Recognising Haida Aboriginal Title

The BC Government and the Haida Nation have recently announced they are close to reaching an agreement in which the government will formally recognize Haida aboriginal title to Haida Gwaii.   If I were in the audience for a public ceremony announcing such an agreement I would stand up and applaud. It’s been a long, long road of conflict between the BC Government and the Haida. The proposed agreement, which builds on the success of other recently negotiated agreements on Haida Gwaii, is a very significant step forward. A step at long last based on recognition, rather than denial.

There is of course more work to be done. There will need to be negotiations about the long-term relationship between Haida aboriginal title and other rights on the islands. But in this agreement these issues have been expressly carved out: aboriginal title is recognised throughout Haida Gwaii, but the parties have agreed that recognition will have no effect on privately-owned land. Moreover, there will be no effect on the rights and powers of municipal governments or public infrastructure, including roads, health care services and schools. All land and resource tenures and decisions will be governed as now. Nor will the agreement apply on the Indian Act reserves or their band councils. The proposed declaration embraces the undoubted reality that Haida Gwaii is, as it always has been, the land of the Haida. But it also recognizes that others have made Haida Gwaii their home and their rights also need to be recognized and protected.

The government has said clearly that the details of recognition and governance authority will be worked out in further and future negotiations. All those who have a stake in these questions will be included and consulted. But it is high time that these discussions take place against the backdrop of a formal recognition of Haida title. 

…

Twenty years ago, the Supreme Court of Canada, in a decision which permanently altered the architecture of land and resource decision-making in British Columbia, held that the Haida had a good claim of aboriginal title to Haida Gwaii. 

In those days the Haida were participants in the BC Treaty Commission process but it was proving difficult to make significant progress. The reason was simple: the Haida position was that all of Haida Gwaii was their homeland. The idea of compromising that basic and principled position was simply anathema to them.

And indeed, if you were trying to find a place in British Columbia where a claim of aboriginal title across the whole landscape would be strong, Haida Gwaii would be an obvious place to look. There are no overlapping claims by other First Nations. Territorial land boundaries are clearly defined by the shoreline of a multi-island archipelago. Evidence of ancient occupation is found throughout the islands. The Haida have consistently asserted their title by protests and blockades against governments, logging companies and others. 

More than twenty years ago the Haida commenced a lawsuit seeking a declaration of aboriginal title to Haida Gwaii. That lawsuit has proceeded in fits and starts but it has never been abandoned and lately it has been progressing resolutely towards trial. 

And here is a point for emphasis. In that lawsuit the Haida claim aboriginal title to the whole of Haida Gwaii. Private land, resource tenures, and public infrastructure are all included in the legal claim.

Are these questions we should leave to the courts? 

If we leave it to courts to decide, we abandon control over the outcome. If we negotiate, we can control the outcome, we can decide what balances to strike, what compromises to make and we can establish a problem-solving relationship based on mutual recognition and respect, rather than a grudging acceptance of a decision imposed by courts.

Courts have been clear and consistent on this point: negotiation of aboriginal claims is preferable to litigation.

That is what the Province and the Haida are doing in this proposed agreement: negotiating their relationship, rather than leaving it to the courts to decide. 

There can surely be no doubt that the Province has the constitutional authority to do this. If the Province is constitutionally capable of defending a claim of aboriginal title, it must have the constitutional capacity to admit such a claim by recognizing title.

Nor is there any basis for a suggestion that this agreement creates conflict between aboriginal title and fee simple title: the agreement takes that question off the table.

And while it is certainly legitimate to ask questions about what is proposed here, it is irresponsible to ignore the reality of a pending trial in which everything would be up for grabs: private land rights, tenures, municipal government authority and more. 

Here, as ever, negotiation creates opportunities for certainty that litigation does not.

Some will greet this announcement by arguing that government should never recognize aboriginal title unless and until all of the details have been sorted out. That of course would shut down any attempt at recognition because there will always be more details, more questions, more concerns that will need to be sorted out. The argument that government should not recognize aboriginal title until a court has declared it is not just an emaciated view of democracy and an impoverished view of aboriginal title, it ignores the reality of the uncertainty that exists now wherever the question of aboriginal title remains unresolved. 

So by all means, ask the questions that need to be asked. But congratulate the Province and the Haida for taking an important step towards recognition and reconciliation, a step towards a measure of fairness and justice that will also build the certainty needed for all of us to prosper in British Columbia. 

The BC government's Land Act proposals - another step towards meaningful reconciliation

 There has been considerable discussion about a BC government proposal to advance the project of indigenous reconciliation by amending the Land Act. Putting to one side the question whether the government has done a good job of introducing the topic, what about the proposal itself? I will say at the outset that it is a welcome initiative, but to explain the point some context is required.

Nearly all land and resource decisions on Crown land in British Columbia are subject to an obligation to consult with potentially affected First Nations. This obligation was established by a Supreme Court of Canada decision almost 20 years ago in a case involving the Haida. It’s a constitutional obligation. Government has no power to avoid it. And it is very fact and site specific, so while the broad principles of the obligation are clear, their application to individual situations is rarely clear.  

The result is that while it is technically correct that the minister responsible for the Land Act is the final decision-maker on all Land Act licence and tenure decisions, that decision making authority in practice is seriously constrained by the Haida obligations. If the minister doesn’t properly consult or accommodate, the minister’s decision to grant or issue or renew a licence or permit will be set aside by the Court – and there are dozens and dozens of examples of such court decisions. 

