Thursday, 28 June 2012

In which the author ventures briefly into US Constitutional law and Obamacare

I have only read a short summary of what the Supreme Court said and did today, but as I have watched all the attention being focused on Chief Justice Roberts in particular I have had two thoughts:  

One.  Imagine the burden of responsibility he has carried, knowing for who knows how long that his would be the deciding vote on the defining legislative initiative of the Obama presidency, and surely one of the most important - and divisive - pieces of US domestic public policy since Lyndon Baines Johnson was president nearly half a century ago.  

Two.  We often think of American conservatism as an activist ideology, one stream of which holds that the Supreme Court's role is to insist upon the Constitutional founders' intent, and to constrain Congress accordingly.  But there is another strain of conservatism, which is about respecting the centrality of democratically elected and accountable politicians and political processes in debating and deciding the most important questions of a society, and to leave with the people that which is most truly and profoundly political.  And that's really what Justice Roberts did today.  He decided not to second-guess the wisdom of Congress.  Come November the American people will get to decide the fate of Obama's health care program, and isn't that where the decision-making power should really lie?

Wednesday, 27 June 2012

The BC Court of Appeal has dismissed the Tsilhqot'in aboriginal title claim

The Tsilhqot’in’s appeal was dismissed by the Court of Appeal in reasons for judgement delivered this morning.

It looks as though the Court did not agree with the trial judge that there was a fatal pleadings defect, but dealt with the claim of aboriginal title on the merits.  In essence, they accept the Supreme Court of Canada’s analysis in a case called Marshall and Bernard that aboriginal title only exists on lands that have been intensively occupied.  The Court of Appeal says that aboriginal title can only be established on a site specific basis to definite tracts of land.  This is a version of something that has been characterized as the “postage stamp” theory of aboriginal title and is much criticized by the aboriginal bar.  The Court of Appeal goes to some trouble to refute this critique.  Set out below are some passages that I think will be widely quoted.

The Court also holds that the Tsilhqot'in have established aboriginal rights (1) to capture and use wild horses, and (2) to earn a moderate livelihood from hunting and trapping.

Since the claim of aboriginal title failed on the evidence, the jurisdictional issue – that is, the question whether the province's Forest Act  applies over aboriginal title lands – is not dealt with (or at least, I haven’t found it yet in my first run through the 81 page reasons for judgement).

The Court holds that its decision does not preclude the Tsilhqot’in from commencing another action, in which a claim to aboriginal title is advanced on a "specific tract of land" basis, rather than a more global "territorial" basis.

The issues in this case, are, as I have said before, profoundly important not only to the parties, but to our understanding of the true extent of aboriginal title in British Columbia.  One would have to expect that this case will now to the Supreme Court of Canada.


An extract from the judgement of Groberman, J. for the Court:

[216] The Tsilhqot’in did not cultivate or enclose fields. While they did hunt and fish in many parts of the Claim Area, there are only a few sites (primarily fishing sites) that can be said to be specifically delineated in the evidence. Only a few locations were referred to which may have been used intensively. As the defendants contend, the evidence and findings suggest that hunting, trapping and fishing occurred at many places in the Claim Area, more or less on an opportunistic basis. Gathering activities also appear to have been widespread, although the findings of fact suggest that some localized spots may exist where natural plants were harvested and, to a limited extent, managed.

[217] As I see it, the claim can only be described as being a “territorial” one rather than a site-specific claim to title. The fact that the territory being claimed, large as it is, is a fraction of the total area alleged to be the traditional territory of the Tsilhqot’in does not prevent the claim from being characterized in this way.

[218] Indeed, the plaintiff’s often repeated statement that the Tsilhqot’in did not lead a “postage stamp” existence underlines the territorial nature of the claim – with a few exceptions, there are no definite tracts of land that were habitually occupied by the Tsilhqot’in at and around 1846.

