An exchange between Ken Coates and Gordon Gibson
Well, Gordon, it is easy to see where you stand on the question of Tsilhqot’in land rights:
The Supreme Court’s Tsilhqot’in Nation decision marks a very dark day for the economy of British Columbia. A new era of chaotic jockeying will open among First Nations, governments and resource proponents, casting a pall over a basic economic driver of the province.
The rest of your June 30 commentary in the Globe and Mail is not as alarmist in tone – you do make it clear that the governments of Canada and British Columbia have to take decisive action – but you are one of many observers who believe that the Tsilhqot’in judgement has the capacity to derail the economy of B.C.
I am with you on several key points. The responsibility for major movement rests with government. In this instance, the Tsilhqot’in put their faith in Canadian law and have been rewarded for their confidence in Canada. It is also clear that First Nations in British Columbia (and other nontreaty areas) have the ability to stop resource development in its tracks, through both procedural and legal means. However, I am much more confident than you that viable and sustainable solutions will be found, and sooner than you anticipate.
Let’s start with an obvious but often ignored point. The government of British Columbia earned this outcome by ignoring Aboriginal land and resource rights for generations. First Nations have been asking for decades for the British, Canadian and British Columbia governments to recognize what most other Indigenous peoples came to see as their right to recognition of their land rights and the negotiation of treaties.
In the 1850s, Governor James Douglas of the British colony of Vancouver Island, and later also of British Columbia, had a simple plan. The Colonial Office had instructed him to attend to the needs of First Nations in the colonies. The former Hudson’s Bay Company officer knew the Aboriginal peoples in the area well and understood their attachment to their territories and their extensive harvesting activities. He ordered his officials to establish reserves and set aside village sites and surrounding lands for their permanent benefit. Realizing the pressures on agricultural lands on Vancouver Island, he also started treaties with some of the First Nations. Although the treaties were far from comprehensive, they provided several of the island nations with a small measure of assurance that they would have a permanent place in the evolving economy and society of the region.
Despite his repeated efforts to mobilize government officials, Douglas’s intentions were foiled. Reserves were set aside for the First Nations, but colonial and, after 1871, provincial officials found various ways to undermine the goals established by Douglas and subsequent governors and later embedded in the Terms of Union for British Columbia and the initial B.C. Land Acts. Two subsequent commissions – the Indian Reserve Commission of 1876 and the McKenna-McBride Commission, launched in 1913 – looked at the existing Indian reserves in British Columbia but stopped well short of addressing the many Aboriginal demands and rights. Indeed, many of the existing reserves were reduced in size through these processes.
You and many British Columbians know about this pattern. The B.C. government ignored First Nations requests for respect for land rights. Government after government argued that the Royal Proclamation of 1763 did not apply in the province. Provincial politicians held themselves aloof from the Aboriginal political and legal issues evolving in the rest of the country. There is a reason that many of the major Supreme Court decisions on Aboriginal rights in Canada – White and Bob, Calder, Sparrow, Gladstone, Haida, Taku and now Tsilhqot’in – were launched by First Nations in British Columbia. With the provincial government stonewalling, the courts offered the only reasonable route for rights-seeking First Nations.
Officially, the B.C. government changed its approach in 1990 and actually joined in treaty talks, initially with the Nisga’a and later with many First Nations across the province. The B.C. treaty talks have been an expensive and largely unproductive effort, with few final agreements to show for the expenditure of hundreds of millions of dollars. The poor outcome is a testament to the deep distrust First Nations have of governments generally, and the difficulties involved with negotiating agreements in British Columbia.
But remember something about the Tsilhqot’in court process that few people have commented on. As part of its argument before the court – a position that British Columbia has finally abandoned in its legal proceedings – the government argued that mobile peoples like the Tsilhqot’in were not “organized” societies. First Nations were incensed with this position, which the Supreme Court of Canada has now firmly rejected. But here is what the Tsilhqot’in think about that argument, in words delivered by Chief Joe Alphonse:
To walk into a courtroom and to hear provincial lawyers comparing us to … a pack of dogs running out on the land – these are the things we heard as Tsilhqot’in people … I don’t ever want to hear a reporter ever tell us or I don’t ever want to read the nomadic life of the Tsilhqot’in. We were never nomadic. We lived on our grounds. We lived in our territories with a purpose. To say and to acknowledge we are nomadic is a discredit to my ancestors. A nomadic person wanders around aimlessly, starving, looking for bugs to eat. Most of our people … back before European contact had four or five dwellings. We lived on our territory.