The effect of Haida is to create outcome uncertainty for land and resource development because of the risk that any decision to grant a licence or tenure may be challenged because of inadequate consultation or accommodation. In my view this uncertainty is unhealthy, both socially and economically.  To sidestep this uncertainty, land and resource companies will often try to negotiate agreements with First Nations. Sometimes these are mutually beneficial arrangements, sometimes they’re just a price paid for indigenous consent to avoid the risk of a court challenge. Is there a better way? Yes. Read on.

In 2019 the BC Legislature enacted the Declaration on the Rights of Indigenous Peoples Act. The main aims of this Act were to affirm the application of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) to the laws of British Columbia and to create a framework for its implementation. 

The Act passed unanimously and was widely celebrated as holding out the potential for meaningful reconciliation in BC.

Th Declaration Act gives the government the power to enter into agreements with First Nations that would limit the statutory decision-making power of Cabinet ministers by requiring them either to exercise that power jointly with a First Nation, and/or to obtain the consent of the First Nation before exercising that decision-making power. 

But the Act does not give legal effect to the decision-making powers in such agreements. That can only happen with specific legislation.

An example of the kind of legislation that is required is found in the Environmental Assessment Act. A section of that Act authorizes shared decision-making in cases where there is an agreement with a First Nation. The best-known example of this kind of agreement was entered into with the Tahltan and it relates to mining. Again, it was widely celebrated as an example of reconciliation in action. There are other similar provisions in other legislation.

The current proposal is to empower the minister responsible for the Land Act to enter into shared decision-making agreements.

This of course is exactly what was contemplated by the Declaration Act in 2019.

The provisions of any shared decision-making agreement will be particularly important for anyone who has rights that may be affected by it. People who hold rights now under tenures granted by the Crown will rightly be concerned at the prospect of changes to those tenures. Reconciliation will not be advanced if the result of shared decision-making is to strip tenure holders of long-held rights.

But there may also be considerable advantages in such agreements, and not least because they will include First Nations in decisions about the use of land they claim as theirs. In the first place any decisions made under such agreements will be subject to judicial review to the same extent that they are now. Fairness will be legally required and First Nations will have to accept that requirement as a condition of entering into any shared decision-making agreement. 

Moreover, the law requires the government to consult before entering into such agreements, to make the fact of consultation public and to make the agreement itself public. No behind-closed door deals, no non-disclosure provisions.

An additional significant advantage is the possibility of agreed-upon timelines for decisions. Today most land-related decisions are not subject to any timeline. Government can take all the time it wants, and quite often takes a very long time, because it must satisfy the duty of consultation I mentioned at the outset. I would hope that any agreements entered into under the new Land Act provisions would include clear timelines and other matters. But the decision to give the minister responsible for the Lands Act the power to enter into such agreements should not, in my view, be controversial. 

To make the point clear, because there are people suggesting otherwise, nothing in the legislative proposals will change anything on the ground anywhere. Change will only happen when government and First Nations negotiate agreements. The experience since the Declaration Act was enacted in 2019 is good evidence that this will be a long, painstaking and careful process. Government cannot unilaterally legislate shared-decision making. It only happens when government and a First Nation agree to take that step together.

Of course, there are those who disagree with UNDRIP and who opposed the passage of the Declaration Act. I would expect them to be opposed to this legislative initiative. They wish that section 35 of the Constitution Act, 1982 – which recognizes and affirms aboriginal and treaty rights - were not part of the constitution of Canada, and that section 91(24) of the Constitution Act 1867 – which creates special constitutional status for “Indians and lands reserved for the Indians” could be repealed, and that the Haida case were not the law of Canada. They wish that the Supreme Court of Canada decisions which raise the possibility that substantially all the Crown land in British Columbia is subject to aboriginal title were not the law. They wish, in effect, that reconciliation was just a bunch of nice words, like the land acknowledgements you hear at public events.

But for my part, the Declaration Act was a good step towards meaningful reconciliation, and the idea that the uncertainty of today’s land and resource decision-making could be replaced by fair, principled, transparent and accountable shared decision-making agreements represents a significant step forward both socially and economically.

BC needs a dedicated seat on the Supreme Court of Canada

 Here is an op-ed that Andrew Petter, Brian Smith and I have published, arguing that BC should have a dedicated seat on the Supreme Court of Canada. A timely piece, given the vacancy on the Court created by the resignation of Alberta Justice Russell Brown.

https://vancouversun.com/opinion/op-ed/andrew-petter-geoff-plant-and-brian-smith-b-c-s-status-on-the-line-with-ottawas-supreme-court-appointment

Access to Justice and the hypocrisy of the Supreme Court of Canada

On June 30 the Supreme Court of Canada struck down an attempt by the government of Quebec to raise the monetary jurisdiction of its provincial courts by $15,000 as a violation of Canada’s constitution.  In doing so, the Court made plain that the greatest obstacle to access to justice in our country is neither the policies of governments nor the practices of lawyers, but the country’s superior courts themselves.   

To explain, we need to start with the 1867 Constitution Act, the statute that united the three founding colonies into what became the Dominion of Canada, and continues as a central constitutional document. The framers of the 1867 act were concerned among other things to divide powers between the newly-created federal and provincial governments. In section 96 they provided that the judges of the superior courts in each province would be appointed by the federal government.

 

The historical record is nearly silent on the framers’ rationale for this provision.  Plainly it was intended to ensure that certain judicial appointments were to be given to the federal government, rather than the provinces, thereby ensuring a measure of federal control over the composition of the country’s courts. 

 

Nonetheless, in the intervening years, Canada’s courts have found lurking in the slender words of section 96 some profound constitutional doctrine. And they have regularly used these discovered principles to shut down provincial justice reform.