[219] I also agree with the defendants that a territorial claim for Aboriginal title does not meet the tests in Delgamuukw and in Marshall; Bernard. Further, as I will attempt to explain, I do not see a broad territorial claim as fitting within the purposes behind s. 35 of the Constitution Act, 1982 or the rationale for the common law’s recognition of Aboriginal title. Finally, I see broad territorial claims to title as antithetical to the goal of reconciliation, which demands that, so far as possible, the traditional rights of First Nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians, Aboriginal and non-Aboriginal.

[220] As I read Delgamuukw, Aboriginal title cannot generally be proven on a territorial basis, even if there is some evidence showing that the claimant was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory. I acknowledge that Delgamuukw did not fully address the quality of occupancy that was necessary to support a title claim, apart from indicating that the occupancy must have been exclusive. That said, several passages in Delgamuukw strongly suggest that an intensive presence at a particular site was what the Court had in mind.

[221] In particular, I note that the examples of title lands given at para. 149 of Delgamuukw are well-defined, intensively used areas. The reference to hunting, fishing and other resource extraction activities is coupled with a specific description of the lands so used as “definite” tracts of land. I agree with British Columbia’s assertion that what was contemplated were specific sites on which hunting, fishing, or resource extraction activities took place on a regular and intensive basis. Examples might include salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps.

[222] The Court’s specific references to the difficulty that nomadic peoples might face in proving title is also telling. While, as the Court pointed out in Marshall; Bernard, there is no reason that semi-nomadic or nomadic groups would be disqualified from proving title, their traditional use of land will often have included large regions in which they did not have an adequate regular presence to support a title claim. That is not to say, of course, that such groups will be unable to prove title to specific sites within their traditional territories.

[223] Finally, with respect to Delgamuukw, I note Lamer C.J.C.’s comments at paras. 150 and 151 dealing with the need for a group to demonstrate that a piece of land was of central significance to their distinctive culture. He considered this to be a “crucial” part of the test for Aboriginal title, but found that it was unnecessary to treat it as a specific element of the proof of title, because any land that met the other criteria for Aboriginal title would, of necessity, be of central significance to the culture. That position is a sensible one if the occupation needed to found a claim for title is site-specific; it is not, however, if undifferentiated land within a large territory is to be included in a title claim.

[224] Marshall; Bernard, as I read it, is even stronger in showing that Aboriginal title must be demonstrated on a site-specific rather than territorial basis. The majority expressly dealt with the question of whether hunting or fishing or the taking of other resources from land could found a title claim. At para. 58, it agreed that such activities could, where they were sufficiently regular and exclusive, be a basis for title. It also cautioned, however, that more typically, such activities will found only claims to specific Aboriginal rights.

[225] The majority’s equation of sufficient occupancy for Aboriginal title with the common law requirements to show title by virtue of possession is also important. It supports the views that title must be claimed on a site-specific basis, and that a certain regularity and intensity of presence is needed before it will count as “occupancy”.

