, authority has to be delegated and
dispute resolution processes need to be developed. But doing this over and over again consumes
time and funds, and risks making things complicated between the various groups, communities
and organizations within the territory.
Tools like overarching set of rules that tells all of us in most of the situations we are likely to
encounter how to do things and how to relate to each other as a Nation could help reduce the
burden on time and cost and could clarify the roles and relationships within the territory. We
could come to an agreement that says, in effect, “when we do things together, this is how we do
them as a Nation.” The rules we come up with may become the basis of the cooperation on
which we defend and depending on our success, truly assert our Rights and Title in the
Nlaka’pamux territory.
The Citxw Nlaka’pamux Assembly (CNA) Participating Bands as a collective subset of the
Nlaka’pamux people are seeking the best way forward to unify, organize and promote the
traditional lands, governance and people of the region as a political force in order to promote
self-determination and assertion of rights through processes like resource management and
decision making in the territory. Effectively becoming Nlaka’pamux Resource Stewards (NRS).
The CNA by identifying opportunities to bring Indigenous Land Rights Assertions (ILRAs) to
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full legal and commercial fruition, could essentially put the Nlaka’pamux people in the socioeconomic ‘driver’s seat’ in the Nlaka’pamux Territory.
A Path Forward:
The Chiefs of the Citxw Nlaka’pamux Assembly would like to gather insight and legal
opinions on advancing a position on Aboriginal title as it relates to collective approach of the 8
Citxw Nlaka’pamux Assembly (C.NA) Participating Bands, and to facilitate a panel discussion
challenging the views advanced by the papers. With recent changes and advancement of
Supreme Court Decisions as it relates to timber supply licensing, water licensing, mining and
explorations, and pipeline construction or negotiations.
We will be exploring such questions as:
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How should we define our territory?
How should we assert title and rights?
How should we assert title and rights recognized by Supreme Court Decisions?
How do we manage our lands?
How can we work together?
How should we make decisions?
What should our expectations of each other be?
Who will do what?
Who gets to have power over whom?
When we have disputes with each other, how can we resolve them?
What set of rules or understandings should control how we interact with each other?
We will be presenting three discussion papers with a Q&A to follow, and then facilitate a panel
discussion on the papers. The event will be broadcast over the web.
The Objectives of the discussion paper are:
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Establish an understanding for the strength of a collective of Bands within a nation
Establish a strength of title position
Establish a better understanding of the challenges or difficulties faced by Aboriginal
people today to improve their quality of life in light of the current context of
Government programs, Provincial and Federal challenges on rights and title as it relates
to development in Traditional territories.
Identify specific examples that demonstrate the strategic importance for the promotion
and advancement of the rights and title at the band and nation levels.
Provide concepts that may contribute to advancing the Nation building agenda, with
focus on identifying rights and privileges that are specific to those in the transition from
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First Nation and Nationhood who are looking for a better quality of life and identity for
generations to come.
Identify opportunities that will contribute to improving participation in community
consultation and planning and get community members to become more engaged in
active expressions of citizenship and designing their future.
The papers will also analyze the rise of Indigenous empowerment in the resources sector. (
currently there are 232 legal wins with special emphasis on wins in BC that have all been
catalogued and therefore context can be referenced). The Nation vision is that CNA Participating
Bands as part of the Nlaka’pamux Nation must immediately prioritize their ILRAs through a
Nation-to-Nation relationship with Canada and BC which will include commercializing their
legal empowerment in all aspects of Nlaka’pamux traditional lands. Adopting the right
Aboriginal Title strategy is of paramount importance to the CNA Participating Bands to provide
guidance in the development of a Collective Participating Bands framework including:
A: establishing Aboriginal Title negotiations ‘Terms of Reference’ (TOR)
B: establishing an ILRAs MOU with a negotiations timetable with goals to be met in
order to prioritize the advancement of the ILRAs process. Establish a process for the
CNA Participating Bands to keep all members apprised of progress.
C: Undertaking Impact Benefit Agreement (IBA) negotiations where feasible with a
commitment by all parties not to ‘reinvent the wheel’.
We have associated with law firms with the institutional memory, the written archives, the
catalogued library,
the land-claim precedents, the MOU precedents, the gov’t to gov’t linkages, the collaboration
and contacts within First Nation associations and industry, the understanding of the Federal and
Provincial central agencies and line departments, funding processes and political public relations
to keep CNA Participating Bands a full-step ahead and in command of the negotiations process.
Scope of the Day:
On June 26, 2014 the Supreme Court of Canada “re-affirmed Aboriginal Title”. This decision
along with the outcomes and developments arising from it should have had a huge impact on
projects, consultation, services and programming available to Nations. This analysis should
consider and interpret the decision as it relates to Citxw Nlaka’pamux Assembly Participating
Bands and assist in any future discussions with the Provincial or Federal Government and project
proponents.
The Analysis of the SCC’s decisions on Aboriginal Title will:
 Include an analysis of the decision and the possible outcomes in relation to the strength of
Individual band versus collective Nation approach to Nationhood
 Analysis on the responsibilities of government and project proponents to engage in
defining rights and title to Citxw Nlaka’pamux Assembly Participating Bands both on
and off reserve
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Discussion on opportunities of infringement of current rights and title, that may include
income tax, forestry, fishing rights, water (riparian) and mining, currently available to
Citxw Nlaka’pamux Assembly Participating Bands compared to those available in other
territories
Discussion on Aboriginal title and rights issues with the Citxw Nlaka’pamux Assembly
Participating Bands
Detailed listing of factors to consider in moving forward on development or challenges
with SCC’s decision
Identify which sections of decisions should be emphasized during future negotiations
with government or project proponents
The Paper and Panel Methodology
Providing a 10 page Reasons and Options Discussion Paper in order to help prioritize and realize
how and why the indigenous peoples of the region should proceed to organize and to achieve
results respecting:
a) their existing Aboriginal Title (AT) their defined Nlaka’pamux territory,
b) their Indigenous Land Rights and Title Assertions (ILRAs)
c) their legal empowerment throughout their traditional lands with lands management,
decision making
d) the Nation-to-Nation role for Citxw Nlaka’pamux Assembly (CNA) particpating
Bands
e) and planning their future role as Nlaka’pamux Resource Stewards (NRS)
The report should provide the legal reasons and strategic options for assisting the CNA
Participating Bands and membership in bringing their Aboriginal Title (AT), Indigenous Land
and Title Rights Assertions (ILRA) and legal winning streak to full political and commercial
fruition, so as to put Nlaka’pamux People of the Nlaka’pamux Territory in the ‘driver’s seat’ as
the Nlaka’pamux Resource Stewards (NRS). The discussion papers will be used to assist in
advancing the Nation-to-Nation assertions throughout a unified Nlaka’pamux Territory and
should recognize that much valuable work and progress has already been made towards that end
by the CNA Participating Bands (notably in resource extraction Participation Agreements Teck).
The Panel Methodology
Initially the three papers will be presented by the authors followed by questions from the
audience. The second part of the day will entail a moderated panel exchange discussion lead by a
moderator. The panel will provide a forum for a healthy exchange of ideas, concepts and
discussions using notions from the three legal papers and to help leadership and observers
prioritize and execute how Indigenous peoples could proceed to organize and to achieve results
respecting:
a) their existing Aboriginal Title (AT),
b) their Indigenous Land Rights Assertions (ILRAs)
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c) their legal empowerment throughout their traditional lands
d) the Nation-to-Nation role for Citxw Nlaka’pamux Assembly (CAN) Participating
Bands
e) and planning their future role as Resource Stewards (NRS)
The moderating will advance discussion that will provide the strategic options for assisting the
CNA Participating Bands in bringing their Aboriginal Title (AT), Indigenous Land Rights
Assertions (ILRA) to political and commercial fruition, so as to put Bands in the ‘driver’s seat’
as Resource Stewards (NRS). The panel should assist in advancing the notion of Nation-toNation assertions throughout a unified Territory.
Agenda
9:00 a.m.
9:10 a.m.
9:20 a.m.
9:30 a.m.
10:00 a.m.
10:30 a.m.
11:00 a.m.
12:00 p.m.
1:00 p.m.
1:15 p.m.
4:00 p.m.
Opening Prayer
Opening Comments by Citxw Nlaka’pamux Assembly Chair
Introduction by Citxw Nlaka’pamux Assembly Manager
First Paper Presentation
Second Paper Presentation
Third Paper Presentation
Questions and Answer Period on papers
Lunch
Overview of the Panel Discussion process
Moderated Panel Discussion
Closing Comments
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Lawyers, Moderator and Report Writer Backgrounder
Bill Gallagher (Strategist / Lawyer / Facilitator)
This totally unique mindset has worked over 30 years in different professional capacities on resource
management issues and project launches. All the while tracking cause-and-effect linkages as to why some
projects succeeded and others failed throughout this extended period. Today this body of knowledge