 

Stripped of its technicalities and self-justifying rhetoric, the legal principle created by the courts is this: whatever superior courts happened to be doing in 1867 is what they must forever do, and no provincial government can alter that. Or to put it another way, the superior courts have said to the country’s provincial legislators, “don’t you dare take our job away from us.”

 

What does this have to do with access to justice?  As anyone who has ever litigated will tell you, superior court litigation is slow, complex and expensive. The rules of civil litigation are intended to achieve fairness by preventing trial by ambush. But superior court process comes with an expensive price tag. The result is that justice in superior courts is for most citizens simply unaffordable.

 

Over time provinces have responded to this reality by creating tribunals that are less formal, without all of the trappings of superior courts. This may take the form of a new tribunal, like BC’s Civil Resolution Tribunal, or expansions to the jurisdiction of provincial courts, which are the successor to the magistrates courts that existed at confederation. These tribunals do exactly what practical access to justice requires: they are (or, when well designed and administered, can be) less formal, faster, more direct, more focused on outcomes rather than process. In short, more citizen-centred.

 

But the superior courts have frequently invoked their enlarged view of section 96 to shut these reforms down.

 

Thus on March 2 of this year the BC Supreme Court relied on section 96 to strike down legislation that would have moved many claims for injury in car crashes to the province’s Civil Resolution Tribunal, part of the BC government’s attempt to bring ICBC’s costs under control by reducing the hundreds of millions of dollars the corporation spends each year on lawyers for plaintiffs and defendants. 

 

Apparently the authors of our constitution had the foresight to decide who would be allowed to adjudicate car crash cases decades before the automobile had been invented.

 

And now the Supreme Court of Canada has ruled in the most recent Quebec Civil Code Reference case that Quebec’s provincial court cannot be given exclusive jurisdiction over civil claims up to $85,000. There is no better illustration of the self-serving nature of the whole exercise than to point out that this litigation was originally initiated by the province’s chief justices themselves.

 

Among the many remarkable features of the majority judgement in this case is the proposition that the so-called “living tree” doctrine, which the courts use whenever they want to justify their evolution of the law does not, somehow, apply here. That apparently the framers intended that every other part of our constitution would be allowed to change with changing circumstances, but not section 96, this obscure appointment provision.

 

And the same Supreme Court which regularly issues pronouncements about the independence of provincial court judges has in this case decided that the fundamental rights of the millions of citizens who litigate in those courts are at risk because provincial courts are not section 96 courts. 

 

Fortunately, there was a dissent. In perhaps her last act as a member of the Supreme Court Justice Rosalie Abella eviscerated the majority judgement. In her words, the “atavistic suggestion that this $15,000 increase adversely affects the very constitutional foundation of superior courts in Quebec, let alone the rule of law and national unity, is neither constitutionally mandated, historically accurate, nor desirable.” 

 

Alas, a dissent is not the law.  And instead the Supreme Court of Canada, whose members frequently speak and write in solemn and self-important terms about the importance of improving access to justice, has rendered a decision that will have entirely the opposite effect.

Reflection

It’s Sunday afternoon. The sun came out today and maybe that lifted all our moods. It certainly improved mine.

Yesterday on our walk in the Pacific Spirit Park woods we passed fellow walkers and cyclists, most of whom were like us, happy to be outdoors, getting exercise, enjoying the break between rain showers, and deliberately taking steps to keep their distance from us. Not everybody, though. I don’t think I’m temperamentally inclined to think the worst of people; usually when I pass a group of people crowding a sidewalk doing nothing to make room for us, I think, well, they’re just intensely engaged in conversation and so didn’t notice us. Or something like that. Except that the whole point of being a responsible person is that you know you should be keeping a lookout to make sure you aren’t inconveniencing others when you’re walking along a sidewalk or woodland pathway. That should be true all the time; it should be especially true now when, as everyone knows, we’re supposed to be keeping our distance from each other.

So yesterday when we had to go out of our way to avoid people who weren’t doing anything whatsoever to avoid us, I had this little fretful worry about the coronavirus pandemic, which I will try to explain.

There are two reasons we are supposed to keep our distance: one to prevent catching the virus from other people; and two, to prevent spreading it to other people. Okay, there’s actually another, more important reason why we are supposed to keep our distance – because government has told us to.

Is that good enough for you? The direction is pretty clear: stay away from other people as much as you can. That’s good enough for me. It helps that the direction is being given by people who have both power and subject-matter expertise. The fact that BC’s public health officer has a compelling public manner is very reassuring: she’s quiet but firm, rooted in data, but absolutely clear in her conviction of what needs to be done to reduce the risk from unrestrained spread of the disease. But notice how often people express their appreciation for the fact that – at least at the provincial level – the politicians frequently step away from the microphone to let the expert – the scientist – do the talking. The reason for this is pretty obvious – we’ve been so thoroughly trained by experience not to trust politicians that we are no longer able to trust them, even on really important matters. To twist an old metaphor, when our political leaders say ‘jump’, we don’t ask, ‘how high’, we say ‘huh?’ 

It’s not just that we’ve been trained not to trust what our politicians say, which is bad enough. It’s that when they ask us to jump, we offer up any one or more of a number of responses: ‘you can’t make me’, ‘that rule about jumping applies to my neighbour not to me’, ‘I know how to jump safely, so I don’t put other people at risk when I jump’, and ‘you can’t catch me.’

This is the only explanation I can come up for the fact that as recently as the past couple of days, we’ve been learning about the behaviour of others – our friends – that I have found puzzling. People who were in another country when Canadians were asked to return home, and instead went somewhere else to continue their holiday before deciding to come home. People who left Canada on holiday after we were all told not to. People who regularly visit friends indoors. People who are supposed to self-isolate but instead go to the office.

