By Tyler McCreary & Suzanne Mills
November 2004
On September 22, 2004, the RCMP raided the camp of the Skwelkwekwelt Protection Center, arresting three people. These activists were defending Aboriginal title and rights in the interior of British Columbia, contesting the expansion of the Sun Peaks Ski Resort on the traditional territory of the Secwepemc Neskonlith and Adams Lake bands. The Secwepemc never relinquished this territory to either the provincial or the federal governments by either land claim or treaty.
Since purchasing the resort in 1992, Nippon Cable has expanded on-site accommodation from 100 beds to over 5,800. In 1997 the BC government approved a $70 million expansion, which will eventually cut ski runs on the previously undeveloped Mt. Morrisey and further increase capacity to 20,000 beds. A 2002 Sun Peaks press release boasts that new “facilities line the streets, construction crews abound and a massive new 220 room Delta hotel sits right in the midst of the village.” This encroaching development was further boosted with Vancouver’s recent Olympic bid, and the expansion was again increased in scope, now totaling $285 million.
The Secwepemc assert that the current expansion of Sun Peaks Ski Resort will undermine their ability to exercise their inherent rights to land-use and occupancy and thus their Aboriginal title to the land. The federal and provincial governments have refused to acknowledge Aboriginal title and enter negotiations to establish co-jurisdiction. Moreover, the government has not upheld its fiduciary obligation to consult the Secwepemc. The government disregarded environmental and cultural impact studies performed by the Adams Lake and Neskonlith Indian Bands and refused to engage in consultation and meaningful discussion with the bands about the development. Dispite the lack of consultation, the $70 million development plan, expanding the ski resort to previously undisturbed Mt. Morrisey, has already begun.
In BC, treaty-making was abandoned early on. Throughout the colonial period the government created reserves for the Aboriginal population. However, with the exception of the Douglas treaties on Vancouver Island and the territory east of the Rockies under Treaty 8, these reserves were designated by executive acts unrelated to treaties. Thus, the majority of BC was never “acquired” from its Aboriginal owners before being distributed by the government.
The impetus to begin negotiating to resolve land claims came not from any moral integrity of the federal and provincial governments but from the courts. The governments of Canada and BC long maintained the non-existence of Aboriginal rights and title. In 1973, the Calder decision recognized that at the time of contact Aboriginal title existed. Following this decision, the federal government established its Comprehensive Claims Policy, and began negotiating with the Nisga’a. BC, however, did not begin negotiating with the Nisga’a until 1990, after further legal challenges by Aboriginal peoples, such as Sparrow and Delgamuukw. It was not until 1993 that the province began to accept other First Nations into the treaty negotiation process. Yet, from the perspective of many Aboriginal groups, the purpose of these negotiations was to eliminate Aboriginal title and to solidify the provincial government as the sole authority in the province. For this and other reasons, the majority of land claims east of the Rockies remain unresolved in BC.
The Delgamuukw decision affirmed inherent Aboriginal title in the courts defining it as “the exclusive use and occupation of the land held pursuant to that title for a variety of purposes.” According to Delgamuukw, to prove Aboriginal title an Aboriginal group must be able to show that they occupied the lands in question at the time that the Crown asserted sovereignty and that this occupation was exclusive. Proof of historical occupancy may be established by providing historical evidence of dwellings, cultivation, or regular use of land for hunting, fishing or other resource use. Present occupation may also be used as proof of pre-sovereignty occupation if a continuous connection to the land between present and pre-sovereignty occupation is demonstrated.
The Delgamuukw decision also stated that the Crown has a fiduciary obligation to recognize the Aboriginal interests, until the dispute over ownership can be resolved. This requirement consists of consulting with aboriginal people and in some instances obtaining consent from Aboriginal people every time that there are potential infringements of Aboriginal title.
The BC government refuses to acknowledge Aboriginal title to groups who have not entered the land claims process. This contradicts the court’s recognition that Aboriginal title is inherent to original peoples and not a function of colonial statute or process. Thus many Aboriginal peoples in BC (approximately 30 percent), who are not involved in land claims talks are not considered to possess Aboriginal Title.
Comprehensive land claims are akin to modern day treaties, whereby the Aboriginal nations concede Aboriginal title and rights to the Canadian government for a specific subset of their traditional rights and lands plus compensation. The intent is to extinguish Aboriginal title, expressed in the Canadian Government’s Comprehensive Land Claims Policy establishing “the certainty of ownership over land and resources.” Thus, through comprehensive land claim agreements Aboriginal groups have obtained: title to a defined amount of land; subsurface rights to a fraction of this land; monetary compensation in various forms; exclusive rights to hunt and fish over a certain area of land; preferential hunting and fishing rights over a larger area; and participation in resource management decisions over the land.
However, land claims in BC are further restricted by the British Columbia Treaty Process. Operating under the Comprehensive Claims Policy, the process is guided by the principles determined by BC Treaty Referendum. Referendum principles state that “Hunting, fishing and recreational opportunities on Crown land should be ensured for all British Columbians; that Parks and protected areas should be maintained for the use and benefit of all British Columbians; and that Province-wide standards of resource management and environmental protection should continue to apply.”
These principles directly conflict with the maintenance of Aboriginal title as recognized in the Supreme Court’s Delgamuukw, decision. Disregarding Aboriginal title and rights, the government is placing a foreign corporation’s profits before the well-being of Canada’s first peoples. Chief Edward John of the First Nations Summit of British Columbia explains, “When government asks us to agree to surrender our title and agree to its extinguishment, they ask us to do away with our most basic sense of ourselves, and of our relationship to our Creator, our territory and the other peoples of the world. We could no longer do that without agreeing that we no longer wish to exist as a distinct people.”
The government’s disregard for the rights of the Secwepemc people has prompted the United Nations to investigate the dispute; however, to ensure a just resolution to the conflict continued pressure is necessary.
You can help by taking the following actions:
Boycott Sun Peaks and Delta Hotels.
Write letters to the BC and Canada Governments as well as the management of Sun Peaks and Delta Hotels to pressure them to recognize Aboriginal rights and title in Skwelkwek’welt (territory encompassing Sun Peaks).
Contribute to support the Secwepemc struggle.
Tyler McCreary and Suzanne Mills live in Saskatoon, SK where they are active in the community and at the University of Saskatchewan. Suzanne is completing a PhD in Geography, while Tyler is preparing for graduate school next year. For more information check out the website at www.apc.resist.ca/skwelkwekwelt.
