First Nation Protocol Agreement

Staff Recommendation:

That the Board proceed to enter into a Protocol Agreement with those Indian Bands within the Regional District geographic boundary, as attached hereto.

History:

The 2005 – 2008 Board of Directors for the Regional District of Okanagan Similkameen identified it as a priority to establish a better working relationship and a framework for communication with the First Nations within the Regional District. Following two Community to Community Summits in 2006/ 2007 further meetings were organized and two documents; an Accord which spoke to the relationship of mutual respect and the formalization of a government to government relationship, and a Protocol which established specific parameters to a new form of governance and the commitment of each Party to work together on issues of mutual concern. The Board of the Regional District endorsed these two documents at their June 21st, 2007 meeting.

It seems the initial intent of the June 21st endorsement was to permit the RDOS to sign the Protocol Agreement later that day, but for some reason, the signing never occurred. It was then left with the other signatories to advise RDOS when they were ready to sign. Fifteen months elapsed before RDOS received that notice.

In mid-September 2008, RDOS did receive notice from PIB that they were interested in a September 29th signing ceremony and that the Osoyoos Indian Band and the Lower Similkameen Indian Band would also be participating. Following notice to the Board by the Chairman that we had received this request, some of our municipal members raised concerns with wording in the recitals of the Protocol Agreement that they felt might adversely impact their municipal corporation. The Board made the determination that we should request PIB to postpone the signing ceremony until we could provide the opportunity for review by our Members and receive their comments.

During discussion at the 2 October 2008 Board Meeting, the members seemed in general consensus that the intent of the Protocol was beneficial and that we should endeavour to re-open discussions with potential First Nation participants in the new year, following the 2008 municipal election. Due to the window provided by the pending election, Administration was instructed to canvass the municipal members to determine if their 2008 – 2011 council would endorse the proposed agreements or submit wording amendments.

A request for a wording amendment to remove reference to Aboriginal Rights and Titles was received from Summerland in 2009 and endorsed by the Board. An amended protocol was presented to PIB and, through informal discussions with the Chief in 2009 & 2010, it is apparent that the PIB will not agree to the Protocol as amended.

The Board requested the opportunity to discuss the wording of the Protocol with the lawyer who initially drafted it for the Board in 2007 and, more specifically, to get an opinion on the significance of the reference to Aboriginal Rights and Titles.

Mr. Bill Buholzer of Young Anderson attended at the Corporate Services Committee on 19 May 2011 to address those questions. At that point the Board determined they would maintain their position with regard to Aboriginal Rights and Titles in the Protocol Agreement, but that they would continue to work with the individual Indian Bands on specific projects within each jurisdiction.

At a Community to Community meeting in March 2013 attended by all member municipalities, the majority of Electoral Areas and three Indian Bands, there seemed an interest in now proceeding with the Protocol Agreement in its initial form. Administration was instructed to circulate the Agreement back out to the six member municipalities and to bring it back to the Board on 4 April 2013 for discussion.

Analysis:

The clause of concern in the Protocol Agreement sits in one of the Recitals and provides that, “WHEREAS the Regional District acknowledges that the Okanagan Nation, of which PIB is a member, takes the position that it has distinctive constitutional rights, including Aboriginal title and Aboriginal rights that flow from their prior and organized occupation of their territory, and that give rise to corresponding constitutional obligations on the Crown, including upholding the honour of the Crown through reconciliation, accommodation and consultation;”

To address that concern, the Parties agreed to provide the following non derogation clause at the end of the Protocol Agreement

8.1 This Protocol Agreement is not intended to and does not create or define, abrogate or derogate from the Aboriginal title, rights or interests of the Okanagan Nation. Without limiting the foregoing, this Protocol Agreement is without prejudice to the position of either Party regarding Aboriginal title or rights and shall not be relied upon by either Party in any court proceeding to such purposes.

8.2 Nothing in this Protocol Agreement shall be interpreted so as to affect the performance by the Regional District of its statutory duties and functions as recorded under the provisions of the Land Title Act or as referred to in the Local Government Act of the Community Charter.

Clearly, Aboriginal rights and titles are not within the authority or purview of local government. On the other hand, the wording would not seem to commit or bind any Party to any specific course of action. All parties agree that the intentions and purpose of the Agreement are valid and RDOS may wish to put this behind them and move on with building on the relationship with their First Nation neighbours.

If we ask a lawyer, they will undoubtedly advise the Board that aboriginal rights and titles are outside the local government purview, should not be in the Protocol and that we should not sign if it is. From a municipal administrative perspective, we see no harm in the current wording and believe there are political, economic and environmental benefits to get past this agreement and move on with a good working relationship with our First Nation partners.

Actual RDOS staff report to Regional District directors.