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.

1.

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.

2.

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?

Friday, 3 October 2014

Access to justice: two steps backward

Today in a case called Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, the Supreme Court of Canada struck down the court hearing fees imposed by the BC government for Supreme Court civil cases.  According to the court the fee scheme is unconstitutional because it places “an undue hardship on litigants and impedes the right of British Columbians to bring legitimate cases to court.”

Many have already applauded the decision as a victory for access to justice.  Certainly, the Supreme Court intends by its ruling to make access to courts more affordable. And not just for the truly impoverished, but for anyone who would have to “sacrifice reasonable expenses” to bring a claim.

That is the court’s intent.  But it is not what will happen.  This decision, intended to improve access to justice, will almost certainly make justice less accessible.  For everyone.  

Here’s why.

The court made new law.  It expanded the reach of section 96 of the 1867 Constitution Act, which deals with the power of appointment to superior courts, and it read new constraints into section 92(14), which gives the provinces the responsibility for the administration of justice.  And it invoked so-called unwritten constitutional principles - in particular, the rule of law - to buttresss its view that hearing fees that deny people access to the courts “infringe the core jurisdiction of the superior courts.”  The result is that section 96 is read - more broadly than before - as implying a constitutionally guaranteed access to courts.  

Why is this a problem?  When the court makes new law like this the result, naturally, is more litigation, especially, when, as here, there is no support in the written words of the Constitution for the new principle.  And so we will see more litigation.  The kind of litigation that is inherently slow, complex, expensive, uncertain, and unpredictable.  Litigation that will place demands on the court system, displacing other, more pedestrian claims.  

More importantly, however, we will see court challenges that rely on this decision - the constitutional right of access to justice in particular - to oppose any government reforms intended to improve justice system efficiency.  Such reforms are always attacked by lawyer interest groups as a restraint on access to the courts.  Now such attacks will be made as legal arguments in courts.  

And courts themselves will have fewer tools to manage the cases before them: such tools, themselves, will be attacked by trial counsel as an assault on the fundamental right of all citizens to have their day in court.

There’s more.  The majority holds that hearing fees must be coupled with an exemption that allows judges to waive them in any case where “they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims.”  The result, of course, will be a proliferation of applications for exemption.  These applications will be supported by evidence - affidavits, and in person testimony - so judges can decide what is, and is not a “reasonable expense” for the claimant.  More applications, more court arguments, more court days spent dealing with such arguments, more experts called as witnesses to give evidence on what is, and is not, a “reasonable expense.”  And so on.  Textbooks will be written on the appellate court decisions that will have to interpret these exceptions.  Law conferences will be held.  The increased burden of this additional litigation, will not, of course, fall on the wealthy.  It will fall, one way or the other, on those who are not. 

And then there is the bit that, as the dissenting judge, Rothstein J. pointed out, is completely missing from the majority analysis:

“The majority looks at the question solely from the point of view of the party to litigation required to undertake to pay the hearing fee.  It does not consider, and has no basis or evidence upon which to consider, the questions of the financing of court services or the impact of reduced revenues from reducing, abolishing, or expanding the exemption from paying hearing fees…. How will the government deal with reduced revenues from hearing fees?  Should it reduce the provision of sort services?  Should it reduce the provision of other government services, Should it raise taxes?  Should it incur debt?”

Many of these options, if pursued, will necessarily compromise access to justice.  There will be fewer courtrooms, or fewer judges or fewer support staff.  (Or at least there will be until these resource allocation decisions are themselves challenged in court on the basis of the same principles created to decide this case!)  Because governments are of limited means - not just by whim, but by strong direction from their electors.  And every time the court invents new constitutional doctrine to impose new spending priorities on government, funding for something else, something that does not enjoy the benefit of constitutional protection, is at risk.

Access to justice is a laudable goal.  Today’s Supreme Court of Canada decision made it less reachable.

Wednesday, 17 September 2014

BC's premier should have the same right of education choice as the rest of us


On several occasions during the long hot summer of the school strike I heard people complain that the Premier’s child attends an independent school.

It was as if the Premier is in some way obliged to send her child to public school.  No matter how the statement was put, it was always a criticism.  It is as if the Premier could not possibly care  - or care enough - about public schools if she didn’t make sure her child was a public school student.  As if, somehow, this was the real reason the strike was dragging on.

There’s something dreadful about the suggestion that a premier can’t possibly care or know enough to make a decision about an issue of public policy unless he or she has some direct connection with it.  As if a politician was somehow incapable of making criminal justice policy unless he had been arrested for an offence, or served time in a prison, or been a victim of a crime.  Or that a premier could not legitimately make decisions about securities markets unless she owned shares in a publicly listed company, or had been defrauded by a rogue investment dealer.  And so on.  The temptation to continue the examples to point out the absurdity of the point is nearly irresistible.

But there’s another reason why this complaint is wrong-headed.

