tag:blogger.com,1999:blog-78733333934219840782024-03-22T17:13:45.348-07:00The Plant RantGeoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.comBlogger52125tag:blogger.com,1999:blog-7873333393421984078.post-60564433739683416672024-03-22T16:13:00.000-07:002024-03-22T17:13:14.418-07:00Recognising Haida Aboriginal Title<p>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.</p><p>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.</p><p>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. </p><p>…</p><p>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. </p><p>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.</p><p>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. </p><p>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. </p><p>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.</p><p>Are these questions we should leave to the courts? </p><p>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.</p><p>Courts have been clear and consistent on this point: negotiation of aboriginal claims is preferable to litigation.</p><p>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. </p><p>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.</p><p>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 leaves it for future negotiations.</p><p>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. </p><p>Here, as ever, negotiation creates opportunities for certainty that litigation does not.</p><p><br /></p><p>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. </p><p>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. </p><div><br /></div>Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-76828088552542820542024-02-08T05:38:00.000-08:002024-02-08T05:38:35.747-08:00The BC government's Land Act proposals - another step towards meaningful reconciliation<p> 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.</p><p><br /></p><p>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. </p><p><br /></p><p>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. </p><p><br /></p><p>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.</p><p><br /></p><p>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. </p><p><br /></p><p>The Act passed unanimously and was widely celebrated as holding out the potential for meaningful reconciliation in BC.</p><p><br /></p><p>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. </p><p><br /></p><p>But the Act does not give legal effect to the decision-making powers in such agreements. That can only happen with specific legislation.</p><p><br /></p><p>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.</p><p><br /></p><p>The current proposal is to empower the minister responsible for the Land Act to enter into shared decision-making agreements.</p><p><br /></p><p>This of course is exactly what was contemplated by the Declaration Act in 2019.</p><p><br /></p><p>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.</p><p><br /></p><p>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. </p><p><br /></p><p>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.</p><p><br /></p><p>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. </p><p><br /></p><p>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.</p><p><br /></p><p>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.</p><p><br /></p><p>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.</p><p><br /></p><p><br /></p><p><br /></p><p><br /></p><p><br /></p>Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-27394741462555562142023-07-17T14:40:00.001-07:002023-07-17T14:40:10.664-07:00BC needs a dedicated seat on the Supreme Court of Canada<p> 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.</p><br /><a href="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">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</a>Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com1tag:blogger.com,1999:blog-7873333393421984078.post-4915156761687168012021-07-01T19:26:00.004-07:002021-07-02T07:11:46.565-07:00Access to Justice and the hypocrisy of the Supreme Court of Canada<p><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s superior courts themselves. </span><span style="background-color: white; color: #010103; font-family: Arial;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">The framers of the 1867 act were concerned among other things to divide powers between the </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">newly-created </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">federal and provincial governments.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">In section 96 they provided that the judges of the superior courts in each province would be appointed by the federal government.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">The historical record is nearly silent on the framers</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’ </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">rationale for this provision.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s courts.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"></span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">Nonetheless, </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">in the intervening years, Canada</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s courts</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> have found lurking in the</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> slender words </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">of section 96 some profound constitutional doctrine</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">. </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">And they have regularly used these discovered principles to shut down </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">provincial justice reform.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">Stripped of its technicalities and self-justifying rhetoric, the legal principle created by the courts is this: whatever </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">superior </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">courts happened to be doing in 1867 is what they </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">must </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">forever do, and no provincial government can alter that. Or to put it another way, the superior courts have said to the country</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> provincial</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> legislators, </span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">“</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">don</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">t you dare take our job away from us.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">”</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">What does this have to do with access to justice?</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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 </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">achieve fairness by </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">prevent</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">ing</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> trial by ambush. But </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">superior court </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">process comes with a</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">n expensive </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">price tag.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">The result is </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">that justice in superior courts is for most citizens simply unaffordable.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">Over time provinces have responded to this reality </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">by creating </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">tribunals that are less formal, without all of the trappings of superior court</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">. This may take the form of a new tribunal, like BC</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s Civil Resolution Tribunal, or </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">expansions to the </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">jurisdiction of </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">provincial</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> courts, which are the successor to the magistrates courts that existed at confederation.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">These tribunals do exactly what practical access to justice requires: they ar</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">e </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">(or, when well designed and administered, can be) </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">less formal, </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">faster, more direct, more focused on outcomes rather than process.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">In short, m</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">ore citizen-centred.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">But the superior courts </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">have frequently</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> invoke</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">d</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> their </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">enlarged</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> view of section 96 to shut these reforms down.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span style="line-height: 21.600000381469727px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s Civil Resolution Tribunal, </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">part of the BC government</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s attempt to bring ICBC</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s costs under control by reducing the hundreds of millions of dollars the corporation spends each year on lawyers for plaintiffs and defendants. </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span style="line-height: 21.600000381469727px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">Apparently the authors of our constitution had the foresight to decide who would be allowed to adjudicate car crash cases decades before t</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">he automobile had been invented</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">And now the Supreme Court of Canada has ruled in the most recent </span><span class="s5" style="background-color: white; color: #010103; font-family: Arial; font-style: italic; line-height: 16.799999237060547px;">Quebec Civil Code Reference</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> case that Quebec</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s provincial court cannot be given exclusive jurisdiction </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">over civil claims up to $85,000.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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</span><span class="s4" style="background-color: white; color: #010103; direction: rtl; font-family: Arial; line-height: 16.799999237060547px;">’</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">s chief justices themselves.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">Among the many remarkable features of the majority judgement in this case is the proposition that the so-called </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">“</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">living tree</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">” </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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.</span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span style="line-height: 21.600000381469727px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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. </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span style="line-height: 21.600000381469727px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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 </span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">“</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">.</span><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">” </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span style="line-height: 21.600000381469727px;"> </span></p><p class="s2" style="direction: ltr; line-height: 1.2; margin: 0px;"><span class="s3" style="background-color: white; color: #010103; font-family: Arial; line-height: 16.799999237060547px;">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.</span></p>Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-42841087248644643692020-03-29T18:19:00.001-07:002020-03-30T09:14:02.070-07:00Reflection<div style="color: #444444; direction: ltr; font-family: "Helvetica Neue", Helvetica, Arial, sans-serif; font-size: 14px; line-height: 1.4em; margin-bottom: 1em;">
It’s Sunday afternoon. The sun came out today and maybe that lifted all our moods. It certainly improved mine.</div>
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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.</div>
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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.</div>
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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.</div>
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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?’ </div>
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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.’</div>
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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.</div>
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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.’</div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-2490275115125389742018-10-18T16:19:00.000-07:002018-10-23T15:19:27.333-07:00I’m voting no in the PR referendum. Here’s why.<br />
<div style="margin: 0in 0in 8pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;"><br /></span></b></div>
<br />
<div style="margin: 0in 0in 8pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Introduction</span></b></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Barring a postal strike, BC voters will start receiving
their voting packages for the electoral reform referendum next week. </span></div>
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">In case you're wondering, I’m voting no.<span style="mso-spacerun: yes;"> </span></span><br />
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;"><br /></span>
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;">
</span>It is perfectly apt for the challenges of the 21<sup>st</sup> century. What’s
needed to improve how we are governed is a renewed commitment to responsible
citizenship, not a new system for electing MLAs.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">I’ve broken my analysis into three sections.<span style="mso-spacerun: yes;"> </span>The first describes my experience with another
exercise in democratic reform – the adoption of fixed election dates in
2001.<span style="mso-spacerun: yes;"> </span>That discussion is relevant to my
view that the culture of politics can
overwhelm even the best intended attempts at structural reform.<span style="mso-spacerun: yes;"> </span>I will then talk about the serious problems
with the current referendum process.<span style="mso-spacerun: yes;">
</span>Lastly, I’ll explain my views on the substantive question, that is,
whether proportional representation is right for BC.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Three
preliminary points</span></b></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span>The question is whether
PR would be better <i style="mso-bidi-font-style: normal;">for BC</i>.<span style="mso-spacerun: yes;"> </span>So we need to bear the following facts in
mind:</span></div>
<ol style="direction: ltr; list-style-type: decimal;">
<li style="color: black; font-family: "Times New Roman",serif; font-size: 12pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">In 14 of
the 19 general provincial elections in BC since 1952, voters elected more than
two parties to the legislature.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>It simply cannot be said that FPTP prevents
minority parties from being elected in BC.</span></div>
</li>
<li style="color: black; font-family: "times new roman", serif; font-size: 12pt; font-weight: normal;"><div style="color: black; font-family: calibri, sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">There
are currently 87 seats in the Legislative Assembly.<span style="mso-spacerun: yes;"> </span>Using 2011 census data, the average
population per constituency is 50,575.<span style="mso-spacerun: yes;">
</span>But there’s a wide range of distribution.<span style="mso-spacerun: yes;"> </span>Most importantly, the electoral districts in
northern and rural BC are both larger and more sparsely populated than in the
lower mainland.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div style="color: black; font-family: calibri, sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
</div>
<div style="color: black; font-family: calibri, sans-serif; font-size: 11pt; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="font-style: normal;"> </span>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.<span style="font-style: normal;"> </span>Sorry, but I'm having a hard time getting the math to work.<span style="font-style: normal;"> </span>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 <i>and</i> the Kootenays would get one new MLA. Metro Vancouver would get six.) </span></div>
</li>
<li style="color: black; font-family: "Times New Roman",serif; font-size: 12pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 8pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span>This is not some antique relic; it’s foundational.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>This is the essence of the Westminster system of parliamentary
democracy.<span style="mso-spacerun: yes;"> </span>The PR referendum asks us if
we want to change that. </span></div>
</li>
</ol>
<br />
<div style="margin: 0in 0in 8pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Part 1
– a little history</span></b></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">In the summer of 2001 the BC Liberals enacted legislation
to reform our electoral system by introducing fixed election dates.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<span style="font-family: "arial" , sans-serif;">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.<span style="mso-spacerun: yes;"> </span>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.</span><br />
<br />
<span style="font-family: "arial" , sans-serif;">The object was
to take this power from the Premier.<span style="mso-spacerun: yes;"> And here was my bold claim: </span>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.”</span><br />
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Well, I was certainly optimistic.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Electoral reform is often actuated by admirable, but naive,
wishful thinking.<span style="mso-spacerun: yes;"> </span>It’s admirable,
because of course we should always be willing to reform that which needs to be
changed.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Now I’m actually not all that critical of this cycle.<span style="mso-spacerun: yes;"> </span>It introduces some useful structure into the
way politics is translated into legislation and policy. <span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> S</span>tructural reform was not a bad thing,
but it had no significant impact on the culture of the practice of politics and