constitutes an integrated medium that augurs well for those proponents who appreciate its strategic
benefits. He is the Author / Consultant of the book “Resource Rulers: Fortune and Folly on Canada’s
Road to Resources” the definitive book tracking the rise of native empowerment and their remarkable
legal winning streak in the Canadian resource sector. Understanding the native interconnections, ecoactivist linkages, and government responses is essential for planning successful resource strategies. He is
an experienced strategist in the dynamic area of First Nation government, and corporate relations and an
authority on the rise of Aboriginal empowerment in Canada’s resources sector. Having defused First
Nation logging tensions in New Brunswick’s ‘War in the Woods’; oil patch eco-terrorism in Alberta;
helping guide Inco’s Voisey’s Bay impact benefits agreements to successful conclusion (the most
complex resource dispute in Canada). He had a successful career as a corporate lawyer in Calgary, an
energy regulator in Ottawa, and a treaty negotiator on the prairies. He has Resource project experience in
all regions of the country.
Bruce McIvor
Dr. Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation, a law firm
dedicated to defending and advancing Aboriginal title, Aboriginal rights and Treaty rights. Bruce
represents First Nations across Canada. His recent and ongoing work includes representing one of the
First Nation appellants in Grassy Narrows at the Supreme Court of Canada, advising Manitoba First
Nations on revenue sharing for mines, the successful opposition of the proposed Prosperity Mine in
British Columbia, and representing the Treaty 9 First Nation closest to the proposed Ring of Fire
development in northern Ontario. Bruce is a proud Métis from the Red River in Manitoba. He holds a law
degree, a Ph.D. in Aboriginal and environmental history, and is a Fulbright Scholar.
Merle C. Alexander
Merle Alexander is a partner in the Vancouver office and a member of the Business Law Group,
practicing Aboriginal resource law. Merle is a member of the Kitasoo Xai'xais First Nation. His practice
area, Aboriginal resource law, affirms Aboriginal Peoples' title and rights, their economic
development participation and environmental sustainable management within their Territories. Merle
advises on the negotiation and implementation of impact-benefit agreements, resource revenue-sharing
arrangements and a variety of interim agreements. The negotiations touch on a number of resource law
areas, including pipeline, oil and gas, forestry, mining, energy, and independent power (run-of-the-river)
projects. Merle commodifies Aboriginal economic rights by structuring business ventures, limited
partnerships limited liability partnerships and corporations. He also has significant experience negotiating
government-to-government agreements, including strategic engagement, interim treaty, forestry
consultation, mining revenue sharing and other reconciliation agreements, representing clients in British
Columbia, Yukon, and Newfoundland and Labrador. A professional and personal interest of Merle's is the
protection of Aboriginal intellectual property rights, particularly traditional knowledge. He has negotiated
treaty chapters on cultural heritage resources, drafted traditional knowledge protocols and represented
national Aboriginal organizations in various international forums. Consequently, Merle is knowledgeable
on protective mechanisms of indigenous knowledge both domestically and internationally.
Panel Moderator: Raymond Philips
Nlhakapmx, member of the Lytton First Nation and resident of TL’kemchEEn (Lytton, BC). Raymond
(Chuckpalsht) has been practicing law for 19 years, representing and advising First Nations people,
communities, business, and organizations from his offices in Lytton and Kamloops, BC. Raymond has
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been successfully running his own private law practice since 2002. He provides a range of general
counsel services for a number of Bands and First Nations people in the BC interior. These services
include elections, election appeals, real estate, business transactions (on and off-reserve), wills and
estates, employment, and tenure negotiations (with Highways, BC Hydro, Telus, and Communications).
In his spare time, Raymond enjoys ranching, hunting, fishing, riding horses, playing fastball, soccer,
basketball and coaching youth basketball.
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Bill Gallagher Legal Land Rights Negotiations Strategies
Paper Outline
 Introduction - Question for CNA - Regional history
 Environmental Review - Opposing Ajax
 Jackie Thomas ruling
 Leave to Appeal - Aboriginal Title litigation
 Sinixt - Pleadings
 CBC the Current - Treaty Alliance against Tar Sands
 Minister Bennett at UN - Veto worries
 Back to the main question - BC Continuing Legal Education
 Robson Hall - University of Manitoba
 BC Continuing Legal Education - Nov 2014
 Canadian Institute Conference -Dec 2015
 AFN’s Forum on Energy - Feb 2016
This paper is in response to CNA’s “Nationhood Reasons and Options Analysis” 2017 as shaped
by a subsequent conference call with participants that raised the concern of all three lawyers
submitting similar legal overviews that repeated the same Aboriginal Title legal fundamentals.
Thus the author proposed to address the broader context of the region’s socio-political context in
order to differentiate this submission from the other two. CNA has an important story to tell.
In this respect, the author relies upon personal experiences in having been involved in:
a) attending the closing legal arguments of Delgamuukw (Ottawa)
b) presenting at legal workshops on Tsilhoqt’in legal strategy in Vancouver and Winnipeg
c) presenting on the ‘rise of native empowerment’ in Vancouver and related media interviews
d) presenting at the AFN’s Energy Forum in Vancouver (where the author met CNA delegates)
e) major articles in Resource World and Corporate Knights on BC native empowerment
f) and monitoring four cases as they were being argued (currently) before the Supreme Court.
Copyright is the author’s. But this paper may be used for instructional purposes by the CNA.
1.
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Introduction:
I want to bring to your attention a ruling out of Ontario that has been quoted approvingly by the
Supreme Court of Canada when the subject of resource reconciliation comes before it:
… Indian treaty rights are like all other rights recognized by our legal system. The exercise of
rights by an individual or group is limited by the rights of others. Rights do not exist in a vacuum
and the exercise of any right involves a balancing with the interests and values involved in the
rights of others. (R. v. Agawa, 1988 CanLII 148 (ON CA) (author’s underlining for emphasis)
That statement is important in terms of how we’re all going to try and make this country work.
To repeat; it’s been quoted in Supreme Court of Canada rulings where it’s hoping to show the
way forward as a legal path for promoting reconciliation. Thus I believe it sets the right tone.
Question for CNA:
Can you live with this judicial direction?
Yes! If you can, then you likely don’t need to expend time and resources on filing an Aboriginal
Title legal action. Because you already have massive legal empowerment in your legal winning
streak and what you now need to do is to make legal empowerment that work for you.
No! If you can’t, then indeed you should advance an Aboriginal Title action in order to get final
clarity as to who-owns-what-where. This option will always be available to you no matter what.
Either decision is entirely legitimate and one is not better than the other. Thus this decisionnexus is not meant to divide the community; rather it is to allow it to become more informed.
I want you to keep this decision-point constantly in front of your mind as you read this paper.
Everything that follows is designed to help you make an informed decision on how to proceed.
Regional history:
Your traditional lands have already put impressive assertions of Indigenous rights into play.
I want to review these in order to refer to important concepts that are useful for your decision.
Nov 19/2014 Northern Secwepemc te Qelmucw Leadership Council produced its Mining policy.
This 54-page policy contains a number of breakthrough statements that are notable - example:
4.1.1 No Mining Activity shall take place without NStQ’s free, prior and informed consent.
4.2.3 NStQ will consider the past performance of a Proponent in evaluating a proposed Mining
Activity.
6.4.2 NStQ’s consent to the conduct of Mine Development Activities shall be evidenced by a
signed Impact Benefit Agreement with the Proponent, and a Mineral Tax Revenue Sharing
Agreement with the Crown.
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This First Nation isn’t awaiting an Aboriginal Title win in order for it to assert its Indigenous
Land Rights. Two Years later, Arthur Manuel sent an open-letter to Prime Minister Justin
Trudeau:
I would like to remind you that this pipeline (Kinder Morgan) requires the consent of the
Secwepemc people. We do not accept that the federal government can make this decision
unilaterally and without the prior informed consent of the Secwepemc people as the rightful title
holders. (excerpt: Arthur Manuel Nov 28/16)
Clearly, this political letter would have carried more weight had there been a judicial Aboriginal
Title declaration in effect (like there is in Tsilhqot’in). But having said that, the lack of one
didn’t stop these First Nations from issuing an Aboriginal Title assertion to Jacko Lake, adjacent
to the proposed Ajax Mine. And after that pronouncement, they then conducted their own EA
review.
Environmental Review:
In terms of demonstrating Indigenous land rights, nothing in Canada’s resources history
compares to the SSN conducting their own full-fledged environmental review of the Ajax Mine;
done to such a high degree of professionalism that both BC and the proponent were pressured
into that process. Here’s a description of how SSN undertook to assert their own land rights:
We have taken precedent setting steps in creating this fully Indigenous environmental review
process … The landscape of environmental assessment and the duty to consult is transforming.
We are leading the way with our process, based on our Secwepemc worldview, laws and
traditions,” declared Skeetchestn Chief Ron Ignace. “With the Federal Government now fully
embracing the United Nations Declaration on Indigenous People, there has been a seismic shift
between the federal government and First Nations that has yet to unfold. (SSN press release May
20 /16)
Opposing Ajax
In Spring 2017, after reviewing the panel findings, the SSN came out against the Ajax mine:
