Monday, October 20, 2014

Law, Legislation and Civil Liberty - Tsilhqot’in Nation v. British Columbia - What is to become of us?



1) Introduction 
2) Recognising the Past
3) Situation Analysis
4) Way Forward 


First Nation Concerns

As part of my interests, personal and commercial, I am often contemplating the management and use of Crown Lands. In British Columbia 95% of our province is Crown Land, a massive amount of wealth lays latent in this “land trust”, wealth to fuel our economy and the future wellbeing of our population. So when the Tsilhqot’in Nation v. British Columbia decision came to my attention, I thought it useful to review the decision from a business perspective, “What are the implications here?” and “How might I direct my efforts in the future?”. Most of the activities I propose to use Crown Land for will find the acceptance of the First Nation People’s (FNPs) and non-native British Columbians alike, the implications for large scale industrial actors however, are substantive, it may mean that some activities undertaken in the past stop, it may mean that who they do business will change – more with the FNP’s and less with the Crown, or in some instances the time between asking to use Crown Land and getting access may render a project untenable – consultation is costly and, at times slow.

The goal for relations with FNPs should be the winnowing away of differences between the FNPs and the general population; in the context of nation specific concerns like the preservation of language, traditions and culture and in the spirit of multiculturalism and parity of living standard. The present modalities of interface are enshrining more deeply "segregation", it is deplorable that we have a document called the "Indian Act", that we have segregated FNP's concerns from the general population in the Constitution of our country. It is worse that, in segregation has come the systemization of confrontation, confrontational processes that impede the most base outcome of reconciliation - harmony of the people.  The concept of an "aboriginal right" is challenging - inherent in this concept is a right held by "them" that I am absent of, it is apartheid in nature. The goal needs to be, to bring the aboriginal peoples into accord with their respective cultures, to ensure they hold a quality of life commensurate with the "norm" and to effect accord with the general population.

Recognizing the past

There should be built into the Canadian Cultural construct a special greeting we give to FNP, a greeting that symbolizes at once our shame and pain for the past, our respect in the present and our commitment to a fair and right future.  I'm unsure what such a word would sound like, or how to create it, or even who would create it, but we should all remember what a human contortion the combination of government power, cultural superiority, inept people and misdirected theology can create and the pain it caused the most innocent of people.

There is beauty the emanates from the extended association between a given land and a given people, and that language and culture the evolves and grows in that association. The Inuit have 220 words for snow, a richness of expression that could only occur where snow is life. Language defines us, words are formed thoughts and work to form thought, when a language dies we all suffer. The systematized destruction of a culture and language is an affront to all humanity; the violence by which this destruction was executed is inexplicable.        

The events around the assimilation process effected a degree of atrocity outside my capacity to understand, as they are outside my life experience. There is an obligation in a reconciliation process to recognize ill treatment, horrendous ill treatment, and seek a just response. As there is no price one can put on a human life, there is no price one can put on the intentional destruction of a people's culture. These types of incursions on the human soul have no recompense, there is no pecuniary cure. Justice here means finding those who perpetrated wrongful action, often obscene affronts to children in the most extreme state of aloneness and making them pay.  When that path of response is overtaken by events, all that is left for justice is to protect future generations from such atrocities and attempt to extend love to people affected.

One seeks to find compassion for the thinking the lead us down this path, the immoral pursuit of a single moral complex, the arrogance that superiority brings, the obscene miss direction of the words of the gentlest man on earth - one tries to find compassion, in most instances one is unable to. 

The challenge with reconciling the past is that the justifiable rage, disgust, brokenness that emanates from incursions on the human soul can work to have a bad past make a grim future.  One needs, with a high degree of trepidation, to caution those affected to focus on building a future founded on realities, on the achievable, and to avoid seeking a solution that is simply beyond the capacity for the world to provide.

The past is irreconcilable, no one can undo the past, the mass and type of affront offer no practical recourse. All we have then is to recognize where we are, and where we want to go and work to build process to achieve reconciliation.  Reconciliation, however, that is more than process, that brings a solution, closure, and functionality.

The government is an organisation with no heart, the compassion the emanates from our innate humanness is lost in the fog of competing interest - the government can never be a caring fiduciary, it is by nature a Machiavellian actor. The FNPs should stop going to the hand that bites them, and seek to liberate themselves from the government, they should seek to lever the good sentiment that accrues to them from the Canadian people's conscience to garner CLOSURE on these issues, rather than continue to be "lead by the nose" by the government. Endless process will impede CLOSURE, a process that ends is the only solution. Injustices of the past should never provide grounds for injustices in the future, reconciliation is a two-way street and should have equity as the overriding consideration.

