Canada: The Nenqay Deni Accord: An Agreement To Negotiate Governance, Land And Resource Management In The Tsilhqot'in Territory

On February 11, 2016, the B.C. Government entered into the Nenqay Deni Accord: the People's Accord (the "Accord"), a five-year negotiation framework agreement with the Tsilhqot'in Nation. The Accord was signed, in part, as a response to the Supreme Court of Canada's unanimous decision in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 which recognized the Tsilhqot'in Nation's title to over 1,700 square kilometres of land in central B.C. The Supreme Court of Canada's decision in Tsilhqot'in marked the first judicial finding of indigenous title anywhere in Canada.

The Accord is a comprehensive framework aimed at guiding longer term negotiations between the Province and the Tsilhqot'in Nation. The focus of the Accord is broad, setting out eight "pillars of reconciliation": Tsilhqot'in governance; culture and language; children and families; healthy communities; justice; education and training; Tsilhqot'in lands and resource management; and sustainable economic development. The Accord's emphasis on Tsilhqot'in self-governance and management over lands and resources are likely to have significant effects on industry and economic development in the region.

Tsilhqot'in Governance

Through the Accord, the Province and the Tsilhqot'in Nation have agreed to negotiate a "Tsilhqot'in Governance Agreement" which will recognize the Tsilhqot'in Nation as a government within Canada with law-making jurisdiction. The Province will also introduce legislation recognizing the Tsilhqot'in as a government within Canada, and will push the federal government to implement compatible legislation.

The Accord's commitment to First Nation self-governance is not unique or novel in British Columbia. The Province has already recognized indigenous self-governance in treaties with other First Nations, such as the Nisga'a and Tsawwassen First Nations, who have principal authority over government administration, management of lands and assets, and control over culture and language.

Tsilhqot'in Land and Resource Management

The reconciliation pillar named "Tsilhqot'in Management Role for Lands and Resources" is an agreement to negotiate Tsilhqot'in management over three categories of lands defined in the Accord: the "Declared Title Area", "Category A Lands", and "Category B Lands".

The Supreme Court of Canada's decision in Tsilhqot'in granted title over certain lands, referred to in the Accord as the "Declared Title Area." The Accord establishes a "sub-table" of senior government officials and Tsilhqot'in Nation members to negotiate the management of the Declared Title Area. These negotiations will include:

  • addressing practical issues associated with the Province's transition of the complete management and control of the Declared Title Area to the Tsilhqot'in Nation;
  • reasonable efforts to remedy past breaches of the Province's duties with respect to the Tsilhqot'in Nation and the Declared Title Area; and
  • respectful engagement with third parties with interests in the Declared Title Area.

"Category A Lands" are those lands in the Tsilhqot'in Territory not included in the Declared Title Area. The Accord intends that through negotiation, portions these lands will be recognized by February 1, 2020, as under the ownership, control, and management of the Tsilhqot'in Nation. The legal status of these lands will be determined as a result of further negotiations between the parties.

"Category B Lands" are lands in the Tsilhqot'in Territory that are not encompassed by the Declared Title Area, Category A Lands or Indian Reserve lands. The Accord promises that the Province and the Tsilhqot'in Nation will develop a shared framework for decision-making over Category B Lands, including by concluding resource revenue sharing agreements by March 31, 2017.

The negotiations over land and resource management contemplated in the Accord will also include specific environmental initiatives, including the development of a recovery plan for moose populations, a joint fish and wildlife panel and an attempt to further involve the Tsilhqot'in Nation in the Province's environmental assessment process.

Effects on Industry and Resource Development

The Accord is an ambitious agreement that will involve engagement and negotiation with multiple levels of government, indigenous groups and industry stakeholders. However, the Accord does not explain the extent to which proponents and other interested third-parties will be consulted or how their interests will be considered in the application of the agreement. The Accord does not restrict the Tsilhqot'in Nation from entering into benefit sharing agreements or similar arrangements with industry participants, but parties with interests in the Tsilhqot'in Territory will be expected to consult and accommodate within the spirit of the Accord.

One concern is that the protracted nature of these negotiations between the Province and Tsilhqot'in Nation will cause uncertainty for proponents and investors with interests in the region. Despite this uncertainty, the Accord is of some value for companies operating in the Tsilhqot'in Territory; in particular, it provides a roadmap for future consultation because it describes in detail the priorities, concerns and interests of both the Province and the Tsilhqot'in Nation.

Because the Accord represents only an agreement to negotiate, it is prudent for industry, resource companies and other interested parties to monitor the negotiations between the Province and the Tsilhqot'in Nation closely and assert their interests where appropriate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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