Tuesday, 26 June 2012

Let's get real - making energy always has an environmental impact

I just had one of those marvellous rant-inspiring moments reading a letter in which someone was complaining about the potential environmental impact of a particular energy project and I thought, wouldn’t it be great if there was some way we could produce energy that didn’t have any environmental impact? But there isn’t.  Not a single source of energy is completely benign.  Not solar, not wind, not nuclear, not run-of-river, not storage dam hydro, not LNG, not methane, not geothermal, not syngas, not woodpellets, not coal, not diesel, not fuel oil, not nothing, not nohow, not no-sirree.  
Birds (sometimes) fly into windmills.  Solar panels in mass arrays are a blight on the landscape.  Nuclear requires careful handling of highly toxic metals.  Run of river diverts watercourses.  So does tidal.  Dams flood forests and farmlands.  Geothermal requires holes in the ground.  LNG produces greenhouse gases.  So do coal and diesel and fuel oil and waste-to-energy technology.
If the actual production of the energy doesn’t have a significant impact, the manufacture of the machine that makes it sure does.  Solar panels and windmills are made in factories that consume energy, and are made with materials that are mined and processed and refined, and all of those activities have an environmental impact.
And even if generating the energy is relatively benign, how are you going to get it from the place where it is made to the place where it is used?  No, not via Star Trek tansporters.  It’s transmission lines, pipelines, tankers, or trucks, and they all have environmental impacts.
So get over it, people.  Either turn out the lights and park your cars and turn off your laptops, or start talking in terms of choices among competing alternatives, and balances and trade-offs.  Because that’s what it’s about.  I’m not saying we shouldn’t care about impacts.  We should.  But we have got to stop pretending that we can sustain ourselves without at least some impact on the environment.  
I know there a few folks who really do want us to turn the lights off.  Completely off.  Good luck with that.  There are other folks who are thinking about new ways of making energy that might have little or no impact.  May they succeed sooner rather than later.  Most of the rest of us are generally trying to conserve and reduce our impact, although it’s easier to talk about it than do.  But let’s not fool ourselves - and let’s not let anyone else - whether politician, pundit, industry or NGO spokesperson - fool us.  We can reduce our footprint, but almost everything we do that requires energy has an impact somewhere, somehow, on the fish and the air, and the water, and the trees, and the view and all the other things we hold dear.
It all comes at a cost.  Let's debate our options realistically, recognizing that these are not easy decisions, and there is no free pass or way around the problem of how we can sustain our economy, our culture, our society without at least some cost or consequence for the environment.  Perhaps the answer is to repair faster than we harm?  Fine, but at least let's not pretend we can have it all without impact.

The next time you hear someone express their concerns about the environmental impact of a particular energy project, make sure to ask them where the heck else they plan on getting the energy they need.

Saturday, 23 June 2012

Law school tuition in BC is out of whack and someone should do something about it

Come September BC’s three university law schools will experience the continuing force of our incoherent and indefensible provincial tuition policy.

Now, I am not about to suggest that law students in British Columbia should man the barricades in Quebec.  Thanks to Canada’s generous equalization policies, BC taxpayers like you and me have been subsidizing Quebec university tuition for many years, and so I am not at all disappointed that the Quebec government has finally decided to take some action to adjust tuition levels in that province.
The issue I want to talk about is the tuition differences at BC’s three law schools.  Here are the numbers for this September:

First year tuition
Ancillary fees
University of Victoria
Thompson Rivers University