There is much more at stake here than land rights and resource development. To the Tsilhqot’in, the court decision is also about delayed and deferred respect and the First Nations’ insistence on provincewide recognition of their right to exist as Indigenous peoples. You must agree that it is amazing that this issue is still in the air after all these years.
So let’s go back to your concern about resource development and the provincial economy. From your many comments over the years, I know that you have been personally concerned about the economic marginalization of First Nations people and have supported practical and sustainable ways of providing a better quality of life for Aboriginal communities in British Columbia. But turn the camera around for a second. Starting in the 1850s, First Nations were pushed aside while British Columbia developed the resource wealth of the colony and province, producing one of the wealthiest societies in the world. First Nations paid a disproportionate share of the social cost of development and received, until recently, precious little in return. Do not expect First Nations to be overly concerned if there is a small downturn for the province as a whole while they figure out how to capitalize on rights they had to fight for generations to secure. Let’s be respectful and understanding of the First Nations’ right to capitalize, in full, on their rights as defined by the Supreme Court.
This said, British Columbians already know that the new resource order in Canada provides much better opportunities for First Nations than in the past. Through impact and benefit agreements, First Nations are working with resource companies as never before. The combination of cash payments, training and jobs programs and business development opportunities has had a substantial impact. That the Nisga’a signed an agreement with Avanti to work on the planned Kitault Molybdenum mine on Nisga’a traditional territory in 2014 is but one example of real and mutually beneficial collaboration. Even the B.C. government is significantly on board with the order, establishing resource revenue sharing on emerging resource projects.
So let’s not panic quite yet. The recent work of resource companies – leaving aside the provincial government – provides reason for optimism. At a spring 2104 resource meeting in Vancouver, a prominent First Nations leader asked government officials to get out of their way and to stick with regulatory matters. He argued that First Nations could look after their concerns and that they preferred to work directly with resource companies on development agreements. Industry is ready. Here is what Pierre Gratton, President and CEO of the Mining Association of Canada, had to say to the Vancouver Board of Trade in September 2014:
I don’t know of any mining company today developing a new project in Canada that is not actively building or trying to build strong relationships with local Aboriginal groups. Many, if not all, established mining companies are also developing new relationships that did not exist previously. It is accepted as both a business reality and advantage to collaborate with communities.
Like any new relationship, mining industry and Aboriginal community relationships take time to develop. They can try the patience of all sides. Sometimes, they fail. But the evidence, with almost 260 active agreements in place across Canada, shows that most of these relationships are mature and working. That is why mining has, over the past 20 years, become a leading private sector employer of Aboriginal people, and a significant hirer of Aboriginal businesses.
Gone are the days when the business community and First Nations looked to government for leadership on these issues. Resource companies figured out some time ago that First Nations play a major role in the future of Canadian development. The growing list of mutually beneficial agreements and long-term collaborations is a testament to the future of the resource sector in Canada.
You and I agree on one thing. The government of British Columbia has to atone for well over a century of neglecting Aboriginal rights and preventing First Nations from benefiting appropriately from resource and land development in Canada. First Nations argued – for generations – that they had Aboriginal rights to portions of their traditional territories. The Supreme Court now clearly agrees with the Tsilhqot’in and other First Nations in B.C. If the provincial government moves in half measures, tries to stall or seeks to circumscribe the court-ordered rights, your scenario might well occur. This will not be the First Nations’ fault. Why would First Nations accept any more delays and interference from the B.C. government? Why should they accept anything less than full benefits from their legal rights? No one else involved with resource development would do so. You know that the political leaders and senior administration in B.C. understand this basic reality and are no doubt working assiduously to find workable solutions. They had better move fast, collaboratively and with full attention to the rights of First Nations.
