Thursday, 24 September 2015
Well, they’re gone now and I am left wondering if that was the right thing to do. It didn’t take much. I finally asked the right question of the internet, and found a phone number. The lovely Miss Janee made the call, they were happy to be of service and today they came to the house and took them all away.
My record albums.
I decided I needed a very clean, very surgical incision. So I didn’t even bother to count them exactly. 200. 250. 300. Maybe more, if you include the 45s, like my copy of Tom Northcott’s 'Sunny Goodge Street', autographed by the artist. And the Rolling Stones' 'Dandelion'. And Neil Young’s 'Sugar Mountain'. And weirder and still weirder, Kenny O'Dell’s 'Springfield Plane'. Who the heck was Kenny O'Dell? All I remember is that line, Springfield plane is going to carry me back to my baby’
For a brief moment on Sunday afternoon, as the rain fell, and we cleared stuff out of the attic, I thought I would open the boxes and take a look. I thought I knew what I would find. The soundtrack of my youth, of course. Sgt. Pepper's Lonely Hearts Club Band. Bookends. After the Goldrush. Sweet Baby James. For Everyman. Bringing It All Back Home. Records every note of which is laid down in the basic wiring of my brain. I was twelve or thirteen or twenty three, and I had vast caverns of mindspace waiting to be filled with music.
She’s got everything she needs she’s an artist she don’t look back.
Sailing heartships through broken harbours, out on the waves in the night.
Sunny skies sleeps in the morning.
When I think back on all the crap I learned in high school.
Ribbon of darkness over me.
I always think that everyone of my generation knows all these tunes and words and am surprised when they don’t.
But anyway I had to stop looking because what I quickly discovered was not what I remembered but what I had forgotten. David Essig. Whoa boy could he play. Early Leo Kottke. Bruce Cockburn’s In the Falling Dark, and the hours I spent learning to play 'Festival of Friends' in the winter of 1976-77. David Lindley’s El Rayo-X, an absolutely spectacular record whose tracks jumped out of the speakers like wild animals. Keith Jarrett’s Staircase: I was never sure if it was the music or the album cover photographs. The Pousette Dart Band - I saw them play once in Harvard Square I think. Donovan’s A Gift from a Flower to a Garden. Well, I had not forgotten that; it’s just that seeing it in my hands again sent me somewhere quite else.
Running my fingers through my past I had to stop. I decided that I could not do this one at a time. Or I would not do it at all. These boxes have sat in the attic, the records inside them unplayed, for years now, and, thinking rationally, I am not going to take a trip back into vinyl time and rediscover the justifiably neglected tracks on the early Byrds‘ albums, or the strange moody indulgences of Emerson Lake and Palmer.
Time just to get rid of it all, and take my chances with the digital music archivists of the internet. So today, while I was at work, the folks came and took the boxes away. No fuss no muss - one more step along the road to a clutterfree world.
But right now I am thinking of those hours - days, really, weeks, even years, maybe - I spent listening to all those records and wondering whether I have just given away something I might someday wish I hadn’t forgotten to remember. Or something like that. I don’t want them back. I just don’t quite want them gone, either.
Like the poet said, Time it was and what a time it was, it was.
Wednesday, 9 September 2015
The BC Business Council invited me to speak at a networking event they hosted in Vancouver last night on the eve of the annual BC Cabinet and First Nations Leaders' Gathering. It was a privilege to have an opportunity to speak to a room of Cabinet ministers and their deputies, First Nations and business leaders and to reflect on how to make greater progress in turning the promise of economic and social reconciliation into reality in the aftermath of the Supreme Court of Canada's 2014 landmark decision in Tsilhqot'in.
Here is the text of my remarks, more or less as delivered.
Let me first thank the BC Business Council for its leadership in convening this important gathering. What the business community is signaling here is its recognition both of the importance of reconciliation, and the role that business must play in turning the promise of reconciliation into reality.
This is an important gathering, you know.
Just imagine, for a moment, what might get done here, starting tonight, and over the next few days.
Meaningful progress in creating tangible opportunities for economic and social development, founded on mutual recognition and respect.
You are here because you are leaders, because you sought out leadership and because your communities chose you as leaders. So make this an occasion for leadership. Not for standing still, not for looking for short cuts to nowhere, not for dressing up the status quo as something new, but an occasion for stepping outside your comfort zone, for exploring new ideas, for taking risks. For courage.
I know this is much easier to say than do. I’ve been in politics. I’ve attended a hundred meetings where my main objective was just to sit tight and wait until it was all over.
