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Starboard or port tack? : navigating a course to recognition and reconciliation of aboriginal title to ocean spaces Brown, C. Rebecca

Abstract

In British Columbia, fifty-one First Nations have filed Statements of Intent signifying their interest in negotiating a treaty with Canada and the Province of British Columbia since the establishment of the British Columbia Treaty Commission in 1993. Twenty-seven of these First Nations participants claim ocean spaces within their traditional territories. Academic research and writing over the last decade has focussed on Aboriginal title to land, with little, if any reference, to ocean spaces. The concept of Aboriginal title was recently recognized by the courts in Delgamuukw v. British Columbia. My research will explore what information and legal principles could be utilized to recognize Aboriginal title to ocean spaces within the Canadian legal context, and therefore provide some bases for First Nations in substantiating their claims. My analysis will begin with a review of international law principles surrounding title to and jurisdiction over ocean spaces. Following which, I will delineate the sources available for recognizing such a theory, starting with a review of the concepts of Aboriginal title as determined in Delgamuukw and their applicability to ocean spaces. Delgamuukw has affirmed Aboriginal perspectives are an integral part of the investigation of Aboriginal title, and voices of members of two particular First Nations being the Haida Nation and the Tsawwassen First Nation, with whom I visited, will be included. Rounding out the sources will be a review of comparative legal concepts drawn from the United States and Australian experiences, and the principles espoused within international human rights materials. Having established the avenues for recognition of this concept, I then turn to discussion of its reconciliation within the Canadian legal context by reviewing theories of co-management and examining a number of settlement instruments that have yielded some degree of reconciliation between the federal government and the particular First Nation or Province involved. Comments from First Nations in respect of the obstacles that hold back reconciliation will be noted. In conclusion, my research will deduce Aboriginal title to ocean spaces is a viable legal concept in Canada, and First Nations have the resources necessary to substantiate their claims. Comments about the possibilities that may result at the treaty table or in the courts upon recognition of this concept will also be discussed. This analysis is timely and important as many First Nations are nearing the stage of the treaty process where discussions will be directed towards what territories these First Nations groups will retain and what ownership, jurisdiction and rights they will enjoy as to ocean spaces and resources. Such issues directly relate to the continued way of life, culture, and sustainable economic growth and stability of First Nation communities into the twenty-first century.

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