I don’t confront these people. I want to keep my friends, even though the potential result of their behaviours is that I may lose my life. I don’t confront them because I know ahead of time what they would say. In all cases it would be some variation on the theme of ‘those rules don’t apply to me because I am a responsible (ie, special) person and I was behaving safely.’ None of these people would be the slightest bit apologetic for their behaviour. They’re just like those people who crowd past me on the sidewalk without even bothering to move over. Rules are for other people. I can make my own decisions about how to stay safe. Or…… and this one is a persistent theme: ‘the risk is overblown.’

That notion that the risk is overblown is usually linked to the contention that our government is over-reacting. This idea got a lot of traction from a piece foolishly published about a week ago by the New York Times, written by someone who used to be the head of a health institute at Yale. It later became clear that the person who wrote it was a dietician, not an infectious disease specialist, but by that point the notion that this was all somehow not as bad as we were being told it was had been given all kinds of encouragement by the fact that the piece had appeared in a reputable newspaper.

Today, in a different variation of the theme, there’s a piece in the Edmonton Journal that supposedly makes the case that Canada’s response to the virus has been completely ineffectual. That is, we’ve not reacted strongly or quickly enough. The author of the article compares Canada’s response to that of Taiwan. I’m the first person to congratulate any government that has managed to contain the outbreak of this virus. But I’d be slow to compare Taiwan to Canada about anything. It must surely be easier to control your borders when you don’t have any. We have thousands of miles of land borders. Taiwan is an island. Taiwan is also an unitary republic. Canada, on the other hand, is a federation, in which the provinces are responsible for the delivery of health care. Taiwan has a population density of 649 people per km2. It is one of the most densely populated areas on earth. Canada, on the other hand, has a population density of 4 people per km2. Taiwan is actually half of the size of New Brunswick, one of our smallest provinces.

You get the picture? Taiwan is profoundly different from Canada. The only reason someone would go to the trouble of trying to argue that its response to the coronavirus is comparable to Canada is because they are looking for an excuse – any excuse – to criticize our government. Their objective is not to inform but to politicize. That is, their objective is to undermine our confidence in the decisions our governments have been making. Viewed of course, with the all the clarity that hindsight can bring to the table.

We are trained to doubt. And our eagerness to doubt licences irresponsibility. This morning I went out for a bike ride around UBC. Everyone was out. That’s good. We’re supposed to get outside, if we can do it safely. But I saw lots of people in groups of four or six or more standing close together who were plainly not all related to each other. So I’m not very hopeful. I don’t think that curve is going to bend down as quickly as we all would like it to. But I’m absolutely clear about the reason why. It’s not because government hasn’t responded quickly or firmly enough. It’s because we can’t be trusted to police our own behaviour; it’s because we think we know better than the experts and don’t even pay attention to our politicians, and it’s because too many of us are simply, profoundly, and dangerously irresponsible.

I’m voting no in the PR referendum. Here’s why.

Introduction

Barring a postal strike, BC voters will start receiving their voting packages for the electoral reform referendum next week.  

In case you're wondering, I’m voting no.  

What ails our electoral politics is cultural, not structural; changing how we elect our MLAs won’t fix that problem. First-past-the-post has served British Columbians well for a century and a half.  It is perfectly apt for the challenges of the 21^st century. What’s needed to improve how we are governed is a renewed commitment to responsible citizenship, not a new system for electing MLAs.

I’ve broken my analysis into three sections.  The first describes my experience with another exercise in democratic reform – the adoption of fixed election dates in 2001.  That discussion is relevant to my view that the culture of politics can overwhelm even the best intended attempts at structural reform.  I will then talk about the serious problems with the current referendum process.  Lastly, I’ll explain my views on the substantive question, that is, whether proportional representation is right for BC. 

Three preliminary points

The question before voters is not whether some version of proportional representation (PR) would be better than first-past-the-post (FPTP) in other places.  The question is whether PR would be better for BC.  So we need to bear the following facts in mind:

1. In 14 of the 19 general provincial elections in BC since 1952, voters elected more than two parties to the legislature.  There have been as many as five parties in the house at one time, and in 2009 and 2013 the voters of Delta South elected an independent MLA to represent them.  It simply cannot be said that FPTP prevents minority parties from being elected in BC.
2. There are currently 87 seats in the Legislative Assembly.  Using 2011 census data, the average population per constituency is 50,575.  But there’s a wide range of distribution.  Most importantly, the electoral districts in northern and rural BC are both larger and more sparsely populated than in the lower mainland.  The population of the Stikine constituency, for example, is barely 20,000, while the riding is almost 200,000 km2, or nearly three times the size of New Brunswick.
   Drawing electoral district boundaries in British Columbia is an exercise in tight-rope walking, balancing the need for a fair distribution by population with the need to maintain effective representation for those who live in northern and rural areas.  In defending its PR referendum proposals, the government has guaranteed that any PR system will: (1) retain MLA accountability to specific geographic areas; (2) that no region will have fewer MLAs than now; and (3) that there will be no significant increase in the number of MLAs.  Sorry, but I'm having a hard time getting the math to work.  Without a very significant increase in the size of the legislature, the inevitable result of PR will be to disenfranchise northern and rural British Columbians. (Let's see.  Add ten seats, and allocate them on an equal per capita basis.  That's 440,000 people per constituency.  Allocate one of those new constituencies to the north.  How big would that constituency be? The entire province north of Kamloops and the Kootenays would get one new MLA.  Metro Vancouver would get six.) 
3. We are so accustomed to thinking about our politics in terms of the overall percentage of the popular vote obtained by each party that we forget this is not how our system works. The way we elect governments is not top down, from a calculation of results across the whole of the province; it’s bottom up, one constituency at a time. Governments are formed when one party or group of like-minded MLAs unite behind a leader who can command a majority in the House.  This is not some antique relic; it’s foundational.  We saw it play out in living colour in the summer of 2017, when the Greens allied with the NDP to form a majority in the House.  The Legislature is a place where local and regional perspectives are gathered, where each community in the province is given a voice, and where provincial policies are hammered out on the anvil of local needs.  This is the essence of the Westminster system of parliamentary democracy. The PR referendum asks us if we want to change that. 