I’ve also experienced how hard it is to lead change. But really, that is why you are here. To lead change. To make history.
So where are we at?
14 months after the Supreme Court’s decision in Tsilhqot’in, there’s been no shortage of discussion and analysis. People have tried to make sense of what the decision means, and there have been calls for action.
14 months on, we continue to push out more agreements – and that is a good thing – but overall, it’s hard to say we have found a clear path forward.
Let me offer some observations intended to help get past reflection and into real progress.
First, let’s leave the lawyers at the door. They’re nice people, really, (after all, I am one) but we will not establish reconciliation by relying on legal opinions about legal rights.
For a long time, now, courts have helped level the playing field as between non-indigenous and indigenous rights, but courts cannot put rights into action. Even those who cannot see the moral force of the argument for respect of indigenous rights must surely agree that litigating the ownership of every hectare of British Columbia will not build a prosperous society. There has to be a better way to do this.
Last summer, in the aftermath of the Tsilhqot’in decision, First Nations sent a letter to government proposing four principles. The principles were intended to inform new forms of relationships, negotiations, and agreements with the Crown. The principles were simply that: principles. You could say they were aspirational in their reach. But they were intended as a start for a new conversation.
Ten months later, Government’s letter of response carefully parses the principles as though they were a legal contract, rather than a potential foundation for a political discussion. With respect, a dialogue that entrenches old positions, rather than empower fresh thinking, simply won’t help. This is not the time to draw lines in the sand. It’s a time for problem solving, not problem defining.
I’m not suggesting we should pretend there are no differences. Of course there are differences. But let’s all of us spend less time trying to win arguments, and more time looking for mutually beneficial opportunities.
To put this in another frame, for a long time this discourse has been characterized by positional statements and demands. And for much of our province’s history it was, perhaps, too tall an order for any party to shift that.
But certainly now is the time for change. It’s time for an interest-based approach that promotes collaboration – which again sounds easier than it really is, but it is an approach that definitely holds more promise than the alternatives. What we need to focus on is how to deliberately, systematically, and programmatically, create economic and social opportunity for everyone. Opportunity for the First Nations communities on whose territories land and resource development takes place, and opportunities for everyone else who deserves a share of the prosperity we can create if we work together.
How should we frame our engagement?
First, I do not suggest we can or should overreach - we’re simply not going to get to comprehensive reconciliation with one bold leap.
It may not be possible to design, let alone implement, an over-arching framework which is both meaningful and comprehensive enough to encompass all of the province’s many First Nations. It may not even be desirable to try, given the diversity of experience and perspective that lives within our province.
There has to be room for nuance and flexibility. We can get to reconciliation in many ways, and as leaders you all have a critical role to play in shaping those pathways. A policy which looks for wins – call it “strategic opportunism” - is entirely respectable, not least because achieving some success somewhere helps build confidence that other successes are possible. We need to acknowledge the successes that have already been achieved in this way.
At the same time, looking for wins should not be confused with “squeaky wheels always get grease.” We need a proactive, rather than reactive approach. It’s not about waiting for opportunity, it’s about looking for it. It can’t be just about putting out fires. We have some wonderful firefighters in the room – from all parties – and we can all hope that as leaders, these skilled individuals are given the opportunity to look for opportunities, rather than simply respond to problems.
There is a powerfully important need for frameworks, objectives and principles that avoid the risks inherent in a continuous proliferation of isolated one-off arrangements. Real progress is not rooted in expedience. With a bit more design work, there’s no reason we can’t establish a stronger foundation of shared, understandable, acceptable, achievable expectations, based on mutual respect and recognition, not denial and mistrust.
And then there is this vexing question: how do we ensure that everyone benefits? If the distribution of success is too lopsided, then it will breed its own failure. I’m not discounting the reality that forests, mines, gas wells and other resources are not evenly distributed across the province. I am also not suggesting that all First Nations need or want to benefit in exactly the same way – that approach ignores the reality of so many diverse perspectives, interests and priorities. But it’s critical that we design our policies to address the reality of uneven wealth distribution. This will be particularly challenging if negotiation becomes – as I hope it does not - an exercise in the valuation of asserted rights and title.
There is a need for greater transparency. Not only because our respective communities need to know what is going on, if we are to hope that they will support this work. But also because a growing public record of best practices, will help demonstrate what kinds of arrangements are more likely to succeed than others. Again, I am not suggesting that what is needed is strait-jacket uniformity imposed through the back door. I’m just saying, keep the confidentiality clauses to a minimum, let’s talk about what’s going on, and let’s keep track.
