Seeing Through Campbell's 'Recognition Act'
by C. L. Cook
 Gordon Campbell's B. C. Liberal Party announced last week the proposed introduction of an act in the legislature that would on its face address the centuries old injustice done to First Nations peoples in the Queen's [sic] lands of "British Columbia."
Vancouver Sun columnist, Vaughn Palmer
It's a fine sentiment, and all the more surprising coming from the party that in its very first attempt at governance, way back in 2001, made a blatant grab for the authority to do as it willed with the unceded territory of the province. In that move, the B.C. Liberals rightly failed, but what does Campbell mean by this latest manoeuvre; could it be a great revelation on the party's figurative road to Damascus, or is it merely a shallow pre-election ploy to sway the province's racists to their natural place at Gordo's bosom?
UPDATE: The B.C. government announced Saturday they will delay consideration of the Recognition and Reconciliation Act until after the May election.
Writing for CanWest Global organ, the Vancouver Sun, columnist Vaughn Palmer reports the so-called 'Recognition Act' is running into "worries" amongst some of the B.C. Liberal Party. According to Palmer, the concern is not so much for the language of the bill or its intent, but they worry about its timing, coming only weeks before the scheduled May 12th provincial election. The party dissidents are instead urging the premier, (thought to be on his last political legs) belay legislation they're calling "seismic" and "unprecedented" in its potential divisiveness.
The proposed bill, says the government, is designed to address aboriginal rights and title over lands never accommodated in treaty agreements by past colonial governments. The fact any agreement made now must be considered done so under the duress of foreign occupation is not specifically recognized, or noted in the internal, Liberal party argument against the planned move. Instead they complain, the Recognition Act is too large a piece of law to carve into digestible slabs before the May poll.
The Sun's Palmer notes, "government and native leaders did not agree on an outline of the proposed legislation until late last month. Government lawyers are working to translate those generalities into the precise language of a bill, but the exercise is fraught with legal difficulties."
The difficulties, as perceived by the protestants, concern both the limited time remaining in the (historically least attended) legislative session, and the failure of Campbell's cabinet to consider NDP reaction to the bill. They say, if the opposition decides to contest the bill's passing, there is no way it can receive full and proper consideration before the April 2nd adjournment.
That adjournment is not flexible, if the B.C. Liberals are to honour their promise of scheduled elections, another "unprecedented" occasion in British Columbia history. Recently, Stephen Harper's federal government reneged on similar legislation promising American republic-styled, four year fixed votes, choosing instead to call the last election as the English parliamentary tradition allows, when it suited him best. Unless Campbell is willing to follow Harper's lead, the April 2nd closure date is fixed by the legal requirement six weeks of closure precede the poll. That breaking of the provincial Liberal promise notwithstanding, there remain now just eight sitting days on the legislative calendar.
So much for the politically correct objections among friends. What is left unsaid inside the official government is the doubt among those outside cabinet of just where Campbell thinks he's headed on this, one of the historically thorniest legal issues in the province. It's something akin to George W. Bush's last minute promise to bring peace to the middle east as he's turning out the lights on his passing administration.
To bolster the point, Palmer cites the circulation of a legal opinion penned by Tom Isaac and Keith Clark, lawyers well versed in aboriginal litigation. He quotes the jurists' four-page opinion stating;
"[W]e have not seen this proposed legislation [...] there are enormous and potentially unintended consequences that may arise from this legislation and very careful thought should be given to its language before (their emphasis) it is put forward as a bill."
Adding;
"Discussions with senior officials regarding the paper appear to confirm that there is a fundamental lack of understanding by the persons who drafted this paper for B.C. concerning the significance of recognizing aboriginal title throughout B.C."
Clark and Isaacs it turns out attended a recent industry confab held by the usual stakeholders, ie. those resource extractors that have collectively, though unofficially, ruled the province for decades. The "sessions," Palmer informs, were held under the aegis of deputy premier, Jessica McDonald and designed as a briefing on the proposed changes for "industry representatives." Palmer writes, those reps are unimpressed with "the
level of expertise on the government side."
What fails to impress the miners, oilers, foresters, hunting lobby, and other resource opportunists is not the last minute, backdoor revisitation of colonial fiat that appalls social justice, and environmental activists, but the fear the government has gone "native," putting far too much power into the hands of the "Indians."
Vaughn Palmer frames a few of their concerns saying;
"Moving on to the substance of their opinion, they worry, first and foremost, that "the legislation will give first nations a veto" over land use and resource management decisions in the province. The Liberals are proposing to enact a commitment to "shared decision-making" within the traditional territory of any recognized first nation. "A court will likely interpret 'shared decision-making' by its plain and ordinary meaning, likely meaning that either both parties agree on a particular action or decision or no decision is made."
Second, the lawyers say that "the legislation will recognize aboriginal title throughout all of B.C., potentially giving enormous power and control to first nations." Such recognition would go well beyond what the courts have recognized to date. "No final court decision has actually found aboriginal title anywhere in Canada . . . . It is because aboriginal title is so significant -- giving the right to choose the use to which land is put -- that the courts have been so careful about it and have indicated that it will be found only very rarely. Aboriginal title is not commonplace and certainly does not exist throughout the entire province as proposed by the recognition legislation."
Their third concern is that "the legislation proposes power and control to the first nations well beyond what has been established by the Supreme Court of Canada," particularly in terms of balancing native interests with "those of the public generally."
Their fourth is that "the legislation has core legal defects," which they detail at some length. Not least is the constitutional fact that laws affecting the rights of "Indians" are within the sole jurisdiction of the federal government. "The provincial government has no authority to make the changes that are contemplated in this respect."
The fifthly, and most important bone of contention among the monied class poised to extract what remains of the province's booty is a perception, as posited by Palmer, business believes the unwarranted intrusion into the resource decision-making process by unwashed locals will impel they and their investors to other jurisdictions where such first world requirements are unnecessary; places like Alberta, Manitoba, and the rest of Canada.
But, for colonial watchers, this move rings as the latest in a long pealing of divide and conquer strategies visited upon the communities across the world where the people have the great misfortune to dwell upon wealth coveted by the likes of the B.C. Liberals and the publishers of the Vancouver Sun.
No wonder then the dutiful diarist to elite interest, Vaughn Palmer would finish thus;
"No wonder some Liberals are asking what their government was thinking in bringing forward this half-baked proposal on the eve of an election."
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