Part 1 – a little history

In the summer of 2001 the BC Liberals enacted legislation to reform our electoral system by introducing fixed election dates.  Since then there has been a general election in BC on the second Tuesday of every fourth May. BC was the first jurisdiction in Canada to undertake this reform.

As Attorney General, I was the minister responsible for the bill. I described the goal behind this reform in the legislative debate on the bill.  I pointed out that under the current system, the Premier held the power to decide when a general election would be called and that Premiers had often timed the calling of elections as part of their re-election strategy. I suggested that the public interest in certainty and predictability in the conduct of public affairs had sometimes been subordinated to the private political interests of the Premier.

The object was to take this power from the Premier. And here was my bold claim: I said the result of implementing the new rules “will encourage, in the long run, not just greater fairness in our political lives, but it will also encourage a restoration in the basic relationship of trust that should exist between the members in this House and the government that they constitute, on the one hand, with the electorate on the other hand.”

Well, I was certainly optimistic.  It’s hard to measure these things, of course, but while I would still say that this was a useful reform, and it has at least ensured that our provincial general elections have taken place on four year cycles, as opposed to the five year gaps between elections in the 1990s, it has not brought about any significant – or even measurable - change in the basic relationship of trust between citizen and government.  This is because that question of trust has less to do with the formal rules by which MLAs and governments are elected and more to do with how politics is practiced.

Electoral reform is often actuated by admirable, but naive, wishful thinking.  It’s admirable, because of course we should always be willing to reform that which needs to be changed.  It’s naive, though, because it fails to appreciate that politics is fundamentally about the acquisition and exercise of power, and power drives behaviour in ways that are not easily deterred by structures and rules.

It’s true that under the old rules, premiers could and did control the timing of elections to suit their political purposes. But under the new rules, a different form of “timing management” now takes place.  Because the new government knows when they will face the polls, they manage their agenda on a year by year basis to maximize the chance that they will be able to present voters with an attractive platform of promises in time for the next election.  The hard work of serious structural reform is done in the first year, as promises are kept and political capital is used up in the making of tough decisions. In years two and three there’s an emphasis on fine tuning the details of the big projects, and finishing the to-do list from the last election. By year three it becomes almost impossible to persuade the House Leader to introduce controversial legislation, and by the end of year three, Santa’s elves begin assembling the list of goodies that will start to roll out in year four, with the promise of even more rewards tabled in the budget and Throne Speech that immediately precede the election. The result? The public still feels they are being manipulated.

Now I’m actually not all that critical of this cycle.  It introduces some useful structure into the way politics is translated into legislation and policy.  But my point is this: the introduction of fixed election dates did not prevent premiers from managing the agenda to suit their electoral purposes, it just changed how that work is done.  Structural reform was not a bad thing, but it had no significant impact on the culture of the practice of politics and power.

Some say that the adoption of a PR electoral system will transform the way politics is practiced. They believe the prospect of more parties in the House and fewer lopsided electoral results will cause MLAs to work together more collaboratively, to join together harmoniously in search of consensus.  Somehow what is toxic and manipulative about our politics will change. It won’t. The problem with our politics has nothing to do with the fact that we have FPTP rather than PR.  It has to do with human nature.  Even the best-intentioned politicians – and there are lots of them – are prone to seek advantage, to advance their personal ambitions by promoting policy changes, to influence public opinion in their favour by criticizing their opponents, to divide as much as to coalesce.  This is how politics is done in all political systems. No change in our electoral system will change this.

Part 2 – a flawed process

As Attorney General in 2001, I was also assigned responsibility for implementing another electoral reform campaign promise, which became the Citizens’ Assembly on Electoral Reform. That was an independent, representative body of randomly-selected British Columbians who met and deliberated over many months, undertook research into electoral systems, and eventually produced a report recommending a new electoral system called STV-BC, a form of single transferable vote. In the 2005 general election, provincial voters were asked in a referendum whether they supported the STV-BC proposal.  At government’s direction, the referendum required a super-majority, including approval by 60% of voters overall and simple majorities in 60% of the 79 districts in order to pass.

In the result, a majority supported reform in reform in 77 out of 79 electoral districts, but the overall vote was 57.7% in favour, short of the 60% requirement.  (A second referendum was conducted in the 2009 general election but it also failed.)

The Citizens’ Assembly was independent of government and political parties. Its work was public and transparent. The process this time is different. It’s been designed and controlled by government. In 2005, the BC Liberals even decided not to campaign on either side of the referendum (other than to encourage people to vote). This time the government is very publicly committed to an outcome. They want you to vote yes. The problem, of course, is that the government cannot avoid criticism that they have designed this process to obtain the result they want.  Electoral reform should not be about advancing the partisan interests of particular political parties, it should be about the larger public interest.  So there’s a stain on the process this time around.

The more fundamental process problem is the absence of the double majority requirement.  Lots of people have been critical of the 60% requirement in the 2005 referendum – we made it too hard for the referendum to succeed, they say.  The reason a higher threshold is defensible in my view is because of the importance of the question.  As I tried to point out earlier, the question whether to change our electoral system is fundamental; it’s constitutional in nature. Almost all organizations are subject to super-majority requirements when they are considering constitutional issues or other fundamentally important questions: companies, incorporated not-for-profits, volunteer organizations, and of course Canada’s constitution all impose super-majority requirements in certain circumstances. 