My optimism on this matter springs from two related forces. First, Aboriginal people are looking for economic opportunity, jobs and prosperity in their communities. First Nation after First Nation across Canada has found ways to collaborate with resource companies in ways that meet local and commercial needs. Listen and you will hear Aboriginal leaders talk about their openness to partnership and their recognition of the importance of resource development for their communities. Second, the resource sector in Canada is a world leader in negotiating sustainable agreements with Aboriginal people – more than 260 and counting across Canada at present, according to Pierre Gratton. Real partnerships, producing commercially viable projects that return substantial benefits to Aboriginal communities, are commonplace across Canada. This, I believe, is the key to Canada’s economic future.
Ken, let me begin by saying that I respect your arguments and agree with many of them. The historic treatment of Indians1 has been even worse than you say. I agree on the arrogance and stupidity of governments. But I forecast that change in government arrogance and stupidity will be resisted.
I agree with your view that we should “not expect to be overly concerned if there is a small downturn for the province as a whole while they figure out how to capitalize on rights they fought for generations to secure” (emphasis added). Indeed, that is one of my points.
You may recall what happened in 1997 after Delgamuukw, the last Supreme Court Indian title blockbuster. The B.C. Treaty Commission process, established four years earlier, was making genuine progress. Then an outsider walked into the negotiating room and handed one side of the table four aces and a Smith & Wesson. Not surprisingly, it took years for some kind of negotiating equilibrium and progress to be reestablished, and to this day treaty success has been minimal.
I agree with your forecast that win/win deals will be done – when they are rich and a slam-dunk for the Indian side of the table (see the recent huge Vancouver lands deal). These have been happening and will continue to happen around B.C., usually at the expense of the provincial treasury. Panglossians will point with pride, but cynics will note that deals not done are almost never announced and there may be many more of these.
Your hopes would play out were the players of the sort that Shakespeare has Hamlet describe: “‘What a piece of work is a man! How noble in reason, how infinite in faculty! In form and moving how express and admirable! In action how like an Angel! In apprehension how like a god! The beauty of the world! The paragon of animals!”
But we are not talking about that world. We are talking about a world of humans with all of their faults. On one side of the table we have politicians, most of them afraid of Indian activism (see, e.g., Oka, Dudley George, Gustafsen Lake and the disgracefully continuing Caledonia), afraid of the courts for reasons we will discuss, and afraid of the public, which feels guilty about Indians on the one hand and thinks they cost too much on the other.
On the other side we have the Indians in their Nations and Bands – fragmented, varying vastly in capacity, but sharing centuries-old memories of deceit and oppression. Some have come to terms with this history, but in some there resides a burning anger, bringing with it the understandable desire for payback.
From such a point of view, “win/win” is all very well as long as it includes a disproportionate quantum of Indian win and compensation, and even retribution. And the expectation of gaining such ends is directly proportional to expectations of the Supreme Court of Canada. Tsilhqot’in is an important way station.
(It should be noted that the “Indian side of the table” is by no means restricted to the 200 or so Indian entities in B.C. Tsilhqot’in directly applies to the Atlantic provinces, including the newly created Newfoundland Mi’kmaq Nation, and much of northern Ontario. Many scholars think it will ricochet into Treaty lands, entitlements broadened as was done by the Court in Mikisew.
Caught between governments defending the status quo and lawyers advancing the Indians’ case for an expansive interpretation of treaty rights are proponents of resource and other projects. These proponents don’t care who “wins” as long as they know whom they must bargain with and can strike a deal that generates profits. If neither side blinks to grease the deal, it’s “hasta la vista, baby!”
All of this is unfolding in a very strange legal universe. Aboriginal law is not judge-made common law built up slowly and incrementally over centuries and always subject to revision by Parliament. Nor is it statute law, made by our elected representatives and changeable by them. Aboriginal law is indeed judge-made, but made very quickly (since 1982) and not subject to the revising wisdom of Parliament in any way.
In other words we have a closed system without external checks and balances. Such systems inevitably lose their equilibrium and go off track, but this is often not detectable until a major crash. It may be coming.
