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Changing direction |
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Written by Gordon Hoekstra
Citizen staff
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Friday, 26 June 2009 |
Members of the Stellat-en and Nadleh Whuten nations protested the federal government's legislation at the Prince George Civic Centre. (Citizen photo by David Mah)
The government had already shelved its plan to introduce the legislation meant to recognize aboriginal rights and title -- "without requirement of proof or strength of claim" -- before the May election in the face of protest from both industry and First Nations. The plan was a marked departure for the province, which had until then, generally, denied First Nations rights even though Premier Gordon Campbell had embarked in 2005 on creating a new relationship with First Nations based on reconciliation, recognition and respect for aboriginal rights and title.
But since winning its rare third term, the government says it wants to see first what are the reactions of First Nations to the proposed legislation, yet to be written. So far, the proposal is only marked out in a six-page discussion paper and several general opinions being offered by First Nations and industry lawyers.
The proposal, besides calling for recognizing rights and title, calls for legislating shared decision-making and revenue-sharing and reassembling the 203 First Nations in B.C. into 30 indigenous nations.
"What we are doing now is observing respectfully the consultations which the First Nations leadership are undertaking across the province," newly-appointed Aboriginal Relations and Reconciliation Minister George Abbott told The Citizen.
"We'll await the advice of the First Nations Leadership Council at the conclusion of their consultations as to whether they believe First Nations in the province are supportive of proceeding to legislation in this area," he said.
Abbott also made it clear that the province would not be acting unilaterally. The legislative push needs the support of First Nations.
But what happens if there is not unanimity among First Nations on moving ahead? Does the province still proceed? "Well, I think that's the kind of hypothetical we have to work through," answered Abbott.
When questioned further, Abbott didn't rule out the possibility that if the concept in its current form is rejected by First Nations, the idea might be dropped entirely, although he didn't think that was likely. "I don't expect anybody will want to drop this completely. I think we were trying to make a breakthrough that would allow us to move more quickly to the kind of agreements that would improve the lot of First Nations in British Columbia and increase the certainty on the land base in British Columbia, so, I don't think the objectives will ever be lost," he said.
Abbott recognized First Nations' concerns already being expressed, zeroing in on the idea of "reconstituting" the 203 existing First Nations down to about 30 indigenous nations, an idea he said came from the First Nations Leadership Council.
In an opinion written by more than a dozen lawyers representing First Nations, the lawyers questioned the need of linking the legislative push to reconstituting indigenous nations. The opinion noted that it may be worthwhile for First Nations to work together to revitalize historical, cultural and political unity, and there may be benefits to working regionally with the province. However, the opinion from the First Nations lawyers also said courts have recognized many individual Indian bands and First Nations are legally capable of holding and exercising aboriginal rights and title.
There are many questions that remain, including whether individual First Nations are expected to be absorbed by the bigger indigenous nations. What happens if a First Nation does not want to participate?
The First Nation lawyers have suggested giving serious consideration to abandoning both the indigenous nation idea and the recognition of aboriginal rights in a form they are calling "watered down" or "artificial," and instead focus only on shared-decision making and revenue sharing.
Lawyers representing industry have also raised concerns, noting that a court would likely interpret shared-decision making in its plain and ordinary meaning -- that either both parties agree or no decision is made. "In short, First Nations will have a veto over every aspect of resource development in B.C.," said the lawyers in the now widely circulated opinion.
One of the problems with trying to assess the merits of the proposed legislation is that only the discussion paper is available, noted Doug Harris, a professor of law at the University of B.C. with expertise in legal history and aboriginal rights.
The province can introduce legislation but what effect it will have on aboriginal title is hard to say, observed Harris, noting that provincial jurisdiction is questionable on this issue.
Harris believes the province is attempting to secure its jurisdiction on aboriginal title lands, while First Nations want to avoid having to go continually go to court prove aboriginal title.
"I think it's quite courageous of both sides of the province and the (leadership council) to attempt to come to an agreement," observed Harris. "Whether they are successful, whether they are able to produce an agreement that seems to make sense to both sides, is still very much an open question."
Harris agrees that now that the first nations are themselves expressing concerns the process is not likely to unfold quickly. "It's a real question of how much political will and political capital the provincial leaders and the aboriginal leaders are prepared to invest in this because it does sound increasingly like there is going to be significant political costs to both groups," he observed.