No one would even begin to suggest that these figures are a fair representation of the difference in quality of the instruction available to the students at these three institutions.  Rather, the difference between these numbers is an accidental byproduct of the tuition policy decisions made during the first term of the Gordon Campbell government - of which I was a member - that have not, since then, been adjusted to correct for the errors they have produced over time.
Step one was the much needed elimination of the NDP tuition freeze, which was a good-politics-bad-policy initiative that Glen Clark introduced in the run-up to the 1996 election.  Good politics because of course everyone wishes tuition was free.  Bad policy because anytime you artificially freeze the price of a service, the impact of unavoidable increases in the cost of delivering it is that quality declines.  In the case of post-secondary tuition, another impact was an increase in admission standards, as universities, in particular, raised the bar for admission as a way of managing costs.
When our government lifted the tuition freeze in February 2002, the province’s universities reacted in different ways.  Some seized the opportunity and made significant and immediate increases.  Others decided on a more gradual, phased-in approach.
In the law school context this played out in the following way.  UBC raised tuition sharply and quickly, with a 65% increase from $3,039 to $5,000 imposed in September 2002. The University of Victoria raised its tuition by approximately 30%, with plans to phase in further increases over time.
The public reacted to the tuition increases, and there was a sense on the part of the government that some universities were taking undue advantage of the opportunity.
Accordingly, a partial freeze was re-instituted.  Effective September 1, 2005, government decided by policy to limit tuition increases to the rate of inflation.
The impact of the freeze was that the University of Victoria law school tuition was left at a lower number, because the plan to phase in further increases over time was halted in mid-stream.
You might think that lower tuition would have given UVic a competitive advantage, and in the short term this is probably a good argument.  If both law faculties were roughly comparable in terms of the quality of the education they provided, you would expect a greater demand for the available places at UVic, and presumably better qualified students.
But it doesn’t take very long for the tuition differential to have a much less positive impact.  Because lower tuition means less money, for example, to hire and pay faculty.   In the competition for academic recruitment, the universities that charge higher tuition have more funds available for salaries and facilities.  In the case of UBC and UVic, the difference in tuition revenues is hundreds of thousands of dollars, not huge numbers, perhaps, in the context of university budgets, but big enough to make a difference over time.
Into the mix comes the new kid on the BC law school block - the law faculty at Thompson Rivers University in Kamloops, which held its first classes in September of last year.  Because that faculty did not exist at the time of the re-freeze, it is exempt from the tuition policy limit.  Accordingly, TRU was free to set tuition at a level that reflected its own sense of the right balance between what the market could bear, its need for resources, and affordability.  (The policy will limit future increases to the rate of inflation.  This may help explain why students in the first intake class will receive a $3700 grant for each of their three years.  Get it?  The university has protected itself against the restrictions of the tuition freeze by starting at a high number, but at the same time, offering students a grant reduces the impact on them.  A clever strategy.)  
The TRU law faculty is brand new.  It may enjoy great success (and it has some outstanding faculty members), but it cannot plausibly be contended that, right from the start, a TRU law education will be either vastly superior to, or more marketable than, a law education from UBC or UVic. (For a sense of context, University of Toronto’s law school tuition is over $25,000.)
And yet the table shows the perverse results of the province’s tuition policy.
It’s time for change.  What to do?
Well, I am not going to argue that TRU tuition should be artificially reduced.  The answer is to find some way to allow UBC and UVic tuition to increase.
One option would be for governments to engage in dialogue with UBC and UVic to negotiate a plan to allow them - or at least UVIc - phased-in increases.  This would at least solve the here-and-now problem.  
There is another option.  Professional schools exist not just to provide students with the opportunity to explore their passion for learning.  They are also training schools.  Most students who study law, medicine, dentistry, and engineering are planning careers in those fields.  In a very direct sense this phase of their education is about earning the right to earn a living, and the credential obtained at the end of their studies has economic value.  Significant economic value.  Why not treat tuition as the investment expense it is, and charge something more like its actual cost? 
Maybe it is time to deregulate professional school tuition.  Allow our professional schools to set tuition at the level they think the market will support.  I think the idea warrants serious consideration.  There are factors for and against.  In favour is the point already made, which is that for students who are likely to recover the cost of their professional education over the careers, there is less reason to subsidize that cost, and good reason to ask students to pay something closer to full freight for their training.  A factor against is that the market for professional schools in Canada is constrained, and although many students are forced to study outside their home province because of limited spaces and tight entry requirements, it’s hard to say there is really a free (and therefore competitive) market for post-secondary professional training opportunities.
Of course, at almost any level, tuition can represent a barrier to access for those who are academically qualified but unable to pay.  For most professional school students, it’s much easier to get bank loans, because financial institutions are willing to recognize that your long-term income earning potential is high, and so you are seen as a good credit risk.  But I have always thought that institutions and governments which seek higher tuition fees need to do a better job of providing means-tested financial aid, whether through government programs or privately endowed scholarships.
My goal here is not to prescribe the answer but simply to suggest that there is a problem, and it is high time that government and the universities sat down to find a way to solve it.

