Wednesday, 4 February 2015

My other life. One of them, anyway.

Well, this may be a bit of a distraction, but if you visit the website I identify below, you will see three pictures taken by "Geoff and Janet P" which the very fine folks at Randonnee Tours took a shine to, and I'm kind of blushing with modesty, but then you know, well, I took those photographs, and awww, shucks, it's cool they like them, and hey, I'm not always ranting, you know.

Tuesday, 3 February 2015

The right to strike and the Charter "at work".

 Eric Adams offers a cogent defence of the Supreme Court of Canada’s right to strike decision in today’s Globe and Mail (February 3, 2015).
His essential point is that in this case the Court was simply “putting the Charter to work”, interpreting its fundamental freedoms in a way that is not “frozen to past definitions or limited by literalism.”
Well, I am quite firmly in the camp of those who believe that the Charter must be a living document, and that its interpretation by the courts can and ought to evolve over time.
But that does not relieve us from the task of asking whether this particular decision is justified.
In the first place, there is a difference between a decision which puts a new gloss on old words in order to make the Charter’s guarantees work in novel and unanticipated circumstances, and a decision where the Court simply overrules itself.  In the former case, the Court seeks to extract the essential principles and values that underlie the written words of the Constitution and find a way to give them life and relevance in a changing world.  In the latter case, where the Court is, in essence, disagreeing with itself, something more significant is happening.  The Saskatchewan Federation of Labour case falls into the second category, not the first. 
Are there circumstances where the Court is justified in overruling itself? What about situations where the social, political, or moral context of an issue has radically changed?  Take, for example, the profound changes in attitudes towards same sex relationships that have occurred in the past half century.  In such circumstances, it seems to me that it is legitimate for the Court, faced with a prior decision that reflects a now plainly discarded set of societal values, to say that the constitution must keep pace with the changes in the world in which it must operate, and may legitimately overrule its prior decision.
But that is not this case.  Remember that the Charter came into effect in 1982.  By 1982, every jurisdiction in Canada had enacted comprehensive labour law regimes regulating collective bargaining and the right to strike.  The right to strike had been expressly recognized in Article 8 of the United Nations International Covenant on Economic, Social and Cultural Rights, enacted in 1966. The right to strike was hardly nascent or imperfectly understood when the Charter was drafted. As Eric Adams himself notes, “Strikes – the ability of workers to collectively withdraw their labour in order to achieve workplace goals – have always been an essential feature and central purpose of associations of labour, even if the law has not always recognized the fact.”
And yet the Charter (unlike the constitutions of dozens of countries) does not say anything about a right to strike.
And for the first 25 years of the Charter’s existence, the Court on several occasions carefully and thoughtfully ruled that the “freedom of association” expressed in section 2(d) could not be “interpreted” to provide constitutional protection for collective bargaining.  The Court had to overrule itself in order to create a free-standing constitutional right to strike.
Had something in society changed?  Was it was plain that the social, political or moral conditions which earlier supported the Court’s previous rulings had changed?  No. Not even close.
The majority of the Court unintentionally admits as much in this critically important passage from its reasons:
The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized:

"The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter."
(Laws Against Strikes (1972), at p. 8)

The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

Yes, the source relied upon for this statement is a book written in 1972. 
I agree with Eric Adams when he says, “Balancing rights and freedoms against broader public goals in a democratic society is never easy, but that is the role the Constitution has assigned governments in legislating and the judiciary in supervising that legislation against constitutional standards.”  But that only works when there are constitutional standards.  There are no standards here.  All that has really changed here is the composition of the Court.  Different judges, with different opinions.  This is not the Charter “at work”. It’s something quite disappointingly different.  

Friday, 30 January 2015

The rule of law and the Supreme Court's decision on the right to strike -

Today’s Supreme Court of Canada decision in the Saskatchewan Federation of Labour case is remarkable on many levels.

Both the majority and minority judgements deserve to be read: 2015 SCC 4.

In brief, the Court has, for the first time in history, constitutionalized the right to strike.

There is lots that needs to be said about this decision.  In this note, I want only to make an observation about its implications for the rule of law.  In particular, the idea, which lies at the heart of our system of government, that our constitution is intended to be the expression of enduring values, not simply a mirror for the ever-changing to-and-fro of political debates. And, equally importantly, the idea that the democratic legitimacy of judicial power requires that court decisions promote stability, certainty and predictability. 

For twenty years, the Supreme Court of Canada consistently held that the Charter protection for “freedom of association” did not extend to collective bargaining.  Legislatures could enact labour relations statutes recognizing the right of workers to organize and bargain collectively, and could create, protect and regulate the right to strike, but these were policy choices made by legislatures, not the implementation of constitutional imperatives.

All that changed in the Health Services case, in 2007, in which the Supreme Court expressly overruled three previous decisions.  Not ancient, dusty precedents, lodged deep in the forgotten recesses of old libraries, but three decisions, carefully and thoughtfully reasoned, less than twenty years old.

