Saturday, September 20, 2014
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Ian Mulgrew: First Nations mistaken in their celebration of Supreme Court ruling

By Ian Mulgrew, Vancouver Sun columnist

“Welcome to Colonial Courtrooms,” should have been the title of the Supreme Court of Canada’s landmark aboriginal rights judgment.

While B.C. natives were busy last week celebrating the court’s affirmation of their “aboriginal title,” they should have paid closer attention to the fine print.

In spite of all the hand-wringing about threats to resource development and the land mass of B.C., this is a big victory for governments.

In the unanimous 8-0 decision, which dismissed with nary a nod the last half century of strident native assertions of sovereignty, the high court said B.C. natives are not unlike any other litigant squatter.

First they must establish they are the same people who have been living on and using the land forever, and then their rights will be decided by governments through talks or, in the end, by its appointed judges.

No longer will rhetoric about government-to-government discussions have currency — Chief Justice Beverley McLachlin decreed “aboriginal title flows from occupation in the sense of regular use of land.”

McLachlin skirts issues of governance and sovereignty and notes only that “aboriginal land rights survived European settlement and remain valid” unless extinguished by treaty or otherwise.

Although aboriginal peoples have some extra rights constitutionally, government can still expropriate or place easements on their land — just as they can to anyone else’s in the name of the greater good.

Like the rest of us, the natives have the right to take their case to court, said Justice McLachlin.

As long as the government negotiates in good faith and is willing to cut a reasonable cheque, any mine, industrial development or pipeline can proceed.

How radical. There is no native veto.

Natives may be able to establish aboriginal title but once they do, they don’t appear to be much better off than non-native landowners in a fee-simple dispute with government. Like the rest of us, they can tell it to a judge — and we all know how that works.

Their control of the land, insofar as they can benefit from it, is constrained by the community nature of their rights and the need to look after the interest of future generations, which again presumably is subjected to judicial review given the fiduciary obligations involved.

Consider as well that if the Tsilquot’in decision is a benchmark, we could hand the same deal to B.C.’s roughly 200 other First Nations and still have two-thirds of the province left.

What they won here was an area of some 1,700 square kilometres — less than the size of Metro Vancouver — a wilderness with about 200 residents, a handful whom are non-aboriginal.

This 339-day trial was an embarrassment: Private lawyers got rich and the costs were in excess of at least $40 million.

This dispute in its broadest sense involved at most a grouping of six bands numbering 3,000 people and raw, isolated land that isn’t worth a fraction of the cost of the litigation.

The Supreme Court should have pointed that out, and castigated both levels of government for ignoring their duty and obligation to the Tsilquot’in instead of dragging them through the courts.

There are fewer than 1 million First Nations people across the country and this decision is irrelevant to most of them because they have treaties.

Most of the country’s non-status Indians are in this province and it is here that the Supreme Court decision has impact.

In B.C., the old colonial administration stopped signing treaties, leaving most of the province uncovered, and no successor government signed pacts.

There are about 155,000 First Nations people in B.C. — only 45 per cent of who live on a reserve — and they are hobbled by poverty and other disadvantages that are too numbing to recite.

This decision is a death knell for their dreams of sovereignty and the opening bell for a new native land-and-resource exploitation rush.

With this judgment, the focus shifts from the recognition of native self-government and the devolution of powers to appropriate First Nations structures to divvying up the pie.

We will see a burgeoning of the already crowded industry of land-claims lawyers, consultants and native ethno-cultural-historiographers and a blizzard of new litigation.

Think this marathon, decades-long court case is unique? Just wait.

This decision has brought clarity but it’s a clarity that brings consequences that I think many natives may not welcome.

Chief Justice McLachlin calls it the new “governing ethos … of reconciliation.”

All I hear is a new phrase for assimilation, and all I see is a roadmap for non-aboriginal interests and governments to achieve their ends.

We can infringe on native title as long as we justify it as a “necessary part of the reconciliation of Aboriginal societies with the broader political community of which they are part.”

Resistance is futile, come on down aboriginal brothers and sisters and be part of European litigation culture.

Hmmm, heck of a victory.

That’s a game-changer all right, but maybe not in the way natives think it is.

Whatever Trevor

Dis is Trevor.

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