'Aboriginal rights and title and the practical implications for …frst100.forestry.ubc.ca/files/2012/09/Aboriginal-rights... · 2013-11-04 · Aboriginal rights and title and the

Aboriginal rights and title and the practical implications for ecosystem-based forest

management

Janette Bulkan

Forest Resources Management

Faculty of Forestry, UBC

Structure of this talk

• Co-evolution of human populations and natural ecosystems in post-glacial coastal BC

• Ecosystem knowledge held by First Nations • Aboriginal rights and title • European impacts on First Nations and

ecosystems • European sovereignty • Potential points of contact between forestry

studies and practices and traditional ecological knowledge (TEK)

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‘Aboriginal’ vs ‘First Nations’

• ‘Aboriginal’: the umbrella term for First Nations, Métis, Inuit peoples (Canadian Constitution, 1982).

• ‘Aboriginal’ and ‘First Nations’ are often used interchangeably in British Columbia and will be so used in this talk

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Co-evolution of human populations and natural ecosystems in coastal BC

• Extremely diverse culturally – Rising sea levels pushed the human

populations off the drowning coastal strip into the steep topography of the coastal mountains and isolating them into 30+ language groups and 200+ First Nations.

– [Papua New Guinea]

• The distinctive First Nations have co-existed with the evolving distribution of the types of vegetation over the last 10,000 years.

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Ecosystem knowledge of First Nations

• The detailed knowledge recorded by missionaries and traders, later ethnologists

– seasonality of abundance and scarcity,

– migration patterns,

– year-to-year variation,

– breeding grounds and nesting sites and spawning areas,

– berry patches,

– best locations for finding the prey plants and animals, sweet water sources, saltlicks.

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Enrichment planting

• Some Bands are recorded as having transplanted seedlings to enrich plants resources.

• In areas with a dry season, semi-annual Fall burning of parkland grasses provided fresh green shoots to attract game animals and refresh culinary and medicinal herbs.

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Natural ecosystems intact

• Deliberate burning by First Nations was in small patches.

• Lightning strikes cause stand-replacing fires only exceptionally and at very long intervals – tree-ring and soil carbon dating suggest intervals of hundreds or thousands of years in coastal BC.

• On the Pacific-facing topography, with perhumid climates, tree regeneration in all-aged forest is naturally in small patches started by root or stem rots and leading to small gaps of weakened trees uprooted or snapped by Pacific winds.

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Management rules recorded orally

• First Nations developed within-Band and between-Band rules and agreements for conserving resources

– (for example, protection of beaver and trapline rules)

• and agreements for time-sharing at locations of overlapping claims (for example, salmon runs)

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Tradition of potlatches

• A potlatch was a gift giving festival – re-distributed wealth

• As part of an economic system, potlatches meant that wealth was not accumulated by any band

• Potlatches may have accounted for minimal human impact on coastal and marine ecosystems

• Witnessing

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Aboriginal rights and title

• Co-evolution of human populations and natural ecosystems in post-glacial coastal BC

• Ecosystem knowledge held by First Nations • Aboriginal rights and title • European impacts on First Nations and

ecosystems • European sovereignty • Potential points of contact between forestry

studies and practices and traditional ecological knowledge (TEK)

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Aboriginal rights

• The natural right of a people to continue to govern themselves

• There was no terra nullius (empty lands)

• All habitable lands were under some and sometimes overlapping Native Titles

• Recall: no written language to record traditional rights and customary laws

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What are Aboriginal Rights?

• Collective rights which derive from Aboriginal peoples’ continued use and occupation of certain areas

• Inherent rights practiced and enjoyed long before European contact

• No one official overarching Indigenous definition of what these rights are

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Generic Aboriginal rights

• Held by all Aboriginal peoples across Canada. Include:

• Rights to the land (Aboriginal title)

• Rights to subsistence resources and activities

• Right to self-determination and self-government

• Right to practice own culture and customs, including language and religion 14

What is Aboriginal title?

