Report on the Sencot’en Alliance’s Participation in the Planning and Management of the Gulf Islands National Park Reserve Prepared for: The Sencot’en Alliance Prepared by: The Environmental Law Clinic University of Victoria File No. 2006-02-01 Carly Chunick Student Researcher September 1, 2006 TABLE OF CONTENTS INTRODUCTION 1 Report Summary 2 PART I. Gulf Islands National Park Reserve 3 PART II. Legal Framework 4 1. The Sencot’en Alliance First Nations’ Aboriginal and Treaty Rights 4 2. Parks Canada's Duty to Consult and Accommodate the Sencot’en 6 Alliance First Nations 3. Relevant Sections of the Canada National Parks Act 9 PART III. Parks Canada's Approach 11 1. General Aboriginal Relations 12 2. Consultation 15 3. The Formation of Agreements 19 PART IV. Options for Participation 22 1. General Interest Group 24 2. Cooperative Management 25 a. Basic Advisory Boards b. Expanded Advisory Boards c. Operations Boards d. Regional Government and Aboriginal Management Boards e. Government, Community and Aboriginal Management Board 3. Co-management 29 4. Joint Management 31 a. The Gurig Model b. Uluru Model c. Queensland Model 5. Other Models 33 a. Equal Status to national park management bodies b. Aboriginal Veto c. Complete Aboriginal Control PART V. Options for Agreement Content 34 1. Employment and Training 34 2. Right of First Refusal on Commercial or Economic Opportunities 36 3. Revenue Sharing 37 4. Protection of Historically, Culturally or Spiritually Significant Sites 37 5. Interpretation and Presentation 38 6. Protection and Use of Traditional Knowledge 39 7. Renewable Resource Harvesting 40 8. Free and Unimpeded Access 41 9. Other Cultural Rights 41 PART VI. Summary and Recommendations 42 References Cited 44 Introduction The Sencot’en Alliance is an alliance of four Coast Salish First Nations including the Tsawout, Tsartlip and Pauquachin First Nations located on the Saanich Peninsula and the Semiahmoo First Nation located on the mainland of British Columbia on Boundary Bay. The Sencot’en Alliance is in current discussions with Parks Canada about the planning and management of the newly established Gulf Islands National Parks Reserve, much of which is within the Sencot’en Alliance First Nations’ traditional territories. Susan Anderson-Behn, as representative of the Sencot’en Alliance, contacted the Environmental Law Centre at the University of Victoria requesting support of their involvement in this process with Parks Canada. Ms. Anderson-Behn, the Environmental Law Centre and its student researcher, Carly Chunick, agreed that the Environmental Law Centre would conduct research and produce a report which: 1. Outlines the legal framework within which the discussions and relationship between the Sencot'en Alliance and Parks Canada must occur; 2. Describes Parks Canada’s own policies and procedures for fulfilling their legal obligations to First Nations; 3. Discusses several realistic options for the Sencot’en Alliance’s participation in the management of the Gulf Islands National Park Reserve; and 4. Makes recommendations for action based on the above findings. This report is the result of that research. 1 Report Summary Part I gives a brief description of the Gulf Islands National Park Reserve. Part II sets out the legal framework for the Sencot’en Alliance First Nations’ involvement in the planning and management of the park. This part includes an analysis of the Sencot’en Alliance First Nations’ Aboriginal and treaty rights, Parks Canada’s duty to consult and accommodate Aboriginal peoples, and sections of the Canada National Parks Act that affect the relationship between Parks Canada and Aboriginal peoples. Part III describes Parks Canada’s approach to their legal obligations to consult and accommodate Aboriginal peoples and their treatment of Aboriginal and treaty rights. This section also examines Parks Canada’s general policies and approaches to interacting with Aboriginal peoples. Part IV outlines several different options for the Sencot’en Alliance’s participation in the planning, management and operations of the Gulf Islands National Park Reserve. These options range from general interest group participation to complete Aboriginal control. Each option is described and then analysed in relation to the Sencot’en Alliance’s situation and needs. Part V provides ideas for possible content of agreements between Parks Canada and the Sencot’en Alliance, whether in an initial memorandum of understanding or subsequent protocol agreements. Part VI outlines recommended actions for the Sencot’en Alliance to have their rights and needs best met through this process based on analysis of the preceding sections. It also outlines recommended actions for Parks Canada to better meet its commitments and legal obligations to Aboriginal peoples. 