What the Supreme Court decided in Health Services was that, contrary to its three previous decisions, the constitutional protection for freedom of association does imply a right of collective bargaining.  In particular, it “requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation”

This is an enforceable protection.  If the employer does not “meet and bargain in good faith,” employees have recourse to the courts, who can order the parties to continue bargaining. That’s an enormously powerful remedy.  It completely changes the dynamic of collective bargaining in the public sector.  When governments know that public sector unions can take them to court to challenge their collective bargaining proposals, offers, strategies and processes, it’s a big deal.  Everything that the BC government has done in its recent negotiations with teachers, to give just one example, has been conditioned and influenced by the spectre of litigation.

What about the right to strike?  Well, in a 2011 decision called Fraser, the Supreme Court refined its 2007 ruling, and made it clear that the constitution, “does not require the parties to conclude an agreement or accept any particular terms and does not guarantee a legislated dispute resolution mechanism in the case of an impasse.” 

Okay, so the new law is that the constitution protects the right to bargain, but does not protect the right to any “legislated dispute resolution mechanism.” In short, no right to strike. 

Well, that was then (as in, 2011) and this is now.  Four years later, the Supreme Court of Canada has changed its mind again.  As the dissenting minority points out in their reasons, what the court has done here is create “a stand-alone constitutional right to strike.”

So, last week, if, relying upon Heath Services and Fraser, you advised your client that while there was clearly a constitutional requirement to bargain collectively in good faith the law was clear that there was no constitutional right to strike, you were wrong.  When you told your client that the Court had obviously charted a new course on freedom of association, but that we could count on a measure of stability, certainty and predictability in this area of constitutional law for the time being, you were wrong.  When you observed that the Court had stared right at the argument that the Constitution should protect a right to strike and said no, you were wrong. 

Imagine trying to govern when you have no idea, week in or week out, what the courts will allow you to do.

That’s not the rule of law, it’s whipsaw whimsy.

Wednesday, 21 January 2015

Aboriginal title, Tsilhqot'in, reconciliation, and the way forward

I was invited to make a speech last night at the opening of the BC Natural Resource Forum in Prince George, and decided to use the opportunity to reflect on the development of aboriginal law, the meaning of the Tsilhqot'in decision, and my thoughts about how British Columbia's response to the decision is really a leadership opportunity for us.

Here is the text, more or less as delivered.  

