B.C.'s "new relationship" with First Nations.
In its 2004 Haida Nation and Taku River Tlingit decisions, the Supreme Court of Canada told governments the honour of the Crown requires direct First Nation consultation before granting exploration or development authority where Aboriginal title is asserted. Assertion suffices; proof is not required (see LAW NOW 32:2, November/December 2007). Otherwise, the claim's resources could be eroded before "the distant goal of proof is finally reached."
In light of these decisions, Premier Campbell saw the futility of continuing to deny Aboriginal title. He announced a new vision to reflect legal reality. In 2005, the province and First Nations Leadership Council entered into "a New Relationship based on respect, recognition and accommodation of aboriginal rights and title; respect for each others respective laws and responsibilities; and for the reconciliation of Aboriginal and Crown titles and jurisdictions." A legislative package was to be enacted, to include, "regulations, template shared decision-making and revenue and benefit sharing agreements and the issuance of a Proclamation."
There are seven "Recognition Principles." Two are central. Of practical effect to First Nations is shared authority over use of lands and resources, and the sharing of revenue. More perplexing is: "That Aboriginal rights and title exist in British Columbia throughout the territory of each Indigenous Nation that is the proper title and rights holder. The Crown recognizes and affirms this without requirement of proof or strength of claim." Undeniably, where there is a proper holder of Aboriginal title or rights, those rights or that title exist. But how do we know who is the "proper holder" without any proof? Or, if recognition is to be truly "without requirement of proof," will self-declaration suffice? What about conflicting claims? Since determining the geographic extent of Aboriginal title remains a subject of debate, what does "throughout the territory" mean? Is "Indigenous" intended to somehow require a closer anchor of the group to the territory than would "Aboriginal," the accepted legal term in Canada since 1982?
Another principle recognizes that Nations, peoples, and their laws, structures, territories and rights "pre-existed and continue to exist today." Other principles are less contentious. Existing private interests are not to be affected. Relevant constitutional and common law, including remedies, are unaffected; no new constitutional rights are created.
An Indigenous Nation Commission will be established to identify political structures and mandates. B.C.'s Constitution Act is to be amended to provide for a Council of Indigenous Nations, consisting of leaders of Nations, with a mandate that is unspecified so far. A Proclamation, "eloquent and poetic," will speak to reconciliation.
In 2008, an Indigenous Nations Recognition Act was to be the centrepiece, but things fell apart. The bill was withdrawn; First Nations leaders complained of lack of progress; there were blockades. The B.C. Treaty Process continued glacially. With about a billion dollars spent in 35 years at 45 negotiating tables, only three agreements are final and four more are in final negotiation.
The February 2009 Speech from the Throne revived the "New Relationship". A Recognition and Reconciliation Act will recognize "constitutionally established rights and title," and provide for shared decision-making and revenues. It will create "process certainty for third parties and Indigenous Nations" for economic development. It will enable establishment of government-to-government political structures. As to the dysfunctional treaty process, despite a promised two-track approach, it risks collapse in the face of the New Relationship.
As a good-will gesture, given preliminary endorsement of the plan by the Union of B.C. Indian Chiefs, the province last March dropped its opposition to a fishing claim of the Nuu-chah-nulth being heard in the B.C. Supreme Court.
Not surprisingly, the notion that the province would admit by statute the existence of Aboriginal title over possibly almost all of British Columbia has raised alarm in certain quarters. The degree to which resource-based industries will be affected remains unclear until drafting is done. Yet these are the same industries that have been hamstrung for decades by uncertainty. Business is pragmatic enough to understand they cannot have it both ways; if clarity, even at some cost, is the result, it will be welcomed. In general, the field will be level among competitors, though First Nation businesses may well be advantaged. It is not obvious how the consultation and accommodation obligation can be met more efficiently. However, if a climate of reconciliation reduces delay in obtaining exploration and development authorities, that, again, will be a welcome result for business and employment, especially now. Others, though, will see this as moving B.C.'s First Nations too far toward separateness on the sovereignty-integration spectrum.
A constitutional question: The Act will be a law in relation to "Indians, and Lands reserved for the Indians," s. 91(24), Constitution Act, 1867, which is an area of exclusive federal jurisdiction. Is it vulnerable, as a provincial statute, to attack by an affected objector, Aboriginal or non-? As an ameliorative rather than a coercive statute, probably not, but the opening exists.
The challenges, both political and legal, are enormous. This is written in advance of the May 12 election; by publication we will know whether the New Relationship will be pursued by a re-elected Premier Campbell, or whether a New Democratic government will take a different approach. If the former, it is encouraging that implementation is led by the capable and personable Geoffrey Plant, Q.C., Attorney General in the first Campbell government, now with Heenan Blaikie LLP. As the Honourable Steven Point, the Sto:lo Lieutenant Governor, said in the Throne Speech, "If we get it right, it will be a significant provincial accomplishment for our times." That is an understatement introduced by a big "if."
John Edmond is an Ottawa lawyer with an interest in public and constitutional law.
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|Title Annotation:||Aboriginal Law|
|Date:||Jul 1, 2009|
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