I’m not trying to make this sound harder than it needs to be. But for all the successes that have been achieved through many agreements and arrangements that have been entered into, there’s a need to do much more to give full effect to the promise of Tsilhqot’in.
This work is not, at its heart, positional jousting to reduce costs and minimize the distributional effects of rights and title. We cannot allow this to be a zero sum game of benefit re-redistribution. It has to be about creating competitive advantage, of creating incremental value. The question is can we really lead? Are we ready to lead in ways that are more enduring for our communities, shareholders and families?
To be fair, we are in an era where it often seems there is not a great deal of public appetite for bold political leadership – in any of our respective communities. But rather than be defeated by cynicism, let’s choose to be inspired by the profound importance of the work that lies before us.
I do believe great things can happen if we are willing to recognize and affirm the mutual legitimacy of our aspirations, and if we are able collectively to see aboriginal people and their unique rights not as threats, not as the “other”, but as part of the larger “us.” To recognize that justice for First Nations is justice for all of us.
In closing, you are here given an opportunity to direct the course of history. I’m not afraid to put it in such terms. There is no issue that so taints the history of our country as the long legacy of our failure to respect the rights, hopes and aspirations of Canada’s First Nations. This week’s meetings take place against the backdrop of this history. One way or another you will be remembered for what you do here. I say, choose to succeed.
By coming together here as leaders, it’s your turn, your time, to take hold of the paddles that sit in the great canoe which holds our collective hopes and dreams. You can, if you want, keep your paddles dry, and let the river take you where the river will. The river will always take you somewhere. Onto the rocks maybe, or stalled forever in some backwater. Or you can decide to sit up straight, put your back into it, and paddle. You’ll get wet, maybe blisters, too. It’s going to be harder to find and hold the course than you would like. But paddling together - sensing the surge as the boat moves forward - it’s an amazing feeling. It’s really the reason we’re here, after all. So try it. Paddle.
Tuesday, 8 September 2015
Thursday, 3 September 2015
Here is a piece the Globe and Mail published on July 15 - my response to the powerful exhibition of Sonny Assu's work at the Equinox Gallery in Vancouver.
At the centre of Sonny Assu’s recent exhibition at Vancouver’s Equinox Gallery were two school desks. School desks remind us of childhood, but these desks were different – and not just because of the way they had been altered by the artist. There was nothing nostalgic about them.
One, of 1930 vintage, was called Leila’s Desk. A box of Lifebuoy soap sat on the desktop, a reminder that on her first day of school a classmate called Mr. Assu’s grandmother a “dirty Indian.” The other, of 1990 vintage, was called Inherent and revealed the word “chug” on the underside, a piece of invective thrown at the artist by one of his classmates.
The exhibition was called Day School, a direct reference to Indian residential schools. Mr. Assu is from the We Wai Kai Nation, whose home is Cape Mudge on Vancouver Island. The desks were stark, tangible reminders that the residential school experience is not just something to read about in a report. It was, for years, the everyday reality for thousands of children in our country.
The exhibition coincided – unintentionally – with the release of the report of the Truth and Reconciliation Commission during the first week of June. The mandate of the commission, established as part of the comprehensive settlement of residential school legal claims, was to document the stories of survivors, their families and communities, research and write the history of the residential school system and make recommendations. The commission took six years and spent $60-million to do its work. Along the way it gathered 6,200 statements.
In its report, released June 2, the commission made 94 recommendations, or “Calls to Action.” They are almost entirely directed at governments and other public institutions. This is hardly surprising: Indian residential schools were supported and funded as instruments of public policy, and the legacy of the harm done by governments is the responsibility of governments.
The recommendations are ambitious. The commission calls on government to rewrite the citizenship oath to include a reference to aboriginal treaties, require law schools to make courses in First Nations law mandatory, eliminate the over-representation of aboriginal people in our jails, issue a Royal Proclamation and Covenant of Reconciliation and much, much more.
Once the commission’s report was released, it did not take long for the focus to shift to government. Would governments accept the report? Promise to implement its recommendations? And, of course, why isn’t government acting?
I thought about this as I stood in the quiet art gallery and looked at the two school desks.
Of course, we should worry that this file may already be making its way into the “too hard” pile on the desks of government officials. All too often, commission reports gather dust rather than inspire action.
But I worry, too, that the focus on the institutional recommendations, and the government response to them, may miss the main point.
