Agreements with other First Nations

Unlike other parts of Canada, few First Nations in BC have signed treaties with the Crown. The only historic treaties in BC are the early Douglas treaties on Vancouver Island and Treaty 8, which extends from Alberta and the Yukon into parts of Northeastern BC. More recently, modern treaties (“final agreements”) have been signed by the Nisga’a First Nation,¹ the Tsawwassen First Nation², Maa-nulth First Nations, ³ the Yale First Nation,⁴ and the Tla’amin Nation⁵ (at the time of writing the latter two had yet to come into force). With the exception of the Tsawwassen First Nation, these modern treaties grant the First Nations ownership of all minerals and precious metals on their settlement lands (although not in the rest of their traditional territory).⁶ Thus, these First Nations are able to manage resource-extraction activities on their Treaty settlement lands and collect fees, rents, and royalties from new mining exploration and development within these lands (although provincial administration may continue for pre-existing tenures).⁷

All remaining First Nation traditional territory in BC remains un-ceded and subject to First Nation land claims. Many such claims involve shared or overlapping traditional territories. However, the traditional laws and processes that First Nations previously used to share lands and resources with neighbouring First Nations have been largely displaced by federal and provincial laws and western concepts of mapping and ownership. ⁸

Issue

Without agreements between neighbouring First Nations, third parties often succeed in exploiting resources on overlapping traditional territories by using a ‘divide-and-conquer’ approach.⁹

Recommended Solutions

Establish protocol agreements between neighbouring First Nations and those with shared or overlapping territories

[Tags: Shared Territories, Overlapping Territories; Neighbouring Territories; Boundaries; Border; Agreement; Protocol]

First Nations may find it useful to develop written protocols or agreements with neighbouring First Nations to achieve a coordinated negotiation front for issues affecting their adjacent shared or overlapping territories, and to improve relationships with proponents by providing clarity on how proponents should engage in consultation with multiple First Nations. Ideally, these protocols or agreements would set out the process for responding to resource proposals in a coordinated way (e.g. which group takes the lead in which areas), the process for decision-making, and the process for deciding how benefits will be shared.

Experiences from other jurisdictions can help guide the development of protocols for mining activities proposed on lands subject to shared or overlapping territories. For example, in the Yukon, the Champagne and Aishihik First Nations have signed draft overlap agreements with the neighbouring Little Salmon/Carmacks First Nation and Kluane First Nation.¹⁰ The Cree and the Inuit of Quebec have a signed “Agreement Relating to the Cree/Inuit Offshore Overlapping Interests Area”.¹¹ The Tla’amin (Sliammon) First Nation in Powell River has shared territory protocols with neighbouring First Nations built into their Final Agreement.¹² Many other First Nation groups are working together to develop shared territory protocols or arrangements.

Consider international examples in developing neighbouring protocol agreements

[Tags: Shared Territories, Overlapping Territories; Neighbouring Territories; Boundaries; Border; Agreement; Protocol]

First Nations may consider using international treaties as guidance for managing proposed mining activities on adjacent, shared or overlapping traditional territories. For example, Argentina has signed a Mining Integration Treaty with Chilé and a Memorandum of Understanding with Bolivia to facilitate developments straddling those respective borders.¹³ The European Union (EU) also offers some examples for collaborative management between neighbouring jurisdictions. Under the EU Directive, member states are required to notify neighbouring states and share information on projects likely to have significant effects on the neighbouring state’s environment.¹⁴