I am honoured to have been asked to speak here tonight.
It’s a special honour to speak at a forum on natural resources in Prince George.
Last year, reading a memoir written by one of my uncles, I learned for the first time that in the 1950s my family had an ownership interest in the sawmill at Shelley, a few miles upriver from here.  
My uncle worked in the mill one summer. It was a summer job to help pay his way through university. He told me about watching millworkers paddle canoes across the Fraser from the north side of the Shelley reserve to the mill. Tleidlhi Tenneh people, although I am sure that my uncle did not know them by that name then. 
I love that image of canoes crossing the Fraser.  A canoe is such a uniquely precarious vessel.  Inherently unstable and yet, when everyone onboard is paddling together, it is perfectly designed to get you where you want to go.
My uncle’s stories reminded me that this city, so close to the geographic centre of British Columbia, has for a very long time been at the heart of its economy.  This was and is an economy founded on the development of our abundant natural resources. Generations of trappers, miners, fishers, loggers, railway workers, millworkers, road and dam builders; First Nations and immigrants; hard workers all; people who literally built this province.  
It was not easy then. And of course it’s not easy now.  But for all that has been achieved, and it is remarkable how much has been achieved, I am certain that the best is yet to come.
So with one eye on the past, and another on the future, I hope you will forgive a little personal history.
I’m going to talk tonight about aboriginal law and policy, about the Tsilhqot’in decision and how to respond to it in a way that allows us to create opportunity, not paralysis.
It starts thirty years ago. I was a junior associate in a law firm in Vancouver, and I was asked to help our firm’s senior counsel on a new file.  Our client was the provincial government.  We had been hired to represent them in the litigation sparked by the logging blockade on Meares Island, on the west coast of Vancouver Island.
The plan to log Meares Island – with its majestic old growth cedars – was opposed by many, and not just environmentalists.  It also galvanized the two Nuu chah Nulth First Nations who had reserves on the island.  The blockades led to injunction applications: one to stop the protests, another to stop the logging.  I found myself in a courtroom where BC history was going to be made.  It was a heady experience for a young lawyer.
The two First Nations – the Clayoquot and the Ahousaht – wanted logging stopped to prevent harm to their rights.  They relied on a line of cases in which Canadian courts had, at least in theory, recognized the idea of aboriginal title, founded in the fact that, as one Supreme  Court judge had written, “when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.”  
They also relied on the newly enacted section 35(1) of the 1982 Constitution Act, which, as every aboriginal law lawyer knows, says that, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”  They argued that constitutional recognition and affirmation must mean something.
Thirty years ago this week the trial judge refused the First Nations’ injunction.  He held that aboriginal title in British Columbia had been extinguished. 
The First Nations appealed.  In the spring of 1985 BC’s Court of Appeal, by a majority of three to two, reversed the trial judge and granted the injunction.
It was a near thing, and rightly seen as a remarkable victory for the First Nations.
The Court of Appeal said that the claim of aboriginal title could not be decided without a full trial.  And so the question was: how best to balance the rights of the parties until that trial could take place?  What bothered the court was expressed most directly by Justice Peter Seaton when he said, “I cannot think of any native right that could be exercised on lands that have recently been logged.”
The injunction was intended to remain in place for a short time, to allow for an early trial of the aboriginal title claim.
Thirty years on, the logging has never occurred.  The trial did eventually begin, but it ended with a settlement agreement.
Why does all this history matter?
At about the same time that opposition was growing to logging on Meares Island, the Xeni Gwet’in First Nation of the Tsilhqot’in were also objecting to the prospect of commercial logging in their traditional territory.  That objection eventually led to litigation. This case, unlike Meares Island, was not settled.  
Three decades later, the case was finally decided by the Supreme Court of Canada, and the court answered the question that the BC Court of Appeal had said in 1985 it could not then answer.  
The answer is that Aboriginal title does exist on the lands of British Columbia, and its constitutional recognition and affirmation do mean something.
Of course, there have been many other court decisions dealing with aboriginal rights and title.  There were important cases decided before Meares Island: Calder, in 1973, led to Canada’s creation of the modern comprehensive claims process; and Guerin, the Musqueam decision in 1984 that Canada could be held liable for breach of its fiduciary duty to aboriginal peoples. 
And there have been other profoundly important decisions. Sparrow, Delgamuukw, Haida, to name but a few.
In all of these cases, and indeed throughout its history, British Columbia has argued against aboriginal title. 
Its arguments have taken many forms: 
  • title never existed in law; 
  • if it ever existed, it was extinguished; 
  • it may exist somewhere, but not here; 
  • the claimants have waited too long; 
  • government has no obligation to respect rights and title until they are proven, and so on.  
The golden thread that connects these arguments is a persistent, pervasive ethic of denial. That ethic of denial is deep-rooted.  
Denial, I think, is an expression of ignorance, perhaps even intolerance..   
It’s a refusal to admit that the history of what happened before Europeans were here has present relevance.
Denial is also rooted in the fear that real redress - the price of purchasing  today that which we mostly took without asking a century and a half ago is simply beyond our means.  
Whatever the reason, although the constitution requires government to “recognize and affirm” aboriginal rights, the province has consistently not done so.  A decade ago, in the New Relationship agreement of 2005, government committed to recognize aboriginal rights and title politically, but in the courts, government continued to argue against recognition.
One thing we can say about the ethic of denial is that, as a litigation strategy, it’s been a spectacular failure.  
In nearly all the cases that matter, government’s arguments against recognition, against the acceptance of any meaningful responsibilities towards aboriginal rights and title, have been rejected.  The Supreme Court of Canada once described government’s conception of its constitutional responsibilities as “impoverished.”
Government has been more successful in those cases where there has been meaningful consultation and engagement. 
But when we come to the question whether the Tsilhqot’in decision is really a game-changer, we have to start with the fact that in this case, as in so many others, there was a First Nation claiming aboriginal title, and governments that that refused this claim. 
Government argued that aboriginal title could only exist on small, well-defined parcels of land that had been intensively used and occupied.  This is called the “postage stamp” theory of aboriginal title. 
The Tsilhqot’in argued, on the other hand, that aboriginal title existed on all of the lands over which they had exercised dominion and control and carried on their way of life.  This “territorial” approach to aboriginal title is sometimes called the “mountaintop to mountaintop” theory.
BC’s Court of Appeal, in a unanimous decision, accepted the government argument and dismissed the Tsilhqot’in claim to aboriginal title completely.
And then the Supreme Court of Canada unanimously overturned the Court of Appeal.  