In an odd way, it’s easy to ask government to solve this problem for us. It allows us to blame the government when government fails to act. But more invidiously, it allows us as individuals to wash our hands of the problem and off our personal responsibility to government or some other public institution – in this case, our responsibility as citizens and humans to understand the truth of the residential school experience and to work through what reconciliation means, not just for someone else, but for ourselves.
The legacy of the residential school system is complex. It’s not a history in which all of the hats are black or white, and we should not be afraid to acknowledge that.
But it is beyond doubt – and this is the power of all those thousands of statements – that for too many of our fellow citizens, childhood was a story of hardship, fear and neglect when it should have been one of love, care and nurturing. This is not just a policy question for government. It is a story about human lives, each as worthy of honour, dignity and respect as our own.
Public institutions have work do to, but we will not come to terms as a country with the legacy of Indian residential schools until we do so as individuals. We have to find a way to stare straight at this reality rather than turn away from it.
Mr. Assu’s school desks are small. Small like the innocent young boys and girls who sat at them. They silently dare us to respond – more powerfully, perhaps, than the report of any commission.
It occurs to me that I should post on this (somewhat neglected) blog a couple of other pieces I have written over the past few months which I have had the good fortune of seeing published elsewhere. So in that spirit, here is a piece the Globe and Mail published on June 14, 2015, as the City of Vancouver was deciding whether or not to regulate potshops. In the months since they passed their bylaw it's become even more apparent that the main problem here is a federal government (now of course in an election campaign) that simply turns away from the obvious need to take a completely new, health-protection based approach to marijuana. But in the absence of a sane federal legislative regime, and given the proliferation of marijuana dispensaries, I still think the City made the right decision when it decided to impose its own regulations. Some of the details in the City's bylaw may be debatable, but this article dealt with the basic question of principle posed at the end of its first paragraph.
As the City of Vancouver consults with the public on its proposal to license marijuana retailers, I expect many people are not asking themselves about the details – for example, should pot shops be allowed at transit malls – but about the bigger question: What is the city doing regulating an illegal activity?
Yes, storefront marijuana sales are still against the law. Marijuana can be distributed legally for medical purposes, but several conditions must be met. Among them, the patient needs a doctor’s prescription, and the purchase must be from one of a very small number of producers licensed by Health Canada.
If these and other conditions are not satisfied, then possession and sale of cannabis is a criminal offence, and possession of as few as six marijuana plants carries the risk of prosecution and up to 14 years in prison.
Or not. Because in Vancouver, the police have made it clear they will not enforce medical marijuana laws against store operators except when there are other public order considerations.
The result is a proliferation of medical marijuana stores. Almost 100 of them in Vancouver, and the number is growing.
The law is in a state of flux. More precisely, the courts have been issuing decisions that overturn parts of the federal regulatory framework. Just last week, the Supreme Court of Canada ruled there was no rational basis for the Health Canada regulation that permits medical marijuana to be sold for smoking, but not for eating.
But please do not blame the courts for this confusion. Blame, rather, a federal government whose approach to this issue is driven by politics, not evidence or policy.
Some may still believe the best response to the reality that is marijuana in our society is to criminalize it, but it is a shrinking minority. A large and growing consensus of Canadians understands that cannabis prohibition has failed. It has not reduced use, and it has instead encouraged the spread of organized crime gangs whose members fight over market share.
Evidence is growing of the health effects of marijuana use, evidence of the risk of harm its use presents in some circumstances, particularly to the young. And there is considerable evidence of the benefits it offers in other circumstances, particularly to chronic-pain sufferers.
Unfortunately, federal cabinet ministers choose to call for prosecution, rather than commit themselves to do the desperately needed work of developing a regulatory framework informed by good health science.
When the law as written fails, as it clearly has here, when it lacks all moral authority, and creates more harm than benefit, rational policy makers should change the law.
What is needed is a clean slate, where all levels of government work together to plan a post-prohibition regime, where the focus is on developing effective public-health regulation, with clear and sensible rules, and funding from taxation to support research and education.
In an election year, no one should expect a change in policy on the part of the federal government. But that does not do much to help the City of Vancouver as it watches the number of pot shops grow every day.
Some wonder why the police are not prosecuting. Attempts to enforce laws that do not command public respect are more apt to bring the administration of justice into disrepute. On this issue, Vancouver’s police department is reading public sentiment correctly.
As a lawyer, I am troubled by the idea that the city would choose to regulate an activity – the retail sale of marijuana – that is unlawful. The city’s job, one might think, should be to enforce federal law, no matter how wrong it appears, rather than legislate to undermine it. It is always unsettling when our politicians appear to be at cross-purposes.