Stk’emlúpsemc te Secwépemc Nation (SSN) does not give its free, prior and informed consent to
the development of the lands and resources at Pípsell (Jacko Lake and Area) for the purposes of
the Ajax Mine Project.
The Ajax Mine Project in its proposed location at Pípsell is in opposition to the SSN land use
objective for this profoundly sacred, culturally important, and historically significant keystone
site which significance is fundamental and undiminished.
The SSN Joint Council, composed of the elected leadership of Tk’emlúps te Secwépemc and
Skeetchestn Indian Band, made this decision in accordance with SSN’s laws, traditions, customs
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and land tenure systems supported by the evidence and assessments as presented in the Pípsell
Report and SSN Panel Recommendations Report. (excerpts April 01/17 SSN press release)
We can see from these real-time developments that First Nations don’t necessarily require a
judicial Aboriginal Title declaration; when they can instead adopt a code of conduct that’s
consistent with having one. Put another way, SSN are acting by asserting their Aboriginal Title.
I’m referencing it as a powerful approach which other First Nations might well want to emulate.
Jackie Thomas ruling
When Rio Tinto Alcan told the Nechako First Nation that they first needed to obtain a legal
Aboriginal Title declaration before they could sue for water-flow damages on the Nechacko
River, it turned out that dam operators were fundamentally misreading the law. Here’s how the
highest court in BC approached the First Nation’s land rights assertions by correcting Rio Tinto:
[54] The Nechako Nations plead that they exclusively occupied portions of the Central Carrier
territory, including the Nechako River and lands along its banks, at the time of British
sovereignty. If this alleged fact is true, the Nechako Nations would have Aboriginal title to those
lands. Although this is not ownership in fee simple, Aboriginal title would give the Nechako
Nations the right to possess the lands. It is therefore not plain and obvious that the Nechako
Nations do not have sufficient occupancy to found an action in private nuisance.
Here’s the Court of Appeal laying out the test in Roger William (Tsilhqot’in) to crown land in
BC:
[61] The effect of the ruling by the chambers judge is to create a unique pre-requisite to the
enforcement of Aboriginal title and other Aboriginal rights. Under this approach, these rights
could only be enforced by an action if, prior to the commencement of the action, they have been
declared by a court of competent jurisdiction or are accepted by the Crown. In my view, that
would be justifiable only if Aboriginal title and other Aboriginal rights do not exist until they are
so declared or recognized. However, the law is clear that they do exist prior to declaration or
recognition. All that a court declaration or Crown acceptance does is to identify the exact
nature and extent of the title or other rights.
[62] The proposition that Aboriginal rights exist prior to a court declaration or Crown
acceptance is embodied in s. 35(1) of the Constitution Act, 1982 …
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed. [Emphasis added.]
The use of the words “recognized and affirmed” indicates that the Crown has already accepted
the existing Aboriginal rights, and it is really just a matter of identifying what they are.
At this point, the BC Court of Appeal applied that precedent to the Nechacko River territory:
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[65]
In Tsilhqot’in Nation, the Court confirmed that the Aboriginal rights existed before the
arrival of the first European settlers: [69]
… At the time of assertion of European sovereignty,
the Crown acquired radical or underlying title to all the land in the province. This Crown title,
however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and
used the land prior to European arrival. The doctrine of terra nullius (that no one owned the land
prior to European assertion of sovereignty) never applied in Canada
Here’s the part of the ruling that’s important for making your decision nexus on Aboriginal Title:
[66]
As whatever Aboriginal rights the Nechako Nations may have are already in existence,
it seems to me there is no reason in principle to require them to first obtain a court declaration
in an action against the Province before they can maintain an action against another party
seeking relief in reliance on their Aboriginal rights. As any other litigant, they should be
permitted to prove in the action against another party the rights that are required to be proved in
order to succeed in the claim against the other party. (Saik’uz First Nation and Stellat’en First
Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154)
Now because this is a key application of the Tsilhqot’in ruling, the Court of Appeal provided an
explanatory example that everyone can relate to - Landlord and Tenant (lease) litigation.
The court asked the question: if you would have to first prove the existence of a valid lease if
you were looking to enforce its terms? Here’s the BC court of appeal’s answer:
[67] As an example, assume that a lessee of land sued Alcan in private nuisance and that there
was some issue with respect to the validity of the lessee’s lease. In order to prove that it had
sufficient occupancy to found an action in private nuisance, the plaintiff/lessee would have to
prove the validity of its lease. The plaintiff/lessee would be entitled to prove the lease’s validity
in the action against Alcan, and no one would suggest that the plaintiff had no cause of action
until it first sued the lessor and obtained a court declaration as to the validity of the lease. Nor
would the lessor be required to be a party to the action, although it may be in the interests of the
plaintiff/lessee to make the lessor a party so that the findings with respect to the validity of the
lease would be binding on the lessor.
So to repeat: the BC Court of Appeal is saying that you don’t have to first go to court in order to
assert Aboriginal Title because it already exists where you (obviously) meet the legal test for it.
I believe that this ruling is the most important ever to have emanated within this province; here
the top court is applying the Supreme Court of Canada’s Tsilhqot’in ruling in an effort to make it
known that it doesn’t want to see its case-load swamped with (aboriginal title) legal challenges.
Leave to Appeal (denied)
Rio Tinto took this ruling to the highest court in Canada hoping to have it overturned. But the
Supreme Court refused to hear it; meaning the top court is fine with the court of appeal ruling:
The Application for leave to appeal from the judgment of the Court of Appeal for British
Columbia … is dismissed with costs (Oct 14/2015) (Mclachlin CJ, Moldaver, Gascon)
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Aboriginal Title Litigation
One month prior, in September, the SSN had commenced legal action to the contested area in BC
Supreme Court. They took the strategic decision that they wanted to have an Aboriginal Title
declaration. However, doing so put them off-side with the jurisdictional priorities of the BC
government (given that the Ajax Mine was situated on private property):
The B.C. Government will vigorously oppose a declaration that has the potential to create
uncertainty over the land base and for private property owners across this territory. At the same
time government will continue to work collaboratively with First nations to ensure that they have
a meaningful role in land and resource management and that they share the resulting benefits
and economic opportunities. While these efforts will continue, government must and will always
defend, with conviction, the sanctity of private land and private land rights. (Ministry of Justice
press release Jan 15 2016)
It’s the Justice Department issuing this press releases; clearly settling-in for a long drawn-out
process. Again, it all comes back to making your decision on what legal reality you can live with.
In this case, SSN is prepared to take on the system and will have to live with the consequences.
Sinixt
A new native player has re-entered the picture to the southeast. Hunting rights have just been
acknowledged for a member of the Sinixt Tribe (although that member lives in Washington)!
This provincial court ruling also comes with two maps of the area (the Arrow Lakes watershed):
[68] The overwhelming historical evidence is that the Sinixt continue to exist today as a group.
[115] … the Lakes Tribe has continued a tradition of hunting in a manner that is to a large
degree faithful to the traditions of the Sinixt in the pre-contact era.
[123] For whatever time and to whatever extent the Lakes have been physically absent from the
land here in British Columbia after 1930, I find that they have not lost their connection to the
land. …
[135] I find Mr. DeSautel has proven an aboriginal right to hunt in British Columbia pursuant to
the test in R. v Van der Peet.
[167] I find the Sinixt aboriginal right to hunt in British Columbia exists to this day and is
protected from extinguishment and unjustified infringement by s.35(1) of the Constitution Act,
1982. (R v Desautel 2017 BCPC 84)
It remains to be seen how this ruling will play out. It’s a highly documented presentation of facts
and law. Thus it appears that Sinixt do have a legal foothold in this corner of the province.
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Pleadings:
Because we’ve been asked to expand upon how a First Nation should frame its pleadings in
bringing an Aboriginal Title case - here’s the aforementioned case as pleaded before the Court
of Appeal. This is likely a fail-safe precedent given the court’s overall endorsement of the
approach taken in (what is) the Court of Appeal’s first application of the SCC Tsilhqot’in ruling:
Between:
Jackie Thomas on her own behalf and on behalf of all members of the Saik’uz First Nation, and
Reginald Louis on his own behalf and on behalf of all members of the Stellat’en First Nation
And
Rio Tinto Alcan Inc.
This formula involves citing the Chief in her individual capacity and again in her capacity of
representing the collectivity (that she represents). This conforms to the SCC’s ruling that
Aboriginal Title is a collective right:
[75] The rights and restrictions on Aboriginal title flow from the legal interest Aboriginal title
confers, which in turn flows from the fact of Aboriginal occupancy at the time of European
sovereignty which attached as a burden on the underlying title asserted by the Crown at
sovereignty. Aboriginal title post-sovereignty reflects the fact of Aboriginal occupancy presovereignty, with all the pre-sovereignty incidents of use and enjoyment that were part of the