power.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Some say that the adoption of a PR
electoral system will transform the way politics is practiced.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>Somehow
what is toxic and manipulative about our politics will change.<span style="mso-spacerun: yes;"> </span>It won’t.<span style="mso-spacerun: yes;"> The problem with</span> our politics has nothing to do with
the fact that we have FPTP rather than PR.<span style="mso-spacerun: yes;">
</span>It has to do with human nature.<span style="mso-spacerun: yes;">
</span>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.<span style="mso-spacerun: yes;"> </span>This is
how politics is done in all political systems. No change in our electoral
system will change this.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Part 2
– a flawed process</span></b></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span>In the 2005 general
election, provincial voters were asked in a referendum whether they supported
the STV-BC proposal.<span style="mso-spacerun: yes;"> </span>At government’s
direction, </span><span lang="EN" style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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. </span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span lang="EN" style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> (</span>A second referendum was conducted in the 2009
general election but it also failed.)</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span lang="EN" style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">The Citizens’ Assembly was
independent of government and political parties.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>Electoral reform should not be about advancing the partisan interests of
particular political parties, it should be about the larger public interest.<span style="mso-spacerun: yes;"> </span>So there’s a stain on the process this time
around.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span lang="EN" style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">The more fundamental
process problem is the absence of the double majority requirement.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>The reason a higher threshold
is defensible in my view is because of the importance of the question.<span style="mso-spacerun: yes;"> </span>As I tried to point out earlier, the question
whether to change our electoral system is fundamental; it’s constitutional in
nature.</span><span lang="EN" style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;"> Almost all organizations </span><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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. </span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">The current referendum lacks any thresholds.<span style="mso-spacerun: yes;"> </span>It invites the possibility that a bare
majority of British Columbians, concentrated in Vancouver, could determine the
outcome.<span style="mso-spacerun: yes;"> </span>This is all the more concerning
because of the absence of any minimum turnout threshold.<span style="mso-spacerun: yes;"> </span>In 2005, the number of referendum voters was
bound to be close to the number of election voters (voter turnout was over 58%).<span style="mso-spacerun: yes;"> </span>This time, because it’s a mail-in ballot
unconnected to any other election, there’s no guarantee of any turnout.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">All of this undermines the legitimacy of both the process
and its outcome.<span style="mso-spacerun: yes;"> </span>But I’m not going to
vote no just because the process is flawed.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<b style="mso-bidi-font-weight: normal;"><span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Part 3
– PR or no PR</span></b></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">There are three principal arguments made in favour of
PR.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">The first is that in PR systems, unlike FPTP, “every vote
counts.”<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">The first problem with this argument is that it privileges
party affiliation over individual merit.<span style="mso-spacerun: yes;">
</span>It assumes that the only, or at least the main, reason people vote is to
support a political party. That is not my experience.<span style="mso-spacerun: yes;"> </span>People often cast their
ballot at the constituency level for the individual they think will best
represent their community, irrespective of their party affiliation.<span style="mso-spacerun: yes;"> </span>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.”</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">PR systems are all about enhancing the
primacy of parties in our political system.<span style="mso-spacerun: yes;">
</span>PR systems (especially those containing party list elements) all tend to
marginalize the views of independents, of free thinkers, of mavericks.<span style="mso-spacerun: yes;"> </span>Free-thinking is an asset to our
democracy.<span style="mso-spacerun: yes;"> </span>We ought to encourage it, not
design electoral systems that throttle it.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">But I also don’t agree with the proposition that the voter
whose candidate did not get elected is somehow disenfranchised.<span style="mso-spacerun: yes;"> </span>It’s true that their candidate didn’t
win.<span style="mso-spacerun: yes;"> </span>But their voice was heard, and
their vote mattered.<span style="mso-spacerun: yes;"> </span>It’s just that
someone else got more votes.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>There are lots of elections and lots of votes in this world. There’s a result. One side wins and the other doesn’t.<span style="mso-spacerun: yes;"> </span>We don’t say that the minority votes didn’t
count.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Let’s say government tables a bill in the legislature to
raise taxes.<span style="mso-spacerun: yes;"> </span>There’s a vote.<span style="mso-spacerun: yes;"> </span>The measure passes.<span style="mso-spacerun: yes;"> </span>Were those MLAs who voted against the bill
disenfranchised?<span style="mso-spacerun: yes;"> </span>No.<span style="mso-spacerun: yes;"> </span>Ah, but people say that it’s different when
we’re talking about the vote to decide who should be an MLA.<span style="mso-spacerun: yes;"> </span>They say, if I cast my vote for the candidate
who loses the election, then I don’t have a voice in the legislature.<span style="mso-spacerun: yes;"> </span>I disagree.<span style="mso-spacerun: yes;"> </span>You had your voice.<span style="mso-spacerun: yes;"> </span>Your voice
helped decide who would represent your constituency in the legislature. We
build governments from the bottom up, not top down.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">The second argument in favour of PR is that FPTP tends to
exclude smaller parties from representation in the legislature.<span style="mso-spacerun: yes;"> </span>The evidence shows that this is not the case
in BC historically.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>Those efforts paid off with the election of 3
Green MLAs in 2017.<span style="mso-spacerun: yes;"> </span>And far from
suffering a marginal role in the current legislature, they actually hold the
balance of power.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">It is true that FPTP will sometimes produce governments
whose seat count is disproportionate to their share of the popular vote.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>(Again, the pro-PR position assumes that the only representation
that matters is political party representation.)<span style="mso-spacerun: yes;"> A</span> 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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>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.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>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.<span style="mso-spacerun: yes;"> </span>All of this in the world’s oldest FPTP
system.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">But I also don’t welcome the prospect of more coalition
governments.<span style="mso-spacerun: yes;"> </span>Coalitions are made by
power brokers wheeling and dealing behind closed doors, not in the bracing sunlight of public
scrutiny.<span style="mso-spacerun: yes;"> </span>And here’s what coalition-making
is about:<span style="mso-spacerun: yes;"> </span>which of the promises that I
made to secure my election will I have to give up to get a share of power?<span style="mso-spacerun: yes;"> </span>The result is a dilution of
accountability.<span style="mso-spacerun: yes;"> </span>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. </span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">Some opponents of PR argue that it will encourage the
proliferation of fringe parties.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>Regrettably, populism, including its more extreme manifestations, is a
growing phenomenon in almost all countries.<span style="mso-spacerun: yes;">
</span>It’s not an “electoral system” problem, it’s another kind of
problem.<span style="mso-spacerun: yes;"> </span>It represents our collective
failure – both institutionally and individually - to educate and persuade
citizens of the fundamental importance of the values of liberal democracy.<span style="mso-spacerun: yes;"> </span>A topic for another day, but not, it seems to
me, particularly helpful on the question of how to vote in the PR referendum.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<div style="margin: 0in 0in 8pt;">
<span style="font-family: "arial" , sans-serif; font-size: 12pt; line-height: 107%;">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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com15tag:blogger.com,1999:blog-7873333393421984078.post-37218842043185063672018-01-17T14:05:00.001-08:002018-01-17T14:28:20.818-08:00What's our vision for Vancouver in the decade ahead?<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">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.</span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">Perhaps, though, before we get all wrapped up in the
question of who, it might be useful <span style="font-family: "calibri";">to spend a minute or two on the question of what. As in,
what should be the agenda - or <span style="font-family: "calibri";">vision, if you like - of Vancouver’s next mayor?</span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">I’m not interested here in the location of the next bike
lane or the height of the next <span style="font-family: "calibri";">condo tower. I’m thinking about bigger questions.</span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">For example, as we move into the next decade, will
Vancouver embrace and welcome <span style="font-family: "calibri";">the world or turn away and close its doors? For a long time, Vancouver
worked hard to draw attention <span style="font-family: "calibri";">to itself on the world stage. Expo 86 and the 2010 Winter
Olympics are the most <span style="font-family: "calibri";">obvious of these efforts. And at the same time, our
population has been diversifying, as <span style="font-family: "calibri";">we have welcomed people from every corner of the globe.
Of course it’s not been <span style="font-family: "calibri";">without some debate along the way, but if you look at my
elementary school class <span style="font-family: "calibri";">pictures from half a century ago and compare them to what
you’d see today, there’s <span style="font-family: "calibri";">been nothing short of a transformation.</span></span></span></span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">As for me, this change has made Vancouver more dynamic,
more interesting, more <span style="font-family: "calibri";">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."</span></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">But now there is talk of
prohibiting foreigners from owning <span style="font-family: "calibri";">residential real estate.<span style="mso-spacerun: yes;">
You can hear the sound of doors closing.</span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"> </span><br />
<span style="font-family: "calibri";"><span style="font-family: "calibri";">The influx of foreign capital has obviously influenced
home prices. The precise extent of <span style="font-family: "calibri";">that influence remains up for debate, but it’s clearly
been a factor. But since 1986 the <span style="font-family: "calibri";">population of the City of Vancouver has grown almost
fifty percent, and yet the city’s <span style="font-family: "calibri";">boundaries have not grown. Sooner or later, relentless
population growth within a <span style="font-family: "calibri";">limited geographic area will drive up the value of land.
Without significant increases in <span style="font-family: "calibri";">density, that kind of population growth is inevitably
going to put pressure on housing <span style="font-family: "calibri";">affordability.</span></span></span></span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">The policy debate about affordability often reduces to a
debate between constraining <span style="font-family: "calibri";">demand and liberalizing supply, as though it were either
or, when it’s really a need for a <span style="font-family: "calibri";">balance of both kinds of mechanisms. But it’s essential
to be clear on the fundamental <span style="font-family: "calibri";">question: are we excited about the prospect of a
Vancouver that continues to diversify, <span style="font-family: "calibri";">urbanize and grow, or have we decided to turn away from
that path?</span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">A second issue. For a decade Vancouver has been led by a
mayor whose most heartfelt <span style="font-family: "calibri";">aspiration has been to make ours the “greenest city in
the world.” Now <span style="font-family: "calibri";">Vancouver was built on the revenues,
capital and jobs of resource <span style="font-family: "calibri";">development. Today BC’s resource economy is still an
indispensable foundation of <span style="font-family: "calibri";">Vancouver’s prosperity. But our public discourse is often
dominated by the voices of <span style="font-family: "calibri";">opposition to resource development. As mayor, Gregor
Robertson was often one of <span style="font-family: "calibri";">those voices.</span></span></span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">Even though the city would come to a complete crashing
halt instantly if we no longer <span style="font-family: "calibri";">had fuel for our vehicles, natural gas and electricity to
heat our homes and power our <span style="font-family: "calibri";">streetlights and smartphones, or concrete and lumber to
pave our streets and build our <span style="font-family: "calibri";">condo towers and homes, it’s become fashionable to
imagine that we can have all of the <span style="font-family: "calibri";">benefits of resource development while actively opposing
the enterprises that make <span style="font-family: "calibri";">them possible.</span></span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">Yes, we need to accelerate our transition from a
carbon-dependent economy to a <span style="font-family: "calibri";">reduced carbon economy. And pollution is no longer an
acceptable byproduct of <span style="font-family: "calibri";">industrial activity. But is it really an either or
debate? Can we possibly imagine a <span style="font-family: "calibri";">Vancouver which is a world-leading centre - and cheerleader - for
responsible, sustainable, innovative <span style="font-family: "calibri";">resource development? And what is the role of our city
governments on these issues? <span style="font-family: "calibri";">Should city governments be spending tax dollars on costly
interventions in provincial <span style="font-family: "calibri";">and federal regulatory project approval processes, or on
the provision of municipal <span style="font-family: "calibri";">services: clean water, sewage treatment, paved streets,
local parks and community <span style="font-family: "calibri";">centres?</span></span></span></span></span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">And then there are the problems of social distress.
Gregor Robertson began his first <span style="font-family: "calibri";">term as mayor a decade ago with a promise to end street
homelessness. For all of his <span style="font-family: "calibri";">efforts - and they were significant - the homelessness
count is higher today than it was <span style="font-family: "calibri";">when he took office. And we are staring into the face of
an appalling epidemic of drug <span style="font-family: "calibri";">poisoning caused by the introduction of fentanyl into the
street user drug supply chain.</span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">These two issues bring into sharp focus a reality: our
system of government, with <span style="font-family: "calibri";">responsibilities divided among federal, provincial and
municipal authorities, was <span style="font-family: "calibri";">designed in the 19th century for a largely rural society.
A century and a half later, we <span style="font-family: "calibri";">are a largely urban society, and our most serious social
problems are most acutely <span style="font-family: "calibri";">visible on the streets of our cities, and yet city
governments lack the tools and resources <span style="font-family: "calibri";">for comprehensive responses to those issues.</span></span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">If we’ve learned anything from the last decade we ought
to be wary of civic politicians who <span style="font-family: "calibri";">make promises they literally cannot keep. But city
dwellers would not forgive a civic <span style="font-family: "calibri";">politician whose response to homelessness and the opioid
crisis was to say, “not my <span style="font-family: "calibri";">problem.” Where to strike the balance here? All of the
major social issues facing Vancouver <span style="font-family: "calibri";">have a provincial and federal dimension to them. Is the
best option an adversarial <span style="font-family: "calibri";">posture with the other levels of government, or an
insistence upon working <span style="font-family: "calibri";">collaboratively? The essence of successful government is
the ability to advance <span style="font-family: "calibri";">through compromise. The question for the next mayor will
be whether to work as a <span style="font-family: "calibri";">partner with other governments, or an adversary.</span></span></span></span></span></span></span></span></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: "calibri";">Some will argue that there are other issues that ought to
take centre stage on <span style="font-family: "calibri";">Vancouver’s policy agenda for the next decade. I also
acknowledge that questions of <span style="font-family: "calibri";">style and process are important because it’s increasingly
difficult for politicians at any <span style="font-family: "calibri";">level of government to advance policy without careful and
thoughtful engagement with <span style="font-family: "calibri";">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 <span style="font-family: "calibri";">Vancouver to be?</span></span></span></span></span></span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com3tag:blogger.com,1999:blog-7873333393421984078.post-19271705023296844192017-11-26T21:46:00.002-08:002017-11-27T07:16:51.638-08:00What 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 <i>Tsilhqot’in</i> 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?<br />
<br />
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 <i>Tsihlqot’in </i>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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
The leading judgment in the case we now know as <i>Donoghue v Stevenson</i> 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.<br />
<br />