Situation Analysis

It is a given that the FNP's deserve to be considered in matters pertaining to their interests in the areas they live, the challenge that arises, out of the present "regime", a regime created by a quagmire of the arcane process and outmoded documentation, is another layer of administrative concern. It is costly to consult to the degree that the court process is dictating, the requirement for a near dual sovereign circumstance to find "consensus" is far too onerous. Further, there are very often more than FNP's interest being projected by processes intended for the FNPs, at the announcement of   Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 decision by the relevant FN representative, there was a sign posted behind him saying "stop Gateway". It is hard to imagine how a pipeline will directly impact a FN interest in a manner that would preclude mitigation. It seems perhaps in this example, and certainly, in past actions, the FNP's influence has been misdirected to satisfy other interest - like the interests of preservationist groups.

There has been an inadvertent emphasis placed on conservation, at least apparently inadvertent, by the judiciary, it seems that the FNPs have the right to “hold title” over the land, yet haven't the right to exercise judgment in stewardship or in the ownership or disposition of assets. Certainly less than inadvertent on the part of some in the environmental movement who see the FNP's government considerations as a useful channel to forward their interest. Contemplate the judicially imposed imperative of - ensuring availability of the land for future FNP's use and enjoyment - this imperative seems to have morphed into a near province wide protected area, this, in concert with endless “consultation”, indicates a seeming contentment on the part of the courts with an economically stagnate FNP’s and stagnating private commerce. As a person concerned about the environment I share many of the interests of the environmental movement, the challenge is in the way these interests have found expression in the in processes intended to see to the interests of the Crown – AKA us – the general populous and the FNPs.

There seems an academic element to the SCC analysis of aboriginal rights, that is to say, that the harvesting of fish for food is somehow extended to harvesting timber for commercial reasons OR the relativity passive traditional use of the land by FNPs in the past, somehow equates to highly intensive activities now. There is an insufficient delineation between activities of the past with present activities, to facilitate a rational reconciliation outcome and by extension precludes the appropriate definition of title and further impairs a just overall outcome.

Miss-extrapolation is illustrated in the application of the sparrow test in the Tsilhqot’in Nation v. British Columbia case. The Sparrow Test comes from an incident in which a single individual challenged a general legislation - this support of an individual action has been extrapolated to include all BC FNPs, and to exclude the general population - the SCC has permitted this test to drive jurisprudence in regards to FNPs of Canada's and government interface out of context, and in a manner that is incongruent.  In Tsilhqot’in Nation v. British Columbia case, was it an infringement by the crown to use trees or not, on what basis is justification of infringement established, surely the monopolization of resource rights by the FNP is an infringement on the general population - is access to resources for commerce use a justifiable “incursion”.  Proportionality applies here, in that, in the Sparrow case a few extra fish were caught, in the Tsilhqot’in Nation v. British Columbia case millions of cubic meters of lumber were at stake … as well as, all other resources.

The Judiciary has effected a circumstance that has every situation managed separately, in defining the duty to consult and related processes the judiciary has created a circumstance where resolve is impossible - they have enshrined confrontation forever.  The judiciary are the arbitrators of our society, arbitration has inherent in it resolve, closure and a way forward. The judiciary in a number of sequential decisions has given us a confrontation mechanism and enshrined the inferior treatment of FNPs. It is the case that every "land title" claim is unique, however, the mass of government actions is rudimentary, the duty to consult as presently defined by jurisprudence is over taxing to government,  by extension unfair to the general population, worse however, is that it has perpetuated an institutional inertia that leaves all parties wanting and in conflict.

[88]                          In summary, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.  Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group.