For the first time in our history, the highest court in Canada made an order declaring the existence of aboriginal title outside an Indian reserve.
I say this is a big deal.  
It’s a big deal:
  • when the Supreme Court makes new law, as they did here, 
  • when they reject the arguments of both the federal and provincial governments about the meaning of the Constitution, as they did here, and 
  • when they unanimously overturn the highest court of the province, as they did here.
Since its creation in 1871, the government of British Columbia has steadfastly denied that aboriginal title existed on its public lands.  That denial has been foundational to the province’s lands and resources policies for over a hundred and forty years. We now know that this was a foundation without foundation.  Aboriginal title survives.  It’s not just an idea, it’s a real place.
I’m not sure I can claim to understand what it would be like when something you’ve been taught to believe is true all your life, but which has been denied and rejected for as long as you can remember, finally turns out to be true.  Is it relief, or vindication, or a bit of both?  
For indigenous people, the connection to land is not just a piece of paper on file in a land title office, it’s a connection to identity.  I first learned this in the mid-1980‘s when I listened to Gitksan and Wetsuwet’en elders connect the ownership of their territories to their family histories and their work and spiritual practices on the land. 
For this reason, the Tsilhqot’in declaration of title has much richer, deeper significance than lines drawn on a map.
The implications of the decision reach beyond Tsilhqot’in territory.  The Supreme Court’s rejection of the so-called “postage stamp” theory of aboriginal title makes it a virtual certainty that aboriginal title is widespread across the province.  Not, most likely, everywhere.  But vast swaths of our province are lands on which, if the question were to be litigated, a court would or will find aboriginal title.
We also know that aboriginal title is not just the right to be consulted as government goes about its business. It’s not just a process right. It’s ownership. 
This needs to be emphasized – but as I’ll lay out shortly, this emphasis should not strike fear of a new reality for BC. 
Looking back at the decades of aboriginal rights and title decisions, what we can see is that while the courts have steadily moved the dial on what government has to do to meet its constitutional obligations, the courts have also resisted imposing outcomes. Instead of substantive outcomes, we’ve mostly had process remedies: 
  • Orders to consult and accommodate.  
  • Orders to consult further.  
  • Orders setting aside government decisions but only so that further consultation can take place. 
  • Decisions – like Sparrow, Delgamuukw, and the trial decision in Tsilhqot’in - in which certain principles are declared, but the courts have ordered new trials, so that the parties are not left with any meaningful remedy.  
Not now.  In Tsilhqot’in the court did not order a new trial, and it did not order the parties to consult.  It simply made a declaration that converted 1700 Km2 of Crown land into aboriginal title land.
Aboriginal title is not just the right to be consulted about government’s land and resource decisions, it’s the right of the aboriginal owners to decide for themselves how the land will be used, and to occupy, enjoy, possess and manage it.  There are important limits.  Aboriginal title land is held communally, not individually.  It cannot be sold, except by way of surrender to the Crown.  And it cannot be used in a way that would prevent future generations from using and enjoying it.  But aboriginal owners are entitled to the economic benefits of their land and they can use it, as the Court said, “in modern ways, if that is their choice.”
Equally importantly, the Supreme Court of Canada has made it clear that aboriginal title lands are not enclaves, immune from provincial legislative authority.  Provincial laws can apply.  
And governments also have the power to infringe aboriginal title.  But such infringements must satisfy rigorous tests of justification.
Justification requires consultation with the aboriginal titleholder.  Governments must act honourably.  Infringement must be minimized.  Justification requires “a compelling and substantial objective.”
This language and these principles are not new.  The Supreme Court first created this framework in the context of fishing rights back in the 1990 decision in Sparrow.
And then in 1997, in Delgamuukw, the Supreme Court said the same framework applies to aboriginal title lands.  
But it all means so much more when aboriginal title is not just an idea, but a real place on the earth.
So the court has established a framework for interaction between the First Nations who own the land and the public interest.
Where does that leave us?
First, I need to say something about the implications of the new reality of a province with extensive aboriginal ownership.
Once again I need to go back to the Meares Island case.
Those opposed to the injunction on Meares Island argued that a decision favourable to the First Nations would “cast a huge doubt on the tenure that is the basis for the huge investment that has been made and is being made” in the resource economy.
The court rejected that argument.  Justice Seaton said, “There is a problem about tenure that has not been attended to in the past. We are being asked to ignore the problem ...I am not willing to do that." 
For thirty years and more, governments and businesses have resisted claims of aboriginal title by raising the spectre of economic paralysis.  
And yet while there have been blockades and injunctions from time to time, forestry has continued in British Columbia. As have mining, and hydro-electric development, and road-building, and pipeline construction, and other resource development.  
Last summer, in the wake of the Tsilhqot’in decision, there were voices in the business community saying that this decision would paralyse the Province.  
Well, we’ve heard that before.
The sky did not fall on the resource economy of British Columbia in the spring of 1985, and it didn’t fall last summer. 
Have things changed?  Yes.  Are there new challenges?  Yes.  But resource development has always been hard work.  It’s particularly hard for anyone who ever thinks that whatever it was that made them successful last year will survive the challenges of a constantly changing world. 
There are still today, as there were in 1985, opportunities aplenty for nimble, creative, forward-looking resource businesses to thrive and prosper.
But we need some creative thinking, some risk taking, and some leadership – all of which we have seen the seeds of in recent years, but now we need to have really blossom
Which brings us to the a principle that the courts have invoked to guide action.
It’s reconciliation.
As the Supreme Court has said, “the fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.”
This is the law’s objective.  I suggest it should also be the objective of our public policy.
So what does reconciliation mean? And how can we move it forward to create a stronger economic foundation and a better, fairer province?
Dictionaries define the word as the “restoration of friendly relations” or the “action of making one view or belief compatible with another.”
Inherent in these ideas, it seems to me, is the acknowledgement of the mutual legitimacy of distinct persons and perspectives.
Reconciliation thus implies both mutual recognition and mutual respect.
And real reconciliation requires something more than saying, it requires doing.  Actions that reflect recognition and respect.  
This is much more than just being nice to each other.  
It’s a way of relating that acknowledges and legitimizes the possibility of different perspectives.
It’s about listening, and learning, and then acting on what you’ve learned.
It’s not a project you start and finish.  It’s work that carries on.
It’s not transactional.  It’s relational.  
