As I understand the current lay of the land in Clayoquot:
Parts of Clayoquot Sound are already incorporated onto Indian reserves. No one may visit these areas without prior permission of the band. The band may assess whatever fees it wants.
Parts of Clayoquot Sound are incorporated into provincial parks. BC Parks does not charge fees for access to these parks, although it could if it wanted to. (It does charge fees in some other regions.)
Parts of Clayoquot Sound are crown land. The BC Ministry of Forests, Lands, Natural Resources Operations, and Rural Development does not charge fees for access. (I'm not even sure the ministry
could charge access fees even if it wanted to.)
All of Clayoquot Sound falls within the traditional territory of one or more First Nations band, including the parks and crown lands. Lately, these bands, especially the Ahousat, have begun asserting aboriginal title to the crown and park lands.
The mere assertion of aboriginal title does not empower the band to control access or levy fees. Aboriginal title is not established until the title has either been voluntarily recognized by the provincial and federal governments (often as part of a treaty-making process) or, in disputed cases in which no treaty is possible, until a court has ordered the establishment of aboriginal title. Only once title is established, whether by agreement or by order, may the band control access and levy fees. Note that once aboriginal title is established, it is not necessary to create an Indian reserve to grant the band the rights to use, control, and exclude; aboriginal title is sufficient by itself to confer those rights.
See Delgamuukw v. British Columbia, [1997] 3 SCR 1010, para. 166.
So until the Ahousat's title claim is either negotiated or adjudicated, they have no legal right to control access or levy fees on the park and crown land. Only the province has those rights. The province has signed several agreements with the Ahousat, the most recent of which commits to a mutually respectful approach to title negotiations and other land management issues, however, the province has not relinquished its right to control access or levy fees, nor has it conferred a parallel right on the Ahousat to control access or levy fees.
So I think the Ahousat have gotten a little ahead of themselves in asking for fees now, even if the fees are framed as a polite request rather than a demand. However, as Liam pointed out in a
thread last year, the Ahousat and other nations in Clayoquot Sound are very likely to prevail on either an aboriginal title claim or a negotiated treaty or both. Under either a treaty or a title claim, the Ahousat seem likely to gain substantial powers over land access: A successful title claim would grant the band nigh-sweeping powers, and even a negotiated treaty would likely grant the band greatly increased powers, else the band wouldn't sign.
In my opinion, it makes little sense for the kayaking community take a hard stand on legal rights, alienating the band in the process, when those rights are likely to change in the Ahousat's favor very soon. It's time for kayakers to recognize—as the BC and federal governments have been compelled by the courts to recognize—that the First Nations' rights are powerful, and the bands are free to deploy those rights in ways that help kayakers or harm kayakers, at the bands' whim and with very limited recourse (particularly in title claim cases). We kayakers can only hope that behaving like good neighbors now will encourage the bands to treat us like good neighbors in the future. I think I'll be paying those fees.
Alex