In this system, the law is, quite simply, what the Supreme Court says it is. Period. No appeal. If judgements raise as many questions as they answer, so be it. And it is very difficult to predict the future, because you have to predict the judges who, in this field, have simply invented law for the past 30 years. You can draw a line from section 35 of the 1982 Constitution Act through Guerin, Sparrow, Gladstone, Delgamuukw, Haida and now Tsilhqot’in. But this line can only be drawn in hindsight. In 1982 no one knew what it meant to affirm “existing aboriginal and treaty rights.” All sorts of lines could have been drawn from section 35, and many alternate legal universes could have been created. The framers of section 35 would be absolutely astounded (and, I bet, horrified) at the state of Aboriginal law today. The implication is that the answers to the many vexing questions raised by Tsilhqot’in could go in very different ways. Forecasting involves canvassing the major branches rather than relying on straight-line common sense.
And so let us examine the impact of the latest Supreme Court decision. My remarks will describe various imaginative ways for Indian entities to pursue the opportunites opened up for them by Tsilhqot’in and I fully support their moral and legal right, richly justified by history, to do so. But governments must understand the potential consequences in order to prepare.
Tsilhqot’in was the first award of “Aboriginal title” in Canadian history, though its existence had been foreshadowed (and invented – there is no point in dissembling) in Delgamuukw. What can one say of this title?
It is very powerful – more so than the “fee simple” estate enjoyed by homeowners. It cannot be expropriated in the usual way (with compensation) for, say, a highway. And (almost certainly – see below) it cannot be taxed, a highly useful attribute. It can in theory and in certain cases be “infringed,” but only by the Crown (not by, say, a pipeline company with delegated authority), only after consultation, accommodation, minimal disruption and certainly compensation, and only for a valid and pressing public purpose that cannot be met in any other way. And either the courts or the Indians concerned must approve.
It has an unusual characteristic of interest only to its owners: this title is communal – owned by all. It is another brick in the wall of “communistic” practice that has been built around Indians by our law since first British contact. The negative social consequences of collective ownership are well known. The Supreme Court has been reinforcing this anathema for 30 years. And of course this further props up the reserve system with all its destructive characteristics.2
What grounds this title? It’s based on occupancy prior to the extension of British sovereignty (in B.C., from 1846). This must be proven though the tests are generous. If the proof is via current occupancy, then continuity must be shown.
Another requirement is exclusivity. Again the tests are not rigorous. While it might be thought that the large amount of overlap on Indian land claims in B.C. would make this requirement difficult, it can be predicted with great confidence that the goal of title will be an extremely powerful incentive for Nations/Bands to agree on boundaries in order to gain title.
How much of British Columbia might this title cover? Well, the Chief Justice referred to “vast areas of the province that are potentially subject to Aboriginal title” (para. 113), but neither the Court nor provincial authorities have hazarded a guess on the ultimate proportion that might be involved. To help smoke them out I will guess at 25 per cent. One of the six Bands launching the Tsilhqot’in case had 200 members and got 1,700 square kilometres. There are about 150,000 status Indians in B.C. The math is simple: on this precedent 1,275,000 square kilometres would be subject to Aboriginal title.
Since B.C., unfortunately, has only 950,000 square kilometres, something will have to give. So 25 per cent is a guess. And it will be the best 25 per cent. This is not surprising: Indians, sensible humans like everyone else, naturally settled in the better parts of the province. This would include the valley lands, communications routes, abundant seashores, excellent timber stands and so on. As the Chief Justice speculates, we are talking about “vast areas.” Coming from The Boss, such obiter dicta are important.
Who owns this title? Hmmmmm. Collective, yes, but what does that mean? Tsilhqot’in was launched by the Xeni Gwet’n First Nations Government (an Indian Act Band) but title was instead awarded to the Tsilhqot’in Nation. Well and good, but the Nation, though it has a website, does not have a government. The site is explicit – all authority lies at the Band level. So who will administer this new title, a thing of no small consequence?
Presumably the Tsilhqot’in will work this out, but in many parts of B.C. there are no well-defined “nations,” and in other parts it is inconceivable that such large and powerful entities as the Squamish and Musqueam would subordinate their local authority. In the Gitxsan area, a place where title records are particularly strong and much Aboriginal title will be awarded, the ownership will be divided among more than 60 Hereditary Chiefs without a central government to make binding decisions.