The context and circumstances may change, the questions change, but engagement continues. It is dynamic, it evolves and adjusts as needed. It is nuanced.  It avoids the trap of false dichotomies, the phony either-or options, the “you’re either with me or against me” dialectic which both dilutes and poisons our politics.  
How, then, to reconcile?
Not, I hope, by more litigation, though I’m sure there will be more litigation.  But we need to work harder to avoid it.
Our justice system is founded on the idea that the best way to solve a problem is to argue about it.  Litigation is adversarial by design.  Questions are decided by fighting over them.  Litigation is conflict.  It’s about winners and losers.  That framework is right for many kinds of issues.  And clearly it is what has got us to this point.  
But when you litigate, you hand control over outcomes to someone else.  Handing problems to the courts is a way of avoiding taking responsibility for the difficult choices and compromises that real problem solving requires.
Litigation also converts the complex nuances of social and economic relationships into questions of law and legal remedies.  
Litigation doesn’t create reconciliation, because reconciliation can only be created by willing hands, it cannot be imposed. 
Reconciliation requires discussion, consensus-building and negotiation.
That’s why the pathway to reconciliation requires that we sit down and talk with each other and take ownership over the process and control over outcomes.
Thirty years ago, in the Meares Island case, Justice MacFarlane was direct about this: 
“[I]n the end, the public anticipates that the claims will be resolved by negotiations and by settlement. This judicial proceeding is but a small part of the whole process which will ultimately find its solutions in a reasonable exchange between governments and the Indian nations." 
What will that reasonable exchange look like?  
I suggest that the Tsilhqot’in decision has reset the relationship scales.  Now it’s more like a dialogue among equals.
Of course, doing nothing is an option.  It’s always an option.  In fact, to let you in on a little secret, doing nothing is always one of the options on any cabinet submission.  Sometimes it’s option one: “maintain status quo.”
But doing nothing here would guarantee more litigation, more problems, and more conflict.
There are two variants of the do nothing option which must surely be tempting to government.  
First, there is option “one a”:  
In this option, the government’s lawyers are in charge.  They observe, as is undoubtedly the case, that aboriginal title only exists as a matter of law on the 1700 km2 of land that has been awarded to the Tsilhqot’in.  And that the rest of the province, putting treaty lands to one side, is land where title may be asserted, but has not been conclusively proven and therefore does not yet exist.  And they say that not much has really changed, so it’s stay the course for the vast majority of the province.
In this option the government chooses as policy to do only that which, in its opinion, the law requires.  There are many who would defend this approach.  I am not one of them.  In the first place, I have already pointed out how spectacularly unsuccessful the province’s legal strategies have been when it comes to aboriginal title.  Option one a is just an updated expression of the failed ethic of denial.
But more importantly, I respectfully suggest that Tsilhqot’in represents a turning point, an opportunity for government to choose a policy direction which reaches beyond what it must do into what it ought to do, if it were to take constitutional recognition and affirmation seriously.
There is also option “one b”.  In this option government leaves it to the private sector to figure out how to get access to the land base.  To get the consent to operate by dealing directly with First Nations.  
How does this happen?  Government officials say to resource companies, “We will not give you your permit unless you obtain aboriginal consent.”  
I have reason to believe government has been doing a lot of that over the past six months, in the aftermath of the Tsilhqot’in decision and even before.
Now this approach may make life easier for front counter bureaucrats trying to manage risk by forcing someone else to solve their problem. But it’s wrong in principle and dangerous in practice.
It’s wrong in principle because fundamentally the constitutional imperatives of recognition and affirmation are the responsibility of governments.  When the courts speak about reconciliation they are speaking about a dynamic interaction between the Crown and First Nations, the parties, if you will, to the original bargain by which the assertion of Crown sovereignty was exchanged for the recognition of pre-existing aboriginal rights.  It’s the honour of the Crown that is at stake in relations with First Nations, and its wrong for government to hand off that responsibility to businesses.   
It’s also dangerous in practice because to default to the business community as the problem-solvers, in the absence of government leadership, is simply to licence ad hockery.  And while it may work for one company in one place dealing with one First Nation in respect of one project, the cumulative effect of hundreds of privately negotiated, self-ordered transactions is not certainty, but uncertainty.
This is not what the Supreme Court meant when it emphasized the idea of consent in its reasons for judgment.  The preference for consent reminds us that what is being talked about is the intersection between the larger public interest in social and economic development, and the aboriginal interest in title lands. Consent is simply the idea that this intersection can be a place of agreement rather than conflict.  
Think of it this way: If you want to do something on your neighbour’s land, what do you do?  You ask him for permission. Sometimes the answer will be a straightforward “sure.” Other times there will need to be a discussion about terms and conditions.
These kinds of discussions have been going on for a decade (and more), as governments, resource companies and First Nations have worked within the framework created by the Supreme Court of Canada in the Haida Nation case.  There the court held that whenever government contemplates conduct that may adversely affect an asserted aboriginal right, government is obliged to consult and, in some cases accommodate the asserted aboriginal right or title.
Because process takes time, and time costs money for businesses and their investors, the Haida principles have encouraged the negotiation of a variety of different kinds of agreements in which, in return for certain benefits, assurances are given which create process certainty.
A great many of these arrangements have been successfully entered into over the last ten years.  Because the title is asserted, not established, it’s not quite the same as asking permission to cross your neighbour’s yard, but it’s similar.
More of this is likely to happen in the aftermath of Tsilhqot’in.  We should applaud this practice and recognize that, contrary to those selling the message of economic paralysis, our province is or at least has the real potential, to be a leader in business-aboriginal and government agreements that promote economic reconciliation
We should also, I suggest, consider two lessons learned from the experience of the last decade.
First, those who think that t consent is just about paying for the right to infringe aboriginal title, are bound to find that they have missed the point.
Consent, as I have said, is actually a way of describing a process of reconciliation.  It’s more about relationships than transactions.  It’s more about recognition and respect, than about commercial bargaining.
Those who invest first in the relationship itself, in the time required to listen and learn from each other, are much more likely to find a durable path forward than those who, like the 19th century treaty commissioners, show up in aboriginal communities, offer take it or leave it deals, and stay around just long enough to get the required number of signatures on the page.
Secondly, there is a need for principles and frameworks, for the development and adoption of best practices, and for transparency to guide consultation and negotiation.  
