Can zoning boost First Nation sovereignty in BC?

The Kwantlen traditional territory stretches from South Surrey to the tip of Harrison Lake. Image by Native Land

City politicians and planners exert control of their land through zoning—deciding what can be built where, and by whom. Robert Jago thinks First Nations should do the same in their traditional territory.

“If we want to control our land, we need to assert our sovereignty over it, which means we need to do what no one else is doing and that is to regulate our land as if we still control it.”

The Kwantlen First Nation is pursuing Jago’s idea to develop a zoning or classification system for its members’ traditional territory, called šxʷəlməxʷaʔɬ təməxʷ. Historically, Kwantlen was a large and powerful Stó:lō community, with traditional territory spanning from Tsawassen’s Mud Bay to past the northern point of Harrison Lake. Today, the band has 6 reserves, but those represent only a fraction of Kwantlen’s former land: 1 on MacMillan Island near Fort Langley, 1 in Maple Ridge, 1 near Whonnock, and 3 in the Mission area.

Recently, the band started developing its own Land Code, a series of land management regulations that would allow it to move away from the Indian Act’s prescription for reserve land. As part of the Land Code Advisory Board, Jago brought up the idea of zoning lands off reserve—something inspired by a 2014 Supreme Court case between the Tsilhqot’in Nation and the province. The case overruled BC’s claim that the Tsilhqot’in Nation only had title to the land it intensively occupied, and instead said that title extends to regularly used areas that a group had effective control over. (Title is the official term for an Indigenous group’s inherent right to the use of their ancestral territories. To learn more, click here.)

Regulating Indigenous lands off reserve is not entirely new; Six Nations of the Grand River in Ontario has a similar policy. Classifying or zoning traditional land is “an added layer of regulation,” Jago said, “but from our perspective, the added layer is the town or the province. Ours is the only legitimate level of regulation. That’s eventually where I want this to go.”

Ashley Doyle is one of the women at the Kwantlen First Nation who can take it there. (Jago has since left the advisory board.) She is the manager of the band’s lands and stewardship department, which is responsible for environmental stewardship and asserting Kwantlen rights and title with the private sector and various levels of government.

The Tsilhqot’in decision, and decisions like it, are part of what has helped Kwantlen and other nations pursue their rights and title, Doyle said. Other concepts like the duty to consult (officially set out in the early 2000s after a series of landmark Supreme Court decisions in favour of Indigenous plaintiffs asserting their rights) and the United Nations Declaration on the Rights of Indigenous Peoples have also spurred changes for Kwantlen and others.

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“None of these changes have happened out of the goodness of the government’s heart. It’s been hard-won victories,” Doyle said. “In terms of reconciliation and recognition. I really think that having the First Nations in the driver’s seat, and you know, being decision makers on these projects and proposals that impact the First Nations is going to be so critical as we move forward.”

Currently, the band runs an archeological permitting program on its traditional territory, which means anyone doing archaeological work on Kwantlen land has to first apply to the First Nation and agree to its rules, such as having an on-site monitor. (This has become the standard in BC.) The band is also busy consulting with the federal and provincial governments, as well as some municipalities (only federal and provincial governments legally have a duty to consult). The band is also developing a framework for fisheries authorizations, so in-stream works will have to go past Kwantlen as well as the federal government.

The hope is that these activities will give the Kwantlen First Nation more power on their land. Identifying and classifying land off reserve, partially by conducting Traditional Land Use studies and pinpointing culturally important sites, is 1 piece of that. Jago thinks the next step should be to protect certain areas, such as holy sites, and eventually require licensing for development within Kwantlen’s traditional territory.

There is a belief that people need to “act as if they were already free, and then force the government to act against them, to prove its case,” Jago said. “I think that’s what we have to do. Where we think we have sovereignty, where we know we have sovereignty, we have to act as if we had it and wait for the feds to try and stop us.

“I think that our resolve is a lot stronger than theirs,” he continued. “If we continuously assert our sovereignty, we will probably end up with a lot more of it than if we wait for them to hand it to us.”