By Lloyd Dolha
A prominent group of Aboriginal-rights lawyers say the prposed Recognition and Reconcilliation Act, a source of intense controversy in British Columbia, has more negative aspects than positive ones. Fourteen well-known aboriginal rights lawyers (including Jack Woodward, Robert Morales, and Peter Grant) have come to a consensus of opinion on the issue. In a report, they stated, “One option we believe deserves serious consideration is to abandon the legal recognition of a watered-down or artificial form of Aboriginal title and remove the concept of reconstituting First Nations.” They also suggest that First Nations should consider focusing on opportunities for “ministries and statutory decision-makers to engage in shared decision-making and revenue-sharing with First Nations with a simple political commitment to recognition [of Aboriginal title] from the province that would not require the agreement of First Nations.”
The group says that including a “non-exclusive” form of title in provincial legislation agreed to by First Nations would invite the courts to move away from the exclusive form of Aboriginal title already recognized by the Supreme Court of Canada. They argue that there is a high risk that proposed legislation would prevent First Nations from negotiating accommodations based on infringements of rights and title and substitute a “one- size-fits-all” approach to revenue-sharing.
Grand Chief Ed John, proponent of the act, said that assessment is way off base because the province does not have the constitutional authority to weaken Aboriginal title. “It’s wrong in law, it’s wrong in policy, and it’s wrong in the politics of our community. We are not giving away the farm,” he said in an interview. Chief John is one of the First Nations leaders helping to draft the recognition legislation through the Recognition Working Group.
The proposed legislation is currently making the rounds before the province’s First Nations in a series of regional consultations throughout the province. Critics say extending any form of Aboriginal title over the entire province, as proposed in the act, would make every ministry and agency subect to the act and take priority over all provincial statutes concerning lands and resources. They say such a law would create a new layer of Aboriginal government with a potential veto over all economic activity in the province.
In early June, 22 chiefs attending the Union of BC Indian Chiefs (UBCIC) quarterly council meeting voted in opposition to the continued engagement of the UBCIC executive in the Recognition Working Group. The chiefs want more clarity and a tangible document to share with First Nations. “We are not opposed to recognition and reconciliation. We are opposed to the opaque framework of the proposed Recognition and Reconciliation Act,” said Chief Wayne Christian of Splatsin. “We want nothing more than for our Aboriginal rights and titles and authorities to be recognized.”
In a release by the Shuswap Tribal Council, Christian said a letter sent from Michael Wernick, federal deputy minister for Indian and Northern Affairs, to Bob de Faye, provincial deputy minister of Aboriginal relations and reconciliation, makes it clear that the federal government does not approve of the lack of consultation concerning the province’s proposed legislation. “While the government of Canada fully respects British Columbia’s ability to take whatever legislative and litigation steps that it sees fit, the federal government has played and wishes to continue playing a key role in resolving Aboriginal issues of critical importance to all concerned,” wrote Mr. Wernick. “Being briefed in the short term future of these matters and the apparent significant shifts in long-standing approaches … will be critical in ensuring that this remains the case.”
The Shuwap say that British Columbia has neglected to engage in meaningful consultation with the federal government, leaving little hope for First Nations to recieve fair treatment in the development of the proposed legislation. They further argue that the proposed legislation is outside the scope of the province’s power under the Canadian constitution.