Business is urging a cautious approach with the B.C. Chamber of Commerce calling for thorough consultation.
The Central Interior Logging Association, headquartered in Prince George, has made a similar plea. "By government’s own standard, this is an extremely important and far-reaching initiative. It’s time government shared its vision of this new relationship in a concrete way, laying out draft legislation so all British Columbians can see, discuss and measure this brave new step into the future before it is steered through the Legislature for approval," Roy Nagel, the association's general manager, has said.
Some First Nations have taken an even stronger stand against the concept in its current form.
The Carrier Sekani Tribal Council has called the proposal a "dead-end" and have withdrawn their support.
They are calling on First Nations throughout B.C. to join them.
One of the Carrier Sekani Tribal Council's chief concerns -- laid out in a comprehensive presentation at an information session last month organized by the First Nations Leadership Council -- is that the proposal will water down first nations rights and weaken their ability to negotiate agreements with companies that want to develop major industrial projects in the Northern Interior.
The tribal council wants the legislation -- no draft is available yet -- to include an "exclusive" form of aboriginal title, something the discussion paper does not contemplate.
Other First Nations -- including the Squamish and Shuswap First Nations -- have cited similar opposition.
In the face of concerns being cited by individual First Nations, the leadership council has indicated it expects to hold even more meetings. The First Nations Leadership Council, a umbrella group which includes organizations like the First Nations Summit and the Union of B.C. Indian Chiefs, is supportive of the legislative push.
On the First Nations Summit website is posted a more than six-minute video promoting the proposal.
Among the First Nations leaders who speak in the video is Ed John, an executive member of the First Nations Summit and a Tl'azt'en member from the Northern Interior.
John says no longer having to go to court to prove title, will relieve a huge burden from his shoulders, an issue he's been involved in almost all of his adult life.
"We need to be able to take the bold step, need to be able to reach out to the government, reach out to the premier and say you are the first premier in the history of this province who has made these commitments, and we are prepared to stand on the same ground on this issue and to move forward that benefits all people in this province but benefits our people as well," says John in the promotional video.
Union of B.C. Indian chiefs Stewart Phillip also argues for the need for a change, saying the current process is not working with a failed and expensive treaty process and First Nations still experiencing high rates of poverty and poor health.
However, Phillip said the concerns being expressed by first nations will need to be addressed and will "undoubtedly" influence negotiations with the province.
He also said there will be more meetings than the first six sessions mapped out by the leadership council because bands and tribal councils are calling for individual consultations.
Abbott, the new aboriginal reconciliation and relations minister, said, however, he does not expect it will be necessary to wait until all those meetings are complete to decide the next move.
"Based on the discussions I've had with the First Nations leaders, I think we will have a pretty good sense within weeks whether this can proceed or not. I don't think we are talking long term here," said Abbott.
He also stressed that if the government decides to proceed with the recognition and reconciliation legislation, there will be a full public consultation with the non-aboriginal community.
Bob Simpson, the MLA from Quesnel who is the new NDP aboriginal relations critic, has suggested activating the legislatures aboriginal affairs committee to examine any proposed legislation.
If it does reach that stage, many questions remain.
Abbott was not certain, for example, whether the public would get a chance to look at draft legislation during a public consultation period. He did say that work is underway on the complex legislation.
//SIDEBAR//
The purpose of the legislation is to:
- Recognize that aboriginal rights and title exist in B.C. throughout the territory of each indigenous nation that is the proper title and rights holder, without requirement of proof or strength of claim;
- Enable and guide the establishment of mechanisms for shared decision-making in regard to planning, management and tenuring decisions over lands and resources;
- Enable and guide the completion of revenue and benefit sharing agreements between indigenous nations and the province;
- Set out a vision of re-building indigenous nations and establish a new institution to support and facilitate the process;
- And establish processes, mechanisms or a new institution to assist in resolving any disputes than may arise regarding the interpretation or implementation of the legislation, regulations or any agreements concluded pursuant to the legislation.
Source: Discussion Paper on Instructions for Implementing the New Relationship.
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Last Updated ( Friday, 26 June 2009 )
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