Whether here or elsewhere, the question will be asked: Can a single Chief or Band with actual or prospective Aboriginal title stop a liquefied natural gas (LNG) or other pipeline? Surely the Supreme Court will be asked in due course to answer.
What will this new reality of access to “vast areas” of valuable title do to the treaty process, which has been assumed by all (including the Supreme Court) to be the way forward to “reconciliation”? Certainly the dynamic will change very considerably within the treaty negotiating rooms. The Indian side of the table has a new hand with the “four aces” mentioned above. It will take some years for a new equilibrium to be found. This will seriously delay treaties, which are still being delayed because of Delgamuukw. Treaties are the key to capital transfers (which have been running at over $50,000 per head, but expectations are probably much higher) and also the key to free-standing Indian governments, an outcome much desired by Native politicians.
A quest for title may often offer a faster way to wealth, with a treaty to come later. Consider the options of Band/Nation “X,” with a strong case for title, sitting squarely athwart the pipeline route of Premier Clark’s desperately desired LNG dreams. There are many such groups. Imagine, as will surely be the case, that group “X” goes to court seeking an injunction against any work until its title case has been resolved. There is language in Tsilhqot’in suggesting the Court’s sympathy for such a plea.
Of course, there is a way out. A right-of-way for this particular pipe might be granted on a one-time basis for, say, a small one half of one per cent of the value of the throughput gas. The projected economic rent for the province would be eaten up by a mere dozen such deals. But Clark wants this pipeline so badly that very rich precedents may be set.
LNG is just the first example that comes to mind. The new “power to block” given by soon-to-be-widespread title could on the one hand be very lucrative and on the other hand make both economic development and reconciliation much harder.
All of the above is dead obvious and has the potential to seriously impede development in some cases, result in overpayment in others, and in other cases simply persuade investors to disappear from British Columbia. Now let’s turn to some of the less obvious downstream implications.
First is the matter of equity as between Indian entities. Some will do very well, happening by the luck of the draw to live on resource-rich real estate or in areas with a potential to block (and therefore to toll) major projects. However, many Bands/Nations live in parts of the province where title over the land and its resources are worth little, and there is no blocking power. What of them?
The treaty process with its more or less equal-per-head capital awards and ongoing subsidies for Indian governments was supposed to bring some equity, and otherwise impecunious groups will continue to pursue this route. It goes without saying that the attention and cash of governments will be deployed in more “important” places first. Sorry about that.
What about some interesting derivative legal questions from the judgement? Here are words of the Chief Justice taken from paragraphs 69 and 70:
At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of the Aboriginal people who occupied and used the land prior to European arrival … The content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it.
We now know that Crown title is the residual. A couple of questions. What about the value of the resources removed from what was thought to be Crown land, but actually turns out to be Aboriginal title land, between 1846 and now? The Court says (paragraph 115) that the Legislature had the right to regulate the land until title was “vested” (i.e. by the Court). But did the right to regulate include the right to take royalties from essentially stolen property? No doubt we will see a case in that regard.
And what about private lands? Essentially all private lands came from Crown grant or sale. Most of those lands came from the Crown provincial, which even before 1982 had no right to deal with Aboriginal rights. (The federal Parliament did have that ability until 1982, and it may be that lands such as the Railway Belt lands were “unburdened” by the federal government.)
So private lands in Aboriginal title areas must remain burdened. What does this mean? A number of Indian leaders have said that private land is “off the table.” But no court has ever said that. And no chief can bind another. There are more than 200 chiefs in B.C.
There is no doubt, for example, that almost all of downtown Vancouver was once covered by Aboriginal title, and perhaps is formally so today if such is sought. Then what? The province can no longer issue cutting permits on Aboriginal land. Would the city be able to issue building permits? Would a bank lend? We have no idea.
