Commentary by Bill Gallagher strategist - lawyer - author:
Resource Rulers: Fortune and Folly on Canada’s Road to Resources
1st headline: “The land-claims ruling is a breathtaking mistake” (Globe & Mail)
That headline was way back on December 16th 1997 in the wake of the Delgamuukw ruling. Veteran political commentator Gordon Gibson called the SCC decision for B.C. “… the most important political event of the second half of this century …. It is a breathtaking exercise in amateur social engineering, and dramatically shifts the balance of power in the treaty negotiations covering most of the land in B.C.”
I was at the Delgamuukw courtroom for closing arguments and kept notes. The Province of B.C. had this to say about its treaty-making strategy: “The Province is negotiating out of a moral duty - indeed a political duty - but not a constitutional duty to negotiate … don’t crystallize that as a duty or as a constitutional right for First Nations.”
If one wants to track the evolution of the recent Tsilhqot’in win, that’s where to start. In layman terms, the province was arguing that it was on the side of the angels in furthering a moral duty. Yet in spite of that, the top court went on to establish the legal test for aboriginal title. Then it took another 17 years before that test was to be successfully applied in Tsilhqot’in.
2nd headline: “First Nations, B.C. cabinet to discuss land claim ruling Sept. 11” (CBC News July 04 2014)
Now the B.C. cabinet intends to set a day aside (this Fall) to address the Tsilhqot’in ruling with the (victorious) native-side. Tellingly, the news article describes a pre-meeting between the two sides right after the game-changing native legal win:
… the province admitted at the meeting it was taken by surprise by the top court decision. “There were two things that they (B.C.) said. One, that they didn’t expect it … Secondly, it wasn’t something that they hoped for” quoting Grand Chief Ed John.
I watched the televised SCC proceedings and read the various submissions on line.
I predicted the native side would win saying the ruling could potentially ‘cause a ruckus’. But to now find out that B.C.’s legal strategy was based upon a roll-of-the-dice is beyond belief (No Plan B) so all I can say is: ‘Bravo to the bureaucrats for fessing-up.’ I’m now predicting that the September 11 cabinet-native session will be the most important political event for B.C. so far this century.
3rd headline: “Supreme Court’s land claims ruling harms Canada’s business environment” (Globe & Mail July 14 2014)
Corporate heavyweight Gwyn Morgan weighed in by declaring that the Tsilhqot’in outcome “… exceeded the worst-case scenario of both governments and industry”.
He’s right but not for the reasons he puts forth, since we now know that B.C. was caught completely unawares notwithstanding that it had 17 years to prepare.
Not mentioned in any business media is that B.C. had just come off an embarrassing legal loss in forestry over its failure to consult on a Tree Farm License. (Not a failure to properly consult - rather a failure to consult at all.) The Tree Farm License litigation - by my tally native legal win #193 - occurred a full decade after the SCC Haida rulings on the Duty to Consult and also while B.C. was concurrently planning its Tsilhqot’in arguments. So what is there about a Tree Farm License that could possibly require further legal clarification? For this loss to happen concurrently with the Tsilhqot’in loss is a major embarrassment for B.C. and Industry.
Because the fact of the matter is this: ever since the Prime Minister’s Special Envoy, Doug Eyford, submitted his report: B.C. has witnessed no less than 10 legal decisions in its resources sector - wherein the native-side has prevailed in 8. That’s an 80% losing streak by the government and corporate side in a seven-month span: and all the while the
Tsilhqot’in case was in SCC deliberations.
So here’s my ‘question’ for the headline writers:
What could be more “mistaken” or “harmful” for the B.C. economy than this 80% legal losing streak - racked-up in the normal course of resource sector business - presumably in a last-ditch attempt to maintain the status quo?