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.<br />
<br />
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:<br />
<br />
<blockquote class="tr_bq">
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.</blockquote>
<br />
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.<br />
<br />
<i>Tsillhqot’in</i> is meant to have the same impact as <i>Donoghue v. Stevenson</i>. 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 <i>Tsilhqot’in</i>. <br />
<br />
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.<br />
<br />
<blockquote class="tr_bq">
[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.</blockquote>
<br />
And in paragraph 50, summarizing its analysis of the elements required to prove aboriginal title, the Court concludes:<br />
<br />
<blockquote class="tr_bq">
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. </blockquote>
<br />
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?<br />
<br />
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 <i>Tsilhqot’in</i> 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 <i>Donoghue v. Stevenson</i> 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.Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-54825456775687847712017-03-17T13:28:00.000-07:002017-03-17T13:28:29.672-07:00My contribution to trivia - a possibly fun fact about BC's premiersIn the interests of populating this neglected blog with something, anything, really anything, I decided to undertake a small piece of historical research. One of those little lines of inquiry where the answer is an either open field for thought, or just another piece of useless trivia. But mine is not to reason why, mine is just to tell you what I found.<br />
<br />
It goes like this: <br />
<br />
The modern history of BC politics usually begins with the ascent to power of WAC Bennett. He first took office as premier in the summer of 1952, nearly 65 years ago.<br />
<br />
Counting Bennett, BC has elected 8 premiers up to and including Christy Clark. The others are Dave Barrett, Bill Bennett, Bill Vander Zalm, Mike Harcourt, Glen Clark, and Gordon Campbell. Three others (Rita Johnston, Dan Miller and Ujjal Dosanjh) served as premier without being elected, each taking office after a mid-term resignation by their predecessor. Fine people though they are, they don't count for the purpose of today's exercise.<br />
<br />
Now most people would say that this long era has been characterized by a swing between, on the one hand, a coalition party of the centre-right (first Social Credit, then BC Liberals) and on the other hand a coalition party of the left or centre-left (the NDP). The centre-right has won every election since 1952 but three: 1972 (Barrett), 1991 (Harcourt) and 1996 (Glen Clark). Five elected premiers of the centre-right; three of the centre-left. The centre-right has been in power for (roughly) 52 of the last 65 years. That's quite a run.<br />
<br />
Here's my fun fact. Of the five elected Social Credit and BC Liberal premiers, only one, Gordon Campbell, had a university degree. Christy Clark attended university but did not graduate. So far as I know, the other three (WAC Bennett, Bill Bennett and Bill Vander Zalm.) never attended university.<br />
<br />
All three elected NDP premiers had university degrees. In fact, they each appear to have had at least two degrees. (Barrett and Clark had masters' degrees and Harcourt a law degree).<br />
<br />
Since you are wondering, the current NDP leader John Horgan also has two degrees.<br />
<br />
Now as I say, I'm not sure if this means anything. As a statistical survey, it's got an awfully small sample size. Of course one question you could ask is whether in seeking high public office in this province it helps or hurts to have a university education. Some might say it's never electorally groovy to appear to be well-educated, especially in the era of you-know-who-down-South. But I'm more interested in how to advance the cause of post-secondary education as a key policy priority for government. I've sometimes found it's harder to do that when you're speaking to someone who's enjoyed success in life without much formal education, as opposed to someone like me - who wouldn't have achieved anything in life without a post-secondary education. Great things have been done for post-secondary education in BC under premiers of all stripes: for example, SFU was established during the long mandate of WAC Bennett, that Kelowna hardware store owner high school dropout. But looking ahead, BC has no serious hope of social and economic prosperity in turbulent times without recognizing that education, education at the highest levels, is not just a wanna-have, but a must-have. Yes for now we need welders. But what we are really going to need are the people who can figure out what we're all going to do when all the welding is done by robots, a day that is coming much faster than most realize. And there's no place quite like a post-secondary education institution to help young minds develop those kinds of thinking skills. <br />
<br />
<br />
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<br />Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com1tag:blogger.com,1999:blog-7873333393421984078.post-55887927422520613672016-11-10T21:56:00.000-08:002019-01-04T04:52:33.379-08:00Leonard Cohen. And me, I suppose.<i>So long Marianne; it’s time that we began, to laugh and cry and cry and laugh about it all again.</i><br />
<br />
<br />
Tonight we think of Leonard Cohen.<br />
<br />
I still have the songbook I purchased in the music store in West Point Grey where I took my first guitar lessons all those years ago: <i>The Songs of Leonard Cohen</i>. With a picture of Cohen’s Greek visa - if that’s what it was - on the back cover. I wanted to learn how to play <i>Suzanne</i>, because everyone else could. (It sounded so simple, though it wasn't.) Instead, I learned <i>Bird on a Wire</i> and <i>So Long, Marianne</i>. But really hardly ever played them. There was something impenetrably, ineffably unreachable in his unique juxtaposition of the sacred and the profane. And I could never shake this feeling that they weren’t really songs; they were more like poetry barely set to music. He was, I think, simply too adult for my 14 or 15 year old self. It was far easier to set sail on the more approachable, or at least tuneful seas - flying machines and broken heartships - of Gordon Lightfoot, James Taylor and Neil Young.<br />
<br />
Oddly enough, I returned to Leonard Cohen a few years later through a side door: Jennifer Warnes’ completely perfect record, <i>Famous Blue Raincoat</i>. That punching drumbeat in <i>First We Take Manhattan</i> cracks across your mind like some kind of weapon. Her duet with the man himself on <i>Joan of Arc </i>is a wild tour into the unknowable, unresolvable mystery of mysteries. <i>Song of Bernadette</i>, which I played so often the grooves wore out on the vinyl and still today can bring me close to tears: ‘so many hearts I find, broke like yours and mine, torn by what we’ve done and can’t undo’ - well, isn’t that life in a dozen words? And anyway, I was just old enough by then to be entranced by the idea of a Jewish poet from Montreal who couldn’t leave all these Christian icons alone. Jennifer Warnes helped me see the music that completed the poetry.<br />
<br />
And then again, a long interruption, until the album <i>The Future</i>, and its <i>Closing Time</i>, which I played and played and played again, not just because it really is hell to pay when the fiddler stops, but by then I guess I was maybe old enough to start thinking about closing time. But young enough still to think that the answer was simply to party on, and hope the fiddler would never stop.<br />
<br />
If you will forgive me a moment of excess, I think I can say that the first twenty thousand times I heard <i>Hallelujah</i> - including as k d laing sang it at the 2010 Olympics opening ceremony (we were there for rehearsal night) it meant something to me, but eventually all good things - even really, really good songs, wear out their welcome. Not Cohen’s fault, I know, but there it is. It’s a curious song. I’ve always thought it’s a lot like Bruce Springsteen’s <i>Born in the USA</i>: there’s something superficially compelling about it that allows you to disregard the true darkness that lies within it. Sometimes I hear people sing it and I say to myself, are you actually listening to what he’s saying?<br />
<br />
Pico Iyer’s writings about Leonard Cohen’s life with Buddhists brought the man into focus in ways that could only cause you to rethink your own way of living, or at least it did that for me, and I give them both credit for doing that.<br />
<br />
Leonard Cohen is a special treasure to Canadians, of course. A Montrealer who made it big in the larger world and never completely let go of his roots. Someone whose muse also never quite let go, and drove him to create, to mystify and enlighten and even entertain us into his 80’s; well, that’s a powerful inspiration in his own right. He’s thought of as an icon of the 60’s, one of the greats of a long ago era who managed to reinvent himself into relevance again and again for six decades. I think his work will last. Context always matters; the time and place in which creation happens is always at least relevant. But the art that truly endures can stand outside its time and place. That is a right reserved to very few creators. Leonard Cohen is surely one of them, an immortal. Few people prepare so publicly for their own demise, but I always thought that he was preparing us for his departure as much as he was preparing himself. He’s gone now, but the words and the songs will live on.Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-32522603410682683192016-11-10T07:18:00.000-08:002016-11-10T17:57:18.012-08:00The morning after the morning after, and it's not getting betterA day later, and the future still seems pretty dark to me.<br />
<br />
Yesterday morning, Hillary Clinton conceded defeat with grace and dignity, and a resolute commitment to the inevitability of social progress, confirming our belief that these have always been her qualities. President Obama began the process of transition. He invited the President-elect to the White House as soon as today. And in a quite remarkable attempt to re-contextualize 18 months of bitter, impassioned and angry campaign rhetoric, he quaintly described US presidential elections as "intramural scrimmages".<br />
<br />
Well, we're all getting along now, I guess. At least no one it seems, is any longer describing the US voting system as rigged.<br />
<br />
Commentators are well into the post-mortem analysis. For many, of course, that will have to include an examination of the question: what went wrong with their confident prediction that Americans would reject Trump? (Of course, in one sense, they did: Clinton won the popular vote.) <br />
<br />
There will be lots of explanations. Here’s one that needs considering. I won’t remember the numbers perfectly, but they went something like this: compared with 2012, the Republican vote decreased by a bit less than a million (in round numbers, 61 million to 60 million); but the Democratic vote declined by as much as 6 million (66 to 60). Overall, a lower turnout. But perhaps what really happened is simply that Republicans voted Republican, while millions of Democrats abandoned their party and candidate. (These would probably be the blue collar workers who once formed the backbone of the New Deal Democratic coalition and who are now the bedrock of Republican support in the Rust Belt states where the election was won and lost.)<br />
<br />
The other narrative that has returned to the media discourse as an explanation of Tuesday’s outcome is the argument that what really happened is that voters decided, as they do from time to time, to vote for change rather than continuity. In crudely simple terms, it’s like this: “we’ve given those bastards a pretty good run at it; now it’s time to elect a different set of bastards.” (The argument is pursued by Gail Collins in her op-ed in today’s New York Times.)<br />
<br />
This idea was once very elegantly explained by the American philosopher Robert Nozick in his book, <i>The Examined Life</i>. He called it the "zigzag" of politics. He wrote,<br />
<br />
<i>“The electorate I see as being in the following situation: Goals and programs have been pursued for some time by the party in power, and the electorate comes to think that’s far enough, perhaps even too far. It’s now time to right the balance, to include other goals that have been, recently at least, neglected or given too low a priority, and it’s time to cut back on some of the newly instituted programs, to reform or curtail them.”</i><br />
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It’s a philosopher’s argument (I don’t think he even names a political party throughout the whole of his discussion). It implies, plausibly, that voters are rarely as entrenched in their adherence to the positions and views of parties and candidates as are the parties (and their ideologues). It argues for a balance over time that ensures that different interests, priorities, and aspirations eventually all have their chance. It underestimates the role that personality - as opposed to policy - plays in election outcomes. But it is not a bad way of explaining one of the best features of healthy democracies, which is that long term one-party rule is the exception, rather than the norm.<br />
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So maybe what happened is that Americans - or at least some of them - were simply voting this week for change.<br />
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Fine. I can comprehend that analysis. I might even agree with it. But it doesn’t help.<br />
Americans may have voted for change. But what they got was Donald Trump. And that’s where the fear starts to rise again in the pit of my stomach.Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com1tag:blogger.com,1999:blog-7873333393421984078.post-27725016728624955372016-06-25T10:24:00.000-07:002016-06-25T10:24:24.526-07:00A Sunday summer day in Howe Sound<br />
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<span style="-webkit-font-kerning: none;">Sunday afternoon, the first weekend in June. It’s a glorious day, more like summer than spring. We are paddling kayaks in Howe Sound, surrounded by ocean, mountains and islands, and counting seals and eagles.</span></div>
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<span style="font-kerning: none;">We are not alone. In the waters around us others are enjoying the beautiful blue sky day. There are motor boats filled with families fishing, picnicking and water-skiing. Off in the distance other boaters are travelling to and from their cottages. Water scooters zoom noisily back and forth. From the mainland across from us, we hear the roar of traffic on the Sea to Sky highway – folks coming home from a weekend of hiking or mountain biking at Whistler, and motorcycle riders making the long day’s circle trip up the Duffy Lake Road. High overhead, seaplanes filled with sightseers circle around the scenery.</span></div>
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<span style="font-kerning: none;">It’s a busy day in Howe Sound. Everyone’s finding their soul space, doing the things that give them pleasure, and enrich their lives. It’s at the heart of why we love this province, and why we live here in coastal BC. And it is all completely and utterly dependent upon fossil fuels. </span></div>
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<span style="font-kerning: none;">Without carbon products, the only sounds in Howe Sound would be waves lapping on rocky shores and the beat of seagull wings.</span></div>
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<span style="font-kerning: none;">Strung out along the mountainside just across from where we are paddling is the community of Lions Bay. It was once home to a few waterfront cottages. Now it’s a community of over 1300 people. Made possible by, and utterly dependent upon, our car culture. As a place to live, it fails every walkability score ever devised. Yes, there’s a community school, but it stops at grade 3. There’s a village hall. There’s a small general store that serves great cinnamon buns, and a real estate office, and a marina, but that’s about it. Everyone who lives in Lions Bay does their shopping somewhere else, a bus ride or, far more likely, a car drive away. They would all be helpless without carbon fuels.</span></div>
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<span style="font-kerning: none;">The same is true for all of us who live or play in Howe Sound and its islands. There’s Bowen Island, increasingly populated by folks who commute daily by ferry and water taxi to Vancouver. There’s Gambier and Keats and Anvil Islands, with cottages and boat docks lining their shores. It’s motor cars and motor boats that make it all possible. And the chain saws that clear our views, and the generators that operate our water pumps, and the ferries and the water taxis that deliver us to our destinations. And yes, of course, even the plastic kayaks in which we are paddling.</span></div>
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<span style="font-kerning: none;">There’s a breath-taking gap between the promise we have made to reduce our carbon output and the reality of our lives. </span></div>
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<span style="font-kerning: none;">I feel this all the more acutely because I know that some of those boating or driving around on this lovely Sunday afternoon will spend their Sunday evening writing letters to the editor insisting that we keep the LNG vessels and oil tankers away from our precious waters. LIke them, I believe that Howe Sound is a special place, and I am glad it is cleaner today than it was a generation or two ago. I certainly don’t want to turn back that clock. But I also don’t want to live in denial - to pretend - or even simply just ignore - the reality that without carbon none of us could live or play in these waters. </span></div>
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<span style="font-kerning: none;">But what about the orcas? Yes, there are the orcas that, for the first time in my life, are swimming in Howe Sound. Those orcas. They are beautiful, majestic creatures. I always know when there’s a sighting. That's because I can see the train of motor boats following behind and surrounding them. </span></div>
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<span style="font-kerning: none;">The problem, I think, is not that we aren’t superficially sincere in wanting a better, cleaner, sustainable environment. It’s that we assume that all that heavy lifting is going to be done by someone else, somewhere else, some other day, while we continue to live and enjoy our carbon-dependent lives to their fullest. As if, somehow, we will have done our part for the environment if we insist that the pipelines and tankers go somewhere else. But please make sure I can still afford the gas I need for my boat or car!</span></div>
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<span style="-webkit-font-kerning: none;">Canada has signed on for ambitious carbon reduction targets. As the Canada West Foundation recently pointed out, the amount of the reduction required by the year 2030 is equivalent to the elimination of </span><span style="-webkit-font-kerning: none; text-decoration: underline;">all</span><span style="-webkit-font-kerning: none;"> GHG emissions from Ontario, Atlantic Canada, Manitoba and the Territories. Completely shutting down the oil sands would only get us partway there. The reductions in carbon activity required to achieve this target are nothing short of transformational. Are we actually ready for that change? As I look around at the busy waters of Howe Sound on this lovely day I don’t think we have even begun to turn our minds to the magnitude of the task.</span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-30688095322610551902016-04-24T18:23:00.001-07:002016-04-24T18:23:28.240-07:00Other Americas<div style="-webkit-text-stroke-color: rgb(0, 0, 0); -webkit-text-stroke-width: initial; font-family: 'Trebuchet MS'; line-height: normal; margin-bottom: 8px;">