But the other requirement from 2005 – that the referendum pass in at least a majority of constituencies – is even more important, because it minimizes the risk that a concentration of voters in southwestern British Columbia could impose a new electoral system on the rest of the province without their support. 

The current referendum lacks any thresholds.  It invites the possibility that a bare majority of British Columbians, concentrated in Vancouver, could determine the outcome.  This is all the more concerning because of the absence of any minimum turnout threshold.  In 2005, the number of referendum voters was bound to be close to the number of election voters (voter turnout was over 58%).  This time, because it’s a mail-in ballot unconnected to any other election, there’s no guarantee of any turnout. 

All of this undermines the legitimacy of both the process and its outcome.  But I’m not going to vote no just because the process is flawed.

Part 3 – PR or no PR

There are three principal arguments made in favour of PR. 

The first is that in PR systems, unlike FPTP, “every vote counts.”  The premise of this argument is that a vote cast in a constituency for a candidate who loses is somehow valueless, that the voter has been disenfranchised.  PR systems seek to fix this problem by making it easier for minority parties to get seats in the House.

The first problem with this argument is that it privileges party affiliation over individual merit.  It assumes that the only, or at least the main, reason people vote is to support a political party. That is not my experience.  People often cast their ballot at the constituency level for the individual they think will best represent their community, irrespective of their party affiliation. At the end of a long campaign you hear people say, “I don’t like what any of the parties (or their leaders) are saying, and I can’t support them, so I’m just going to vote for the person, not the party.”

PR systems are all about enhancing the primacy of parties in our political system.  PR systems (especially those containing party list elements) all tend to marginalize the views of independents, of free thinkers, of mavericks.  Free-thinking is an asset to our democracy.  We ought to encourage it, not design electoral systems that throttle it.

But I also don’t agree with the proposition that the voter whose candidate did not get elected is somehow disenfranchised.  It’s true that their candidate didn’t win.  But their voice was heard, and their vote mattered.  It’s just that someone else got more votes.  And that same process takes place one district at a time across the province as a whole, until the aggregate of the preferences of the communities of the province is heard and represented in the legislature.  There are lots of elections and lots of votes in this world. There’s a result. One side wins and the other doesn’t.  We don’t say that the minority votes didn’t count. 

Let’s say government tables a bill in the legislature to raise taxes.  There’s a vote.  The measure passes.  Were those MLAs who voted against the bill disenfranchised? No. Ah, but people say that it’s different when we’re talking about the vote to decide who should be an MLA.  They say, if I cast my vote for the candidate who loses the election, then I don’t have a voice in the legislature. I disagree. You had your voice. Your voice helped decide who would represent your constituency in the legislature. We build governments from the bottom up, not top down.

The second argument in favour of PR is that FPTP tends to exclude smaller parties from representation in the legislature.  The evidence shows that this is not the case in BC historically.  And most recently, of course, we have the example of the Green party, which for tactical reasons has decided to concentrate its electoral efforts in only a few districts.  Those efforts paid off with the election of 3 Green MLAs in 2017.  And far from suffering a marginal role in the current legislature, they actually hold the balance of power.

It is true that FPTP will sometimes produce governments whose seat count is disproportionate to their share of the popular vote.  But as I have already said, our system of government is based on the idea that governments are intended to be composed of a collection of individually-elected MLAs, not the mirror image of province-wide popular votes for parties.  (Again, the pro-PR position assumes that the only representation that matters is political party representation.)  A government which holds a majority of seats with only a small plurality of popular vote governs at its peril if it routinely and inflexibly imposes its will against a majority of opposition. The ability to effect policy change is not simply a function of the seat count in the legislature; it’s also about taking the measure of the popular will on an on-going basis.  The point of PR is to give an electoral leg-up to those parties which cannot even muster sufficient popular support for their policies to obtain the necessary vote count in one single constituency.  Perhaps that speaks more to the failure of those parties to devise policies that truly resonate with people than to any failure of our electoral system.

A third argument in favour of PR is that PR systems tend to produce coalition governments that reduce the tendency to polarization that is said to exist in two party systems.  This argument fails to acknowledge an important reality of our political system, which is the extent to which dissent is a day-to-day fact of life inside the caucuses of the major political parties.  I’m not going to argue the point at length, but I only need to ask you to reflect on how UK Prime Minister May has had to govern over the past few years with the prospect and sometimes the reality of open dissent among members of her government and caucus – these are all supposed to be the members of her team, and yet there are Conservative MPs who are more effective opponents of her government than the Opposition Labour Party.  All of this in the world’s oldest FPTP system.

But I also don’t welcome the prospect of more coalition governments.  Coalitions are made by power brokers wheeling and dealing behind closed doors, not in the bracing sunlight of public scrutiny.  And here’s what coalition-making is about: which of the promises that I made to secure my election will I have to give up to get a share of power?  The result is a dilution of accountability.  In the perpetual coalition world, election platforms lose their importance because they are tossed aside as soon as the real bargaining begins. Instead, there’s horse-trading for power and position.  Voters will have no certainty that the party they voted for will actually deliver on any of the promises that were made to secure their vote. 