collective title enjoyed by the ancestors of the claimant group - most notably the right to control
how the land is used. However, these uses are not confined to the uses and customs of presovereignty times; like other landowners, Aboriginal title holders of modern times can use their
land in modern ways, if that is their choice. (Tsilhqot’in Nation v. British Columbia, 2014 SCC
44) (author’s underlining for emphasis)
CBC (The Current)
LNIB Chief Aaron Sam went on air Dec 13/16 (Making peace with the Pipeline) describing his
community’s intention to hold a referendum: “On the right to say No – yes we do – that’s why
we’re having a referendum”. The proposed IBA is for 20 years with annual payments plus
project contract and employment priorities. Here was LNIB publicly putting the proposed Kinder
Morgan IBA to a democratic community vote (which subsequently carried) which speaks highly
of LNIB’s leadership and its ability to commercialize its legal empowerment in a balanced way.
Treaty Alliance Against Tar Sands Expansion
On the other hand, a significant number of First Nations along the Kinder Morgan right-of-way
are not interested in doing any such an IBA deal given their concerns over oilsands expansion:
Boston Bar, Coldwater, Nooaitch, (even Lower Nicola / Nlaka’pamux) are treaty signatories:
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As sovereign Indigenous Nations, we enter this treaty pursuant to our inherent legal authority
and responsibility to protect our respective territories from threats to our lands, waters, air and
climate, but we do so knowing full well that it is in the best interest of all peoples, both
Indigenous and non-Indigenous, to put a stop to the threat of Tar Sands expansion.
(excerpt Treaty Alliance) (authors underlining for emphasis)
Here you can see these First Nations asserting their ‘nationhood’ in a bid to stop Kinder Morgan;
which pipeline is now officially approved, subject to the proponent meeting the many conditions.
Minister Bennett at the UN
Her recent speech is important in retracting Canada’s objections to ‘free prior and informed
consent’; more-over she went considerably further in recognizing First Nations as ‘equals’ and as
‘self-governing nations’:
Today, I want to state Canada’s unequivocal support, the representation of Indigenous selfgoverning nations at the United Nations General Assembly.
(excerpts Speaking Notes for the Honourable Carolyn Bennett, Minister of Indigenous and
Northern Affairs at the United Nations Permanent Forum on Indigenous Issues 16th Session:
Opening Ceremony Press Release April 24, 2017)
‘Veto Worries’ (next day editorial)
The Globe & Mail immediately took issue with the Minister getting out ahead of the rest of the
country in an editorial that pointedly referenced the legal uncertainty around Aboriginal Title:
Canadian natural resources are of great value to the people of Canada - Indigenous and nonIndigenous alike. But several clauses in UNDRIP appear to open-endedly favour the interests of
Indigenous communities when it comes to the development of natural resources, whether or not
those communities have clear title to the land involved.
Ms. Bennett says her government does not agree that “free, prior and informed consent” adds
up to an Indigenous veto on development but, rather, that it is about “making decisions
together.”
But Perry Bellegarde, the National Chief of the Assembly of First Nations, says UNDRIP gives
Indigenous people “the right to say ‘yes’ and the right to say, ‘no.’”
That’s not reassuring or clear. Do corporations get to say “yes” and “no”? Canada needs to
have a two-way street on development. The UNDRIP will be disastrous if it proves to be
something else. (excerpts Globe & Mail editorial Apl 26/17) (author’s underlining for emphasis)
But it’s my view that Fist Nations in fact do have a de facto veto to stop resource projects that
they are not onboard with; whether its via their impressive legal winning streak, on the ground
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pushback, or political and corporate negotiations (or a combination of all three strategies). There
are numerous examples of this here in British Columbia - which we can discuss on our panel.
The May 9 2017 provincial election resulted in four First Nation members winning seats in the
legislature. Again, and on a ‘de facto’ basis, they potentially hold the balance-of-power in
deciding resource project and environmental assessment (political) outcomes.
Back to the main question:
If First Nations have a de facto veto, and if they’re acting as having established Aboriginal Title.
then what’s to be gained by mounting a decade long, expensive, legal process just to prove it
again (by winning a judgment) when the BC Court of Appeal has confirmed Aboriginal Title
already exists. In the end, a political arrangement will have to be negotiated - likely a Treaty.
Thus let’s reintroduce the main question as to whether it even needs to be proven (again) in court
… Indian treaty rights are like all other rights recognized by our legal system. The exercise of
rights by an individual or group is limited by the rights of others. Rights do not exist in a vacuum
and the exercise of any right involves a balancing with the interests and values involved in the
rights of others. (R. v. Agawa, 1988 CanLII 148 (ON CA) (author’s underling for emphasis)
This ruling has been upheld by the Supreme Court of Canada in two subsequent rulings (Nikal &
Mitchell) and as a result, it stands today as a good definition of ‘Reconciliation’; meaning that
even after a formal court-ordered declaration of Aboriginal Title, there still has to be a balancing.
This is the fundamental reality that Minister Bennett, Globe & Mail, the courts are all calling for.
BC Continuing Legal Education - Vancouver
CNA will have to recreate its land use and population intensity pattern as of the date of assertion
of British Columbia sovereignty circa 1846. That’s the trigger date for proving Aboriginal Title.
Since I participated in a series of lectures that discussed the impact of Tsilhqot’in, I want to pass
along how that litigation was explained by the lawyers who successfully fought it and prevailed.
The following passages were highlighted by lead counsel in the Tsilhqot’in ruling as pivotal tests
for establishing Aboriginal Title (David Rosenberg speaking a BCCLE Nov 13/14 in Vancouver)
[42]
There is no suggestion in the jurisprudence or scholarship that Aboriginal title
is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally
sensitive approach suggests that regular use of territories for hunting, fishing, trapping and
foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a
particular case, evinces an intention on the part of the Aboriginal group to hold or possess the
land in a manner comparable to what would be required to establish title at common law.
[46]
The concept of continuity does not require Aboriginal groups to provide
evidence of an unbroken chain of continuity between their current practices, customs and
traditions, and those which existed prior to contact (Van der Peet, at para. 65). The same
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applies to Aboriginal title. Continuity simply means that for evidence of present occupation to
establish an inference of pre-sovereignty occupation, the present occupation must be rooted in
pre-sovereignty times. This is a question for the trier of fact in each case.
Rosenberg referred to the Supreme Court saying that Justice Vickers faced a ‘herculean task’ in
sorting and weighing the massive amounts of evidence that were required to be put in evidence.
The same evidentiary threshold will apply in to CNA in the event it decides to launch litigation.
Rosenberg concluded by citing this passage as determinative of the test for Aboriginal Title:
[50]
The claimant group bears the onus of establishing Aboriginal title. The task
is to identify how pre-sovereignty rights and interests can properly find expression in modern
common law terms. In asking whether Aboriginal title is established, the general requirements
are: (1) “sufficient occupation” of the land claimed to establish title at the time of assertion of
European sovereignty; (2) continuity of occupation where present occupation is relied on; and
(3) exclusive historic occupation. In determining what constitutes sufficient occupation, one
looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way
with what was required at common law to establish title on the basis of occupation. Occupation
sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to
tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and
over which the group exercised effective control at the time of assertion of European sovereignty
(Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257)
Robson Hall - University of Manitoba
In fact, there was a team of lawyers working for Tsilhoqt’in on their Aboriginal Title litigation,
and I heard two team members speak to their contributions at a legal conference at the University
of Manitoba (citing: one nation, six bands, and six years of establishing the evidentiary record).
It was clear from her presentation that mounting Aboriginal Title litigation is not for the faint of
heart. Here are key passages in the Tsilhqot’in ruling that lawyer Heather Mahoney referenced
(who had between 2002-2006 gathered and presented oral history and forest-related evidence and
also contributed to framing the closing arguments):
[25]
As we have seen, the Delgamuukw test for Aboriginal title to land is based
on “occupation” prior to assertion of European sovereignty. To ground Aboriginal title this
occupation must possess three characteristics. It must be sufficient; it must
be continuous (where present occupation is relied on); and it must be exclusive.
She said the litigation team even used a demographer from California who ‘was a big part of our
success’ whose research addressed ‘the carrying capacity of the land’ in order to meet the issue
of ‘sufficiency of occupation’ which issue was critical given the population to the area claimed:
[37]
Sufficiency of occupation is a context-specific inquiry. “[O]ccupation may be
established in a variety of ways, ranging from the construction of dwellings through cultivation
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and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise
exploiting its resources” (Delgamuukw, at para. 149). The intensity and frequency of the use
may vary with the characteristics of the Aboriginal group asserting title and the character of the
land over which title is asserted. Here, for example, the land, while extensive, was harsh and was
capable of supporting only 100 to 1,000 people. The fact that the Aboriginal group was only
