The Tsilhqot'in decision and the future of British Columbia: an exchange between Ken Coates and Gordon Gibson.

AuthorCoates, Ken

Well, Gordon, it is easy to see where you stand on the question of Tsilhqot'in land rights:

The Supreme Court's Tsilhqot'in Nation decision marks a very dark day for the economy of British Columbia. A new era of chaotic jockeying will open among First Nations, governments and resource proponents, casting a pall over a basic economic driver of the province.

The rest of your June 30 commentary in the Globe and Mail is not as alarmist in tone--you do make it clear that the governments of Canada and British Columbia have to take decisive action--but you are one of many observers who believe that the Tsilhqot'in judgement has the capacity to derail the economy of B.C.

I am with you on several key points. The responsibility for major movement rests with government. In this instance, the Tsilhqot'in put their faith in Canadian law and have been rewarded for their confidence in Canada. It is also clear that First Nations in British Columbia (and other nontreaty areas) have the ability to stop resource development in its tracks, through both procedural and legal means. However, I am much more confident than you that viable and sustainable solutions will be found, and sooner than you anticipate.

Let's start with an obvious but often ignored point. The government of British Columbia earned this outcome by ignoring Aboriginal land and resource rights for generations. First Nations have been asking for decades for the British, Canadian and British Columbia governments to recognize what most other Indigenous peoples came to see as their right to recognition of their land rights and the negotiation of treaties.

In the 1850s, Governor James Douglas of the British colony of Vancouver Island, and later also of British Columbia, had a simple plan. The Colonial Office had instructed him to attend to the needs of First Nations in the colonies. The former Hudson's Bay Company officer knew the Aboriginal peoples in the area well and understood their attachment to their territories and their extensive harvesting activities. He ordered his officials to establish reserves and set aside village sites and surrounding lands for their permanent benefit. Realizing the pressures on agricultural lands on Vancouver Island, he also started treaties with some of the First Nations. Although the treaties were far from comprehensive, they provided several of the island nations with a small measure of assurance that they would have a permanent place in the evolving economy and society of the region.

Despite his repeated efforts to mobilize government officials, Douglas's intentions were foiled. Reserves were set aside for the First Nations, but colonial and, after 1871, provincial officials found various ways to undermine the goals established by Douglas and subsequent governors and later embedded in the Terms of Union for British Columbia and the initial B.C. Land Acts. Two subsequent commissions--the Indian Reserve Commission of 1876 and the McKenna-McBride Commission, launched in 1913--looked at the existing Indian reserves in British Columbia but stopped well short of addressing the many Aboriginal demands and rights. Indeed, many of the existing reserves were reduced in size through these processes.

You and many British Columbians know about this pattern. The B.C. government ignored First Nations requests for respect for land rights. Government after government argued that the Royal Proclamation of 1763 did not apply in the province. Provincial politicians held themselves aloof from the Aboriginal political and legal issues evolving in the rest of the country. There is a reason that many of the major Supreme Court decisions on Aboriginal rights in Canada--White and Bob, Calder, Sparrow, Gladstone, Haida, Taku and now Tsilhqot'in--were launched by First Nations in British Columbia. With the provincial government stonewalling, the courts offered the only reasonable route for rights-seeking First Nations.

Officially, the B.C. government changed its approach in 1990 and actually joined in treaty talks, initially with the Nisga'a and later with many First Nations across the province. The B.C. treaty talks have been an expensive and largely unproductive effort, with few final agreements to show for the expenditure of hundreds of millions of dollars. The poor outcome is a testament to the deep distrust First Nations have of governments generally, and the difficulties involved with negotiating agreements in British Columbia.

But remember something about the Tsilhqot'in court process that few people have commented on. As part of its argument before the court--a position that British Columbia has finally abandoned in its legal proceedings --the government argued that mobile peoples like the Tsilhqot'in were not "organized" societies. First Nations were incensed with this position, which the Supreme Court of Canada has now firmly rejected. But here is what the Tsilhqot'in think about that argument, in words delivered by Chief Joe Alphonse:

To walk into a courtroom and to hear provincial lawyers comparing us to ... a pack of dogs running out on the land--these are the things we heard as Tsilhqot'in people ... I don't ever want to hear a reporter ever tell us or I don't ever want to read the nomadic life of the Tsilhqot'in. We were never nomadic. We lived on our grounds. We lived in our territories with a purpose. To say and to acknowledge we are nomadic is a discredit to my ancestors. A nomadic person wanders around aimlessly, starving, looking for bugs to eat. Most of our people ... back before European contact had four or five dwellings. We lived on our territory. There is much more at stake here than land rights and resource development. To the Tsilhqot'in, the court decision is also about delayed and deferred respect and the First Nations' insistence on provincewide recognition of their right to exist as Indigenous peoples. You must agree that it is amazing that this issue is still in the air after all these years.

So let's go back to your concern about resource development and the provincial economy. From your many comments over the years, I know that you have been personally concerned about the economic marginalization of First Nations people and have supported practical and sustainable ways of providing a better quality of life for Aboriginal communities in British Columbia. But turn the camera around for a second. Starting in the 1850s, First Nations were pushed aside while British Columbia developed the resource wealth of the colony and province, producing one of the wealthiest societies in the world. First Nations paid a disproportionate share of the social cost of development and received, until recently, precious little in return. Do not expect First Nations to be overly concerned if there is a small downturn for the province as a whole while they figure out how to capitalize on rights they had to fight for generations to secure. Let's be respectful and understanding of the First Nations' right to capitalize, in full, on their rights as defined by the Supreme Court.

This said, British Columbians already know that the new resource order in Canada provides much better opportunities for First Nations than in the past. Through impact and benefit agreements, First Nations are working with resource companies as never before. The combination of cash payments, training and jobs programs and business development opportunities has had a substantial impact. That the Nisga'a signed an agreement with Avanti to work on the planned Kitault Molybdenum mine on Nisga'a traditional territory in 2014 is but one example of real and mutually beneficial collaboration. Even the B.C. government is significantly on board with the order, establishing resource revenue sharing on emerging resource projects.

So let's not panic quite yet. The recent work of resource companies--leaving aside the provincial government--provides reason for optimism. At a spring 2104 resource meeting in Vancouver, a prominent First Nations leader asked government officials to get out of their way and to stick with regulatory matters. He argued that First Nations could look after their concerns and that they preferred to work directly with resource companies on development agreements. Industry is...

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