At the heart of our education law and policy is the principle of choice.  Parents, and their children, have the freedom and the right to choose how and where they will be educated.  The idea is as old as our education system. It is directly hard-wired into our law today.  (It’s in the School Act, section 3) Students may attend public schools or independent schools.  They may be home schooled.  They may attend schools operated by the francophone education authority, or the federal government, or First Nations. All these choices are recognized, permitted and regulated by law.

All of these choices are equally legitimate.  That is the policy of the law, as established by generations of legislators, representing every political party.  As a matter of law and policy, no one choice is better than another. Choice simply recognizes that there is a value in difference; legislating choice allows parents to make education decisions that are the best fit for their child.  By expressly legislating choice, our law celebrates difference.

Given that each education option is equally legitimate, on what possible basis could we criticize a politician for choosing one option over another?  None. The premier of the province ought to be as free as the rest of us to exercise the right of choice of education for her child, a right given to us by our history, traditions, and legislation, and not to be criticized for whatever choice she and her family make.

Postscript:

I realized upon re-reading this post, that I had forgotten a point I originally intended to make.  Clearly, the ability of many - if not most - parents to exercise the freedom to choose an education option other than public school will be constrained by their economic (and other) circumstances.  But it is useful in this regard to point out that even the public school system itself embraces choice.  It is far easier today in Vancouver to send your child to a school outside your catchment area than it was when I was growing up.  This freedom of choice was deliberately established in order to encourage public schools to develop areas of expertise and provide students with a range of educational choices beyond simply attending their neighbourhood school. 

Friday, 4 July 2014

How the Supreme Court changed British Columbia - my thoughts on the Tsilhqot'in decision

To understand why last week’s Supreme Court of Canada decision in Tshilqot’in is so important, it is helpful to know what the Court actually decided. 

There were three key issues or questions.  First, what is the test for aboriginal title?  Put another way, where will you find it?  Second, what does it mean to have aboriginal title?  Is it really ownership of land, or something quite different, say, just a right to be consulted about its use? Third, what authority does the provincial government have over aboriginal title lands?  Are they like Indian reserves, where provincial land laws do not apply, or something different?

On the first and third questions, in particular, there were sharply different views taken by the trial court and the BC Court of Appeal.  Those views were based on those courts’ interpretations of prior court decisions.  The Supreme Court has now resolved those differences.  They’ve made clear what has been argued about for a long time.  And that clarity, in my view, will have a profound impact on the use and development of lands and resources in British Columbia.

The test for aboriginal title. 

Aboriginal title is the way our law gives effect to the fact of prior aboriginal presence on the lands of what is now Canada.  It’s not just the right to engage in culturally important practices such as fishing, trapping, hunting and forage - those activities are recognized and protected as aboriginal rights.  Aboriginal title is how the law recognizes the indigenous claim that “this land has always been ours”.  But putting it that way does not necessarily answer the question: what land are you talking about?  Is it the land that has been most intensively and continuously occupied, say, villages and their immediate surroundings?  Or is it larger areas of land, the territories over which First Nations have exercised dominion by using and regulating access for resource use purposes, assigning rights of ownership, and excluding other First Nations?  

In terms which do not do justice to the complexity of the question, but at least make the differences clear, it is sometimes said that this is the debate between the “postage stamp” theory of aboriginal title, and the “mountaintop-to-mountaintop” theory.

The answer could not be more important, at least in a province like British Columbia, where there are over 200 First Nations, and very few treaties.  If it’s the postage stamp theory, then aboriginal title will mostly be found in and around Indian reserves and will hardly affect the rest of the lands of the province.  If it’s the mountaintop-to-mountaintop theory, then large parts of the province will be aboriginal title lands because most First Nations in BC exercised dominion over large territories, with clearly recognizable internal rights of resource use and ownership, and histories of defending their lands against other First Nations.

The Supreme Court of Canada decided it’s not just villages, it’s traditional territories.  I say this not just because of the Court’s statement of the requirements for the proof of aboriginal title, but also because of the Court’s actual decision - reversing the Court of Appeal - that the Tsilhqot’in had established their claim for title over a large part of their traditional territory. 

What made the Tsilhqot’in title claim interesting from a legal perspective is the evidence that they were traditionally semi-nomadic.  Their use and occupation of large areas of land was, or so it was argued, less intensive than is required to support a claim to aboriginal title over a large area.  And yet the Supreme Court found in favour of the Tsilhqot’in claim to some 1700 square kilometres.  Not, it is true, the whole of their traditional territory.  But an area so large that, when you consider what we know of the histories and land use of most other First Nations in BC it is abundantly clear that aboriginal title must exist over vast tracts of the province.  

The content of aboriginal title.  

As the Court makes clear, aboriginal title means ownership largely as we would recognize it.  It includes the right to decide how the land will be used, and to occupy, enjoy, possess, and manage it.  Put plainly, it’s their land. There are limits, of course.  Aboriginal title land cannot be used in a way that would prevent future generations of the group from using and enjoying it.  It is held communally, not individually.  And it cannot be sold, except to the Crown.  But the court also made it clear that aboriginal owners are entitled to the economic benefits of their land, and they can use the land “in modern ways, if that is their choice.”  