about 400 people must be considered in the context of the carrying capacity of the land in
determining whether regular use of definite tracts of land is made out.
She concluded by citing the Supreme Court’s summary of the entire process:
[61]
The Province has not established that the conclusions of the trial judge are
unsupported by the evidence or otherwise in error. Nor has it established his conclusions were
arbitrary or insufficiently precise. The trial judge was faced with the herculean task of drawing
conclusions from a huge body of evidence produced over 339 trial days spanning a five-year
period. Much of the evidence was historic evidence and therefore by its nature sometimes
imprecise. The trial judge spent long periods in the claim area with witnesses, hearing evidence
about how particular parts of the area were used. Absent demonstrated error, his findings
should not be disturbed. (excerpts: Tsilhqot’in ibid) (author’s underlining for emphasis)
BC Continuing Legal Education - Nov 2014
Canadian Institute Conference -Dec 2015
AFN’s Forum on Energy - Feb 2016
I spoke at all three sessions starting with Tsilhoqt’in (win #195) and concluding with Jackie
Thomas (win #207) I emphasized the latter as being the most important ruling for BC:
•
[61] … if Aboriginal title and other Aboriginal rights do not exist until they are so
declared or recognized. However the law is clear that they do exist prior to declaration or
recognition. All that a court declaration or Crown acceptance does is to identify the exact
nature and extent of the title or other rights. (Jackie Thomas v Rio Tinto Alcan 2015
BCCA 154) (author’s underlining for emphasis)
Thus I’m saying it again here. CNA need not feel pressured into filing an Aboriginal Title case.
It has a number of options open to it by which to assert land-rights, and a court action is but one.
The reason Tsilhqot’in is important is that it represents the apex of the rise of native resource
empowerment in British Columbia; and as such it is a legal win of the highest order. As such,
it’ll always be available to you should you decide that you want a specific declaration to rely on.
It involves a massive amount of time, cost and effort; to end up in the same place you are today.
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Merle Alexander Paper
Indigenous peoples have their own legal orders, and... identification of Aboriginal rights
holders should involve the application of Indigenous law, derived from [their] Indigenous
governance authority. Canadian courts can, and occasionally do, take account of
Indigenous law in rendering decisions, but they inevitably do so within the framework of
the Canadian legal system from which they derive their authority, rather than within the
context of Indigenous legal orders and governance authority.1
For too long, Indigenous Peoples’ Title and rights have been externally defined by Crown
Governments and the Courts. We look for them to be honourable in affirming the nature, scope
and content of our Title and rights, but they fail us. The hope is perhaps flawed from the start
because the only true interpretation of our Title and rights can be drawn from our legal stream,
our law. All answers to your most pressing legal questions require the Nlaka’pamux legal
perspective to be treated equally with Canadian law. Equal treatment of Indigenous and
Canadian law is often said, the only morally, legally and politically justifiable resolution. Only
then can true reconciliation and equitable agreements be achieved.
The current reality is that individual First Nations are consulted too little, too late. Nations
would be preferable over individual First Nations for Crown consultation and proponent
engagement, but not because they recognize our Nationhood, because of it would be a
consultation one-stop-shop.
Strength of claim assessments are heavily favoured to the most minimal level of consultation.
The Crown’s fingers on are on the scale. We are in a defensive state of reaction to resource
development projects that are advancing on timelines inconsistent with meaningful and
substantive engagement.
This reality must change. It can only change by drawing on the strength of the collective Title
and rights of the Nlaka’pamux Nation. The way forward for economic prosperity, sustainable
development and equitable reconciliation is in constitutional partnership. A successful
implementation of an incremental Citxw Nlaka’pamux Assembly Title Strategy can and will
achieve this Nation to Nation partnership.
You have asked us to provide a Nationhood Options and Analysis discussion paper. There is a
common thesis throughout this paper: The Citxw Nlaka’pamux Assembly’s Title Strategy must
be based upon a collective Title and rights of Nlaka’pamux law.
This discussion paper is set out in two parts: Theory: case law analysis of the collective rights
approach; and Practice: applying the law and our experience to practical and relevant questions
asked. We will begin with the law.
1
McNeil, Kent. "Aboriginal Title and Indigenous Governance: Identifying the Holders of rights and Authority."
Osgoode Legal Studies, Research Paper Series, vol. 12, no. 14, 2016: 50 at 2.
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COLLECTIVE TITLE & RIGHTS – COMMON LAW CONSIDERATIONS
Before we address the practical questions from your Nationhood Panel Outline, it is important
that we set out some of the basic legal principles that frame our collective rights analysis. We are
informed that there are mixed legal opinions on the best approach to applying a Title-based
strategy, Aboriginal Title litigation and other Crown/proponent engagement. The truth is that the
Courts have had limited opportunity to answer the difficult questions. Aboriginal common law
analysis remains at its infancy, especially on issues of collective versus individual rights.
Section 35(1) recognizes and affirms the “aboriginal and treaty rights of the aboriginal peoples of
Canada”. The Aboriginal peoples are defined in s.35(2) as including “the Indian, Inuit and Métis
peoples of Canada.” That is the extent to which the Canadian Constitution identifies the potential
holders of s.35 rights, leaving the matter to be resolved by judicial decisions or negotiated
agreements.2
Some basic settled legal principles on Title and Rights are:
1. Aboriginal rights and title are communal rights vested in present-day collectives that are
connected by descent or succession to the Indigenous people whose practices, customs,
and traditions are the source of specific Aboriginal rights, or who were in exclusive
occupation of land giving rise to title at the time of Crown assertion of sovereignty;3
2. Aboriginal Title is held communally. Aboriginal title cannot be held by individual
Aboriginal persons; it is a collective right to land held by all members of an Aboriginal
nation. – Delgamuukw – para 115;
3. Aboriginal title is a territorial right vested in the whole nation that applies externally as
against the Crown and other persons who are not members of that nation;4
4. Internally, houses, clans, families, individuals, and so on continue to have rights under a
nation’s Indigenous laws, which are subject to the territorial authority of the nation and
so should be alterable through the exercise of its inherent right of self-government.5
5. Individual members of an Aboriginal community do not have standing to assert collective
rights; only a community can invoke a defence of such rights - Behn.
6. Organizations or individuals who claim that the duty to consult is owed to them as
representatives of the rights or title holding collective must have the authority to act in
that capacity on behalf of the collective;6 and,
7. Where there are divisions among the rights or title holders or claimants, the duty to
consult may be owed to more than one organization representing different interests within
the collective- Nlaka’pamux Nation Tribal Council v. Griffin, 2009 BCSC 1275.7
You have asked the following questions:
2
Ibid.., at 1.
Ibid.., at 52.
4
Ibid.., at 20.
5
Ibid.., at 10.
6
Ibid.., at 50.
7
Ibid.., at 51.
3
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HOW SHOULD WE DEFINE OUR TERRITORY?
The proper territorial definition and affirmation is on behalf of the Nlaka’pamux Nation.
Nlaka’pamux First Nations appear to be publicly and coherently communicating to other
Governments that it is “the Nlaka’pamux Nation (and not the bands) that is the proper holder of
aboriginal rights and title”.8
We are not advised if the current articulation of the Nlaka’pamux Nation territory is based upon
current comprehensive traditional land use studies or otherwise. If the territorial definition is not
a product of a fulsome or updated process or there are multiple and potentially prejudicial
version of “traditional territory maps” in circulation, we would recommend an territorial
affirmation map. It is advisable to perform a traditional knowledge/Nlaka’pamux legal order
collection process that expresses current and historical traditional uses. We would suggest that
this Territorial affirmation be a core element of a Nlaka’pamux Declaration, Strategy and/or
Nation to Nation Agreement.
We also work with a number of First Nation clients that have three types of territorial
affirmations: (1) territorial map; (2) consultation area map and (3) internal individual
consultation map(s) not for public or governmental distribution.
HOW SHOULD WE ASSERT TITLE AND RIGHTS?
Affirmation of Nlaka’pamux Title and rights should be as representative entity on behalf of the
Nlaka’pamux Nation. It is Indigenous legal tradition and current trend to use three affirmative
mechanisms for Title and rights:
1. Nlaka’pamux Nation Title and rights Declaration (“Declaration”);
2. Nlaka’pamux Nation Title and rights Strategy (“Strategy”); and
3. Nlaka’pamux Nation to Nation Reconciliation Agreement(s) (“NtoN Agreement”).9
We suggest that each and all of these documents may form an incremental approach to achieving
Title reconciliation with the Crown, other Nations and Proponents. The logic of an incremental
approach would be to organically construct and invest in a National approach with core
principles in a Declaration; develop internal and external governance through a Strategy and,
then, move to a binding negotiated Nation to Nation Agreement process with the Crown and
other Nations.
HOW SHOULD WE AFFIRM TITLE AND RIGHTS RECOGNIZED BY COURTS?
An affirmative statement should form the core of a Declaration, Strategy of NtoN Agreement.
Applying Tsilhqot’in, the proper Title and rights holder should make the affirmative statement:
 It should be determined by the collective itself according to their Indigenous legal order:
A statement according to Nlaka’pamux law appointing a representative entity;

