Yesterday, JFK Law filed an Aboriginal title and Charter claim on behalf of Kwikwetlem First Nation.
The Kwikwetlem people have lived and plied the lands and waters surrounding what is now called the Coquitlam River Watershed since time immemorial. The lower Coquitlam River area, at the confluence of the Fraser River, in particular, forms the heart of Kwikwetlem’s ancient and contemporary territory. Kwitkwetlem’s two reserves are situated in this area.
Like many other urban First Nations, the lands within Kwikwetlem’s territory, including the lands surrounding Kwikwetlem’s reserves, have become increasingly developed to a point where Kwikwetlem is left with virtually nowhere in its territory to exercise and benefit from its Aboriginal title. Kwikwetlem’s reserves make up less than 85 hectares, however, much of their reserve land is inaccessible and difficult to develop, leaving Kwikwetlem with less than four hectares of a usable land base.
Many of the properties surrounding Kwikwetlem’s reserve lands were developed by the Province or transferred to local governments without any consultation with Kwikwetlem, and in some circumstances in the face of clear objection by Kwikwetlem. Development of these lands is expected to continue.
In an effort to ensure that the Province and local governments take Kwikwetlem’s title interests and rights seriously, Kwikwetlem has filed an Aboriginal title claim that focuses on lands critical to its community, and where Kwikwetlem sees the best opportunity to make progress. The actual Claim Area constitutes less than 1% of Kwikwetlem’s territory (see map below). Consistent with the Tsilhqot’in 2014 Supreme Court of Canada decision, Kwikwetlem expects governments to engage in consent-based decision making processes when planning and managing its Aboriginal title lands.
In addition to its Aboriginal title claim, Kwikwetlem alleges the Province has breached its section 15 Charter rights by failing to provide an effective means to recognize and implement Aboriginal title where it has been found to exist, and by failing to provide an effective administrative means to determine Kwikwetlem’s Aboriginal title interests before decisions are made that compromise Aboriginal title, when compared to non-Aboriginal land holders. Kwikwetlem had sought to enter into modern treaty negotiations with the Crown under the BC Treaty Commission, but the Province refused to enter into such negotiations with Kwikwetlem on the basis that the Nation was too small. The Province has otherwise refused to enter into negotiations with a view to recognizing, protecting or accommodating Kwikwetlem’s rights.