I began my Sunday morning as a good citizen of the world, by deciding to catch up on the week in US presidential election. Pretty soon, I was back in the slough of despond. The thing is, there is an America that is not the grotesque caricature that is dominating its politics just now. At times like this I just need to make a special effort to remind myself of it. </div>
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So I jammed the earbuds in and went for a walk on the windy beach. Richard Shindell began singing <i>Wisteria:</i> “The vine of my memory is blooming along those eaves.” Soon enough, I felt a bit better.</div>
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It is a cold October night and my friend Sam Morse and I are camped on Tumbledown Mountain in Maine, which is not so much a mountain as a long ridge of ancient granite that looms over the miles of forests and farms of northern New England. We have a campfire going, and we are working our way with some deliberateness through a bottle of Jack Daniels, solving the last few remaining puzzles in the mystery that is the universe. It’s a dark starlit night. Just when I am starting to think it is time to crawl into the sleeping bag, a car pulls up, filled with teenage boys. They ask if they are on the right road to Mexico. I start to laugh. Sam, who knows the backroads of Maine, asks, “Where are you boys from?” They reply, “Paris”. I laugh again. Sam looks at me as though I am the completest idiot ever to set foot on earth. He turns back to the boys in the car and says, “I’m afraid you’ve overshot Mexico.” And then he proceeds to tell them how to get back to the right road. It turns out there’s more than one way to get to Mexico from Paris, in Maine. In that other America.</div>
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It is a summer afternoon in the early 1990s, and we are sitting in Fenway Park, in Boston, in a row of seats halfway up the stands behind home plate. The Blue Jays are playing the Red Sox. It’s a sunny, muggy day. We catch bags of peanuts from the vendor and make a mess of shells at our feet. We watch as pitchers and batters duel, fielders make spectacular catches, and there is a collective intake of breath with every long ball that arcs towards the Green Monster. We feel like we are sitting in the nave of a cathedral built to honour the soul of a nation. On the row beside us sit two men who have probably been watching Red Sox games at Fenway Park for over half a century. They see an opportunity for education. And so for the whole of that long, deliciously slow August afternoon, they generously regale us with stories of their team, its players and managers, its successes and heartbreaks. They fill our heads with statistics of unsurpassing obscurity, which they disagree about vigorously. They tell us what to watch for with every batter, and call every pitch before it is thrown. All is said with what can only be described as wise-cracking reverence, as though there could be nothing more important in this world than to know every fact about the life and career of Carl Yastrzemski, the greatest Red Sox player of them all.</div>
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There’s a room in Washington D.C. in an art gallery called the Phillips Collection which holds four paintings by Mark Rothko. We were there last December. Its mid-20th century construction marked the first time an entire room had been created specifically for Rothko’s work. It’s not a large room; and it is dominated by the paintings, abstract expressionist works that are fields and bands of colour. When you enter the room, you are literally immersed in Rothko’s vision. It’s deceptively simple: colours and shapes on four canvases; purely abstract. But if you take a slow breath, and let it wash over you, you start to realize that the paintings are somehow humming; as though they are alive. And then you realize that you are not just looking at something, you are feeling it. You’re buzzing, elevated by an emotion that’s almost impossible to explain. It’s glorious to be in the presence of such achievement. </div>
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There is a book by the American photographer Robert Adams called <i>Prayers in an American Church</i>. It’s a small book, a collection of a dozen or so photographs, accompanied by meditative words from diverse sources. The church in the title is not a building; it’s the natural world, whose beauty is honoured in the photographs. Not the grandeur of mountains and canyons, but the simpler beauty of sun-dappled tree branches and leaves, and the peace of quiet places. Robert Adams’ images are austere. He captures the intersection of humans and the landscape of western America. It might be a treeless suburban housing tract on the outskirts of Denver. Or a scarred clearcut hillside in Oregon. Or a woman pushing a shopping cart in a grocery store. Or the line of the prairie horizon broken by a single tree. Or a lonely road. He is determined to find beauty in all these places, and, against the odds, he does. </div>
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When I want to think of that other America, I think of Dar Williams, whose early songs were, for a time, the soundtrack of our life as a family. <i>When I Was a Boy</i> was a kind of anthem for our belief as parents that our children could grow up on their own terms, unconstrained by the limiting stereotypes of mass consumer culture. <i>The Christians and the Pagans</i> is a generous and funny hymn to the possibility that we can get along, despite our differences, as long as we can find a way to eat together. <i> The Babysitter’s Here</i> is a short story about love, growing up, and everything else, sung in about four perfect minutes. She still makes amazing music. </div>
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One summer a decade ago, we rented a car in Las Vegas and began a road trip by heading towards southern Utah and its breathtakingly beautiful red sandstone natural monuments. On our first night we stopped in a town called Springdale, which is on the doorstep of the majesty of Zion National Park. We try to be respectful travellers. We had read that Mormon traditions were strong in southern Utah. We were prepared, then, for a few days of righteous, stoic, alcohol-free travel. But on our first night, we sat down at the table of our restaurant and read a menu that suggested we might like a glass of Polygamy Porter. Why? Because, as they said, “you can’t have just one.” It’s hard not to love a country that can make fun of itself. And while I am at it, I think, too, of Las Vegas, all of it, because, as I said, it’s hard not to love a country that can make fun of itself.</div>
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When I think of America, I think of Aaron Copland, and that moment early in the first movement of Appalachian Spring when the orchestra comes alive and I always jump from my seat. And Bob Dylan, because, well, because everything. Even if “it’s not dark yet, but it’s getting there.” And Edward Hopper’s paintings. And Emily Dickinson: "Because I could not stop for death, he kindly stopped for me.”</div>
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And I think of lightbulbs, Linus Pauling, the Hardy Boys, Huckleberry Finn, Rosa Parks, New York’s Museum of Modern Art, ice skating at Rockefeller Center, Walter Cronkite, e e cummings, Rebecca Solnit, and that moment when, after screaming in terror all the way down the Matterhorn at Disneyland, our daughter turned to us and breathlessly said, “Can we do that again?” </div>
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And my favourite sentence in the English language. “So we beat on, boats against the current, born back ceaselessly into the past.”</div>
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Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-89789061793893099912016-04-21T21:14:00.001-07:002016-04-21T21:14:34.856-07:00Happy Earth Day, British Columbia<i>The Globe and Mail published this piece online tonight. I've read some of the comments, which, really, no one should do, who wants to maintain any faith in humanity. But the hilarious thing is that no one (so far) seems to have read what I've actually written. They've read the headline and that's about it. Maybe I shouldn't be surprised? Anyway, here we go. </i><br />
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Happy Earth Day. Earth Day can be a day to honour the precious gift that is our planet. Often, however, it is also an occasion to lament, or at least feel guilty about, the way we use it.<br />
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There’s reason enough to lament. But I would suggest there is another perspective, that there is also, sometimes, a reason to celebrate. In British Columbia today, we actually have an enviable environmental record to celebrate on Earth Day.<br />
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A recent report by Corporate Knights confirmed that no jurisdiction in Canada protects more land than British Columbia. There are 1,029 protected areas managed provincially. As of last June, over 15 per cent of British Columbia’s land base, or nearly 14.3 million hectares, was dedicated to protected area status. That’s 2.2 hectares per resident. It’s a remarkable achievement.<br />
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And the story gets better. Earlier this year, after years of conflict and negotiation, the Great Bear Rainforest on the central coast was fully and properly protected.<br />
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The agreement now in place permanently protects 85 per cent of the old-growth forested area in this enormous and remote part of British Columbia from industrial logging, while allowing restricted logging on the balance. That’s over 5.4 million hectares of additional protection, an area nearly the size of Nova Scotia.<br />
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For once, I don’t have to go out on a limb to agree with the Greenpeace spokesman who stated: “From conflict to collaboration, we now celebrate the protection of areas of cultural and ecological importance while ensuring economic opportunities for the communities exist long into the future.”<br />
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This achievement is especially important because our forestry, energy and mining resources will continue to drive the growth and stability of our economy.<br />
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The reality for our province – and for Canada – is that our prosperity is founded on resource development. That’s not to say we should not diversify our economy; we have done so and should continue to do so. But it’s resource development that built our province, and responsible, sustainable resource development will be a cornerstone of our economy for generations to come.<br />
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That makes it all the more important to find the right balance between land development and land protection.<br />
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That’s why for the past couple of years, I’ve been involved with a group in Vancouver that is sparking an informed conversation about these issues. Resource Works, a non-profit society with representation from all sectors and corners of the province, works to raise awareness of the importance of our resource economy to our standard of living in British Columbia.<br />
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Too often in this province, we hear a discourse that presumes we can somehow maintain our quality of life by leaping immediately to some postresource economy. It won’t happen. And it shouldn’t happen. For as long as we continue to drive cars, take buses or ride bicycles; use smartphones, tablets or computers; expect our streets to be safely lit at night; boil water for coffee or tea; expect our homes to be warm in winter; build and live in houses; catch fish; eat fruits and vegetables in winter – in short, for as long as we continue to do everything that is indispensable to our quality of life, we will make demands on the planet. It’s simply not credible to pretend or suggest otherwise.<br />
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Somehow, we need to hold two thoughts in our minds at the same time: the need for access to sufficient resources to sustain our quality of life and ensuring that we respect the planet. Neither side holds a monopoly on truth in this debate. There is no point or purpose in trying to out-shriek each other. The task, again, is to find the balance.<br />
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But I’m not suggesting it’s easy. I am suggesting it is fundamentally important that we embrace both sides of the question, and find a path forward that can both recall our duty to protect the planet and yet also find a way to continue to sustain ourselves from its amazing bounty.<br />
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Count all of the protected areas, wrap your mind around the millions of hectares of British Columbia that have been put outside the reach of resource development – the forests, mountain ranges, rivers, lakes, estuaries and marshlands that have been been protected. It’s been the labour of a generation to reach a point where our record of land protection is second to none. It’s Earth Day. Let’s celebrate that achievement.<br />
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And then ask the question: Is that enough?Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-86894565409810195002016-01-26T18:15:00.000-08:002016-11-20T19:25:03.920-08:00We are travelling in Laos. Admiring the glorious Buddhist temples of its capital city Vientiane. In the back of my mind is this nagging question of how Canada should respond to the events in the Middle East, Syria and ISIS in particular. There’s a call for greater bellicosity. Commentators and opposition politicians say we need to increase our military engagement. It’s not quite wanting to make the desert glow, but lots of “why can’t the Prime Minister sound at least a little angry?”<br />
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Well, anger may be a great way of letting off steam, but it’s not always the best emotion for rational analysis. There’s a recurring moment in the movie <i>Bridge of Spies</i>, when the Tom Hanks character asks his Soviet spy client (played brilliantly by Mark Rylance) a question intended to provoke a strong emotion, and the spy always replies, “would it do any good?” That’s a great question, a question which we should especially ask about whether Canada needs to get more engaged - I was going to say ensnared - in the literal and metaphorical minefield that is the Middle East. Would it do any good?<br />
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All wars come about because older men and women decide to kill younger men and women. Their own citizens. Some of those killed are soldiers, and others are innocent civilians. The Leader says to his people, “Please give me your sons and daughters so I may slaughter them on battlefields, and break your hearts when they never return from the faraway place I need to send them.” The question arises, “Why, O Leader?” The answer is often an appeal to a higher ideal. In many countries of course, the answer is sometimes “because our borders are threatened.” Not so in Canada, not for the past two hundred years. <br />
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Sometimes the answer is, “We need to do this to make the world safe from something bad.” Perhaps it is justifiable to put Canadians in harm’s way if the result of the loss of lives is that some greater evil has been avoided. As I get older, however, experience teaches me to be increasingly skeptical of that argument. The world was told Iraq needed to be invaded to make the world safe from weapons of mass destruction. Except there weren’t any such weapons. And the result of the invasion of Iraq is that the world is actually less safe. Much less safe. The world was told that Afghanistan needed to be invaded to make the world safe from the harm being caused by its leaders. Well, the world is always being told that about Afghanistan, and whether it is ever true, the fact is that the lost of precious Canadian lives in Afghanistan has had no enduring positive impact on domestic safety and security in that country, and Afghanistan continues to be a source of international instability. And we are told we need to increase our military engagement in Syria. We are told this, mostly, by people who are much better at starting wars than finishing them. Forgive me if, this time more than ever, I am skeptical of the war-mongers. I have grandchildren.<br />
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Why am I ranting on like this? Yesterday we visited the National Museum of Laos. The plaster is cracked, there's dust in the corners, and some of the exhibits are a bit timeworn, but the story of the country's passage is compelling nonetheless. It's a story told from the singular perspective of the Democratic People's Republic, with the special tone that one-party states tend to adopt when praising their accomplishments. I took a (bad) photograph of this map. Every dot is a bomb drop.<br />
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Between 1964 and 1973, as part of a secret operation conducted during the Vietnam War, the US military dropped dropped 260 million cluster bombs – about 2.5 million tons of munitions – on Laos over the course of 580,000 bombing missions.<br />
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As our tour guide said a couple of days ago, “Well there were about three million people in Laos then, so you could say the US dropped about a ton of bombs for every man, woman and child of Laos.”<br />
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Did it do any good? Did all those bombs make Laos a free country, with liberal democratic institutions, respect for private property rights and the rule of law?<br />
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No. About a year after the bombing stopped, Laos became a communist state. <br />
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Some historians argue that the final triumph of the communists in Lao was a direct result of the US bombing campaign. That is, not only did this massive, relentless campaign of utter destruction singularly fail to achieve its stated purpose, it actually produced the opposite effect. Laos was bombed (in part) to protect the US war effort in Vietnam. Well, so how did that turn out? The US left Vietnam in failure and disgrace, and soon thereafter, North and South Vietnam became one undivided communist state, the very thing that the US intervened to prevent a generation earlier.<br />
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All conflicts have their own histories. But before we put our children in harm’s way, isn’t it right to ask the question whether it will do any good? The answer is so rarely yes. It is often said that those who cannot remember the past are condemned to repeat it. But we do not have to. It is also said that the definition of insanity is to do the same thing over and over again and expect different results. I have heard no one begin to offer a coherent explanation of the kind of multi-generational commitment that would be needed to build a measure of security and stability in the Middle East, and frankly, the region’s leaders are themselves quite conflicted on the question whether they would ever want such a thing, given that a certain amount and kind of conflict and instability seems to suit their interests. <br />
<br />
For a generation, in the aftermath of the Second World War, Canada tried to make a reputation for itself as a peace maker, not a war maker. Many look back on that era as a high point of our contribution to world affairs. Others think we should just buy more fighter planes. I say, just this once, let's reach for something higher.<br />