Some opponents of PR argue that it will encourage the proliferation of fringe parties.  They point to the increasing prominence of far-right political parties in some countries with PR systems. Well, I’m not at all sure that the rise of alt-right politics is the result of electoral systems.  Regrettably, populism, including its more extreme manifestations, is a growing phenomenon in almost all countries.  It’s not an “electoral system” problem, it’s another kind of problem.  It represents our collective failure – both institutionally and individually - to educate and persuade citizens of the fundamental importance of the values of liberal democracy.  A topic for another day, but not, it seems to me, particularly helpful on the question of how to vote in the PR referendum.  It’s what I meant when I said at the outset that the cure for what ails us is not electoral reform, it’s a wholesale change in how we educate, how we prepare people for active citizenship, how we encourage individuals to recognize the relevance of politics in their lives, and then empower them to do something about it.

There’s lots more that can be said – and course there’s lots more that is being said about this topic, which is surely a good thing.  For example, I’ve decided not to say anything here about the second question on the referendum ballot. I will say this: I think it is perfectly legitimate to decide not to vote on the second question, given the paucity of information that has been provided with respect to the three options.

So.  Enough already!  Here it is in summary.  I'm voting no.  Why? The chances that PR will effect any meaningful change in the practice of our politics are remote. The process followed by the government in putting this referendum question before the public is problematic.  In particular, the failure to impose any super-majority requirement creates a real risk of a regionally-skewed result that will exacerbate an already present rural-urban divide in BC, not to mention the dismal prospect of a bare majority in a low turnout vote count.  All that to one side, and when all is said and done, the current system, with its ancient roots in Westminster traditions which are the well-spring of our democracy, is best suited to ensure that the legislature is broadly representative of the views and aspirations of the citizens of BC and the communities in which they live.

What's our vision for Vancouver in the decade ahead?

In political circles, the news of Gregor Robertson’s decision not to run again as Vancouver mayor has led quickly to discussions about who will replace him.

 

Perhaps, though, before we get all wrapped up in the question of who, it might be useful to spend a minute or two on the question of what. As in, what should be the agenda - or vision, if you like - of Vancouver’s next mayor?

 

I’m not interested here in the location of the next bike lane or the height of the next condo tower. I’m thinking about bigger questions.

 

For example, as we move into the next decade, will Vancouver embrace and welcome the world or turn away and close its doors? For a long time, Vancouver worked hard to draw attention to itself on the world stage. Expo 86 and the 2010 Winter Olympics are the most obvious of these efforts. And at the same time, our population has been diversifying, as we have welcomed people from every corner of the globe. Of course it’s not been without some debate along the way, but if you look at my elementary school class pictures from half a century ago and compare them to what you’d see today, there’s been nothing short of a transformation.

 

As for me, this change has made Vancouver more dynamic, more interesting, more reflective of the world.  Today's New York Times even has an article about Kissa Tanto, a Vancouver restaurant that serves, in their words, "Italian food made with Japanese sensibility and ingredients."

But now there is talk of prohibiting foreigners from owning residential real estate.  You can hear the sound of doors closing.

 
The influx of foreign capital has obviously influenced home prices. The precise extent of that influence remains up for debate, but it’s clearly been a factor. But since 1986 the population of the City of Vancouver has grown almost fifty percent, and yet the city’s boundaries have not grown. Sooner or later, relentless population growth within a limited geographic area will drive up the value of land. Without significant increases in density, that kind of population growth is inevitably going to put pressure on housing affordability.

The policy debate about affordability often reduces to a debate between constraining demand and liberalizing supply, as though it were either or, when it’s really a need for a balance of both kinds of mechanisms. But it’s essential to be clear on the fundamental question: are we excited about the prospect of a Vancouver that continues to diversify, urbanize and grow, or have we decided to turn away from that path?

A second issue. For a decade Vancouver has been led by a mayor whose most heartfelt aspiration has been to make ours the “greenest city in the world.” Now Vancouver was built on the revenues, capital and jobs of resource development. Today BC’s resource economy is still an indispensable foundation of Vancouver’s prosperity. But our public discourse is often dominated by the voices of opposition to resource development. As mayor, Gregor Robertson was often one of those voices.

 

Even though the city would come to a complete crashing halt instantly if we no longer had fuel for our vehicles, natural gas and electricity to heat our homes and power our streetlights and smartphones, or concrete and lumber to pave our streets and build our condo towers and homes, it’s become fashionable to imagine that we can have all of the benefits of resource development while actively opposing the enterprises that make them possible.

Yes, we need to accelerate our transition from a carbon-dependent economy to a reduced carbon economy. And pollution is no longer an acceptable byproduct of industrial activity. But is it really an either or debate? Can we possibly imagine a Vancouver which is a world-leading centre - and cheerleader - for responsible, sustainable, innovative resource development? And what is the role of our city governments on these issues? Should city governments be spending tax dollars on costly interventions in provincial and federal regulatory project approval processes, or on the provision of municipal services: clean water, sewage treatment, paved streets, local parks and community centres?

And then there are the problems of social distress. Gregor Robertson began his first term as mayor a decade ago with a promise to end street homelessness. For all of his efforts - and they were significant - the homelessness count is higher today than it was when he took office. And we are staring into the face of an appalling epidemic of drug poisoning caused by the introduction of fentanyl into the street user drug supply chain.

These two issues bring into sharp focus a reality: our system of government, with responsibilities divided among federal, provincial and municipal authorities, was designed in the 19th century for a largely rural society. A century and a half later, we are a largely urban society, and our most serious social problems are most acutely visible on the streets of our cities, and yet city governments lack the tools and resources for comprehensive responses to those issues.

If we’ve learned anything from the last decade we ought to be wary of civic politicians who make promises they literally cannot keep. But city dwellers would not forgive a civic politician whose response to homelessness and the opioid crisis was to say, “not my problem.” Where to strike the balance here? All of the major social issues facing Vancouver have a provincial and federal dimension to them. Is the best option an adversarial posture with the other levels of government, or an insistence upon working collaboratively? The essence of successful government is the ability to advance through compromise. The question for the next mayor will be whether to work as a partner with other governments, or an adversary.