Bands should not be ignored in the determination of proper Title and rights holder: A
statement that the Ashcroft Indian Band, Boston Bar First Nation, Coldwater
Indian Band, Cook’s Ferry Indian Band, Nicomen Indian Band, Nooaitch Indian
8
Final Submissions of the Intervenors Ashcroft, Coldwater, Cooks Ferry and Siska First Nations for the ILM
Project.
9
There is also a trend in First Nation to Crown relations and governance to have direct “assertions” set out in
Government to Government Agreement(s). Recent BC-based examples include: Haida Nation Reconciliation
Agreement; Coastal First Nations Reconciliation Agreement; Carrier Sekani Collaboration Agreement; Cheslatta
Carrier Nation; Gitanyow Hereditary Chiefs, Shishahl First Nation and Nanwakolas Council.
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Band, Shackan Indian Band and Siska Indian Band affirm the representative entity
as the Title and rights Holder; and

Where collective self identification is coupled with band council confirmation, high level
of certainty can be achieved in relation to consultation with the collective: BCRs and/or
declaration from each Nlaka’pamux First Nation/Band will provide legal certainty.
HOW DO WE MANAGE OUR LANDS?
Governmental structures and powers are obviously necessary for a community to make
collective decisions about how its communal rights are to be allocated and managed...
But given that Indigenous peoples have their own laws in relation to their title lands and
the exercise of other Aboriginal rights, there is no legal vacuum. By exercising their
governmental authority and ensuring that their laws are respected, Indigenous peoples
can “pro-actively use and manage” their title lands, as the Supreme Court in Tsilhqot’in
Nation said they have a right to do.10
Nlaka’pamux Nation is bound to manage its Territory according to Nlaka’pamux law.
Indigenous Nations that have Aboriginal title at common law have the legal personality
necessary to have property rights. Moreover, as these Nations have communal decision-making
authority over their lands, Aboriginal title is not just proprietary – it is also governmental in
nature. It may seem trite, but Nlaka’pamux Nation is already empowered to exercise its inherent
right to self govern its Territory.
It may be particularly relevant to develop a Nlaka’pamux Nation land use plan and Nlaka’pamux
Nation law to protect and manage natural resources. There are number of initiatives being
developed with both non-governmental groups and academic institutions, such as UVic’s
Indigenous Law Research Unit, that have the purpose of assisting Indigenous nations in
recovering and rebuilding their governance and decision-making authority over lands and
resources based upon their legal orders.
HOW CAN WE WORK TOGETHER?
At the BC Utilities Commission hearing of the Interior to Lower Mainland Transmission Project,
several Nlaka’pamux First Nations made the following comments:
The circumstances for the Nlaka’pamux are:
10
a)
the Nlaka’pamux are a culturally homogeneous collective of people who
share a common language, traditions, customs and historical experience;
b)
Nlaka’pamux people self-identify as Nlaka’pamux rather than as members
of one of the Indian Bands into which the Crown has organized them; and
c)
there is no central governance authority for the Nlaka’pamux Nation.
Ibid., McNeil at 56.
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Assuming this statement remains current and correct, there is a basis for a Nation-lead process.
Developing a Declaration, Strategy and Nation to Nation Agreement may certainly address the
internal process for working together, however, it may be necessary for internal governance to
develop an internal governance protocol.
Mechanisms that we have developed with other Nations include intra-Nation sharing accords;
constitutions; intra-Nation governance laws and Indigenous legal traditions processes. The
sharing accord is particularly useful in response to external referrals and resource development
as it sets out a process for Chiefs within a Nation to agree upon the most affected First Nations to
a project and sharing of benefits. For instance, if it were determined that among a First Nations
group that two were most directly affected and the other 6 were peripherally affected, the
allocation formula would see the affected get 40% of benefits and the residual 60% distributed
equally among the remainder.
HOW SHOULD WE MAKE DECISIONS?
In short, Nlaka’pamux decisions should be in accordance with Nlaka’pamux law. If there is not
a protocol for internal decision-making, it may be advisable to develop an internal governance
framework or policy based upon known or newly gathered Nlaka’pamux legal orders.
Tsilhqot’in and international legal documents such as the UN Declaration on the rights of
Indigenous Peoples has created an increased awareness among First Nations of the principles of
Free Prior and Informed Consent (“FPIC”). FPIC is generally embraced as the requirement to be
used with external governments, however, we are working with several Nations that are making
FPIC their guiding principle for internal and external decision-making. It affirms Nlaka’pamux
expectations of the Crown if and when your own institutions apply the FPIC standard. Another
expression of FPIC is the wider acceptance of necessity for “consensus-based decision making”.
Either way, no decision is complete or final until it is fully supported by all First Nations within
the Nation group.
Some basic comments on FPIC include:
 Free: All Nlaka’pamux First Nations should be free from intra-Nation and external
government coercion;