<br />
<br />Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-34818609250924006962015-10-13T05:50:00.000-07:002015-10-13T05:50:12.159-07:00Un-Canadian, eh?<br />
<i>The Globe & Mail published this on October 13.</i><br />
<br />
A friend of mine once suggested that a good way to end a particularly troublesome media scrum would be to say, “That question is un-Canadian.” His point was that Canadians are a polite respectful people, and that polite respectful people do not ask annoyingly difficult, even disrespectful, questions of politicians.<br />
<br />
It was a cute thought, but I never took him up on it. Better just to try to come up with good answers to all those pesky questions.<br />
<br />
But in the last days of this long election campaign, there is another idea of “un-Canadianness” that is getting a worrisome amount of attention.<br />
<br />
This is the idea that there are two kinds of Canadians. Those who are, well, Real Canadians. Just like us. Old stock. And those who are not.<br />
<br />
And so it is being argued by Stephen Harper’s Conservatives that Real Canadians would not seek to hide their faces in public places.<br />
<br />
And that what this country urgently needs is some sort of tip line so Real Canadians can report the “barbaric” cultural practices of our un-Canadian neighbours to The Authorities.<br />
<br />
And that there are two classes of citizens: some whose citizenship can be removed for certain offences, and others who, being Real Canadians, might go to jail for their crimes but will always be citizens.<br />
<br />
It is as if the one thing Canada needs most urgently at this time in place is not viable policies to remedy a persistently flagging economy, address the looming crisis of climate change, or restore Canada’s position of credibility in world affairs, but rather, a legislated dress code for citizenship ceremonies.<br />
<br />
But it is much worse than that.<br />
<br />
There is a principle which is truly fundamental to our country. It is that we do not simply tolerate difference, we celebrate it. <br />
<br />
We do not impose the values of one religion on all; instead, we respect religious freedom. This protection is written into our Charter of Rights and Freedoms, the document that, more than any other, is the expression of our deepest values as a nation. <br />
<br />
The constitution goes further than this. A section which is quoted much less often reads, “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” Not just the passive acceptance of difference, but its preservation and enhancement.<br />
<br />
Hardwired into our nation’s system of government is the idea that we are not a seamless, homogenous whole. We are instead a patchwork, a mosaic, a tapestry of different beliefs, customs and practices. The idea is that these differences should not divide us, but rather unite us, within a constitutional framework that guarantees basic rights to all while fundamentally respecting - as liberal democracies must - our individual right to live our lives autonomously, freely.<br />
<br />
This must surely include the possibility that some will hold religious beliefs that call them to modesty in public, even to the extent of veiling their faces. There is, in fact, no difference between the Scottish born immigrant who wants to wear his kilt to his Canadian citizenship ceremony, and the Muslim immigrant who wants to veil her face. Both want to become Canadian, to obtain full membership in a society that will not scorn their difference, but rather embrace it. <br />
<br />
There are some who think otherwise. Plainly, some of Stephen Harper’s Conservatives are in that group. But we have seen these people before. People who advocate for the creation of tip lines to rat on the behaviour of our neighbours are not much different from Joseph McCarthy and his House Committee on Un-American Activities. Theirs is the politics of intolerance, fear and division. Today we will be given the opportunity to phone the tip line. Tomorrow we will be required to do so.<br />
<br />
Some will say that this is simply a political strategy. A late campaign attempt by the Conservatives to exploit so-called wedge issues intended to scare us into voting for them.<br />
<br />
The problem, however, is this. If we reward them now for their intolerance, we can expect more of it. <br />
<br />
There are important issues in this election campaign. The parties differ markedly on some, and not on others. We can choose among different approaches to economic growth, environment protection, refugee policy, parliamentary reform. It may be hard to see the differences sometimes through the noise of partisan rancour. But it’s an election, not a tea party.<br />
<br />
All except for this. The notion that what this country needs now is a politics that punishes cultural and religious difference, that classifies us into different categories of citizens, is profoundly wrong. It is, in fact, un-Canadian. We must reject it.<br />
<div>
<br /></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-41878815792124340152015-09-24T22:19:00.000-07:002015-09-25T05:40:45.497-07:00I gave away my record albums today<br />
Well, they’re gone now and I am left wondering if that was the right thing to do. It didn’t take much. I finally asked the right question of the internet, and found a phone number. The lovely Miss Janee made the call, they were happy to be of service and today they came to the house and took them all away.<br />
<br />
My record albums.<br />
<br />
I decided I needed a very clean, very surgical incision. So I didn’t even bother to count them exactly. 200. 250. 300. Maybe more, if you include the 45s, like my copy of Tom Northcott’s 'Sunny Goodge Street', autographed by the artist. And the Rolling Stones' 'Dandelion'. And Neil Young’s 'Sugar Mountain'. And weirder and still weirder, Kenny O'Dell’s 'Springfield Plane'. Who the heck was Kenny O'Dell? All I remember is that line, <i>Springfield plane is going to carry me back to my baby’</i><br />
<br />
For a brief moment on Sunday afternoon, as the rain fell, and we cleared stuff out of the attic, I thought I would open the boxes and take a look. I thought I knew what I would find. The soundtrack of my youth, of course. <i>Sgt. Pepper's Lonely Hearts Club Band. Bookends. After the Goldrush. Sweet Baby James. For Everyman. Bringing It All Back Home. </i>Records every note of which is laid down in the basic wiring of my brain. I was twelve or thirteen or twenty three, and I had vast caverns of mindspace waiting to be filled with music. <br />
<i><br /></i>
<i>She’s got everything she needs she’s an artist she don’t look back. </i><br />
<i><br /></i>
<i>Sailing heartships through broken harbours, out on the waves in the night. </i><br />
<i><br /></i>
<i>Sunny skies sleeps in the morning. </i><br />
<i><br /></i>
<i>When I think back on all the crap I learned in high school.</i><br />
<i><br /></i>
<i>Ribbon of darkness over me.</i><br />
<br />
I always think that everyone of my generation knows all these tunes and words and am surprised when they don’t.<br />
<br />
But anyway I had to stop looking because what I quickly discovered was not what I remembered but what I had forgotten. David Essig. Whoa boy could he play. Early Leo Kottke. Bruce Cockburn’s <i>In the Falling Dark</i>, and the hours I spent learning to play 'Festival of Friends' in the winter of 1976-77. David Lindley’s <i>El Rayo-X</i>, an absolutely spectacular record whose tracks jumped out of the speakers like wild animals. Keith Jarrett’s <i>Staircase</i>: I was never sure if it was the music or the album cover photographs. The Pousette Dart Band - I saw them play once in Harvard Square I think. Donovan’s <i>A Gift from a Flower to a Garden</i>. Well, I had not forgotten that; it’s just that seeing it in my hands again sent me somewhere quite else. <br />
<br />
Running my fingers through my past I had to stop. I decided that I could not do this one at a time. Or I would not do it at all. These boxes have sat in the attic, the records inside them unplayed, for years now, and, thinking rationally, I am not going to take a trip back into vinyl time and rediscover the justifiably neglected tracks on the early Byrds‘ albums, or the strange moody indulgences of Emerson Lake and Palmer. <br />
<br />
Time just to get rid of it all, and take my chances with the digital music archivists of the internet. So today, while I was at work, the folks came and took the boxes away. No fuss no muss - one more step along the road to a clutterfree world. <br />
<br />
But right now I am thinking of those hours - days, really, weeks, even years, maybe - I spent listening to all those records and wondering whether I have just given away something I might someday wish I hadn’t forgotten to remember. Or something like that. I don’t want them back. I just don’t quite want them gone, either. <br />
<br />
Like the poet said, <i>Time it was and what a time it was, it was</i>.Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-33745834650439701082015-09-09T10:03:00.001-07:002015-09-09T10:03:21.382-07:00A year after Tsilhqot'in it's time to move from analysis to action
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: left;">
<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">The BC Business Council invited me to speak at a networking event they hosted in Vancouver last night on the eve of the annual BC Cabinet and First Nations Leaders' Gathering. It was a privilege to have an opportunity to speak to a room of Cabinet ministers and their deputies, First Nations and business leaders and to reflect on how to make greater progress in turning the promise of economic and social reconciliation into reality in the aftermath of the Supreme Court of Canada's 2014 landmark decision in Tsilhqot'in.</span></div>
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">Here is the text of my remarks, more or less as delivered.</span></div>
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">1<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">Let me
first thank the BC Business Council for its leadership in convening this
important gathering. What the business community is signaling here is its
recognition both of the importance of reconciliation, and the role that
business must play in turning the promise of reconciliation into reality. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">This <u>is</u>
an important gathering, you know. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">Just
imagine, for a moment, what might get done here, starting tonight, and over the
next few days.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">Meaningful
progress in creating tangible opportunities for economic and social
development, founded on mutual recognition and respect.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">You are
here because you are leaders, because you sought out leadership and because
your communities chose you as leaders.<span style="mso-spacerun: yes;">
</span>So make this an occasion for leadership. Not for standing still, not for
looking for short cuts to nowhere, not for dressing up the status quo as
something new, but an occasion for stepping outside your comfort zone, for
exploring new ideas, for taking risks. For courage. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">I know
this is much easier to say than do. I’ve been in politics. I’ve attended a
hundred meetings where my main objective was just to sit tight and wait until
it was all over. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">I’ve
also experienced how hard it is to lead change. But really, that is why you are
here. To lead change. To make history.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">So where
are we at?<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">14
months after the Supreme Court’s decision in Tsilhqot’in, there’s been no
shortage of discussion and analysis. People have tried to make sense of what
the decision means, and there have been calls for action. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">14
months on, we continue to push out more agreements – and that is a good thing –
but overall, it’s hard to say we have found a clear path forward.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">Let me
offer some observations intended to help get past reflection and into real
progress.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">2<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">First,
let’s leave the lawyers at the door. They’re nice people, really, (after all, I am one) but we will
not establish reconciliation by relying on legal opinions about legal rights.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">For a
long time, now, courts have helped level the playing field as between
non-indigenous and indigenous rights, but courts cannot put rights into
action.<span style="mso-spacerun: yes;"> </span>Even those who cannot see the
moral force of the argument for respect of indigenous rights must surely agree
that litigating the ownership of every hectare of British Columbia will not
build a prosperous society. There has to be a better way to do this. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">Last
summer, in the aftermath of the Tsilhqot’in decision, First Nations sent a
letter to government proposing four principles.<span style="mso-spacerun: yes;">
</span>The principles were intended to inform new forms of relationships,
negotiations, and agreements with the Crown. The principles were simply that:
principles. You could say they were aspirational in their reach.<span style="mso-spacerun: yes;"> </span>But they were intended as a start for a new
conversation. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">Ten
months later, Government’s letter of response carefully parses the principles
as though they were a legal contract, rather than a potential foundation for a
political discussion. With respect, a dialogue that entrenches old positions,
rather than empower fresh thinking, simply won’t help. This is not the time to
draw lines in the sand.<span style="mso-spacerun: yes;"> </span>It’s a time for
problem solving, not problem defining.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">I’m not
suggesting we should pretend there are no differences. Of course there are
differences. But let’s all of us spend less time trying to win arguments, and
more time looking for mutually beneficial opportunities. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">To put
this in another frame, for a long time this discourse has been characterized by
positional statements and demands. And for much of our province’s history it
was, perhaps, too tall an order for any party to shift that. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">But
certainly now is the time for change.<span style="mso-spacerun: yes;">
</span>It’s time for an interest-based approach that promotes collaboration – which
again sounds easier than it really is, but it is an approach that definitely
holds more promise than the alternatives.<span style="mso-spacerun: yes;">
</span>What we need to focus on is how to deliberately, systematically, and
programmatically, create economic and social opportunity for everyone.<span style="mso-spacerun: yes;"> </span>Opportunity for the First Nations communities
on whose territories land and resource development takes place, and
opportunities for everyone else who deserves a share of the prosperity we can
create if we work together. <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">3 <o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">How
should we frame our engagement?<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">First, I
do not suggest we can or should overreach - we’re simply not going to get to
comprehensive reconciliation with one bold leap.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">It may
not be possible to design, let alone implement, an over-arching framework which
is both meaningful and comprehensive enough to encompass all of the province’s
many First Nations.<span style="mso-spacerun: yes;"> </span>It may not even be
desirable to try, given the diversity of experience and perspective that lives
within our province.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">There
has to be room for nuance and flexibility. We can get to reconciliation in many
ways, and as leaders you all have a critical role to play in shaping those
pathways. A policy which looks for wins – call it “strategic opportunism” - is
entirely respectable, not least because achieving some success somewhere helps
build confidence that other successes are possible. We need to acknowledge the
successes that have already been achieved in this way.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">At the
same time, looking for wins should not be confused with “squeaky wheels always
get grease.” We need a proactive, rather than reactive approach.<span style="mso-spacerun: yes;"> </span>It’s not about waiting for opportunity, it’s
about looking for it. It can’t be just about putting out fires. We have some
wonderful firefighters in the room – from all parties – and we can all hope
that as leaders, these skilled individuals are given the opportunity to look
for opportunities, rather than simply respond to problems.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">There is
a powerfully important need for frameworks, objectives and principles that
avoid the risks inherent in a continuous proliferation of isolated one-off
arrangements.<span style="mso-spacerun: yes;"> </span>Real progress is not
rooted in expedience.<span style="mso-spacerun: yes;"> </span>With a bit more
design work, there’s no reason we can’t establish a stronger foundation of shared,
understandable, acceptable, achievable expectations, based on mutual respect
and recognition, not denial and mistrust.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">And then
there is this vexing question: how do we ensure that everyone benefits? If the
distribution of success is too lopsided, then it will breed its own
failure.<span style="mso-spacerun: yes;"> </span>I’m not discounting the reality
that forests, mines, gas wells and other resources are not evenly distributed
across the province. I am also not suggesting that all First Nations need or
want to benefit in exactly the same way – that approach ignores the reality of
so many diverse perspectives, interests and priorities. But it’s critical that
we design our policies to address the reality of uneven wealth
distribution.<span style="mso-spacerun: yes;"> </span>This will be particularly
challenging if negotiation becomes – as I hope it does not - an exercise in the
valuation of asserted rights and title.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">There is
a need for greater transparency. Not only because our respective communities
need to know what is going on, if we are to hope that they will support this
work.<span style="mso-spacerun: yes;"> </span>But also because a growing public
record of best practices, will help demonstrate what kinds of arrangements are
more likely to succeed than others.<span style="mso-spacerun: yes;">
</span>Again, I am not suggesting that what is needed is strait-jacket
uniformity imposed through the back door.<span style="mso-spacerun: yes;">
</span>I’m just saying, keep the confidentiality clauses to a minimum, let’s talk
about what’s going on, and let’s keep track.<span style="mso-spacerun: yes;">
</span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">I’m not
trying to make this sound harder than it needs to be.<span style="mso-spacerun: yes;"> </span>But for all the successes that have been
achieved through many agreements and arrangements that have been entered into,
there’s a need to do much more to give full effect to the promise of
Tsilhqot’in.<o:p></o:p></span></div>
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">This
work is not, at its heart, positional jousting to reduce costs and minimize the
distributional effects of rights and title.<span style="mso-spacerun: yes;">
</span>We cannot allow this to be a zero sum game of benefit re-redistribution.