• Inherent Aboriginal right to land or a territory

• A proprietary interest in land

• Recognized in the Royal Proclamation of 1763

• Aboriginal title can only be extinguished by treaty with the Crown

• 18th to 20th centuries: Crown representatives and leaders of Aboriginal communities signed treaties throughout most of Canada 15

International recognition of Aboriginal Rights

• United Nations Declarations: on Human Rights (1948); Right to Self-Determination (1960)

• American Declaration of the Rights and Duties of Man (1948) • Convention concerning Indigenous and Tribal Peoples in

Independent Countries (ILO No. 169) • International Convention on the Elimination of All Forms of Racial

Discrimination • Convention on the Rights of the Child • Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment • International Covenant on Civil and Political RightsInternational

Covenant on Economic, Social and Cultural Rights • Convention on Biological Diversity

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Other international declarations

• United Nations Declaration on the Rights of Indigenous Peoples • Organisation of American States Proposed American Declaration on

the Rights of Indigenous Peoples

• Other Indigenous DeclarationsIndigenous Peoples Cancun Declaration on the WTO

• Indigenous Peoples Seattle Declaration on Mining • Beijing Declaration of Indigenous Women • The Kimberley Declaration, International Indigenous Peoples

Summit on Sustainable Development • Declaration of Indigenous Peoples on Climate Change, Second

International Indigenous Forum on Climate Change (The Hague, 15 November 2000)

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European impacts on First Nations and ecosystems

• Co-evolution of human populations and natural ecosystems in post-glacial coastal BC

• Ecosystem knowledge held by First Nations • Aboriginal rights and title • European impacts on First Nations and

ecosystems • European sovereignty • Potential points of contact between forestry

studies and practices and traditional ecological knowledge (TEK)

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First European Contact

• Estimated First Nations population between 300,000 and half a million

• All habitable lands were under some and sometimes overlapping Native Titles.

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Captain James Cook in 1778

• Considered a settlement on Nootka Sound

• Saw commercial possibilities – cut douglas fir spars

• Cook said he must have agreements with the native peoples

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European impacts on First Nations

and ecosystems • Gradual in the first century

• Environment: Demand for pelts, fish – decimate targeted animal populations

• Economic: First Nations incorporated into global system – provide natural resources

• Social: First Nations’ control of the terms of trade in the beginning is eroded over time

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From partners and equals to subjugated peoples

• 1770s-1840s: First Nations responded as partners and rivals in the changing commercial and political realities.

• Aboriginal and newcomer resource use were tightly intertwined.

• Gold rush in the 1840s heralded mass immigration, and institutional and ideological intolerance

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Unsustainable harvests followed European Contact

• Contact with Europeans (including Russians) rapidly changed the stable traditions,

• fur-bearing animals rapidly hunted to commercial scarcity or extinction

• sea otter pelts for China being the first case

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Pressures on natural resources

• Close netting of river estuaries rapidly destroyed salmon runs.

• Logging by clear-cutting has no precedent in natural stand replacement dynamics in coastal temperate rainforest

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European sovereignty

• Co-evolution of human populations and natural ecosystems in post-glacial coastal BC

• Ecosystem knowledge held by First Nations

• Aboriginal rights and title

• European impacts on First Nations and ecosystems

• European sovereignty

• Potential points of contact between forestry studies and TEK

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Claiming sovereignty

• Colonizing governments appropriated absolute sovereignty by one of three mechanisms:

– the right of discovery,

– the right of conquest,

– or the surrender of sovereignty by treaty.

• None of the three mechanisms applied in BC except in some small Treaty areas

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Sovereignty of First Nations?

• Colonizing governments conceded that First Peoples theoretically held ‘interests’ in land

• First Nations rights and title in BC:

– Unextinguished; never surrendered

– 14 Douglas treaties on Vancouver Island and Treaty #8 covers part of northeastern BC

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Royal Proclamation of 1763 • Acknowledged that British

settlers would have to address existing Aboriginal rights and title in order to further settlement

• Treaty negotiations required • In treaties, Crown guaranteed

certain rights to the local First Nations

• Continuing debates in and out of court as to whether signed treaties extinguished Aboriginal rights

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1846: UK asserted sovereignty over territory that became BC

• Rationalizations for sovereignty originated from convictions of cultural superiority, economic and military power

• only one authority could govern, and it would be European

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Settler rule consolidated

• 1867: Pursuant to section 91(24) of the Constitution Act, 1867, …The federal government has the exclusive legislative jurisdiction over “Indians, and Lands reserved for the Indians”

• BUT province controls ‘Crown’ lands that are at the same time First Nations’ traditional, ancestral and unceded territories

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Indian Agents given legal powers over First Nations