Random, ad hoc arrangements – one private deal at a time – are a recipe for uncertainty.  Government simply must take the lead here. And many of you, as business, community and First Nation leaders, should seek to encourage government in this effort.  
There are other options to pursue.
I continue to believe that the treaty process is a viable way to negotiate comprehensive frameworks that can lead to reconciliation.
The treaty process has been agonizingly slow.  Progress has been frustrated by its own design.  If you set up a process that allows anyone to bring any issue they want to a negotiation that has no time limits, don’t be surprised if it’s hard to get to yes.
But the treaty process has also been held back by inflexible mandates, by unreasonably high expectations, and by the fear that any compromise will be seen by stakeholders and citizens as an unnecessary give-away.
For all of that, the treaty process is a table at which comprehensive solutions can be found, rules, relationships, and accountabilities established, that provide opportunities for First Nations, certainty for everyone, and a foundation for reconciliation.  
To make the treaty process viable, I suggest, all that is required – and I don’t mean to underestimate the challenge of this – is for governments to offer more at the table.
And there is surely a rational basis for thinking that in the aftermath of Tsilhqot’in, First Nations are justified in coming to the table with an expectation that their ownership of what we used to think of as Crown lands might count for a bit more than has been offered to date.
There are other options.  I’m not going to suggest that one size fits all will work.  
That is, there is no reason to believe that there is one single set of processes that can be layered on top of a map of the province and made to work the same way everywhere.  Our aboriginal reality – with over 200 Indian Act bands, most of whom see themselves as free-standing First Nations – is too complex for a one size fits all framework.
There has to be room for nuance and flexibility.
What made the New Relationship of a decade ago different was the idea that government and First Nations could sit down together and work their way together towards new principles and terms of engagements.
That dialogue needs to continue and to find the ways and means to shape both policy and practice – moving beyond good intentions and toward action.  
The Cabinet’s meeting with the chiefs of British Columbia last September, Premier Clark’s trip to Tsilhqot’in territory, the apology for the Chilcotin massacre, and the appointment of Sean Atleo, as Shqwi Qwal [she qwall], the Speaker for Indigenous Dialogue, all represent constructive steps towards meaningful, continuing dialogue.
Let me offer two suggestions about what needs to happen next.
  1. Include the business community in the discussion.
Yes, the dialogue between governments and First Nations is unique.  First Nations are not ordinary stakeholders, they have legal rights that need to be taken into account.  There needs to be a place for government-to-government relations.
But the fact is that the business community has a great deal to contribute to the development of the ideas needed to achieve reconciliation.  In particular, business knows best how to unlock the value of our resources, and that expertise is necessary at any table where land and resource planning is being discussed.  There are too many bilateral conversations happening now, between government and First Nations.  There needs to be more multilateral conversations and processes. The idea that government can effectively represent all of the multiplicity of interests that are at stake in this dialogue, without allowing those interests a direct voice in the discussion is self-defeating. Without multilateral action, we run the risk of quickly dissipating some of the successes achieved over the last decade in BC on the economic reconciliation front – this is a foundation that must be built and expanded upon in a timely fashion and not feared. And there is no reason to believe that the business community isn’t ready for this – on the contrary. 
  1. Government has to find the resources to support the provision of greater opportunity to the aboriginal owners of what we used to call Crown lands.
Some may say that the best course for First Nations is simply to assert their rights as landlord and charge rent for the use of their lands.  I think what is called for here, and what is more likely to create real, lasting prosperity, is not so much a transfer of wealth in monetary terms, as the creation of opportunity.  An opportunity for First Nations to become real partners in the resource economy – with revenues coming from business opportunities, employment, investment , ownership, as well as revenue/royalty sharing. 
This won’t happen quickly.  It’s a project of a generation.  In some places it’s underway now, thanks to creative and clever protocols and agreements entered into around the province.  So we don’t have to invent it from scratch.  But what we have to do is commit ourselves collectively to this work, not just to admire it, but to make it real and to understand better how we can collectively achieve this and maintain some our underlying competitive advantages that have been foundations of our economy.
For me, this is the work of creating competitive advantage, not just adding cost.
It’s what can happen when we reject denial and embrace reconciliation; when we truly recognize and affirm, when we all - and I mean all of us - collectively see aboriginal people and their unique rights not as threats, not as the “other”, but as part of the larger “us.” That justice for First Nations is justice for all of us.
It’s our leadership opportunity as British Columbians.  It can be the thing we actually get right here in this glorious province.  
It starts with mutual recognition and respect; it is founded on relationships; it’s risk-taking. It’s real work, it’s hard work.  I will tell you from my own experience that sometimes it’s uncomfortable work. 
It’s what happens when the CEO and the chief have a meeting where the only item on the agenda is to get to know and understand each other.  To listen, to learn, adapt and grow. Together.
Perhaps even to have a paddle together.
You have work to do, over the next couple of days, and it is time for me to finish.  
The last sentence in Chief Justice Lamer’s judgement in Delgamuukw is often quoted.  He was trying to give expression to the possibility of co-existence between the sovereignty of the Crown, and the persistence of indigenous rights.  He said, “Let us face it, we are all here to stay.”  By that he meant that there could be reconciliation without assimilation.
But there has to be more than the cold and isolating clarity of two solitudes.  Reconciliation is both about recognition and respect for difference, and the search for common cause. 
We all have a stake in the responsible, sustainable, profitable stewardship and development of our natural resources.  It’s how we got here. And it’s where we want to be.
I want to remind you again about those canoes crossing the Fraser River: early summer mornings, Tleidli Tenneh community members paddling to work; all those years ago.
I hope you know that wonderful sculpture, Bill Reid’s magnificent Spirit of Haida Gwaii.  
What appeals to me most about this tremendous creation is not just the beauty of its execution, or the stories that lie behind each of the mythic passengers in the canoe.  It is simply the idea that somehow or other, all these fractious characters are in the same boat, paddling together.
It’s not easy to get into a canoe.  They tend to tip over if you’re not careful.  Until you’ve had some practice at it, it’s a bit risky.  And you don’t really get to do your own thing.  If you’re not all paddling together, in the same direction, you won’t get anywhere.  You might even tip over.  
So you have to take the risk, and then choose to paddle with each other.  And yes, from time to time, you might tip over.  But you can right the canoe, get back in, and paddle on.  And then who knows what marvelous journeys we might make together.

