'Seismic change' still a priority
- 'Seismic change' still a priority
Campbell has officials working on first nations legislation
By Vaughn Palmer, Vancouver Sun
May 7, 2009
While Premier Gordon Campbell and his B.C. Liberals campaign for re-election, public officials are busy drafting a critical piece of legislation.
The Liberals say the proposed recognition and reconciliation act means a "seismic change" in relations between government and some 200 first nations.
Critics agree the measure is hugely important. But they fear it could have mostly negative consequences for the public interest. All this without a word of legal text being shared with the electorate.
The Liberals did release a discussion paper on the proposal two months ago. But that was "a political document, not a legal document," according to former attorney-general Geoff Plant, who is a serving as key adviser in this exercise.
Still, the genuine legal article is coming, perhaps as soon as June if the B.C. Liberals are reelected. Campbell argues the legislation is the key to his effort to build a new relationship with first nations.
But the legislative drive is also grounded in a belief that the government must abandon a "failed approach" to dealing with legal claims of aboriginal rights and title.
So said Plant, in a revealing defence of the proposal to the Association for Mineral Exploration BC in week two of the election campaign.
"I say it's past time to acknowledge the failure of [our] approach," Plant argued in the text of his April 27 address. "When the status quo isn't working, you should do something different.
"You shouldn't just admire the wit in Einstein's statement -- 'insanity is doing the same thing over and over again and expecting different results' -- you should change what you are doing."
Plant, it should be underscored, is not saying that every aspect of provincial dealings with natives has failed.
He's not denying that case-by-case cooperation has led to co-management of social programs and sharing of resources and revenues.
Nor is he discounting the progress in reaching agreements with natives to build run-of-the-river power projects and so on.
Rather, he's talking about what happens when there's no agreement, cooperation fails and the parties end up in court.
Then, the province takes a hard-line position regarding aboriginal rights, despite them being recognized and affirmed in the country's constitution.
"For generations, government has tried to avoid and minimize these constitutional imperatives," Plant says.
"In court cases, for example, government traditionally requires first nations to prove they exist and that they have any rights at all."
But that position -- prove you've occupied this territory, for how long, and the uses you've made of it -- is no longer tenable.
"The Supreme Court of Canada has a word for this approach," Plant notes. "The word is 'impoverished.'
"I want to emphasize that point. It's not that the court thought the government was nearly right. The world used to describe the provincial government's characterization of its obligations was 'impoverished.' "
He can claim to know whereof he speaks with some justification.
As a lawyer in private practice, he was a member of the provincial legal team that fought (and as he sees it) lost the landmark Delgamuukw case.
As attorney-general and minister for aboriginal relations in the first term of Liberal government, he initiated what he now sees as a series of losing legal battles.
Get him going and he'll rattle off a string of court cases where the province was sent packing with its "impoverished" legal position in tatters.
Hence his belief that government needs to make a new start.
End the legacy of denial. Enact a provincial law that would recognize aboriginal rights and title up front, with no requirements for first nations to prove anything.
Legislation that would, in addition, trump every other provincial law, regulation and procedure dealing with Crown land and resources.
Ministries, provincial agencies and Crown corporations would henceforth be required to deal with first nations "as if" -- meaning as if their rights and title were a matter of record, not something they had to proven in court.
"Government intends to make land and resource decisions from a perspective that recognizes aboriginal title, rather than denies it," as Plant puts it. "In symbolic terms, this is potentially powerful."
But Plant insists the change, while powerfully symbolic, would be mostly procedural, with a prime focus on "shared decision-making."
The legislation wouldn't change the constitutional status of aboriginal rights and title. It couldn't.
Nor would the province be giving anything up, least of all a veto over decision-making or its own legal options.
Plant speaks with authority on this matter, owing to both his experience and his continuing role as an adviser to government.
But is he right? In a subsequent column, I'll discuss the arguments against him, and his responses.
Read Vaughn Palmer's blog at vancouversun.com/palmer
For all the news and analysis of the B.C. election, go to www.vancouversun.com/bcelection
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