Province, First Nations Leaders Delay New Recognition Act

By Lloyd Dolha

The B.C. government and First Nations leaders have decided to postpone the introduction of sweeping legislation designed to recognize Aboriginal rights and title after concerns were raised by business and industry. Premier Gordon Campbell intended to introduce the Recognition and Reconciliation Act in the final weeks of March before the upcoming May 12th provincial election. “Over the past several weeks many important issues, concerns, and questions have been raised about the discussion paper for implementing the New Relationship and the concept of a new Recognition and Reconciliation Act,” read the March 14th statement from the Office of the Premier, announcing the delay. “This is the time for us to make this important and historic transition in our government to government relationship and we need to take the time to get this right.

The First Nations Leadership Council said they have already initiated substantial dialogue with other First Nations leaders, businesses, and industry, and that dialogue needs to continue. “Given the ‘historical’ dimensions and significance of the Aboriginal title recognition and reconciliation legislative proposal, we need, to the greatest extent possible, make this journey together,” said Union of B.C. Indian Chiefs president Stewart Phillip.

The First Nations Leadership Council, comprised of the First Nations Summit, the Union of B.C. Indian Chiefs and the B.C. wing of the Assembly of First Nations, endorsed the proposed legislation plan at a meeting in Victoria on March 5th. The following day, Jon Garson, vice-president of policy development for the B.C. Chamber of Commerce, sent out a memo to its membership outlining the chamber’s concerns.

Garson said that the primary issue with regard to First Nations and the business community must be certainty around the land base. He cited a statement by First Nations summit leader Ed John, one of the key leaders involved in drafting the discussion paper. “We have high hopes for the application of the newly proposed Recognition and Reconciliation Act. It’s not enough for a mining company to go to the government for a permit,” said John. “It’s not going to happen anymore . . . The reality of conducting business will change.”

Garson noted that the proposed legislation discussion paper was drafted by the First Nations Leadership Council and a small group of ministry people from the B.C. government with no consultation from business or industry and little meaningful input from other ministries or the federal government. He informed their membership that the chamber has been involved in a number of meetings with key officials and will meet with other business groups to develop a coordinated position.

Garson warned that the legislation envisioned would impact all businesses and sectors that use the land base. “The sheer scope of the legislation means that it is imperative that the government undertake an extensive consultation process with business, communities and all British Columbians prior to proceeding.” The proposed act would recognize the Aboriginal title and rights of 23 reconstituted Indigenous Nations (tribal groups) without proof of claim, amalgamating the province’s 203 First Nations. This would mean an end to requiring First Nations to prove their existence before the courts when launching Aboriginal title and rights claims. It would also establish mechanisms for shared decision-making in land use planning and resource development and enable revenue-sharing agreements between the Indigenous Nations and the province.

The reconstituted Indigenous Nations would form an Indigenous Nation Commission that would facilitate the shared decision-making and revenue-sharing agreements with the province. They would also form a Council of Indigenous Nations to deal with the province on a government-to-government basis. The proposed act would also apply to all other ministries and provincial agencies, especially those who have any role in the management of lands and resources. The new act would take priority, essentially trumping all other statutes dealing with lands and resources.

Mike de Jong, Minister of Aboriginal Relations and Reconciliation, said the proposed legislation has yet to be developed, but the government is ready to proceed to the drafting stage. The province is expected to deliver draft legislation to the province’s First Nations chiefs in the coming weeks for their consideration. The chiefs have been examining the issue for the last year, and the discussion paper brief (not draft legislation) that they endorsed eventually emerged after three months of confidential talks between the province and First Nations leaders.

The proposed act is not without its detractors. In a memorandum to First Nations, Art Manuel of the Indigenous Network on Economies and Trade (INET) called on First Nations people to urge their chiefs to reject the proposed legislation. Manuel notes that the federal government is not even mentioned in the legislative scheme and that Aboriginal title was found to exist by the Supreme Court of Canada because nothing the province has ever done—including the issuance of “fee simple” title—has ever extinguished Aboriginal title. According to Manuel, “Endorsing the Recognition Act would change this and clearly put the province in control of defining Aboriginal title and rights.”