2 I. Gulf Islands National Park Reserve The Gulf Islands National Park Reserve (“Gulf Islands”) was established on May 9, 2003. It is located in the southern Gulf Islands of British Columbia in the Straight of Georgia. The park covers an area 35.4km2, including 15 islands, numerous small islets, reef and intertidal areas including Saturna, North Pender, South Pender, Mayne, Prevost, Portland and Sidney Islands and a small portion of Vancouver Island. The Gulf Islands National Park Reserve is also responsible for the management of 26km2 of marine area located off the shores of the islands and islets.1 The Gulf Islands are within the traditional territory of at least 19 Coast Salish First Nations, comprising approximately 12,000 individuals, including all four Sencot’en Alliance First Nations.2 As a “national park reserve”, the Gulf Islands park allows “the carrying on of traditional renewable resource harvesting activities by aboriginal persons”.3 These traditional activities include “hunting and harvesting of plants and other materials.”4 Parks Canada already has cooperative management agreements with the Tseycum First Nation and the Hul’qumi’num Treaty Group with respect to the Gulf Islands National Park Reserve and is currently discussing an agreement with Sencot’en Alliance. The main purpose of this report is to aid the Sencot’en Alliance in establishing this initial agreement and subsequent agreements with Parks Canada while achieving the type and extent of participation they desire. 1 Gulf Islands National Park Reserve of Canada – Visitor Information, online: Parks Canada http://www.pc.gc.ca/pn-np/bc/gulf/visit/index_e.asp. 2 Gulf Islands National Park Reserve Interim Management Guidelines: Draft for Public Review (Canada: 2005) at 37. [cited as Interim Management Guidelines) 3 Canada National Parks Act, 2000, c.32, s. 40. 4 Gulf Islands National Park Reserve Visitor Guide, (2006) at 5. 3 II. Legal Framework There are several legal and non-legal reasons why the Sencot’en Alliance First Nations must be involved in the planning and management of the Gulf Islands National Park Reserve, whatever that involvement may be. The main focus of this section is to set out the legal framework for the Sencot’en Alliance’s participation in this process. The legal relationship between the Sencot’en Alliance and Parks Canada is based in three things: (1) the Sencot’en Alliance First Nations’ constitutionally protected Aboriginal and treaty rights, (2) Parks Canada’s duty to consult and accommodate the Sencot’en Alliance whenever it considers an action that may affect those rights, and (3) the type of relationship between the two parties that is allowed for in the Canada National Parks Act. 1. The Sencot’en Alliance First Nations’ Aboriginal and Treaty Rights The Tsawout, Tsartlip and Pauquachin First Nations have Douglas Treaty rights arising from a treaty signed on February 11th, 1852, between representatives of the Saanich Tribe (North) and Governor James Douglas. All three First Nations are successors to the Saanich Tribe, and as such, hold the treaty rights outlined in the treaty text and in any oral agreements between the Saanich Tribe and Governor Douglas. A portion of the written text of the Saanich Tribe’s treaty states: The condition of our understanding of this sale is this that our village sites and enclosed fields are to be kept for our own use, for the use of our children, and for those who may follow after us, and the land shall be properly surveyed hereafter; it is understood however that the land itself with these small exceptions, becomes the entire property of the white people forever, it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.5 5 Taken from Tsawout Indian Band v. Saanichton Marina Ltd, [1989] B.C.J. No. 563, (1989) 57 D.L.R. (4th) 161. 4 Canadian courts first acknowledged the Douglas Treaties as treaties in R. v. White and Bob6, which was affirmed by the Supreme Court of Canada7. Following White and Bob, the British Columbia Court of Appeal affirmed that this particular treaty between the Saanich Tribe and Governor Douglas was in fact a valid treaty in Tsawout Indian Band v. Saanichton Marina Ltd.8. Accordingly, the Tsawout, Tsartlip and Pauquachin First Nations continue to have hunting and fishing rights throughout their traditional territories. In addition to the written text, the oral agreements of the Douglas Treaties are also important. The oral history indicates that the treaties may have been peace and friendship treaties, through which the First Nations at the time of the signing would have concluded that it acknowledged their sovereignty over their ancestral lands.9 There is therefore uncertainty about whether the surrender of land was of the scale indicated in the written text.10 Most of Gulf Islands, however, is not within the surrendered lands. These lands have never been ceded by First Nations. Therefore, the Tsawout, Tsartlip and Pauquachin First Nations may also have other aboriginal rights, and potentially aboriginal title, in the park areas The Semiahmoo First Nation, on the other hand, does not have a treaty, nor is it involved in modern day treaty negotiations.