Wednesday, 15 October 2014

When all else fails, accuse someone of a conflict of interest

Gary Mason offers a forceful critique of the BC Liberals' handing of the South Okanagan Park in today's Globe and Mail.
But his analysis contains an important flaw.  He accuses someone of a conflict of interest without stating any  plausible grounds for such an accusation.  The error is in these paragraphs:
My sense is there is zero appetite in Victoria to do anything about the new demands for a national park. In fact, the government recently illustrated its disdain for those advocating for the park by naming one of its most vocal detractors, Greg Norton, to the Agricultural Land Commission’s Okanagan Region panel.
If this isn’t a conflict of interest, I don’t know what is. I can just imagine the howls from some ranchers in the area had a park advocate been named to the same panel. It wouldn’t be allowed to stand, and neither should Mr. Norton’s appointment. There are parcels of the proposed park that are in the Agricultural Land Reserve; the ALR and its area commissioners would obviously have a say in the fate of those lands.
It’s inconceivable that the government didn’t know of Mr. Norton’s virulent opposition to the park at the time of his appointment. He has been the face and voice of the “Grasslands Coalition” that has actively fought against it. If the people of the South Okanagan needed any more proof of where the Liberal’s stand on Parks Canada’s proposal, they have it now.
 I'm tempted to say that whenever someone makes the statement "If this isn't a conflict of interest, I don't know what is," we should all put on our skeptic specs.  Nothing in Mr. Mason's analysis even begins to make a case for conflict of interest.

Being strongly opposed to something does not create a conflict of interest.  Holding strong views on an issue which you are then given responsibility over by appointment to a tribunal does not create a conflict of interest.  It may, if certain other circumstances are present, be the start of a complaint about bias.  But that's not Mr. Mason's complaint.

A conflict of interest exists when there is a conflict between a private interest and a public duty, such that your ability to discharge your public duty may be tainted by your private interest.  "Private interest" in this context is not the same as "holding an opinion".  A conflict would arise if Mr. Norton owed his livelihood to his opposition to the park proposal and then was given a quasi-judicial or political role in respect of the park status.  A judge who owns shares in a company should not decide a case involving that company.  A politician who owes money to a constituent should not advocate for that constituent.  No such facts are alleged in Mr. Mason's article.   All that we know is that Mr. Norton has strong views about the park.  That's not enough.

(To be clear, I don't know Mr. Norton, and have no strong opinion on the proposed park.)

Mr. Mason may not like Mr. Norton's appointment.   But I think does his own argument a disservice by making an accusation that has no substance.

Saturday, 11 October 2014

Two more observations about the court hearing fees decision

Two more points about the court hearing fees decision of the Supreme Court of Canada, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59.


The decision creates an asymmetrical principle of access to justice. 

The majority held that there is a constitutional right of access to the province’s superior courts. 