It is well established now that the federal and provincial governments do not dare deal with their lands (and even buildings), even in unproven “traditional territories,” without (expensively) obtaining Indian consent. Surely this will apply as well to municipalities as creatures of the province. The trigger for such consent has come to be agreed as a change in status – even the sale of a cutting permit between private parties. What will happen to the hundreds of dwelling units in False Creek built on leased municipal land when the leases start coming due in 30 years or so? An Indian claim for the land is highly likely, as with all other government properties changing status now.
May we discuss provincial revenues, used for multiple social purposes? The Court makes clear that the province can no longer manage nor extract resource revenues – mining, forestry, that sort of thing – from Aboriginal title land. That almost certainly rules out property taxation as well. As more title is “vested,” what will replace these revenue streams? What will happen to the province’s AAA credit rating?
Sales tax and income tax on Aboriginal title land – can these be levied on collective Indian entities? And other taxes? I have no idea.
These are extraordinarily serious issues, amplifying uncertainty. There is no doubt that the Supreme Court can sort each and every one of them out, since it can do anything it wants in Aboriginal law. But exactly how will it do that?
Ken, I hope I have convinced you that the questions raised by Tsilhqot’in go far beyond the obvious, exacerbated by the tendency of the Supreme Court to indulge in all kinds of obiter in order to lay down markers for flexibility in later decisions. The above uncertainties are bad enough. But it is the dangerous adventurism of the Court that truly chills my blood. It is the law here, and the only law, and I do not trust it to act in the common good.
Gordon, you are right. We agree about a great deal, although I think I am more optimistic than you are about the prospects for reconciliation with Aboriginal peoples and continued progress on resource development in British Columbia and elsewhere.
Many Canadians share your frustrations with the leadership provided by the Supreme Court of Canada on issues of Aboriginal title and Indigenous rights. Governments backed off dramatically in terms of trying to provide workable solutions. Prime Minister Paul Martin and his provincial and Aboriginal counterparts tried with the 2005 Kelowna Accord, but that initiative focused on social and economic issues and left unaddressed unsettled questions of land and other Aboriginal rights. Progress on land claims, treaty-making and treaty implementation has been painfully slow.
You can take a little solace in the likelihood that the Supreme Court’s Tsilhqot’in decision will, like the others, be applied unevenly and likely be delayed in implementation through a variety of administrative and legal means. Court judgements help advance Aboriginal causes, but rarely as quickly and dramatically as the post-decision commentary suggests. It will take quite some time to figure out just where this decision intersects with provincial regulations and government priorities.
I share your concern about the continued expansion of the role of the Supreme Court in these matters. But taking a leading role on Aboriginal affairs is not the judges’ preferred option. Chief Justice Antonio Lamer, commenting in the Delgammukw decision, expressed a longstanding desire of the Canadian courts about Aboriginal rights: “I wish to emphasize that the best approach in these types of cases is a process of negotiation and reconciliation that properly considers the complex and competing interests at stake” (emphasis added) The country has defaulted to the courts, in large measure, because federal and provincial politicians – and now a significant number of Indigenous leaders who believe the Supreme Court will be sympathetic to their concerns – have been reluctant to tackle head-on the challenges of working with Aboriginal people.
Don’t you feel, Gordon, that our country is politically adrift on a number of fronts and now relies too heavily on the courts to solve our most contentious issues? The courts offer a measure of politically safe certainty to governments, which can complain about court activism even as they start to implement the court decisions. For Indigenous peoples, the courts have provided considerable evidence that they will give First Nations claims a sympathetic hearing. We have seen similar developments in other areas as the Government of Canada leaves many contentious issues to the courts, a path made easier and almost automatic by the establishment of the Charter of Rights and Freedoms as a central feature of our legal and political system.
In the final analysis, we agree that the current state of affairs is shrouded in uncertainty and holds the potential for considerable economic and political disruption. But I am frustrated by the reluctance of non-Aboriginal people and governments to recognize their collective and historical responsibility for the current state of affairs. Lack of attention to Aboriginal rights created the current situation. The squandering of earlier opportunities to deal with Aboriginal demands, when Indigenous peoples were eager to negotiate, gave First Nations no choice but to go the courts. You were active in British Columbia politics through the Social Credit years, when Aboriginal rights were almost completely off the table; I remember you demanding more attention to Indigenous issues. Now British Columbia has no choice. By waiting so long – and by letting First Nations shoulder the costs and burdens of inaction for many decades – the province and country have allowed power to shift dramatically in the favour of Indigenous communities.
