Monday, November 26, 2007

Rolling the Dice with the Public Good

There has been a lot written and there will be a lot more written about the Roger William judgment that came down last week. Justice Vickers savaged the positions of the Government of Canada and the Government of British Columbia, effectively holding that the province's forestry legislation does not even pass basic constitutional muster and almost holding that most provincial resource laws were displaced from a 2,200 square kilometer region in the interior of British Columbia.

The two governments (and all of us) were saved from the consequences of a finding of aboriginal title by a true legal technicality that may not matter for long. The judge held that since the Chilcotin had asked for all of the claimed area and had not included claims for parts of the claim area as a fall back position, he could not award them parts of the claimed area despite having proven their case in those areas. Most legal observers I have spoken to think this is a pretty shaky ground upon which to deny the Chilcotin their prize and it is a flaw that will soon be fixed either by an amendment to the existing pleadings, the Court of Appeal or a new case (or possibly all three). I expect that the judge felt he was buying everyone some breathing room by not trying too hard to get around that technicality and is hoping (as he pleads toward the end of his judgment) that everyone gets on with resolving things.

What the judgment shows is how close we are coming to chaos given the refusal of the governments to entertain even the remotest possibility that they might lose one of these big cases. If Justice Vickers had not relied upon the technicality the results would have been far more dramatic than they were (and don't kid yourself, while people have focused on the technical loss, the Chilcotin actually won the case on the basis of their non-title rights -- and every aboriginal group in the province has similar rights). From the moment of the judgment provincial laws regulating any land based resources -- trees, land, minerals -- would have been out and only applicable federal laws would have applied. Which federal laws? Well there's the rub -- there are none.

Back in the early 1900's the Government of Canada decided that the part of the Constitution that says that they have jurisdiction over "Indians and Lands Reserved for the Indians" meant "Indians and the Indian Act reserves". On this basis there is no federal legislation that speaks to the regulation of Indian lands off-reserve (south of sixty) and the entire focus of federal thinking and policy relates to the reserves. This means the Federal government essentially washes its hands of any Indians who cross the reserve boundaries (voluntarily or not) and whether teh issue is welfare or constitutional rights essentially says "over to you Province."

The Supreme Court of Canada said that this thinking -- that Canada's jurisdiction and responsibility ended at the edge of the reserves -- was fundamentally wrongheaded. The Court said that Federal exclusive jurisdiction extended over aboriginal title land as well. How did the governments react? Well for all intents in purposes they put their fingers in their ears (undoubtedly on the basis of extensive legal advice) and went "la-la-la-la" and cooked up various theories like "well there really is no title" or "the court really didn't mean it when it said that." On this basis they did nothing.

The other thing that did not change was the position of the government's at the negotiating table. Delgamuukw made it clear that there was real potential that aboriginal groups outright owned various pieces of land throughout British Columbia and had control over those lands free and clear of the Province's jurisdiction. Surely such a holding would have brought about some rethinking of the Government's mandate followed by the addition of new incentives and approaches to induce First Nations in the treaty process to sign treaties and those outside to come to the table. However this did not happen.

If one looks at the Final Agreements presently going through the process of approval now what one sees are agreements that are clearly poorer than the Nisga'a Final Agreement. Self-government is weaker; the overall package seems smaller and the fiscal arrangements more brutal. Even some of the gains that have been touted -- say the inclusion of governance and the exemption from the ALR for TFN -- do not represent gains on Nisga'a: they represent gains on hard line positions introduced by the NDP and Liberals post- Nisga'a. There is little here to bring the hard line nations to the table or to get movement out of the tables that have been stuck. Sure there will be more treaties but these will likely be small treaties in remote areas or (at the other extreme)treaties in urban areas where there is little left to fight over. Even in the latter case I wonder if we will see many more treaties given the incredible value of the tax exemption on urban Indian reserves and the brutal Federal approach to clawing back 50% of every dollar a nation earns to set-off against social programs (this is on top of the taxes that wage earning aboriginal people will pay after treaty).

British Columbia and Canada have rolled the dice with all of us. They have rolled the dice with aboriginal people hoping to bankrupt them in all or nothing games of court poker. They have rolled the dice with the economy by betting land, minerals, trees and chaos on high stakes games of bluff. All of this to avoid coming to grips with the fact that modern treaty negotiation and dealings with Aboriginal people will require flexibility, imagination and respect.
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