• Decimation of First Nations by waves of epidemics from the 1850s

• FNs squeezed by Govt legal action onto ‘reserves’ far smaller than traditional territories

• 1867: First Nations reserves in the Fraser Valley unilaterally reduced by over 90%

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Aboriginal title in British Columbia

• Few treaties were negotiated – Treaty 8 (Peace River region, NE BC) – Douglas Treaties (Vancouver Island)

• Recent agreements: – Nisga’a Final Agreement (NW BC) – Tsawwassen (Urban) – Maa-Nulth (Coast)

• St Catherine’s Milling and Lumber Co. v the Queen [1888] – Title was a usufructory right; could be

extinguished at the pleasure of the Crown

• Calder [1973] – unanimous agreement that Nishga’a Aboriginal title had pre-existed European arrival

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Ownership

Land Ownership: 95% Public (Crown) 33

Aboriginal rights are distinct from rights enjoyed by all Canadians

• Aboriginal peoples insist on nation-to-nation relationships and negotiations

• Rights have not been granted by external entities

• Rights inhere in pre-existing sovereignty as well as ongoing social structure and political and legal systems

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Section 35 of the Canadian Constitution (1982)

• Followed from intense lobbying by Aboriginal leaders and organizations

• Formal recognition of Aboriginal rights

• Constitution does not define specifically what those rights are

• Stipulated that these rights were to be defined by the courts on a case-by-case basis 35

Other landmark court cases

• R v Guerin [1984] – established that Aboriginal title was sui generis and the Crown had a fiduciary duty to protect it for Aboriginal peoples

• Delgamuukw v British Columbia [1997] – affirmed that the Crown holds underlying title to lands, that Aboriginal title represents a burden on Crown title;

• Crown has the responsibility to negotiate terms with the Aboriginal title-holders should a third party have interest in the land 36

Overlapping Federal vs Provincial jurisdictions

• Federal jurisdiction over salmon

• Provincial jurisdiction over all other fish

• Special legal arrangements to allow continued FN fisheries are not fully harmonized with licensing of commercial fisheries, so FN traditions may be nullified.

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Appropriation of First Nations lands

• prevent the practice of traditional resource management, especially the seasonal movements to follow the succession of resources.

• After Sloan Commission of 1944, preferences given to large-scale, long-term forest ‘tenures’ – ‘evergreen’ concessions

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Ideology of ‘sustained yield’ not achieved in practice

• ‘fall down’ in British Columbia

– heavy overcutting, wastage of timber

– Natural disturbances regimes are not replicated in government forest management rules or practices

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Sustained conflicts over territories

• 1980s: several major conflicts over forests (Clayoquot and Ahousaht FNs)

• ‘War in the woods’ – legacy of distrust of forestry by many First Nations’ persons

• Similar but smaller battles over fisheries and coastal resources

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Potential points of contact between forestry/conservation studies and TEK

• Co-evolution of human populations and natural ecosystems in post-glacial coastal BC

• Ecosystem knowledge held by First Nations

• Aboriginal rights and title

• European impacts on First Nations and ecosystems

• European sovereignty

• Potential points of contact between forestry/conservation studies and TEK

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Transmission of FN traditional ecological knowledge

• Oral – by family practice and winter story-telling.

• If the areas of reserves are too small to allow traditional practices and if urbanisation and schooling (including IRS) have largely broken the transmission of knowledge, how can thousands of years of intimate knowledge of ecosystem dynamics be captured before it disappears?

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• the predicted (and happening) ‘fall down’ in production because of past over-harvesting is likely to lead to industry pressure to minimize areas conserved for biodiversity and habitat protection, a relaxation in the criteria for creating and managing conservation areas, and (as in Alaska) industry pressure to de-reserve conservation areas and open them for logging.

• All this makes FN specific and local knowledge the more valuable to be acquired, conserved and used.

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Collaboration on the basis of trust

• By trust-building between justifiably suspicious FNs and students/research team, including activities which directly and clearly benefit the FN families and communities.

• ‘we are facing modern problems for which there are no longer sufficient modern solutions’ (Santos 2007)

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Relevance of this story to FRST 100 students?

• Almost inevitable that areas with ‘high conservation value’ (HCV) are also areas under Aboriginal Title

• Canadian federal court requires consultation and accommodation with First Nations

• Therefore foresters / land managers need to know: Aboriginal rights and TEK, Western science and government regulations

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