Paper: Developments in the Law of Consultation and Aboriginal People - 2002

by Robert Freedman and Hugh Braker, Q.C., Braker & Company
reproduced with permission and courtesy of the B.C. Aboriginal Fisheries Commission


Tsawwassen First Nation

Referrals in an urban setting

The Tsawwassen First Nation (TFN) is located in the Lower Mainland of British Columbia. Their traditional territory, as displayed here, encompasses reaches of the Pitt and Fraser River systems, with adjacent land and foreshore, and extends across the Georgia Strait to encompass some of the Gulf Islands.

The general context in which consultation and Crown Land Referrals occur is different in the densely populated and urban interface areas of the Lower Mainland than in rural parts of the province, where forestry tends to be the main issue. In TFN’s territory, much of the land and shoreline have been developed, fee simple ownership predominates, and there exist limited opportunities for traditional pursuits aside from those that are marine based.

The Tsawwassen are consulted on proposols for activities that are to occur along the Fraser River and in coastal lands and waters. Most of the referrals fall within three broad subject areas of classification: environmental, archaeological, and crown land transfers.The TFN's GIS/Resource Analyst handles incoming referrals, doing the necessary research and then either issuing a response as is the case with environmental and archaeological referrals, or passing the referral along to others for additional input, as is the case with most land transfers.

The Tsawwassen have integrated referrals related information into a database that houses their traditional use study (TUS) information, and linked that up to a geographic information system (GIS). The GIS is based on ArcView by ESRI, and the database on Microsoft’s Access software. The two programs are connected by custom programming, developed in the Visual Basic environment. When required, information from project proponents is analyzed and/or mapped with the GIS.

To following case exemplifies how the referrals process works. Transport Canada was planning to allot parcels of land to the City of Surrey for the establishment of a park. The divestiture involved TFN traditional use land, which gave reason for concern, as when Crown land is alienated by way of transfer, it is then unavailable for inclusion in a treaty settlement. TFN specified to the Transport Canada divestiture officer the information that they required to participate in meaningful consultation, explaining their own capacity and requested that all communications be in writing. Detailed geographic information, and a history of ownership for each parcel was requested, including digital files that could be integrated with Tsawwassen’s GIS system.

Their requests were met. TFN was supplied with paper maps, and limited cadastral information. That information was digitized, and overlayed on their TUS information in ArcView. TFN then checked to see if the area is located in, on, or near an 'area of interest' for the Tsawwassen. According to Andrew Bak, the TFN's GIS/Resource Analyst, this procedure is repeated for every referral. Andrew attributed the success in having their requests met to the good relationship that was developed with the Transport Canada personnel that they worked with from Transport Canada, as well as to their investment in research and technology, which demands respect and helps to elicit a response when concerns are raised.

Copyright © 2002 - Sliammon First Nation & Ecotrust Canada

Sliammon First Nation

Defines the Cost of Doing Business

The Sliammon First Nation is located near Powell River on the Sunshine Coast flanked by the Strait of Georgia to the West and the Coast Mountains to the East. Sliammon has approximately 875 members with 500 living in the village.

Sliammon First Nation first established their Crown Land Referrals Department (SCRLD) as an arm of their treaty research office in 1995. The completion of a Traditional Use Study (TUS) and establishment of a TUS database by the Sliammon Treaty Society (STS) laid the necessary groundwork for Sliammon involvement in the Crown Land Referrals process. Maynard Harry the SCLRD Manager recognised: “With the TUS complete and the GIS department established we recognized that this information needed to be employed.” The TUS database is an integral element to Sliammon’s participation in the Crown Land Referrals process, as it provides Sliammon with a good baseline of information to meaningfully respond to a referral.

The department broke away from the treaty umbrella in late 1999 when Sliammon identified Crown Land Referrals as a Nation issue to be dealt with by Band administration. Sliammon recognized that responding to referrals was draining valuable financial and human resources from the treaty society. The STS was borrowing money to negotiate a treaty not to respond to referrals.

In moving the SCLRD out of the STS the issue of how to finance the newly independent office became the central problem. Sliammon adopted a two pronged approach to address the immediate financial concern: 1) They negotiated $40,000 of financing from the Ministry of Forests to build infrastructure and support operations and, 2) They adopted a user-pay system. Under the user-pay system, proponents of development on Sliammon traditional territory pay the SCLRD $650 per day administration costs as well as a $375sr./ $150 jr. fieldworker fees to conduct field reconnaissance. It took Sliammon two years of negotiations to achieve a user pay system, and now nearly every forestry company and government agency that Sliammon works with has signed a servicing agreement. Sliammon defines this as the cost of doing business. (sample service agreement)

The SCLRD (now called the Sliammon Crown Land and Resources Referrals Department) has evolved greatly over the past 5 years. In the early day of the process Maynard recalls that: “We were just trying to get to the table, to make contacts, and to slow the process down.” With the adoption of a user pay system Sliammon’s vision had widened: “We need to move out of survival mode and the process of merely reacting to referrals - we are now looking at developing creative solutions that are mutually beneficial as defined by the Delgamuukw decision.”

Copyright © 2002 - Sliammon First Nation & Ecotrust Canada

Crown Land Referrals Toolbox Released!