Judge's findings back treaty process
After millions in court costs, it's back to negotiations for Tsilhqot'in

Les Leyne
Times Colonist


Thursday, November 22, 2007
http://www.canada.com/victoriatimescolonist/news/comment/story.html?id=0818ac30-\
6e38-4803-b54f-ff05969ea6be


Another day, another multimillion-dollar judicial hand-off on the topic of
aboriginal title.

The epic quest for a definitive finding of full, complete and specific
aboriginal title for a B.C. Indian band took another turn yesterday. And once
again, the judiciary is begging politicians in B.C. and Canada to come to a
reconciliation with First Nations on such fundamental questions without banging
their heads together in absurd court cases that go on for years and cost
millions of dollars.

The First Nations plaintiffs in the case were backed 100 per cent by the
taxpayers for the years the case has been argued in a Victoria courtroom. Their
lawyers billed $18.2 million to the federal and provincial governments for the
work that went into the argument. B.C. and Canada's representation cost another
$11 million.

That's $30 million in taxpayers' money that resulted in another plaintive cry
from the bench to keep these sorts of issues out of the courts.

By some cosmic coincidence, the decision was released the same day five more
First Nations arrived at the legislature to watch B.C. begin the ratification
process for their treaties.

Five chiefs stood at the bar of the legislature and gave heartfelt, touching
speeches about the importance of the new trail they are setting out on.

You couldn't find a more compelling contrast between the essential futility of
the court process and the product of honest negotiations if you tried.

In a major decision on aboriginal title, Justice David Vickers released his
unusual 470-page decision on a case that has run for almost 20 years. (Attorney
General Wally Oppal said it was just short of War and Peace.)

"This is not a usual judgment but, rather, part of a larger process of
reconciliation between Tsilhqot'in people and the broader Canadian society," he
noted. "I have departed from the usual practice and expressed my views on some
issues that might not have been addressed but for the nature of these
proceedings."

Almost abandoning traditional expectations of the judiciary, Vickers said he's
come to see the court's role as one step in the process of reconciliation.

"For that reason, I have taken the opportunity to decide issues that did not
need to be decided."

It might be a fine point, but he didn't just rule out the Tsilhqot'in argument
for aboriginal title. What he said exactly was; "I have been unable to make a
declaration of Tsilhqot'in aboriginal title."

The inference is he would have if he could have. But it apparently got hung up
on the plaintiff's all-or-nothing position, and they lost on fairly narrow
grounds. Their claim for damages was denied as well. The justice offered the
opinion that aboriginal title exists in some abstract sense, which the
plaintiffs will claim as a victory. But it was a small-O opinion, not a
definitive verdict.

To boil it down, he would have found the band had title, if he could. And if he
had, it would have shredded B.C. forestry policy and set a new benchmark for
what aboriginal title means. But he couldn't.

Where Justice Vickers went well above and beyond the usual constraints is in a
detailed opinion that he said "the parties are free to use in the negotiations
that must follow."

That opinion is his clear personal view that the "impoverished view" of title
advanced by B.C. and Canada should not pervade and inhibit genuine negotiations.

After years of tortuous arguments based on missionary records, exhaustive
testimony from every sort of historical expert imaginable and oral histories
from elders about which ancestors hunted and camped where, Vickers found "the
recognition of the long-standing presence of Tsilhqot'in people in the claim
area is a simple, straightforward acknowledgment of an historical fact."

It's what you do about that simple fact that brings the question to the here and
now.

How can the former semi-nomadic existence of a 400-member Indian band, which
can't be replicated in 21st-century B.C., be given cultural security and
continuity?

How can the contemporary needs and interests of modern, rural indigenous people
be met?

After posing those queries, his answer is simply: Not through the adversarial
court system.

"Governments and Tsilhqot'in people must find an accommodation that reconciles
the historical Tsilhqot'in place in Canada with the place of their neighbours
who come from all corners of the world."

That is the latest in a growing list of decisions from high courts entreating
governments to get their acts together and negotiate with First Nations.

If the Vickers decision had come down without a breakthrough on the treaty
process, and without the Liberals' adroit construction of a "new relationship"
with natives, it would have thrown the B.C. government for a loop.

But as it stands, the case simply reaffirms that treaties and deal-making are
the way to go, by illustrating how much jurisdiction governments will lose if
they balk.

lleyne@...


[Non-text portions of this message have been removed]