It has to be about creating competitive advantage, of creating incremental
value. The question is can we really lead?<span style="mso-spacerun: yes;">
</span>Are we ready to lead in ways that are more enduring for our communities,
shareholders and families?<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">To be
fair, we are in an era where it often seems there is not a great deal of public
appetite for bold political leadership – in any of our respective
communities.<span style="mso-spacerun: yes;"> </span>But rather than be defeated
by cynicism, let’s choose to be inspired by the profound importance of the work
that lies before us.<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">I do
believe great things can happen if we are willing to recognize and affirm the
mutual legitimacy of our aspirations, and if we are able collectively to see
aboriginal people and their unique rights not as threats, not as the “other”,
but as part of the larger “us.” To recognize that justice for First Nations is
justice for all of us.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">4<o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">In
closing, you are here given an opportunity to direct the course of
history.<span style="mso-spacerun: yes;"> </span>I’m not afraid to put it in
such terms.<span style="mso-spacerun: yes;"> </span>There is no issue that so
taints the history of our country as the long legacy of our failure to respect
the rights, hopes and aspirations of Canada’s First Nations.<span style="mso-spacerun: yes;"> </span>This week’s meetings take place against the
backdrop of this history. One way or another you will be remembered for what
you do here. I say, choose to succeed.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span lang="EN-US" style="font-family: "Arial",sans-serif; font-size: 14pt; line-height: 115%; mso-bidi-font-family: "Times New Roman";">By
coming together here as leaders, it’s your turn, your time, to take hold of the
paddles that sit in the great canoe which holds our collective hopes and
dreams.<span style="mso-spacerun: yes;"> </span>You can, if you want, keep your
paddles dry, and let the river take you where the river will. The river will
always take you somewhere.<span style="mso-spacerun: yes;"> </span>Onto the
rocks maybe, or stalled forever in some backwater.<span style="mso-spacerun: yes;"> </span>Or you can decide to sit up straight, put
your back into it, and paddle. You’ll get wet, maybe blisters, too.<span style="mso-spacerun: yes;"> </span>It’s going to be harder to find and hold the
course than you would like.<span style="mso-spacerun: yes;"> </span>But paddling
together - sensing the surge as the boat moves forward - it’s an amazing
feeling. It’s really the reason we’re here, after all. So try it. Paddle.</span><span lang="en-US" style="color: windowtext; font-family: "Times New Roman",serif; font-size: 14pt; line-height: 115%; mso-ansi-language: #0400; mso-bidi-language: X-NONE; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: #0400;"><o:p></o:p></span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-14696072381249622722015-09-08T07:09:00.001-07:002015-09-08T07:09:05.117-07:00We should nurture the principle of open courts<div class="selectionShareable" style="border: 0px; font-family: Garuda, Verdana, Geneva, sans-serif; font-size: 12px; line-height: 1.5; margin-bottom: 20px; outline: 0px; padding: 0px; vertical-align: baseline;">
Here is a commentary I wrote in response to a BC Provincial Court consultation paper on open courts. It appeared in the Globe and Mail on September 8, 2015.</div>
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Not all that long ago, if you wanted to know what was happening in the courts you had two options: Rely on the media, or go to the courthouse and see for yourself. Nowadays, a great deal of court information is kept electronically and with little effort could be made readily available online to everyone.</div>
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How much of this information should be accessible is a question being asked in a consultation paper recently issued by B.C.’s Provincial Court. We should seize this opportunity to expand access to information, not further limit it.</div>
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As the discussion paper helpfully points out, the task is to strike the right balance among a number of important principles: The public’s right to transparency in the administration of justice, individual privacy rights, fairness and the presumption of innocence.</div>
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On the one hand, courts exercise tremendous power – most obviously, of course, in criminal cases, where judges can impose sanctions and penalties all the way up to life imprisonment. But all court cases are about the exercise of state power, even if it is only to obtain an order requiring the payment of a debt. As the Supreme Court of Canada recently said, the transparency that flows from public access to the courts “ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.”</div>
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On the other hand, widespread publication of court information has obvious implications for personal privacy. Publicizing the details of a trial, even when the result is an acquittal, can sometimes cause as much stigma and shame as a conviction. Our innocence may be presumed, but it’s hard to remember that when we watch crime stories on the nightly news.</div>
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Over the past several years, government and the courts have done a great deal of work to digitize court information. Recording this information electronically has undoubtedly improved court administration. But along the way policy decisions have been made about public access to this information. The result is that public online access is refused to such information as convictions for which a pardon has been granted, absolute and conditional discharges (after some time has elapsed), stays, withdrawals, and acquittals or dismissal of charges.</div>
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The principle underlying these restrictions is the idea that someone who has not actually been convicted of a criminal offence has a right to privacy that is more important than the principle of open courts. I take a different view.</div>
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Finding the right balance for competing principles is rarely easy, but that balancing exercise is often the moment when we have a chance to see the difference between what we really value and what we simply say we value.</div>
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There are legitimate circumstances where publication of court information should be restricted. Examples include where public disclosure would seriously undermine the integrity of law enforcement or expose witnesses to the risk of serious harm. This is not just about protecting privacy, it’s something different and equally, if not more, important.</div>
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But fundamentally, we should nurture, not further erode, the principle of open courts.</div>
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When the state prosecutes someone for an offence it is essential to democratic accountability that this fact be public. We should know about it whether the person is convicted or acquitted, the charge is stayed or withdrawn, or there is a pardon, a peace bond, or whatever. All of it. We will not be able to ask the right questions about the exercise of power unless we know how and when it is being exercised.</div>
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The fact that information technology allows court information to be disseminated more widely is a good thing, not a bad thing. Understandably, a person who is acquitted of a crime wants the whole world to forget that he or she was ever charged, but truth doesn’t work that way. It is appalling that innocent people can be dragged through the hell of wrongful prosecution or imprisonment, but the right response is not to organize official records to close the door of public access to what happened, but rather to open those doors as wide as we possibly can. The truth may sometimes hurt, but we won’t learn how to prevent wrongs from occurring if we deny ourselves the opportunity to know what has happened.</div>
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It was easy to say that open courts are indispensable in free societies when the reality is that much of what the courts did was, as an Alberta judge once said, protected by the “practical obscurity created by the physical inconvenience of attending at each courthouse to examine the criminal dockets.” Now technology offers the opportunity to overcome that inconvenience and test our commitment to the principle of open courts. We should embrace that opportunity. The exercise of state power must be subject to public scrutiny. That’s our best protection against its misuse.</div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-60985201332294423562015-09-03T08:54:00.001-07:002015-09-03T08:57:05.240-07:00Two residential school desks dare us to respond more powerfully than a report<br />
Here is a piece the Globe and Mail published on July 15 - my response to the powerful exhibition of Sonny Assu's work at the Equinox Gallery in Vancouver.<br />
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At the centre of Sonny Assu’s recent exhibition at Vancouver’s Equinox Gallery were two school desks. School desks remind us of childhood, but these desks were different – and not just because of the way they had been altered by the artist. There was nothing nostalgic about them.<br />
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One, of 1930 vintage, was called Leila’s Desk. A box of Lifebuoy soap sat on the desktop, a reminder that on her first day of school a classmate called Mr. Assu’s grandmother a “dirty Indian.” The other, of 1990 vintage, was called Inherent and revealed the word “chug” on the underside, a piece of invective thrown at the artist by one of his classmates.<br />
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The exhibition was called Day School, a direct reference to Indian residential schools. Mr. Assu is from the We Wai Kai Nation, whose home is Cape Mudge on Vancouver Island. The desks were stark, tangible reminders that the residential school experience is not just something to read about in a report. It was, for years, the everyday reality for thousands of children in our country.<br />
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The exhibition coincided – unintentionally – with the release of the report of the Truth and Reconciliation Commission during the first week of June. The mandate of the commission, established as part of the comprehensive settlement of residential school legal claims, was to document the stories of survivors, their families and communities, research and write the history of the residential school system and make recommendations. The commission took six years and spent $60-million to do its work. Along the way it gathered 6,200 statements.<br />
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In its report, released June 2, the commission made 94 recommendations, or “Calls to Action.” They are almost entirely directed at governments and other public institutions. This is hardly surprising: Indian residential schools were supported and funded as instruments of public policy, and the legacy of the harm done by governments is the responsibility of governments.<br />
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The recommendations are ambitious. The commission calls on government to rewrite the citizenship oath to include a reference to aboriginal treaties, require law schools to make courses in First Nations law mandatory, eliminate the over-representation of aboriginal people in our jails, issue a Royal Proclamation and Covenant of Reconciliation and much, much more.<br />
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Once the commission’s report was released, it did not take long for the focus to shift to government. Would governments accept the report? Promise to implement its recommendations? And, of course, why isn’t government acting?<br />
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I thought about this as I stood in the quiet art gallery and looked at the two school desks.<br />
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Of course, we should worry that this file may already be making its way into the “too hard” pile on the desks of government officials. All too often, commission reports gather dust rather than inspire action.<br />
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But I worry, too, that the focus on the institutional recommendations, and the government response to them, may miss the main point.<br />
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In an odd way, it’s easy to ask government to solve this problem for us. It allows us to blame the government when government fails to act. But more invidiously, it allows us as individuals to wash our hands of the problem and off our personal responsibility to government or some other public institution – in this case, our responsibility as citizens and humans to understand the truth of the residential school experience and to work through what reconciliation means, not just for someone else, but for ourselves.<br />
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The legacy of the residential school system is complex. It’s not a history in which all of the hats are black or white, and we should not be afraid to acknowledge that.<br />
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But it is beyond doubt – and this is the power of all those thousands of statements – that for too many of our fellow citizens, childhood was a story of hardship, fear and neglect when it should have been one of love, care and nurturing. This is not just a policy question for government. It is a story about human lives, each as worthy of honour, dignity and respect as our own.<br />
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Public institutions have work do to, but we will not come to terms as a country with the legacy of Indian residential schools until we do so as individuals. We have to find a way to stare straight at this reality rather than turn away from it.<br />
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Mr. Assu’s school desks are small. Small like the innocent young boys and girls who sat at them. They silently dare us to respond – more powerfully, perhaps, than the report of any commission.<br />
<br />Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-51978755416867172032015-02-03T16:43:00.001-08:002015-02-03T16:43:18.371-08:00The right to strike and the Charter "at work".<div style="background: white; margin-bottom: 15.0pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; vertical-align: baseline;">
<span style="font-family: Arial, Helvetica, sans-serif; font-size: 9pt;"> </span><span style="font-family: Verdana, sans-serif; font-size: 9pt;">Eric Adams offers a cogent
defence of the Supreme Court of Canada’s right to strike decision in today’s
Globe and Mail (February 3, 2015).</span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">His essential point is that in
this case the Court was simply “putting the Charter to work”, interpreting its
fundamental freedoms in a way that is not “frozen to past definitions or
limited by literalism.”<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">Well, I am quite firmly in the
camp of those who believe that the Charter must be a living document, and that
its interpretation by the courts can and ought to evolve over time.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">But that does not relieve us from
the task of asking whether this particular decision is justified.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">In the first place, there is a
difference between a decision which puts a new gloss on old words in order to
make the Charter’s guarantees work in novel and unanticipated circumstances,
and a decision where the Court simply overrules itself. In the former case, the Court seeks to
extract the essential principles and values that underlie the written words of
the Constitution and find a way to give them life and relevance in a changing
world. In the latter case, where the
Court is, in essence, disagreeing with itself, something more significant is
happening. The Saskatchewan Federation
of Labour case falls into the second category, not the first. <o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">Are there circumstances where the
Court is justified in overruling itself? What about situations where the
social, political, or moral context of an issue has radically changed? Take, for example, the profound changes in
attitudes towards same sex relationships that have occurred in the past half
century. In such circumstances, it seems
to me that it is legitimate for the Court, faced with a prior decision that
reflects a now plainly discarded set of societal values, to say that the
constitution must keep pace with the changes in the world in which it must
operate, and may legitimately overrule its prior decision.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">But that is not this case. Remember that the Charter came into effect in
1982. By 1982, every jurisdiction in
Canada had enacted comprehensive labour law regimes regulating collective
bargaining and the right to strike. The
right to strike had been expressly recognized in Article 8 of the United
Nations </span><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; font-family: Calibri, sans-serif; font-size: 11pt;">International Covenant on Economic,
Social and Cultural Rights</span>, enacted in 1966.<span style="font-family: Verdana, sans-serif; font-size: 9pt;"> The right
to strike was hardly nascent or imperfectly understood when the Charter was
drafted. As Eric Adams himself notes, “Strikes – the ability of workers to
collectively withdraw their labour in order to achieve workplace goals – have <u>always</u>
been an essential feature and central purpose of associations of labour, even
if the law has not always recognized the fact.”<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">And yet the Charter (unlike the
