Bennett Jones
The next step in the Tsilhqot'in Nation's journey to self-government was taken on February 11, 2016, when the Tsilhqot'in Nation and the Province of British Columbia signed the Nenqay Deni Accord: The People's Accord. The Accord establishes a comprehensive framework for negotiations to reconcile the parties' rights, jurisdictions, governance, laws and responsibilities in the Tsilhqot'in Nation's asserted traditional territory (Tsilhqot'in Territory).
The Accord follows the September 10, 2014, Letter of Understanding between the parties to achieve the reconciliation envisioned by the Supreme Court of Canada in Tsilhqot'in Nation v British Columbia, 2014 SCC 44, a decision which held that the Tsilhqot'in Nation holds Aboriginal title over certain lands (the Declared Title Area).
The Accord establishes eight pillars of reconciliation that the parties will work to achieve:
- Tsilhqot'in Governance;
- Strong Tsilhqot'in Culture and Language;
- Healthy Children and Families;
- Healthy Communities;
- Justice;
- Education and Training;
- Tsilhqot'in Management Role for Lands and Resources in Tsilhqot'in Territory; and
- Sustainable Economic Base.
Two of these pillars have important implications for resource development: Tsilhqot'in Governance; and Management Role for Lands and Resources in Tsilhqot'in Territory.
1. Tsilhqot'in Governance
The parties have committed to negotiate a Tsilhqot'in Governance Agreement, which recognizes the Tsilhqot'in Nation as a government within Canada with law-making jurisdiction, including over lands and resources.
The Province has also committed to bring forward legislation that recognizes the Tsilhqot'in Nation as a government within Canada.
2. Tsilhqot'in Management Role for Lands and Resources
The negotiation outcomes from the pillar regarding Tsilhqot'in Management Role for Lands and Resources will have significant implications on land management in the Declared Title Area and in the larger areas over which the Tsilhqot'in Nation asserts Aboriginal title.
The Accord commits to negotiate Tsilhqot'in Nation's management of three categories of land:
- Declared Title Area;
- Category 'A' lands Tsilhqot'in Territory areas that are under the ownership, control and management of the Tsilhqot'in Nation; and
- Category 'B' lands all lands that are in Tsilhqot'in Territory except for the Declared Title Area, Category 'A' Lands, and Indian Reserves.
The parties will select and establish the Category 'A' lands by February 1, 2020, after which, the Tsilhqot'in Nation will own them. The legal status of these lands will be negotiated and may include fee-simple title.
The parties will establish shared decision-making for Category 'B' lands, including over resource (e.g., fisheries and mining) management and development. Resource revenue sharing from Category 'B' lands will also be negotiated by March 31, 2017.
In the Declared Title Area, the parties will establish a sub-table to work on the practical issues of handing over full management and control, including attempting to resolve the issues with third parties (private interest holders) within the Declared Title Area.
Other
The Accord envisions consequential changes to existing agreements between the parties and enhanced participation by the Tsilhqot'in and other First Nations in the environmental assessment and pre-assessment process.
The Province is providing implementation funding to the Tsilhqot'in National Government and committing to negotiate remedies for past breaches in the Declared Title Area.
Next steps
The Accord is an agreement to negotiate between an established government and an emerging government. The ambitious negotiation will be challenging. It will create uncertainty in the interim, amongst neighbouring First Nations, industry, and non-Aboriginal communities. Careful management of the public communication on the negotiations will be critical.
The Tsilhqot'in Nation and the Province have committed to engaging with other First Nations, including addressing traditional territory overlap issues, bringing the federal government an important party to the negotiating table, and engaging with other affected third parties.
The Accord is unchartered territory in British Columbia and it will establish an important precedent. Experience in the territories may provide guidance for what the eventual outcome may incorporate such as the Umbrella Final Agreement between the Government of Canada, The Council for Yukon Indians and the Government of the Yukon. Treaties negotiated under the British Columbia Treaty Process, such as the Tsawwassen First Nation Final Agreement, may also provide useful guidance.
Proponents seeking to develop in Tsilhqot'in Territory should continue to undertake rigorous consultation and engagement with the Tsilhqot'in Nation to recognize their prominent role in decision-making. In developing engagement practises to build a relationship with the Tsilhqot'in Nation, proponents should also review the Accord's eight pillars of reconciliation. These pillars provide invaluable insight into the Tsilhqot'in Nation's interests, goals and priorities.