So the big question remains: What is the right path forward for First Nations, British Columbia and Canada? The answer is both simple and daunting. Canada and British Columbia have to rethink their approach to negotiations with First Nations, moving beyond the B.C. Treaty Commission process, demonstrating real urgency and a determination to reach mutually beneficial settlements. Governments are going to have to put real resources on the table – the price has gone up dramatically over the past two decades – and be committed to finding a lasting resolution on outstanding issues. The ball is in the governments’ court – and not with the Supreme Court. Without a major commitment to resolving outstanding Aboriginal issues, First Nations will continue to rely on legal processes. To be frank, if the country decides to stay on the same path – with dozens of Tsilhqot’in-type issues currently caught up in the legal system – it is in for a roller coaster ride that will be far more dramatic than what we have seen so far.
Ken, thank you for your further very helpful thoughts. You conclude by expressing concern about what may come to pass if all sides are not in some sense reasonable. In my first comments I spoke essentially about possible outcomes if the Indian side of the table aggressively exploits the implications of Tsilhqot’in and the Supreme Court continues its enabling posture in this regard. This is a natural beginning position for me in my (part-time) role as a negotiator for the Gitxsan Nation.3
At the same time I am acutely aware, as we all should be, that Canada is a democracy and status Indians are only 2 per cent of the population. While governments have behaved disgracefully toward Indians since at least Confederation, the change in the balance of advantage now underway cannot continue to swing too far to the other side. Getting to an equitable balance is the job of the federal and provincial governments, the same governments that have gotten it wrong for so long. Only these governments represent all Canadians. (Let me add the obvious: the Supreme Court does not.)
Governments are by no means powerless – just negligent, confused and weak. They will have to focus their minds and strengthen their backs. The current chaos does not help anybody.4 The best solution is to reach some certainty, which means agreement on treaties. Disgracefully, half of current treaty talks have been underway for more than 16 years. Our governments will have to successfully negotiate if the economy is to continue to develop, and firms will have to pay adequate taxes for our social service bills. Signing treaties will mean going beyond “consultation and accommodation” to defining meaningful constraints on Aboriginal title and making that an agreed “win/win.”
Pending treaties, life and development must go on. To facilitate this, in rare moments of balance the Supreme Court has indicated that infringement – a rights override – is permissible. In Gladstone (1996, para. 73), Chief Justice Lamer allowed that “limits placed on rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.” In Delgamuukw (1997, para. 165), he provided examples of objectives that can justify infringement: “agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims.” This is a very broad scope which would surely include LNG pipelines.
Governments should pass “permissible infringement” legislation specifying fair processes and compensation and refer it to the courts to bring certainty to all. If the Supreme Court disallows a reasonable law we will be in a truly chaotic world with only very tough remedies.
In the meantime we are caught, ad nauseam, in secretive “consultation and accommodation.” The federal and provincial Crowns are behaving as if there is a third order of government involved in much of their jurisdiction. This is not and cannot be correct. Six hundred Nations/Bands representing 2 per cent of the Canadian population cannot have perpetual equal status in regulatory activity. But neither can their rights be denied. That amounts to an appeal for a new, generous laser focus on concluding treaties.
Treaties are not a mistake; they are much be desired. It is time to get serious in negotiating them. Treaties bring certainty in terms of land, cash, ongoing Indian governments and processes where there is some agreed co-management. (Ongoing Indian governments are probably a mistake from the perspective of individual Indians but they form part of what their politicians demand, and cannot be denied.) Successful negotiation is going to require a lot of time and government money, but that is only just given the past; the alternative is worse.
Interim infringement for development and eventual treaties for certainty is the hopeful scenario. Government paralysis, escalating uncertainty and the Supreme Court continuing to expand its present track is the less hopeful outcome. Should this second scenario continue for very long, the obvious cure is for constituents to change governments (including Indian governments) and, in extremis, perhaps the Court and even the constitution. Let us hope we never get close to these last two options.