Prior: All deliberations should be given adequate time to allow for community-level
and Council review before final decisions are made or expressed by the Nation;

Informed: Fulsome information disclosure and the capacity funding to allow for
truly educated review is required;

Consent: Consent should be according to Nlaka’pamux legal orders. Internally,
houses, clans, families, individuals, and so on continue to have rights under a
Nation’s Indigenous laws, which are subject to the territorial authority of the Nation
and so should be alterable through the exercise of its right of self-government.
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WHAT SHOULD OUR EXPECTATIONS OF EACH OTHER BE?
Legal rights: What should people be able to expect from one another?
Within Tsilhqot’in law, there are a number of substantive and procedural rights that
parallel the legal obligation... In sum, these substantive rights are the right to receive
protection from harms, the right to receive support when harmed, and the right to receive
resources and knowledge when in need. The procedural rights closely mirror the
procedures... and include information and evidence gathering, consultation with the
collective community or experts and receiving assistance from others. These continue to
be the rights of the Tsilhqot’in people according to their legal traditions, and further,
these substantive and procedural rights must be appropriately considered through any
process of consultation or consent imagined in Canadian law.11
From Nlaka’pamux First Nation to Nlaka’pamux First Nation, the reasonable expectation among
and between one another is that each will comply with Nlaka’pamux law. Adopting a similar
approach to the substantive and procedural rights set out above, it may be useful to create an
internal framework that ensures that each of the Citxw Nlaka’pamux Assembly Participating
Bands mutually agrees that they have a right to receive: (1) protection from harms from external
parties and from one another; (2) support when harmed from each other; and (3) resources and
knowledge from each other when in need.
We need further information from the Citxw Nlaka’pamux Assembly Participating Bands on the
precise situations, if any, that require appropriate protocols to be developed. If, for instance,
there is a need for a referral policy for CNA that would allow the Nation to respond on behalf of
affected Participating Bands, this can be developed with a collective approach.
WHO WILL DO WHAT?
“the rights of [First Nations] among themselves … are governed by rules peculiar to the
[Nation] group, as laid down by custom or internal governmental organs”12
Assuming that the collective holder of Nlaka’pamux Title and rights can be represented by a
representative entity, one needs to consider who can exercise those rights or enjoy the benefits of
that title, and on what terms. It is difficult to answer the “who will do what?” in the abstract and
without scoping the mandate of the representative entity. Delegation to a representative entity
will be more of a governance process that a mechanical, restrictive and static decision-making
model. The Participating Bands need to scope a mandate for the Citxw Nlaka’pamux Assembly
and then determine a decision-making process.
A potential process may be:
1. Citxw National Assembly (“CNA”) be identified to all Crown Governments as the
representative Title Holder for the Nlaka’pamux Nation;
2. Chiefs Council of the CNA be established to govern;
11
Val Napoleon, “Tsilhqot’in Law of Consent”, (2015) 872 UBC Law Rev. Vol 48:3, 872 at 889.
Brian Slattery, “Understanding Aboriginal rights” (1987) 66 Can. Bar Rev. 727 at 745 [Slattery, “Understanding
Aboriginal rights”], and “The Metamorphosis of Aboriginal Title” (2006) 85 Can. Bar
12
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3. Working Committee (each Participating Band would have a nominee) be established
to develop a referral process for all identified natural resource areas including, but not
limited to, income tax, forestry, fishing rights, water (riparian) and mining;
4. Negotiation team be established to engage active and future natural resource projects
within the Territory; and
5. Clear reporting mechanisms for both Working Committee and Negotiation team to
the Chiefs Council.
WHO GETS TO HAVE POWER OVER WHOM?
The answer to this question is both theory and practice.
In theory, assuming there is broad acceptance that the Nlaka’pamux Nation is the proper Title
and rights holder, the collective would have power over the individual First Nations. This does
not necessarily accord with Nlaka’pamux legal traditions, political realities or consider other
outside factors but is based on current common law understanding.
In practice, no individual Band has power over another and certainly the Citxw Nlaka’pamux
Assembly would not subordinate individual First Nations, it is only through their unanimous
decision making power that governance occurs. A governance process that is based upon
subordinating the rights of communities to the will of the Nation is unlikely to succeed or
maintain support. As identified above, it appears that the Nlaka’pamux as general statement did
not have a central governance authority. Any representative entity, CNA or otherwise, will
likely only enjoy the support of Participating Bands based upon a FPIC or consensus decisionmaking model.
DISPUTES WITH EACH OTHER - HOW CAN WE RESOLVE THEM?
We agree with the inherent assumption that it is highly important to resolve disputes among
Participating Bands through internal mechanisms within the Citxw Nlaka’pamux Assembly. A
supportable dispute resolution model for Nlaka’pamux might have three key characteristics: (1)
Nlaka’pamux law substantial and procedural framework; (2) community based; and (3) allow for
a dynamic and evolving resolution based on Nlaka’pamux legal traditions.
We note the following as a framework drawn from an Indigenous-guided dispute resolution
model:
Making and Maintaining Agreements or Resolving Conflicts
i. Consulting with Community: People should seek as broad of community
consultation as possible, prior to taking action, rather than acting in isolation
on behalf of the community.
ii. Consulting with Families: Families are key representatives in community
deliberations.
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iii. Collectively Identifying Solutions and Individuals to Implement Community
Solutions: Members within a community work should collectively identify how
to respond to a conflict and select the best individuals to respond.
iv. Identifying Interests and Negotiating Agreements: Communities or groups
should talk together to articulate and identify each other’s interests to provide
a foundation for dispute resolution and developing an ongoing relationship.
v. Acting Unilaterally to Protect Community Survival: In times of extreme need
or danger, when negotiation fails or is not possible, communities may act
unilaterally to protect their collective survival.
vi. Being Open to Non-Human Resolutions to Problems with Time: Problems
that can’t be resolved through human intervention or immediate action may
be resolved through non-human intervention, given time.13
Although not generically applicable, this legal framework if acceptable, may form guiding
principles for a developed Nlaka’pamux dispute resolution mechanism. We have developed
comprehensive and summary internal protocols for many Indigenous clients that may be suitable.
RULES - CONTROLLING OUR INTERACTIONS WITH EACH OTHER?
We are not in a position to offer rules for governing the Citxw Nlaka’pamux Assembly
Participating Bands. It would be presumptuous for us apply any governance model that did not
reflect Nlaka’pamux law.
OTHER COMMENTARY & ANALYSIS
There are a number of other legal items indentified in the Nationhood Outline. We have the
following general comments.
Individual band versus collective Nation approach to Nationhood
It is our experience and opinion that a collective Nlaka’pamux Nation approach to Nationhood is
highly preferable to individual First Nations going it alone. The law is settled that it is the
Nation that is the proper Title and rights holder. The pooling of resources to mount a substantive
Title strategy and change the Nation to Nation relationship is too onerous for a single or few
First Nations. Ultimately, the leverage brought by a larger territorial scope and First Nation girth
has consistently proven to have greater success in the Courts and negotiation tables.
The law does not yet support an individual First Nation proving a Nation’s collective Title and
Rights. A First Nation does not seem to have external rights unto itself, it has internal rights
within the Nation. We are aware of an Aboriginal Title action being pursued by Lax Kw’allams
First Nation of the Tsimshian Nation, but it is likely now in abeyance.
To date and to our knowledge, there is no case law that prohibits individual First Nations of a
larger Nation group from affirming Title and rights. The case law is littered with examples of
both individual First Nations and Nation groups asserting and proving their rights and to date no
13
Val Napoleon, Secwepemc – Lands and Resources Law Analysis Project Summary, June 21, 2016 at 7.
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individual First Nation has taken an Aboriginal Title action to Court. All Title actions of Gitxsan,
Wet’suweten, Haida and Tsilhqot’in were advanced on the basis of collective Title of the Nation.
Responsibilities of government and project proponents to engage in defining rights and title to
Citxw Nlaka’pamux Assembly Participating Bands both on and off reserve
The law is not particularly instructive in determining the scope of engagement processes to
define Title and Rights. Governments are wary of third party evaluation that may bind them in
future consultations. Proponents simply rely on public record, intergovernmental
communication or affirmation from the Nation itself to get basic information. Proponents, unless
expressly delegated such obligation by the Crown, do not appear to have an obligation to
“define” rights and Title.
The Crown does have a legal obligation to perform and share a strength of claims (“SOC”)
analysis of any Nation or First Nation when an adverse effect may affect asserted Aboriginal
Title or Rights. Beyond level of consultation (informational versus full engagement), the SOC
does necessarily translate into tangible legal commitments. It may be accurate to state that SOC
determines if a Government to Government agreement is negotiated on a project by project basis.
The Courts have affirmed that Aboriginal Title may be achieved by legal court declaration or by
Nation to Nation agreement. We suggest that Nlaka’pamux Nation to pursue an incremental
Title recognition by Nation to Nation Agreement. Through such an Agreement, Nlaka’pamux
may be able to achieve an affirmative process in setting out the definition, scope and content of
Nlaka’pamux Title and rights.
We advised the Carrier Sekani First Nations in their achievement of a incremental process
whereby:
1.
In the Collaboration Agreement signed in April 2015, the Parties agreed that “BC
recognizes the existence of Carrier Sekani Aboriginal Title and rights in the
Territories”; and
2.
Through the Collaboration Agreement, the Parties agreed to establish a working
group to enable affirmation of Carrier Sekani Aboriginal Title.
3.
In every core resource area or future project, the baseline is now that there is
CSFN Title and the presumed consultation standard is consent.
Opportunities of infringement of current rights and title, that may include income tax,
forestry, fishing rights, water (riparian) and mining, currently available to Citxw
Nlaka’pamux Assembly Participating Bands compared to those available in other territories
We understand this heading to be requesting advice on translating infringement challenges into
opportunities given the present excessive infringement that is occurring presently in the Territory
without tangible benefits for Citxw Nlaka’pamux Assembly Participating Bands.
Both Crown Governments have actively engaged in more substantive reconciliation agreement
processes in the last few years. As set out above, we advised the Carrier Sekani in their
development of a Collaboration Agreement. Through implementation, the Nation and BC
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identify resource areas and are negotiating sub-agreements in multiple core areas including: (1)
Title and rights affirmation; (2) forestry; (3) exploration and mining; (4) water rights; and (5)
major projects.
We are also commencing negotiating a number of Reconciliation Agreements on behalf of other
First Nations and Nations with the federal Crown. On the face of these preliminary discussions
and negotiation framework, there appears to be an appetite to reconcile Title and rights through a
thematic approach to agreed topics including: (1) fisheries; (2) income tax; (3) environmental
assessment; and (4) transportation infrastructure.
Sections of decisions should be emphasized during future negotiations
The following are key excerpts and legal principles that should be emphasized:
 Aboriginal Title rights – Power to Decide:
o exclusively use and occupation
o possess the land
o how land, waters and resources used
o economic benefits of the land, including subsurface/mineral rights
o proactively use and manage the land based on our values & aspirations