This right is grounded in section 96 of the 1867 Constitution Act, buttressed by the so-called unwritten principle of the rule of law.  Section 96 deals with the appointment of judges to the provincial superior courts.  (In our province this is the Supreme Court of British Columbia.)  It has no application to provincial courts.  Accordingly, while there is a constitutional right of access to the superior courts, there is no such right of access to provincial courts.  Litigants who may wish to complain about the difficulty of access to provincial court justice will not be able to rely upon this decision.

Interestingly, there are no hearing fees in provincial court. 

And in fact, you can deal with most family law issues in provincial court.  Including custody, for example, which was the major issue in the trial in this case.  There was a property issue that could only be decided in a superior court, but the issue that took the most time at this trial was a question of custody.  There is surely some irony in the fact that the major issue in this case could have been decided in a provincial court where there are no hearing fees.


The $3500 court hearing fee was held to be unconstitutional because, in the words of the majority, “for many litigants [payment of the fee] would require sacrificing reasonable expenses.”

I don’t disagree that litigation is expensive, unbearably so for most people, but it’s not the hearing fee that is the real problem.

Somehow or other, no one thought to ask about lawyer fees.  In this case, of course, the litigants were not represented by counsel.  What if they had been?  Well, it’s not easy to estimate the legal fees for a ten-day trial.  But I can make some conservative assumptions.  One is that a ten-day trial is the culmination of approximately 30 days of preparation, a three to one factor.  Two, that a ten day trial should have a lawyer of some experience, and so I will assume that the lawyer is charging $250 per hour, and only charging for 8 hour days.  (In the heat of trial, lawyers often work 10 or 12 hours a day.  $250 per hour would buy you a very junior lawyer in downtown Vancouver, but probably would buy you a lawyer of considerable experience in other communities in BC.).  Simple arithmetic.  The legal fees for one party for a ten-day trial would be $80,000.

So what it is that really restricts access to justice – the $3500 hearing fee or the $80,000 legal bill?

And yes, careful readers will note I left something out.  The tax on legal fees. Which, for $80,000 in fees, would be $9600 – GST and PST.

Now you may not like those taxes.  But what we know about them is that there was a constitutional challenge to them in a case called Christie. The Supreme Court of Canada dismissed the challenge. As the majority in Trial Lawyers says, “The tax at issue in Christie, on the evidence and arguments adduced, was not shown to have a similar impact.”  That is, while the hearing fee “has the potential to bar litigants with legitimate claims from the courts”, the tax did not.

Apparently the $9600 tax is not offensive to the constitution, but the $3500 hearing fee is.  Go figure.

Friday, 10 October 2014

We need a wider vision of Vancouver's economy

As published in the Vancouver Province today (October 10).

A friend asked me what I thought the ballot-box question will be in next month’s civic election in Vancouver.

It’s a great question.

The emerging narratives of the two principal contestants do not really intersect.

Gregor Robertson’s Vision Vancouver trumpets its Greenest City agenda.

So far, Kirk LaPointe’s NPA seems mainly focused on tapping into Vision resentment; more a complaint about process than substance, perhaps, but a resonant complaint nonetheless.

Any government seeking a third term will have done something somewhere along the way to annoy just about everyone. And Vision politicians have not always been very good about including the rest of us citizens in their policy journey, so there’s a lot of grumpy folks out there.

Are there enough for the NPA to displace Vision in city hall? Is that enough of a vision to kick Vision out?

The Vision campaign is single-minded in its focus on the Greenest City agenda. I actually agree with much of it. Yes, even bike lanes. Most of them, anyway.

But here’s the rub.

Vancouver’s prosperity is, in fact, largely dependent upon the provincial resource economy.

You will not see any acknowledgment of that reality in Vision’s plan. When it comes to the economy,

Vision talks about the city it wants Vancouver to be, and ignores the city that is.

This disconnect is not trivial.

The resource economy has been the foundation of our city’s prosperity for generations and still is. In GDP terms, B.C.’s natural resources were worth $5,200 per resident in 2013.

Vancouverites know our economy still depends upon quality, high-skilled, well-paying jobs in forestry, mining, oil and gas, engineering, construction, electricity generation and more.

A new study from Resource Works will show the profound impact resource-company spending has in the Lower Mainland.

The so-called green economy — the film studios, social media companies, free trade coffee roasters, gamers and biotech geniuses — plays an increasing role, but has not taken over yet.

Moreover, resource jobs are often urban, high-tech and green. A flood of job-ready young people goes forward every year to take up work in fields like environmental engineering, geology and all kinds of technical areas.

Innovations in mining and oil-and-gas extraction have meant $258 million in annual research-and-development spending across B.C., easily surpassing such spending in the information and culture industries.

So here’s the point.

Why do we have to choose? Why can’t we have both? Why can’t Vancouver be both a progressive “green” city and one that thrives on responsible development of our province’s abundant resources?

Gregor Robertson looks out at our harbour filled with ships from around the world and sees, oh, I don’t know, relics? A threat?

Or maybe he just wishes they would all go away?

I look out at that harbour and see the Vancouver which is here and now, and the Vancouver that can be our future, along with all the exciting new industries.

Surely there is a vision for our economy that embraces all of these opportunities.

Does the NPA have something to say about that?

Perhaps the ballot box question is this: which civic party has a plan that supports and encourages all sectors of economic opportunity for Vancouver?