Friday, June 27, 2014

Supreme Court's Tsilhqot'in First Nation ruling a game-changer for all - Aboriginal - CBC

The latest Supreme Court decision regarding the land rights of First Nations is noted in this news story:

Supreme Court's Tsilhqot'in First Nation ruling a game-changer for all - Aboriginal - CBC:

This is not a bad piece of reporting in the sense that it avoid the "the sky is falling" quality of other journalistic reports on aboriginal "wins" at the Supreme Court. It also notes, rightly, that this is not a new issue. This is important because court decisions regarding First Nations are often treated with shock by public commentators, politicians, journalists and "developers" ... as if they "came out of the blue." This one does not. Its been around for 31 years in various states of negotiation and the fact that the reporter notes that is important because it makes it impossible for anyone to claim "this is a surprise." If you did not know about this particular court case ... fair enough because one cannot expect everyone to know everything. But, anyone who is particularly interested in First Nations issues could easily find information on it and, if they were truly interested in the matter, could have and should have.

What does this ruling tell us? I would argue that there are a number of important things that those interested in Canadian Studies should know about this decision. First, for those of us in Canadian Studies it does not tell us anything that we did not already know and that is the point I want to make. The Supreme Court decision is not surprising because the courts have long recognized aboriginal land rights, as have First Nations and ... well ... just about anyone (excepting state functionaries and government ministers) who has followed this issue. I won't claim any particular foresight, but this ruling -- and the fact that it was unanimous -- is just not surprising to me. I indicated to friends last week that I thought that the court would rule clearly in the manner in which it did; I would, in fact, be shocked if it ruled any other way because to do so would violate Canadian law and the constitution. While there has been some modest "hue and cry" from those who would still try to deny aboriginal rights, the muted quality of the response in general suggests that most people now recognize this and that this decision simply confirm what we all knew already.

Which leads me to my second point ... this being the case ... why did the state choose to take this matter through the courts instead of recognizing a constitutionally enshrined right and negotiating seriously with First Peoples? This question is also important because there is another way to address differences between First Nations and the Canadian state: negotiate. Instead, the state chooses to take losing cases to court -- wasting time and money -- and I'd like to know why. I'm not saying "I call the state to account" here because who am I to do that? I am asking a question as a matter of curiosity.  Would you do this? Would you take a matter to court that you have very, very good reason to suspect you would lose, particularly if you had another way? The rationale for  doing so is, then, something that needs to be explained because it is confusing to me. All it does -- all following this course of action does -- is to create bad blood. Its obstructionist and that might be the rationale behind it. We now have a fair number of cases from across Canada confirming aboriginal land rights (I have no doubt that the First Nations fighting hydro-fracking here in NB would will if they took their case to court on the basis of rights to non-surrendered land) ... so why keep fighting a losing battle.

I suspect it is the result of two factors, neither of which relate to the law or the constitution. Factor number one relates to provincial governments. The land that is in question is important to provincial governments for "development" reasons. In this case, it relates to logging and pipelines. Provincial government economic development policies are hinged on these (think of fracking here in NB) and so those governments are not willing to negotiate in a serious way. Instead, they are looking for a mechanism to impose their will on a particular area with as little disruption to their policies as possible. The second factor is that provincial governments -- and, indeed, the federal government (a point on which I will comment in another blog) -- are not as enlightened as we might think. The fact that the federal and provincial governments make use of the language of "aboriginal rights" or "self government" does not actually mean that they accept aboriginal rights or self-government outside of what is a very narrow understanding of the term. As a result, they continue to think of First Nations as subject peoples. The approach seems to be this: try tossing a few breadcrumbs their way and obstruct them as much as possible through legal means and they'll cave. In other words, the state refuses to recognize First Nations as participants in Canadian public life that have serious rights, protected by the constitution, and that those rights have to be respected. They are not subject peoples who can be "bought off" or marginalized with a few trinkets. What this means is that one of the reasons we end up with these court decisions is that the state is about a generation of out of date in its thinking on First Nations.

Third, this piece notes that there are a lot of cases in BC as well as in other parts of the country that might be affected by this decision. This is absolutely right. The real question -- and my real point number three -- is why is this the case? Why are there so many cases. I don't have an easy answer, but I doubt it is *not* because aboriginal peoples desire to leave these cases unsettled. I suspect it because of the same obstructionism. But, the fact that there are a lot of cases is telling. It shows that there has not been a serious effort to resolve them. Non-aboriginal people tend to get annoyed at the number of cases because they treat First Nations as one singular block of people. Don't do that because it is not accurate. the Mi'kmaq are a far different group of people than the Tsilhqot'in. Each have their own aspirations and each has a desire to protect its own land. The irresolution is not a product of some singular block of First Peoples saying "give us more." It is the result of the degree to which most First Nations were dispossessed illegally in the past and that many of these cases have been around for a long time with a lack of resolution.

Finally, we should not that another way is possible. Here, in my blogs, I often say something like "it won't be easy" or "the issues are complicated" and I am sure that applies in this case but there is a simple first step that could be taken. Instead of forcing First Peoples to prove their rights over and over again, why not begin from a position of respect and seek reconciliation? In other words, instead of seeing First Peoples claims as a nuisance to be settled as quickly as possible so that Canada can get on with its business (moving First Nations, as it were, to the side so that development can happen), a different approach would be to see these nations as potentially equal partners who views should be respected. If the state took that approach, it might talk to First Peoples before it issued logging or pipeline permits and it might act on their views. It might, in other words, see that First Nations are bringing something important "to the table."
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