Before Aboriginal title is proven:
o Crown must satisfy its DTC & accommodate
o Consultation should seek consent:

Where title still unproven: practical, rather than legal, requirement to obtain consent
o “Governments and individuals proposing to use or exploit land, whether before
or after a declaration of Aboriginal title, can avoid a charge of infringement or
failure to adequately consult by obtaining the consent of the interested Aboriginal
group.”
o If development has proceeded “without consent prior to Aboriginal title being
established, [the Crown] may be required to cancel the project upon
establishment of the title if continuation of the project would be unjustifiably
infringing”

Recognized title: Consent required or Crown required to justify infringement:
o “The right to control the land conferred by Aboriginal title means that
governments and others seeking to use the land must obtain the consent of the
Aboriginal title holders. If the Aboriginal group does not consent to the use, the
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government’s only recourse is to establish that the proposed incursion on the land
is justified under s. 35 of the Constitution Act, 1982.”
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Bruce McIvor Rights-Holder for Aboriginal Title & Rights
This discussion paper provides an overview for the Citxw Nlaka’pamux Assembly (CNA) of
Canadian law on the issue of who is entitled to hold and advance Aboriginal title and rights
under section 35 of the Constitution Act, 1982.14
Part I of this paper summarizes current case law on the definition of the proper ‘rights-holder’ in
respect of section 35. Part II provides an overview of the relationship between Indian Act bands
and Indigenous Nations and other groups for the purpose of advancing Aboriginal title and
rights. Part III sets out potential advantages and disadvantages for the CNA’s consideration when
developing its position on how to pursue recognition of Aboriginal title and rights.
Summary
Aboriginal rights, including title, are communal rights protected under section 35 of the
Constitution Act. Aboriginal title and rights must be advanced in Canadian courts and in
negotiations with the Crown by the proper rights-holding body. Courts have established the
following key principles for determining which entity holds rights in respect of section 35:
(i)
The issue of who the proper rights-holder is must be determined primarily from the
perspective of the community asserting the right.
(ii)
There must be a connection between the present-day rights-holding community and the
group that historically exercised the right.
(iii)
In determining who holds section 35 rights the court will consider evidence relating to the
specific society or culture of the Indigenous group in question.
Depending on the evidence in a particular case, the rights-holder may be the Indigenous Nation
as a whole, an Indian Act band or another group.
Further details are set out below.
Part I. Defining the Rights-Holder in Canadian Law
Aboriginal rights are collective rights protected under section 35 of the Constitution Act which
flow from Indigenous peoples’ historic and continued use and occupation of lands and resources.
Section 35 does not define which entity holds those rights other than that they are held by the
“the Indian, Inuit and Métis peoples of Canada.”15 As a result, courts have established
requirements for determining which entity holds Aboriginal rights for the purposes of section 35,
14
Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act]
15
Constitution Act, section 35(2)
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most notably in the trial and appeal decisions leading up to the Supreme Court’s 2014 decision in
Tsilhqot’in.16
The key principles for determining the proper rights-holder in respect of section 35 rights are as
follows:
a. The rights-holder should be defined based on the perspective and customs of the Indigenous
group in question.

The definition of the proper rights holder is a matter to be determined primarily from
the viewpoint of the group itself in accordance with its customs and habits.17 The
issue of who holds an Aboriginal right must be determined from the perspective of
the community advancing the right.18
b. The modern-day rights-holding community must demonstrate a connection to the historic
group that exercised the right in question.

Section 35 rights are communal and arise out of the existence and practices of a
contemporary community with historic roots.19 No matter how a contemporary
community defines membership, a critical inquiry for the purposes of section 35
rights is the ancestral connection to the relevant community in existence at the time of
contact (for rights) or sovereignty (for title).20
c. Determining which entity is the proper rights-holder is a fact-based inquiry requiring
evidence.

The identification of the proper rights-holder is primarily a matter of fact to be
determined on the evidence relating to the specific society or culture in question.21 In
some cases, determining the rights-holder may require a trial.22
Part II. Advancing Rights on behalf of the Nation, Bands & Other Groups
Depending on the evidence and specific circumstances in a particular case, the rights-holder for
the purpose of section 35 may be the Indigenous Nation as a whole, an Indian Act band, or a
subgroup within the larger collective.
The courts have held the following in respect of which group is entitled to advance section 35
rights:
16 16
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256.
William v. British Columbia, 2012 BCCA 285 (CanLII) [Tsilhqo’tin appeal decision] at para. 149.
18
Tsilhqot’in appeal decision at para. 149.
17
19
20
21
22
Tsilhqot’in trial decision at para 437.
Tsilhqot’in trial decision at para 445.
Tsilhqot’in trial decision at para 439; Tsilhqot’in appeal decision at para 149.
Kelly v. Canada (Attorney General), 2013 ONSC 1220 (CanLII) at para. 59.
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a. Rights may be advanced on behalf of the Nation as a whole.

The identity of the rights-holding group for the purpose of section 35 lies in the
group’s lineage, shared language, customs, traditions and historical experiences.23

The setting aside of reserves and the establishment of Indian Act bands was a
convenience to government. The creation of bands did not alter peoples’ identities.24
As such, in many situations the shared identity of members of the rights-holding
group will be as part of the larger Nation rather than at the band level.
b. Indian Act bands may still have a role in advancing section 35 rights.

Even where a band does not “hold” the Aboriginal rights of community, it may be the
appropriate vehicle for the protection, exploration and expression of those rights.25
Band councils may also have a role to play in the administration of rights and in
discussions with the Crown.26

In some cases, courts have proceeded on the assumption that rights are held by the
band based on the submissions of the Indigenous groups in question.27
c. Aboriginal rights may be advanced by a subgroup within the larger rights-holding collective.

Aboriginal rights are communal but in certain circumstances a subgroup within the
larger collective may be able to advance rights on behalf of the larger group.28

In addition, a rights-holding group may authorize an individual or an organization to
represent it for the purpose of asserting its section 35 rights.29
d. For the purposes of the duty to consult, the Crown should consult with the group(s) asserting
the right, even where there is a dispute.

23
24
Indigenous groups have the right to be consulted and negotiated with, in good faith,
by the Crown on a collective basis through representatives of their choice.30 As such,
Tsilhqot’in trial decision at para 469.
Tsilhqot’in trial decision at para 469; Tsilhqot’in appeal decision at para 56.
25
Orr v. Alook, 2013 ABQB 86 (CanLII), at para. 47.
26
Tsilhqot’in trial decision at para. 148, 155.
27
E.g. Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494 (CanLII).
28
Tsilhqot’in appeal decision at para 154.
29
Behn v. Moulton Contracting Ltd., [2013] 2 SCR 227, 2013 SCC 26 (CanLII) [Behn] at para. 30. Note also that in
Behn the Supreme Court held that certain rights may be held by the larger community but are exercised by
individual members, and that those rights would have both a collective and individual aspect.
30
Martin v Province of New Brunswick and Chaleur Terminals Inc, 2016 NBQB 138 (CanLII) at para. 48.
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the Crown must engage in consultation with Indigenous groups who assert that they
hold the rights in question.31

When faced with a diversity of putative representation on behalf of an Indigenous
group, the Crown must discharge its duty to consult by taking reasonable steps to
ensure that all points of view within the group are given appropriate consideration.32
This may include separate consultation processes where there is a divergence between
the claims of the representative of the Nation and the representatives of a band.33
Part III. Advantages & Disadvantages
The question of how to pursue recognition of Aboriginal rights will be specific to each
Indigenous group based on its particular circumstances, objectives and history.
Based on our experience working with groups across Canada we have identified the following
general advantages and disadvantages of advancing section 35 rights as a Nation versus as an
Indian Act band.
a. Advancing section 35 rights as a Nation:

Advancing Aboriginal rights on the basis of the Indigenous Nation as a whole has the
advantage of allowing the Nation to define its membership and identify for the
purpose of section 35 in accordance with its own laws and traditions, not the
requirements imposed by the Indian Act. This is particularly significant given that
there is indication from the federal government that the Indian Act may be phased out
in the near future.

It may also result in increased leverage when engaging with the Crown given that the
Nation will have a larger membership base than a band and will advance rights over a
larger geographic area.

Depending on available evidence and the historical circumstances of the particular
group, it may be challenging to achieve recognition of title and rights on a Nationwide basis.

It may also be challenging to advance rights as a Nation if there is a lack of cohesion
within the larger group and if there is no existing overarching decision-making body
for the Nation.
31
Tsilhqot’in trial decision at para. 142.
Nlaka’pamux Nation Tribal Council v. Griffin, 2009 BCSC 1275 (CanLII) [Nlaka’pamux] at
para. 73.
33
Nlaka’pamux at para. 75.
32
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b. Advancing section 35 rights as a band:

Advancing Aboriginal rights on behalf of individual bands rather than a Nation has
the advantage of access to an existing governance structure and easily-identifiable
membership criteria. As a result, the Crown may be less likely to dispute a band’s
assertion that it holds rights on behalf of the collective.

On the downside, pursuing recognition as a band means relying on rules and
membership criteria set out under the Indian Act which may not be consistent with the
group’s historic and current identity and which may be rendered irrelevant if the
legislation is phased out.

It may also open the door to internal disputes within the Nation if one band advances
rights to the detriment of another.
Conclusion
The questions of who the proper rights-holder is for the purposes of section 35 and whether to
advance Aboriginal rights as an Indigenous Nation or as individual bands will depend on the
specific circumstances of each group advancing the right.
In our view there are significant advantages to pursuing recognition of Aboriginal rights as a
Nation rather than as at the band level, particularly given that doing so is consistent with the
position that reconciliation between Indigenous peoples and the Crown must be achieved on a
Nation-to-Nation basis in a manner which is respectful of and consistent with Indigenous laws
and traditions. However, doing so may be challenging where there is insufficient evidence
available to support the assertion that the Nation holds rights as a whole and where there are
opposing viewpoints within the Nation about how rights should be pursued.
Regardless of how the CNA chooses to advance section 35 rights the courts have affirmed that
the question of the proper rights-holding collective must be determined based on your own
customs, rules and perspectives. We would be pleased to discuss this issue with you further at
your convenience.
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