Some will argue that there are other issues that ought to take centre stage on Vancouver’s policy agenda for the next decade. I also acknowledge that questions of style and process are important because it’s increasingly difficult for politicians at any level of government to advance policy without careful and thoughtful engagement with stakeholders and the public. But I return to the place I started. When we ask the question, what do we want from our next mayor, we’re really asking, what do we want Vancouver to be?

What do a bottle of ginger beer and aboriginal title have in common?

In 2014, the Supreme Court of Canada issued its landmark ruling in the Tsilhqot’in case.  At the very least, the decision is profoundly important as marking the first time in the history of Canada that an appellate court found an area of Crown land to be subject to aboriginal title.  However, the decision immediately gave rise to a debate. How broadly should it be read?  Is it just a decision about 1700 or so square kilometres of land in the remote Chilcotin region of British Columbia?  Or does it signal that much - perhaps most - of British Columbia is subject to aboriginal title?  Does it, in other words, transform our understanding of who really owns the lands and resources of BC?

These two readings reflect different perspectives about indigenous rights.  One takes a narrow view of aboriginal law in the long-held belief that this is needed to preserve the Crown’s ownership and control of public lands.  Another perspective is that Tsihlqot’in represents a watershed moment in the history of our province, a time to acknowledge that indigenous ownership of traditional lands persists, that it has never been extinguished, and that it is prevalent throughout the province.  Those holding the latter perspective argue that Tsilhqot’in should require us to replace the policy of denial which has been a lynchpin of land policy in British Columbia since 1871 with a policy that takes recognition as its starting point.

Some guidance in choosing among these perspectives can be gleaned from an unusual source. A case that started in a cafe in Paisley, Scotland in the summer of 1928, when a widow named Mrs. Donoghue found a snail in her half-finished bottle of ginger beer. The sight made her ill. She sued. What happened to her case changed the course of legal history.

According to English law at the time (and for that matter Scots law, which applied to the case) Mrs. Donoghue might have had a claim against the owner of the cafe if she had purchased the bottle of ginger beer.  But she would have had no claim against the bottler.  The reason is that there was no direct contractual relationship between her and the manufacturer and the law required the existence of a contractual relationship before a claim of negligence could be brought.  The case made its way to the House of Lords, the highest appellate court in the United Kingdom.  In 1932 the court decided (by a vote of 3 to 2) that Mrs. Donoghue could sue the manufacturer for negligence even in the absence of a contractual relationship.

The leading judgment in the case we now know as Donoghue v Stevenson was delivered by Lord Atkin.  Many words have been written in an attempt to explain what Lord Atkin decided.  Some have argued that the point of the case is as narrow as this: manufacturers of ginger beer have a legally enforceable duty not to make bottles of ginger beer containing the decomposed remains of dead snails.

Read less absurdly, the case is authority for the proposition that there is a distinct tort of negligence which can arise without a contractual relationship and imposes a duty upon manufacturers to consumers as the intended users of their product.

But the case is far more important and broad-ranging than that.  This is because Lord Atkin grounded his ruling in an expression of a general principle which has had an enormous impact upon the development of the common law.  It’s called the neighbour principle, and it was expressed by Lord Atkin in the following words:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This principle, studied by generations of law students, has supported the expansion of the common law far beyond the realm of what we now call product liability.  It is used to ground liability in car crash cases, professional malpractice and much more.  Its reach has not expanded infinitely, but it has been and continues to be an enormously influential principle in the common law.

Tsillhqot’in is meant to have the same impact as Donoghue v. Stevenson.  It is not intended to be read simply as an application of the developing law of aboriginal title to one claim by one First Nation in one small area of British Columbia.  Rather, in setting forth the requirements for proof of aboriginal title, in applying them to the circumstances of a semi-nomadic indigenous people in a way that plainly interprets the evidence of traditional use and occupancy generously, and in making it clear that aboriginal title confers rights that are tantamount to fee simple, real ownership, and not just a right to be consulted, the Supreme Court established a legal framework which, applied reasonably, rather than narrowly, necessarily means that aboriginal title is pervasive in British Columbia.  Yes, elements of the framework had been established in prior cases.  But these cases did not prevent lawyers from arguing that while Aboriginal title might exist in theory, it did not exist in any actual place.  That changed with Tsilhqot’in.

This argument does not find its footing in a single, dominant passage from the decision, but rather from the reasons read as a whole, because the case deals with a series of issues, all of which are important.  Two excerpts, however, give some sense of what the Court is trying to do.

[32] In my view, the concepts of sufficiency, continuity and exclusivity provide useful lenses through which to view the question of Aboriginal title.  This said, the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.  Sufficiency, continuity and exclusivity are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established.

And in paragraph 50, summarizing its analysis of the elements required to prove aboriginal title, the Court concludes:

Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty. 

With these passages in mind, the the question that arises is this: given that a semi-nomadic group such as the Tsilhqot’in were able to establish aboriginal title over some 1700 square kilometres, can there be any doubt that the province’s more than 200 First Nations have title over significant portions of their traditional territories?

Aboriginal title may not exist everywhere.  Conflicts over traditional use that amount to what are called overlapping claims are not easily resolved. The implications of aboriginal title for private lands remain unclear.  But to read Tsilhqot’in as having established nothing more than a finding of aboriginal title in one narrowly defined situation is to make the same mistake as those who, all those years ago, argued that Donoghue v. Stevenson was just a case that established a cause of action by cafe patrons for the harm caused by the discovery of snails in bottles of ginger beer.