There is little that is new law in this, aspect of the court’s decision, but it all means much more once it becomes clear that aboriginal title exists in large parts of the province - and indeed, wherever in Canada aboriginal title has not definitively been surrendered to the Crown by treaty or otherwise.

What about provincial powers? 

The constitution assigns exclusive legislative authority over “Indians and lands reserved to the Indians” to the federal government.  For this reason, provincial land laws generally do not apply on Indian reserves.  What about aboriginal title lands?  Some courts, including the trial judge in this case, have held that aboriginal title lands are federal enclaves, where provincial land laws cannot apply. 

It’s one thing of course to imagine the application of such a principle in a postage stamp aboriginal title context.  But if aboriginal title exists throughout the province, what would happen to the authority over land and resource development that the provincial government has exercised for over a century, and on which our resource economy is founded?

The Supreme Court of Canada has made new law here, by clarifying that a controversial rule of constitutional interpretation known as the principle of “interjurisdictional immunity” does not apply to aboriginal rights and title.  Accordingly, the province still has the authority to regulate land and resource development on aboriginal title lands.  But that authority is severely restricted by requirements that have been established by the courts as they have interpreted the recognition and affirmation of aboriginal rights and title established by section 35 of the 1982 Constitution Act.  In short, government may infringe aboriginal title, but only if the infringement can be justified.  Justification requires consultation with the aboriginal titleholder.  It means that the infringement must be minimal, consistent with government’s fiduciary responsibilities to aboriginal peoples, and backed by “a compelling and substantial objective.”  And it may mean offering accommodations.

This language is familiar to those who know the Supreme Court of Canada’s decisions in cases such as Sparrow, Delgamuukw and Haida Nation.  What the court has consistently been trying to do is to create a balance in which aboriginal rights are given strong recognition, without completely displacing government’s ability to govern in the larger public interest.  What’s important here is that the stakes are higher, once you recognize that large parts of British Columbia are not just territories claimed by aboriginal peoples but, most likely, owned by them. 

The court repeatedly makes it clear that the preferred method of authorizing development on aboriginal title land is to obtain aboriginal consent beforehand.  In simple terms, if you have aboriginal permission, then you don’t need to justify the infringement.  You also avoid the uncertainty that is created by the requirement of justification, particularly where aboriginal title is asserted but not yet proven.  Absent consent, government will not know if it has justified an infringement unless and until it has survived a court challenge.  This is inherently risky: as the court says, “if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.”  Rather than proceed in the hope that the development can be justified, the better course is to obtain consent beforehand. 

There are many circumstances in which a First Nation may be willing to consent to an infringement of their asserted or proven title.  But almost certainly, if the infringement is in pursuit of an economic development objective - a forest licence, a hydro-electric dam, or a pipeline project - consent will come with a price tag.  Aboriginal people are unlikely to agree to the creation of economic value from their land unless they have a share in that value. 

The new law here is the court’s decision that the province still has legislative authority over aboriginal title land.  They reversed the trial judge on this point and ended a long legal debate over the question.  But while the province still has the power to regulate, it’s clearer than ever that it will only be able to exercise that authority if it is willing to share the benefits of economic activity with the aboriginal owners of the land on which it is proposed to take place.

And of course, there is no requirement that First Nations consent to that activity.  They may refuse, either because the price - the benefit - is not high enough, or because the cost - in environmental terms - is too high.  In such circumstances, government may only proceed if it meets the high burden of the requirements of justification.

What does all this mean?

I am in the camp of those who see this decision as transformational both as a matter of legal doctrine and, equally importantly, in its impact. It matters that the Supreme Court has, for the first time in its history, declared the existence of aboriginal title on specific lands outside Indian reserves.  It matters that it has done so by conclusively rejecting the postage stamp view of aboriginal title.  It also matters that it has rejected the enclave theory of aboriginal title, affirming provincial legislative authority over aboriginal title lands.  These are important legal questions, where the court’s clarification has been long awaited, and the judgement is bound to become the leading case on aboriginal title in Canada. 

And as to impact, the decision is of course profoundly important to the Tsilhqot’in, who fought so long for this result.  But only a fool would downplay the significance of this judgement for the rest of British Columbia.  While it is certainly true that the court has not drawn specific boundaries of aboriginal title land anywhere outside Tsilhqot’in territory, it has nonetheless inescapably redrawn British Columbia.  It has raised the stakes for aboriginal participation in economic development and complicated provincial land and resource decision-making in ways that may take years to sort out. 


But to contend that all this is important is not to say that the sky just fell on British Columbia.  There is nothing in this decision that need necessarily increase conflict or halt all development.  It will certainly cause many First Nations and project proponents to take a second look at their plans and strategies.  And in a province where land and resource development is always slow, expensive, and difficult, there’s a risk that it will become even harder to get things done.  But only, in my view, if government fails to recognize that this time out, the rules really have changed, and that now, more than ever, there is a need for real political leadership, provincially and federally, on this all-important file.  Now is not the time for governments to pause while they study their way into inaction.  Now is the time for something quite radically different.