No one else in Canada has these rights by extension of the Charter of Rights and Freedoms, to extend them in this manner to the aboriginal people's is unfair as we move forward. Reconciliation is the inherent theme of the treaty process as stated in para 17 "The governing ethos is not one of competing interests but of reconciliation". This clause holds the specter of "exclusive use and access" for FNPs to 95% of the province of British Columbia, with expropriation as the means for the government to gain access for the public interests, this is a very costly prospect for the general populous - a prospect, which should it find full expression, would cause widespread revolt and exacerbate the discord now experienced by the first nations people.  The compelling and substantial public interest - for aboriginals & none aboriginals alike - is access to crown resources for commerce.  Reconciliation means to remedy the past and to find harmony in the future, reconciliation will never come at the expense of one party’s entire wealth, the entirety of native land claims must be equal to the parity of living standard and opportunity for the FNPs, with an additional increment for pain caused. TO DO MORE, will generate resistance to the process, will be an encroachment on the general population and will ultimately damage, if not obliterate, any goodwill that accrues to the first nations people by the people at large. The reality is, we are unable to pay the price of 95% of the province and maintain a general living standard commensurate with the postmodern era.  This is a treacherous path that will leave all parties poorer. The remedy must not only be commensurate with ability to pay, but also with the majority’s willingness to pay.    

First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group.  This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.

This consideration effects a state of inertia in the discord that now exists in finding a remedy and harmonizing existing conflicting interests, and fails in granting the leeway needed to find a "permanent solution”. The Aboriginal people deserve the right to come to the parity of living standard in any manner they see fit. It is incongruent with the course of humanity to be completely tied to a map of reality rooted in the past and present, and thereby forgo the happenstance that has benefited us all so much as the future unfolds. It is impossible for courts to know what would deprive or benefit future generations in land use. The government’s actions, the litany of pain for the first nation people's, is rooted in large measure in government mismanagement, the contemplations offered in this clause if adhered to will ensure this goes on ad infinitum. 

Title really is a conflicted term or at least a term of conflict, title to land is clearly a "common law" term associated with fee simple ownership or other ownership arrangements provisioned by law - in the context of FNP's land claims it implies a strength of tenure that exceeds what the crown ever intended to give, this is evidenced by the "cost" to the crown of granting exclusive use, or in effect veto over management decisions which will, or could, evolve to exclusive to the claimants. No entity or individual intending to function would ever agree to forfeit 95% of their land base, as is the case in British Columbia if land claims are ratified per the present judicial direction. In this way, the Courts have reasoned us to a point of unreasonableness. 

In establishing title the courts have drawn from common law and introduced to the mix a more ambiguous set modalities in defining title that attempts to interpret the mindset of the FNPs at the point of contact and through their early association with Europeans.  This is a fair process, in that it gives the courts a way to think about how the FNP's were thinking at the time they entered into agreements at first contact or, in British Columbia's case, how they were thinking when attempting to get treaties. It is equally true then, as arbitrators ruling often "against" their own state, that the courts extend the same consideration to the state, that is to say, to interpret the mindset of the people of the day. Canada, in its infancy, had to "go along to get along" and political pragmatism was a part of that reality, then over time Anglo / French society reached critical mass. This evolution came with de facto outcomes, the most prominent of which is a generalized technological advancement that elevated the value of land in relative terms to the time of contact; given the per acre revenue potential is greater now, the basis by which negotiations take place has changed. One could contemplate this on a purchasing power parity basis, how much would an acre of land contribute to the body general now, and how much then; in terms of the acquisition of material goods. This matters, because in 1753 for example, reduced value perception would have facilitated less resistance to the dispersal of lands "under protection" and less interest in garnering control of lands, as the Europeans were in possession of the capacity of conquest then and the capacity has remained undiminished to this day.  

The judiciary are the arbitrators of our society, arbitration has inherent in it resolve, closure and the way forward. The judiciary in a number to sequential decisions has given us a confrontation mechanism and enshrined the inferior treatment of FNP. 

It is emblematic of the archaic nature of the process that we find ourselves in on “both” sides, that we would have as a base consideration of title claims – conquest and or the capacity to “secure territory” for exclusive use – or, to repel other users. There should be no contemplation of military action in the contemporary setting, it is curious, however, that this consideration is arrested in court contemplation in 1753 – conquest should be in as consideration – or the capacity there of – throughout history – or it should be out – at least in determining present day sovereignty.     