Thursday, 7 June 2012

A heritage conservation facade

Oxford Properties, my law firm’s landlord, is building a shiny new 35-story office tower on Hastings Street in a narrow slice of property between two well-known Vancouver buildings - also owned by Oxford - the Marine Building and the Guinness Tower. 
The new building is being built on the site of the old University Club, which, when I was growing up in Vancouver, was one of three men’s clubs on a two-block stretch of Hastings at Burrard, (the other two being the Vancouver Club and Terminal City Club, both still alive and well).  The University Club building has not been used as a club for a long time, and for the half dozen years I have worked in the Guinness Tower, its principal contribution to the look and feel of West Hastings has been its west-side wall of ivy, shiny green in spring and summer, and gloriously red in the autumn, and the gloomy, abandoned aura that emanated from the mostly empty, disused building, 
The old building - including the ivy wall - is gone now, all but its facade, currently suspended by massive steel buttresses while construction proceeds on the site: a thin wall of bricks and mortar held up like the artificial backdrop of a movie set.  It looks as though it is patiently, if somewhat forlornly, waiting for the new building to arise, so that it can be glued on afterwards as a sort of architectural post-it note.

The new building - not-so creatively named 1021 West Hastings - will introduce a tall spire of glass and steel into the space between the Marine Building and Guinness Tower, and in doing so it will surely alter our perspective of both of these landmarks.  Of the two, the Marine Building is the more famous; it is often considered Canada’s finest example of Art Deco architecture, abundant in detail and tracery; I often detour through its lobby for the sheer pleasure of its decoration.
The Guinness Building is less immediately striking, but that, for me, is part of what makes it interesting.  Because, nearly half a century after its construction, it still looks completely modern.  Its clean external lines draw the eye up into the sky, and that green-blue glass that has since become the pervasive symbol of Vancouver’s condo tower architecture creates wonderful effects of light, especially when the sun shines on it.  The  magnificent lobby wall mural, “The Fathomless Richness of the Seabed”, by Jordi Bonet, gives depth and resonance to the blue and green themes.  The plazas and gardens on the east and west sides of the building are not only fine places to sit, eat lunch, and talk with a friend - they also enhance the building by giving it more space in which to work architecturally.
How much of that will change when there is a 35-story tower in between the two smaller, older buildings is tough to say.  The view from my own office window on the southeast corner of the 21st floor will definitely be different.  Instead of a clear shot of the Marine Building and a glimpse of harbour and mountain, I will be looking directly into someone’s office, or apartment living room.  
At ground level, the drawings suggest that there will be a spacious, airy lobby, and I’m sure there will be.  But then there is that facade.
Precious little of Vancouver’s architectural heritage - such as it ever was - survives.  Vancouverites don’t just accept change in our urban landscape, we enthusiastically seek it out.  But we are also just a little bit worried about erasing all visible evidence of the city that was, and so we try to reconcile the reality that rising land values make it difficult to justify - at least in economic terms - the few remaining old buildings by preserving bits and pieces of them.   Sometimes it works; sometimes it doesn’t.  
In the case of the old University Club it must have been challenging to demolish the rest of the building while keeping the thin skin of the front wall in place.  And the effort of design and construction required to keep it intact during construction and then incorporate it into the new building must surely have added hundreds of thousands, if not millions of dollars, to the developer’s costs, offset in whole or in part by the various incentives the City provides to encourage heritage preservation.

Was it worth it?
There are some buildings where the incorporation of the old into the new is functional, visually interesting, and respectful.  The Bank of Canada building in Ottawa, the Maison Alcan complex in Montreal, and the Sinclair Centre in downtown Vancouver are good examples.
Not, in my view, 1021 West Hastings.  There it seems to me that the preservation of the University Club facade will look and feel like an afterthought, one part of something completely divorced from its former whole and thereby trivialized.  As for me, if the whole building was not valuable enough to protect, then I would rather have seen what an architect could have done with the space without being literally and metaphorically tied down by the weight of this wall of old bricks.  I strongly believe we should honour and, within reason, preserve our past.  But that’s not, I am sorry to say, what is happening at 1021 West Hastings.