But the better course is for Vancouver to do something, rather than stand by and allow a regulatory vacuum to grow.
It is the business of city governments to enact by-laws to protect our safety, create livable neighbourhoods, limit hours and locations of business, and restrict unhealthy activities such as public smoking.
There is a need for good city-made rules to regulate pot shops, too. Not for the purpose of thumbing our noses at an out-of-touch federal government or usurping its authority, but for the simpler, yet profoundly important purpose of doing the best we can to protect the public until Ottawa comes to its senses.
The Globe and Mail today published this piece of mine on the Lobbyist Registration Act - they wrote the headline, which pretty well sums it up.
As British Columbia’s attorney-general, I introduced the province’s first lobbying legislation in 2001. Its basic objective was transparency – to shine a light on the interactions between government and lobbyists. Underlying the bill was the idea that while lobbying is a perfectly legitimate fact of political life, the public has a right to know who is trying to influence the government.
It’s one thing to express a public-policy objective and another to make it work. We’ve now had more than a decade of experience with the Lobbyists Registration Act and its administration. In short, the objective remains sound, but it is increasingly being undermined by a misdirected focus on trivial violations of filing requirements.
The original framework was deliberately simple: Establish a registry; require those who are paid to lobby government to register; appoint an official, called a registrar, with the power to verify the information provided; make the register accessible to the public.
The idea was to give the public a window into how the government works, not to impose a highly technical, onerous regime – to regulate lobbying, not lobbyists.
This was the spirit and intent of the law. In hindsight, that objective may have been naive. But not, perhaps, in the way that one would expect.
The act’s original framework was implemented. There is a register, it is publicly available and there is widespread compliance. There are certainly instances where significant lapses occur, but they are isolated and rare, not systemic or pervasive.
However, the temptation of creating an elaborate bureaucracy of rule enforcement proved irresistible to later governments, and so in 2009 the act was amended to introduce a full-scale regulatory regime, with powers of investigation, hearings, sanctions, penalties and more.
For a time, the registrar focused on educating to improve compliance, rather than punishing the miscreants. Alas, this has now changed, with the result that the registrar now regularly imposes penalties for infractions in the thousands of dollars. What kinds of infractions? Late filings; incorrect dates in filings; incorrect descriptions of the details of the lobbying activities; registering too soon.
Most of these errors are the moral equivalent of returning an overdue library book. It’s a bad thing, but it’s not that bad.
This insistence on enforcing clerical compliance may have reached a new high point this month when the registrar published a decision in which the original issue was a late filing of a registration in circumstances where no actual lobbying ever occurred. What makes the case look like a textbook example of regulatory overkill is the fact that this was a formal reconsideration of the findings of a previous investigation, which itself flowed from a previous investigation report, which flowed from an earlier reconsideration. That’s a lot of legal process for a filing error.
Enforcing precise compliance with registration requirements is particularly aggravating because the online registration system is inflexible, and remarkably insensitive to the often quite unstructured practical reality of lobbying. You might start by planning to speak directly to a minister, and then decide on second thought that you should begin by raising the matter with the deputy minister, and then what actually occurs is that you see the minister’s political assistant at a social event and decide to start the discussion right then.
That is how the actual world of lobbying works. It evolves as it proceeds. But every minor change of plan requires a new filing, and every filing mistake is a potential occasion for an investigation and a fine.
There are larger issues at play here. The evolution of the administration of this act is a good example of what often happens when a policy objective is legislated. The focus changes from achieving the policy objective to the technical business of rule compliance.
For example, speed limits are enacted because driving too fast is unsafe. But once speed limits are enacted, it is not so important whether you are driving unsafely. What matters more is whether you are driving 51 kilometres an hour in a 50-km/h zone.
Of course, when rules are broken, there is an expectation of some consequence. Even library fines are supposed to be paid. But law enforcement always includes an element of discretion, and excessive rule enforcement for its own sake may undermine, rather than reinforce, the public-policy objective of the law. In this case, too much of the wrong kind of punishment may serve to drive lobbying underground, which is exactly the opposite of the law’s intent.
The irony – the failure of foresight, if you will – is that in introducing the first Lobbyists Registration Act all those years ago, my concern was that the act might fail because lobbyists would somehow find a way to ignore it. Instead, they are now being punished for their errors in trying to comply with it.
It’s time for the registrar of lobbyists to lighten up.