Shared Territories/Overlap Resolution - Union of British Columbia ...

SHARED TERRITORIES/OVERLAPS• The issue of shared territories/overlaps is onethat all First Nations in BC, to varying degrees arefaced with• The term typically refers to situations wheremore than one First Nation asserts Aboriginal titleto a particular geographic area• For both the Province and First Nations, there isan increasing urgency to resolve issues of sharedterritory or overlaps.

RESOLVING SHARED TERRITORY ISSUES• The predominant understanding from a non-Aboriginal perspective, of the shared territories/overlap issue is that it is a “map drawing” exercise toidentify boundaries where the territory of one Nationends and another begins. This is problematic andreflects a common law and Eurocentric concept ofwhat the issue is and what it means to resolve it• First Nations did not historically manage complexinterrelations through clarification and adoption ofboarders on a map. Rather, this was done through arange of mechanisms

INDIGENOUS TITLE vs. ABORIGINAL TITLEIndigenous Title:• Is the inherent and sovereign title that a First Nationholds according to Indigenous law. Indigenous title cannotbe understood or defined through reference to eitherconstitutional or common law. It is a legal relationship tothe land which is defined by those Indigenous laws andlegal systems which have governed First Nations sincetime immemorialAboriginal Title:• Aboriginal title is a legally recognized interest in land asdefined by constitutional and common law. It is a legalconstruct that is defined as being in relation to theCrowns’ asserted sovereignty and interest in the land

INDIGENOUS LAWS – THE TOOL FORRESOLVING THE SHARED TERRITORY ISSUE• Resolving the shared territory/overlap issue canbe understood as the process of applying andimplementing Indigenous laws to guide howFirst nations’ Indigenous Titles intersect andinteract• In this respect, the act of resolving the sharedterritory/overlap issue is an exercise ofsovereignty and autonomy, which will then guidethe understanding and evolution of howAboriginal title is defined and understood underthe common law

EXISTING MECHANISMS & PROCESSES• Currently there exists no established method ofdealing with the shared territory/overlap issueand Canadian Courts are generally ill equipped toaddress the issue and are often an expensiveroute• The diversity of First Nations requires a diversityof approaches to resolve the sharedterritory/overlap issue. There is no “one size fitsall” process to be employed• Several approaches have been proposed oremployed in Canada and elsewhere

COMMON ASSUMPTIONSIn determining which process to implement, it isassumed that First Nations share common assumptionsincluding:• Since time immemorial, First Nations have applied andimplemented traditional laws• First Nations are engaged in a common struggle toachieve recognition and respect of their sovereignty,governments, laws, Title and Rights, and• First Nations will suffer when the Crown is given theopportunity to exploit divisions resulting from sharedterritory/overlap issues

OPTIONSExamples of proposed or employed mechanisms to address the sharedterritory/overlap issue include:1. Joint Working Groups: directly negotiating through mutuallyacceptable processes, making recommendations for resolution andworking from a joint set of principles that guide the work of thegroup2. Elders Council: to facilitate process, provide guidance on IndigenousLaws, and help guide a consultative process towards agreement3. New Institutions: create neutral Indigenous Institutions to inquireinto overlap disputes, hear information and work with parties todiscuss and develop optional agreements4. Binding Agreements: create template agreements that the partiescan employ and would result in a binding decision (e.g. OverlapClaims Resolution Agreement as provided by the National Native TitleTribunal of Australia)

INDIGENOUS TITLE COUNCIL• An example of a potential new institution could bea body such as an “Indigenous Title Council ofBritish Columbia” (or some other such name)• The intent is for such a body to be a neutral, nonaffiliated,Aboriginal institution to provide disputeresolution services and support to First Nationsseeking to resolve overlaps• Such a body would have core internal capacities,but would also likely draw on the external expertiseof individuals to assist in areas such as disputeresolution

INDIGENOUS TITLE COUNCIL:ROLES & RESPONSIBILITIESThe general roles of such a body would include the following:• Research, design and development of template processes forthe resolution of shared territory/overlap disputes• To facilitate the development and implementation of aprocess of shared territory/overlap resolution, at the requestof First Nations• At the request of First Nations, play a neutral role withinshared territory/overlap resolution process, includingmediating, and where appropriate, arbitrating• Depending on the nature of the process, and at the request ofthe Nations, the body may play a binding decision-making role

CONCLUSION• While it was never their choice, First Nations inBC have been divided into “Indian Bands” underthe Indian Act. It is understood and acknowledgedthat the process of reconstituting First Nations’governments and sorting out territorial issues ispart of the process of decolonization• While the resolution of shared territories/overlapsis primarily an issue to be addressed by FirstNations, it requires a commitment by the Crownto provide resources to support the process