constitutions of dozens of countries) does not say anything about a right to
strike. <o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">And for the first 25 years of the
Charter’s existence, the Court on several occasions carefully and thoughtfully
ruled that the “freedom of association” expressed in section 2(d) could not be “interpreted”
to provide constitutional protection for collective bargaining. The Court had to overrule itself in order to
create a free-standing constitutional right to strike.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">Had something in society changed? Was it was plain that the social, political
or moral conditions which earlier supported the Court’s previous rulings had
changed? No. Not even close.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">The majority of the Court
unintentionally admits as much in this critically important passage from its
reasons:<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">The
conclusion that the right to strike is an essential part of a meaningful
collective bargaining process in our system of labour relations is supported by
history, by jurisprudence, and by Canada’s international obligations. As Otto
Kahn-Freund and Bob Hepple recognized:<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;"><br /></span></div>
<div style="background: white; margin-left: .5in; vertical-align: baseline;">
<span style="font-family: Verdana, sans-serif; font-size: 9pt;">"The power
to withdraw their labour is for the workers what for management is its power to
shut down production, to switch it to different purposes, to transfer it to
different places. A legal system which suppresses that freedom to strike puts
the workers at the mercy of their employers. This <b>— </b>in all its
simplicity <b>— </b>is the essence of the matter."<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">(<i>Laws
Against Strikes </i>(1972), at p. 8)<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;"><br /></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">The right
to strike is not merely derivative of collective bargaining, it is an
indispensable component<b> </b>of that right. It seems to me to be the
time to give this conclusion constitutional benediction.<o:p></o:p></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;"><br /></span></div>
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<span style="font-family: Verdana, sans-serif; font-size: 9pt;">Yes, the source relied upon for
this statement is a book written in 1972.
<o:p></o:p></span></div>
<div style="background: white; margin-bottom: 15.0pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; vertical-align: baseline;">
<span style="font-family: Verdana, sans-serif; font-size: 9pt;">I agree with Eric Adams when he
says, “</span><span lang="EN-US" style="font-family: Verdana, sans-serif; font-size: 9pt;">Balancing rights and freedoms against
broader public goals in a democratic society is never easy, but that is the
role the Constitution has assigned governments in legislating and the judiciary
in supervising that legislation against constitutional standards.” But that only works when there are
constitutional standards. There are no
standards here. </span><span style="font-family: Verdana, sans-serif; font-size: 9pt;">All that
has really changed here is the composition of the Court. Different judges, with different opinions. This is not the Charter “at work”. It’s
something quite disappointingly different. <o:p></o:p></span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com5tag:blogger.com,1999:blog-7873333393421984078.post-89369159483983616672015-01-30T11:55:00.000-08:002015-01-30T11:55:05.114-08:00The rule of law and the Supreme Court's decision on the right to strike - <div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">Today’s Supreme Court
of Canada decision in the Saskatchewan Federation of Labour case is remarkable
on many levels.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">Both the majority and
minority judgements deserve to be read: 2015 SCC 4.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">In brief, the Court has,
for the first time in history, constitutionalized the right to strike.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">There is lots that
needs to be said about this decision. In
this note, I want only to make an observation about its implications for the
rule of law. In particular, the idea,
which lies at the heart of our system of government, that our constitution is
intended to be the expression of enduring values, not simply a mirror for the ever-changing
to-and-fro of political debates. And, equally
importantly, the idea that the democratic legitimacy of judicial power requires
that court decisions promote stability, certainty and predictability. <o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">For twenty years, the
Supreme Court of Canada consistently held that the Charter protection for “freedom
of association” did not extend to collective bargaining. Legislatures could enact labour relations
statutes recognizing the right of workers to organize and bargain collectively,
and could create, protect and regulate the right to strike, but these were
policy choices made by legislatures, not the implementation of constitutional
imperatives.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">All that changed in the
<i>Health Services</i> case, in 2007, in
which the Supreme Court expressly overruled three previous decisions. Not ancient, dusty precedents, lodged deep in
the forgotten recesses of old libraries, but three decisions, carefully and
thoughtfully reasoned, less than twenty years old.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">What the Supreme Court
decided in <i>Health Services</i> was that,
contrary to its three previous decisions, the constitutional protection for
freedom of association does imply a right of collective bargaining. In particular, it “requires both employer and
employees to meet and to bargain in good faith, in the pursuit of a common goal
of peaceful and productive accommodation” <o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">This is an enforceable
protection. If the employer does not “meet
and bargain in good faith,” employees have recourse to the courts, who can
order the parties to continue bargaining. That’s an enormously powerful
remedy. It completely changes the
dynamic of collective bargaining in the public sector. When governments know that public sector
unions can take them to court to challenge their collective bargaining proposals,
offers, strategies and processes, it’s a big deal. Everything that the BC government has done in
its recent negotiations with teachers, to give just one example, has been
conditioned and influenced by the spectre of litigation.<o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">What about the right to
strike? Well, in a 2011 decision called <i>Fraser</i>, the Supreme Court refined its
2007 ruling, and made it clear that the constitution, “does not require the
parties to conclude an agreement or accept any particular terms and does not guarantee
a legislated dispute resolution mechanism in the case of an impasse.” <o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">Okay, so the new law is
that the constitution protects the right to bargain, but does not protect the
right to any “legislated dispute resolution mechanism.” In short, no right to
strike. <o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">Well, that was then (as in, 2011) and
this is now. Four years later, the
Supreme Court of Canada has changed its mind again. As the dissenting minority points out in
their reasons, what the court has done here is create “a stand-alone constitutional
right to strike.” <o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">So, last week, if,
relying upon Heath Services and Fraser, you advised your client that while
there was clearly a constitutional requirement to bargain collectively in good
faith the law was clear that there was no constitutional right to strike, you
were wrong. When you told your client
that the Court had obviously charted a new course on freedom of association,
but that we could count on a measure of stability, certainty and predictability
in this area of constitutional law for the time being, you were wrong. When you observed that the Court had stared
right at the argument that the Constitution should protect a right to strike
and said no, you were wrong. <o:p></o:p></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">Imagine trying to
govern when you have no idea, week in or week out, what the courts will allow
you to do.<o:p></o:p></span></span></div>
<br />
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></span></div>
<div class="MsoNormal">
<span lang="EN-US"><span style="font-family: Arial, Helvetica, sans-serif;">That’s not the rule of
law, it’s whipsaw whimsy.</span><o:p></o:p></span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-51239754225868149522015-01-21T09:02:00.004-08:002015-01-21T09:02:37.195-08:00Aboriginal title, Tsilhqot'in, reconciliation, and the way forward<br />
<div style="font: normal normal normal 12px/normal Arial; margin-bottom: 10px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;">
<span style="letter-spacing: 0.0px;"><br /></span></div>
<div style="font: normal normal normal 12px/normal Arial; margin-bottom: 10px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;">
<span style="letter-spacing: 0.0px;">I was invited to make a speech last night at the opening of the BC Natural Resource Forum in Prince George, and decided to use the opportunity to reflect on the development of aboriginal law, the meaning of the Tsilhqot'in decision, and my thoughts about how British Columbia's response to the decision is really a leadership opportunity for us.</span></div>
<div style="font: normal normal normal 12px/normal Arial; margin-bottom: 10px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;">
<span style="letter-spacing: 0.0px;"><br /></span></div>
<div style="font: normal normal normal 12px/normal Arial; margin-bottom: 10px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;">
<span style="letter-spacing: 0.0px;">Here is the text, more or less as delivered. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px; text-align: center;">
<br /></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px; min-height: 14.0px;">
<span style="letter-spacing: 0.0px;"></span><br /></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">I am honoured to have been asked to speak here tonight.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It’s a special honour to speak at a forum on natural resources in Prince George.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Last year, reading a memoir written by one of my uncles, I learned for the first time that in the 1950s my family had an ownership interest in the sawmill at Shelley, a few miles upriver from here. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">My uncle worked in the mill one summer. It was a summer job to help pay his way through university. He told me about watching millworkers paddle canoes across the Fraser from the north side of the Shelley reserve to the mill. Tleidlhi Tenneh people, although I am sure that my uncle did not know them by that name then. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">I love that image of canoes crossing the Fraser. A canoe is such a uniquely precarious vessel. Inherently unstable and yet, when everyone onboard is paddling together, it is perfectly designed to get you where you want to go.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">My uncle’s stories reminded me that this city, so close to the geographic centre of British Columbia, has for a very long time been at the heart of its economy. This was and is an economy founded on the development of our abundant natural resources. Generations of trappers, miners, fishers, loggers, railway workers, millworkers, road and dam builders; First Nations and immigrants; hard workers all; people who literally built this province. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It was not easy then. And of course it’s not easy now. But for all that has been achieved, and it is remarkable how much has been achieved, I am certain that the best is yet to come.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">So with one eye on the past, and another on the future, I hope you will forgive a little personal history.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">I’m going to talk tonight about aboriginal law and policy, about the Tsilhqot’in decision and how to respond to it in a way that allows us to create opportunity, not paralysis.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It starts thirty years ago. I was a junior associate in a law firm in Vancouver, and I was asked to help our firm’s senior counsel on a new file. Our client was the provincial government. We had been hired to represent them in the litigation sparked by the logging blockade on Meares Island, on the west coast of Vancouver Island.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The plan to log Meares Island – with its majestic old growth cedars – was opposed by many, and not just environmentalists. It also galvanized the two Nuu chah Nulth First Nations who had reserves on the island. The blockades led to injunction applications: one to stop the protests, another to stop the logging. I found myself in a courtroom where BC history was going to be made. It was a heady experience for a young lawyer.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The two First Nations – the Clayoquot and the Ahousaht – wanted logging stopped to prevent harm to their rights. They relied on a line of cases in which Canadian courts had, at least in theory, recognized the idea of aboriginal title, founded in the fact that, as one Supreme Court judge had written, “when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.” </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">They also relied on the newly enacted section 35(1) of the 1982 Constitution Act, which, as every aboriginal law lawyer knows, says that, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” They argued that constitutional recognition and affirmation must mean something.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Thirty years ago this week the trial judge refused the First Nations’ injunction. He held that aboriginal title in British Columbia had been extinguished. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The First Nations appealed. In the spring of 1985 BC’s Court of Appeal, by a majority of three to two, reversed the trial judge and granted the injunction.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It was a near thing, and rightly seen as a remarkable victory for the First Nations.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The Court of Appeal said that the claim of aboriginal title could not be decided without a full trial. And so the question was: how best to balance the rights of the parties until that trial could take place? What bothered the court was expressed most directly by Justice Peter Seaton when he said, “I cannot think of any native right that could be exercised on lands that have recently been logged.”</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The injunction was intended to remain in place for a short time, to allow for an early trial of the aboriginal title claim.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Thirty years on, the logging has never occurred. The trial did eventually begin, but it ended with a settlement agreement.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Why does all this history matter?</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">At about the same time that opposition was growing to logging on Meares Island, the Xeni Gwet’in First Nation of the Tsilhqot’in were also objecting to the prospect of commercial logging in their traditional territory. That objection eventually led to litigation. This case, unlike Meares Island, was not settled. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Three decades later, the case was finally decided by the Supreme Court of Canada, and the court answered the question that the BC Court of Appeal had said in 1985 it could not then answer. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The answer is that Aboriginal title does exist on the lands of British Columbia, and its constitutional recognition and affirmation do mean something.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Of course, there have been many other court decisions dealing with aboriginal rights and title. There were important cases decided before Meares Island: Calder, in 1973, led to Canada’s creation of the modern comprehensive claims process; and Guerin, the Musqueam decision in 1984 that Canada could be held liable for breach of its fiduciary duty to aboriginal peoples. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">And there have been other profoundly important decisions. Sparrow, Delgamuukw, Haida, to name but a few.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">In all of these cases, and indeed throughout its history, British Columbia has argued against aboriginal title. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Its arguments have taken many forms: </span></div>
<ul>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">title never existed in law; </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">if it ever existed, it was extinguished; </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">it may exist somewhere, but not here; </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">the claimants have waited too long; </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">government has no obligation to respect rights and title until they are proven, and so on. </span></li>
