Nationhood Reasons and Options Analysiscna-trust.ca/docs/cna_nationhood_reasons__options_program.pdfThe Paper and Panel Methodology ... CNA Participating Bands to keep all members

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Wednesday, 24 May 2017 from 9:00 AM to

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Nationhood Reasons and Options Analysis

LEGAL, LAND RIGHTS, NEGOTIATIONS STRATEGIES

CITXW NLAKA’PAMUX ASSEMBLY

Nationhood Reasons and Options Analysis May 24, 2017

CITXW NLAKA’PAMUX ASSEMBLY 1

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

2017



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



full legal and commercial fruition, could essentially put the Nlaka’pamux people in the socio-

economic ‘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:

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:

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



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



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)



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-to-

Nation assertions throughout a unified Territory.

Agenda 9:00 a.m. Opening Prayer

9:10 a.m. Opening Comments by Citxw Nlaka’pamux Assembly Chair

9:20 a.m. Introduction by Citxw Nlaka’pamux Assembly Manager

9:30 a.m. First Paper Presentation

10:00 a.m. Second Paper Presentation

10:30 a.m. Third Paper Presentation

11:00 a.m. Questions and Answer Period on papers

12:00 p.m. Lunch

1:00 p.m. Overview of the Panel Discussion process

1:15 p.m. Moderated Panel Discussion

4:00 p.m. Closing Comments



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, eco-

activist 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



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.



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.



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 decision-

nexus 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.



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



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:



[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)



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.



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 pre-

sovereignty, 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 pre-

sovereignty 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:



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 self-

governing 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 non-

Indigenous 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



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



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



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.



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.



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.

3 Ibid.., at 52.

4 Ibid.., at 20.

5 Ibid.., at 10.

6 Ibid.., at 50.

7 Ibid.., at 51.



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.



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:

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.

10

Ibid., McNeil at 56.



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.



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. 12

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



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 decision-

making 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.



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.



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



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



government’s only recourse is to establish that the proposed incursion on the land

is justified under s. 35 of the Constitution Act, 1982.”



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)



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. 17

William v. British Columbia, 2012 BCCA 285 (CanLII) [Tsilhqo’tin appeal decision] at para. 149. 18

Tsilhqot’in appeal decision at para. 149. 19

Tsilhqot’in trial decision at para 437. 20


Tsilhqot’in trial decision at para 439; Tsilhqot’in appeal decision at para 149. 22

Kelly v. Canada (Attorney General), 2013 ONSC 1220 (CanLII) at para. 59.



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.

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,

23


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.



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 Nation-

wide 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. 32

Nlaka’pamux Nation Tribal Council v. Griffin, 2009 BCSC 1275 (CanLII) [Nlaka’pamux] at

para. 73. 33

Nlaka’pamux at para. 75.



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.

Documents

Nationhood Reasons and Options Analysiscna-trust.ca/docs/cna_nationhood_reasons__options_program.pdfThe Paper and Panel Methodology ... CNA Participating Bands to keep all members