What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title?  The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35  of the Constitution Act, 1982 .  The Court in Delgamuukw referred to this as a process of reconciling Aboriginal interests with the broader public interests under s. 35  of the Constitution Act1982 .
Inherent in this clause is the recognition that the public interest holds parity with Aboriginal interests on “crown land”. By extension, Aboriginal benefit extended by the crown, from crown land is limited to parity with the general population AND by extension, the general population should incur no cost beyond elevating aboriginal living standards to parity with the general population. To tax the general population beyond parity in a “reconciliation process” is inequitable, discriminatory and –at some point – will encroach on the general populous’ capacity to exercise liberty at parity with the “pre treaty” state of being, perhaps to a sufficient degree to inflict a section 7 infringement.
It must be affirmed that the Canadian Government and by extension Provincial Governments HOLD DOMAIN, that is to say that in the administration of crown land the  Crown's obligations OR fiduciary responsibility is limited to provision living standards that are at parity with the general populous, how that occurs is at the discretion the Canadian Government and its subordinates and the Canadian Government’s “self imposed” obligation to support and recognize Aboriginal people’s traditional use of the land.
Much of this issue rests on the ancient principles of conquest, in fact, the assessment of territory and the validity of a claim stems from a groups ability to in effect "defend" the boundaries of a given territory against incursion. The Canadian people have the plight of the FNP’s weighing on our conscience and are eager to reconcile, contemplating solution with the base principles of the establishment of territory, the capacity for conquest or the capacity to repel; to determine where dominion lies is grossly outmoded. However, the fact that conquest matters is granted to us in the very arguments provided by the first nations in determining traditional territory.

There can only be dominion by one government, in Canada, dominion resides with the crown and none other. The judiciaries are pursuing justice by crown authority, through the crowns legal processes – common law – applying creatively common law traditions to provision for Aboriginal interests is acceptable and laudable conduct, permitting title considerations that impair duly elected government action, is unacceptable – we all live here, we all can prosper, the problems we're encountering now stem from the blatant and barbaric disregard for aboriginal peoples. We are here to reconcile with the aboriginal peoples, there is a bounty in British Columbia which provides for that – there is no obligation in a reconciliation process to marginalize the general populous.       
The FNP’s technology and knowledge forced a certain modality of life at the point of contact, their capacity to extract "wealth" from the land was greatly limited relative to the claims they are making now. There is no continuity of use between the first contact and now, just continuity of occupation.  Fiduciary responsibility requires not just a pre-European lifestyle but a lifestyle that holds parity with the generalized state of being of "the average" Canadian – that is the extent and limit of the government’s fiduciary responsibility. In the context of offering parity of living standard to the FNP's, it is unreasonable to expect the jurisdiction of British Columbia forfeit it's unfettered access to resources, beyond the point of the FNP's reaching parity of living standard, and preserving and maintaining their cultures. To do so would be rightly seen as a "cash grab" by the general population or an over correction if you will, and very likely result in a critical loss of support for the FNP's.

I offer that, "title" held by the FNP's over their traditional territories, hold as imperatives two elements; firstly, the certainty that their culture, traditions and traditional uses of the land hold first priority in land management deliberations, BUT, absent the exclusion of other users, AND, secondly, that the incremental increase in value extracted from the land now relative to the point of contact only be taxed to the point of living standard parity. This is a fair approach, this also sees, I believe in a generous way, to the government’s fiduciary responsibility.  Further, by grounding tile, negotiations and reconciliation in living standard outcomes and culture - living standards and culture will be elevated.   

The Way Forward

The key in contemplating a common future is to attempt to look away from the past, to eliminate confrontation, to cleanse present interface of difference, and to liberate each other in resolve, rather than choke each other with the process.

Pecuniary involvement offers the opportunity to mitigate impact for groups and individuals and balance the scales to effect proportionality. Pecuniary involvement only contributes to reconciliation or impacts mitigation effectively when delivered individually. The only practical means to address reconciliation is to have as a component of the process material elements that are territory neutral. The direct delivery of pecuniary or other territory neutral assets to individuals will permit all FNP’s to benefit from agreements. It is irrational for the government to legislate the imperative of FNPs communitarian association, if that element of culture is pronounced in any given circumstance – the individuals will be happy to pool whatever resources they receive.  

It is essential that over the use of the land, forever, there is an umbrella of FN culture and tradition in place. In the same way that we manage the land base for environmental imperatives, we can manage for the FNPs imperatives – we have a moral obligation to do so. It is important, however, that we leave flexibility in place so that all can access the bounty that is ours in the vast resources of our province.     

The present legislative complex is outmoded and deficient; the courts have done an outstanding job of applying bad law. The constitutional entrenchment of aboriginal title founded on old documents, old mentalities and old prejudices needs to be circumvented – by consent from all parties concerned. Assessments need to be made in terms of “valuing” the FNP’s “title rights” and the full spectrum of the solution needs to be applied toward a just outcome.      

Reconciliation isn't a process - it is outcomes, solution, functionality and clarity in closure.
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