</ul>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The golden thread that connects these arguments is a persistent, pervasive ethic of denial. That ethic of denial is deep-rooted. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Denial, I think, is an expression of ignorance, perhaps even intolerance.. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It’s a refusal to admit that the history of what happened before Europeans were here has present relevance.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Denial is also rooted in the fear that real redress - the price of purchasing today that which we mostly took without asking a century and a half ago is simply beyond our means. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Whatever the reason, although the constitution requires government to “recognize and affirm” aboriginal rights, the province has consistently not done so. A decade ago, in the New Relationship agreement of 2005, government committed to recognize aboriginal rights and title politically, but in the courts, government continued to argue against recognition.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">One thing we can say about the ethic of denial is that, as a litigation strategy, it’s been a spectacular failure. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">In nearly all the cases that matter, government’s arguments against recognition, against the acceptance of any meaningful responsibilities towards aboriginal rights and title, have been rejected. The Supreme Court of Canada once described government’s conception of its constitutional responsibilities as “impoverished.”</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Government has been more successful in those cases where there has been meaningful consultation and engagement. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">But when we come to the question whether the Tsilhqot’in decision is really a game-changer, we have to start with the fact that in this case, as in so many others, there was a First Nation claiming aboriginal title, and governments that that refused this claim. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Government argued that aboriginal title could only exist on small, well-defined parcels of land that had been intensively used and occupied. This is called the “postage stamp” theory of aboriginal title. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The Tsilhqot’in argued, on the other hand, that aboriginal title existed on all of the lands over which they had exercised dominion and control and carried on their way of life. This “territorial” approach to aboriginal title is sometimes called the “mountaintop to mountaintop” theory.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">BC’s Court of Appeal, in a unanimous decision, accepted the government argument and dismissed the Tsilhqot’in claim to aboriginal title completely.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">And then the Supreme Court of Canada unanimously overturned the Court of Appeal. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">For the first time in our history, the highest court in Canada made an order declaring the existence of aboriginal title outside an Indian reserve.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">I say this is a big deal. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It’s a big deal:</span></div>
<ul>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">when the Supreme Court makes new law, as they did here, </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">when they reject the arguments of both the federal and provincial governments about the meaning of the Constitution, as they did here, and </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">when they unanimously overturn the highest court of the province, as they did here.</span></li>
</ul>
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<span style="letter-spacing: 0.0px;">Since its creation in 1871, the government of British Columbia has steadfastly denied that aboriginal title existed on its public lands. That denial has been foundational to the province’s lands and resources policies for over a hundred and forty years. We now know that this was a foundation without foundation. Aboriginal title survives. It’s not just an idea, it’s a real place.</span></div>
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<span style="letter-spacing: 0.0px;">I’m not sure I can claim to understand what it would be like when something you’ve been taught to believe is true all your life, but which has been denied and rejected for as long as you can remember, finally turns out to be true. Is it relief, or vindication, or a bit of both? </span></div>
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<span style="letter-spacing: 0.0px;">For indigenous people, the connection to land is not just a piece of paper on file in a land title office, it’s a connection to identity. I first learned this in the mid-1980‘s when I listened to Gitksan and Wetsuwet’en elders connect the ownership of their territories to their family histories and their work and spiritual practices on the land. </span></div>
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<span style="letter-spacing: 0.0px;">For this reason, the Tsilhqot’in declaration of title has much richer, deeper significance than lines drawn on a map.</span></div>
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<span style="letter-spacing: 0.0px;">The implications of the decision reach beyond Tsilhqot’in territory. The Supreme Court’s rejection of the so-called “postage stamp” theory of aboriginal title makes it a virtual certainty that aboriginal title is widespread across the province. Not, most likely, everywhere. But vast swaths of our province are lands on which, if the question were to be litigated, a court would or will find aboriginal title.</span></div>
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<span style="letter-spacing: 0.0px;">We also know that aboriginal title is not just the right to be consulted as government goes about its business. It’s not just a process right. It’s ownership. </span></div>
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<span style="letter-spacing: 0.0px;">This needs to be emphasized – but as I’ll lay out shortly, this emphasis should not strike fear of a new reality for BC. </span></div>
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<span style="letter-spacing: 0.0px;">Looking back at the decades of aboriginal rights and title decisions, what we can see is that while the courts have steadily moved the dial on what government has to do to meet its constitutional obligations, the courts have also resisted imposing outcomes. Instead of substantive outcomes, we’ve mostly had process remedies: </span></div>
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<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">Orders to consult and accommodate. </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">Orders to consult further. </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">Orders setting aside government decisions but only so that further consultation can take place. </span></li>
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="font: 12.0px 'Lucida Grande'; letter-spacing: 0.0px;"></span><span style="letter-spacing: 0.0px;">Decisions – like Sparrow, Delgamuukw, and the trial decision in Tsilhqot’in - in which certain principles are declared, but the courts have ordered new trials, so that the parties are not left with any meaningful remedy. </span></li>
</ul>
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<span style="letter-spacing: 0.0px;">Not now. In Tsilhqot’in the court did not order a new trial, and it did not order the parties to consult. It simply made a declaration that converted 1700 Km2 of Crown land into aboriginal title land.</span></div>
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<span style="letter-spacing: 0.0px;">Aboriginal title is not just the right to be consulted about government’s land and resource decisions, it’s the right of the aboriginal owners to decide for themselves how the land will be used, and to occupy, enjoy, possess and manage it. There are important limits. Aboriginal title land is held communally, not individually. It cannot be sold, except by way of surrender to the Crown. And it cannot be used in a way that would prevent future generations from using and enjoying it. But aboriginal owners are entitled to the economic benefits of their land and they can use it, as the Court said, “in modern ways, if that is their choice.”</span></div>
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<span style="letter-spacing: 0.0px;">Equally importantly, the Supreme Court of Canada has made it clear that aboriginal title lands are not enclaves, immune from provincial legislative authority. Provincial laws can apply. </span></div>
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<span style="letter-spacing: 0.0px;">And governments also have the power to infringe aboriginal title. But such infringements must satisfy rigorous tests of justification.</span></div>
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<span style="letter-spacing: 0.0px;">Justification requires consultation with the aboriginal titleholder. Governments must act honourably. Infringement must be minimized. Justification requires “a compelling and substantial objective.”</span></div>
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<span style="letter-spacing: 0.0px;">This language and these principles are not new. The Supreme Court first created this framework in the context of fishing rights back in the 1990 decision in Sparrow.</span></div>
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<span style="letter-spacing: 0.0px;">And then in 1997, in Delgamuukw, the Supreme Court said the same framework applies to aboriginal title lands. </span></div>
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<span style="letter-spacing: 0.0px;">But it all means so much more when aboriginal title is not just an idea, but a real place on the earth.</span></div>
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<span style="letter-spacing: 0.0px;">So the court has established a framework for interaction between the First Nations who own the land and the public interest.</span></div>
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<span style="letter-spacing: 0.0px;">Where does that leave us?</span></div>
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<span style="letter-spacing: 0.0px;">First, I need to say something about the implications of the new reality of a province with extensive aboriginal ownership.</span></div>
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<span style="letter-spacing: 0.0px;">Once again I need to go back to the Meares Island case.</span></div>
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<span style="letter-spacing: 0.0px;">Those opposed to the injunction on Meares Island argued that a decision favourable to the First Nations would “cast a huge doubt on the tenure that is the basis for the huge investment that has been made and is being made” in the resource economy.</span></div>
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<span style="letter-spacing: 0.0px;">The court rejected that argument. Justice Seaton said, “There is a problem about tenure that has not been attended to in the past. We are being asked to ignore the problem ...I am not willing to do that." </span></div>
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<span style="letter-spacing: 0.0px;">For thirty years and more, governments and businesses have resisted claims of aboriginal title by raising the spectre of economic paralysis. </span></div>
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<span style="letter-spacing: 0.0px;">And yet while there have been blockades and injunctions from time to time, forestry has continued in British Columbia. As have mining, and hydro-electric development, and road-building, and pipeline construction, and other resource development. </span></div>
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<span style="letter-spacing: 0.0px;">Last summer, in the wake of the Tsilhqot’in decision, there were voices in the business community saying that this decision would paralyse the Province. </span></div>
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<span style="letter-spacing: 0.0px;">Well, we’ve heard that before.</span></div>
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<span style="letter-spacing: 0.0px;">The sky did not fall on the resource economy of British Columbia in the spring of 1985, and it didn’t fall last summer. </span></div>
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<span style="letter-spacing: 0.0px;">Have things changed? Yes. Are there new challenges? Yes. But resource development has always been hard work. It’s particularly hard for anyone who ever thinks that whatever it was that made them successful last year will survive the challenges of a constantly changing world. </span></div>
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<span style="letter-spacing: 0.0px;">There are still today, as there were in 1985, opportunities aplenty for nimble, creative, forward-looking resource businesses to thrive and prosper.</span></div>
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<span style="letter-spacing: 0.0px;">But we need some creative thinking, some risk taking, and some leadership – all of which we have seen the seeds of in recent years, but now we need to have really blossom</span></div>
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<span style="letter-spacing: 0.0px;">Which brings us to the a principle that the courts have invoked to guide action.</span></div>
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<span style="letter-spacing: 0.0px;">It’s reconciliation.</span></div>
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<span style="letter-spacing: 0.0px;">As the Supreme Court has said, “the fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.”</span></div>
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<span style="letter-spacing: 0.0px;">This is the law’s objective. I suggest it should also be the objective of our public policy.</span></div>
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<span style="letter-spacing: 0.0px;">So what does reconciliation mean? And how can we move it forward to create a stronger economic foundation and a better, fairer province?</span></div>
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<span style="letter-spacing: 0.0px;">Dictionaries define the word as the “restoration of friendly relations” or the “action of making one view or belief compatible with another.”</span></div>
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<span style="letter-spacing: 0.0px;">Inherent in these ideas, it seems to me, is the acknowledgement of the mutual legitimacy of distinct persons and perspectives.</span></div>
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<span style="letter-spacing: 0.0px;">Reconciliation thus implies both mutual recognition and mutual respect.</span></div>
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<span style="letter-spacing: 0.0px;">And real reconciliation requires something more than saying, it requires doing. Actions that reflect recognition and respect. </span></div>
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<span style="letter-spacing: 0.0px;">This is much more than just being nice to each other. </span></div>
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<span style="letter-spacing: 0.0px;">It’s a way of relating that acknowledges and legitimizes the possibility of different perspectives.</span></div>
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<span style="letter-spacing: 0.0px;">It’s about listening, and learning, and then acting on what you’ve learned.</span></div>
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<span style="letter-spacing: 0.0px;">It’s not a project you start and finish. It’s work that carries on.</span></div>
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<span style="letter-spacing: 0.0px;">It’s not transactional. It’s relational. </span></div>
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<span style="letter-spacing: 0.0px;">The context and circumstances may change, the questions change, but engagement continues. It is dynamic, it evolves and adjusts as needed. It is nuanced. It avoids the trap of false dichotomies, the phony either-or options, the “you’re either with me or against me” dialectic which both dilutes and poisons our politics. </span></div>
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<span style="letter-spacing: 0.0px;">How, then, to reconcile?</span></div>
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<span style="letter-spacing: 0.0px;">Not, I hope, by more litigation, though I’m sure there will be more litigation. But we need to work harder to avoid it.</span></div>
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<span style="letter-spacing: 0.0px;">Our justice system is founded on the idea that the best way to solve a problem is to argue about it. Litigation is adversarial by design. Questions are decided by fighting over them. Litigation is conflict. It’s about winners and losers. That framework is right for many kinds of issues. And clearly it is what has got us to this point. </span></div>
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<span style="letter-spacing: 0.0px;">But when you litigate, you hand control over outcomes to someone else. Handing problems to the courts is a way of avoiding taking responsibility for the difficult choices and compromises that real problem solving requires.</span></div>
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<span style="letter-spacing: 0.0px;">Litigation also converts the complex nuances of social and economic relationships into questions of law and legal remedies. </span></div>
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<span style="letter-spacing: 0.0px;">Litigation doesn’t create reconciliation, because reconciliation can only be created by willing hands, it cannot be imposed. </span></div>
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<span style="letter-spacing: 0.0px;">Reconciliation requires discussion, consensus-building and negotiation.</span></div>
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<span style="letter-spacing: 0.0px;">That’s why the pathway to reconciliation requires that we sit down and talk with each other and take ownership over the process and control over outcomes.</span></div>
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<span style="letter-spacing: 0.0px;">Thirty years ago, in the Meares Island case, Justice MacFarlane was direct about this: </span></div>
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<span style="letter-spacing: 0.0px;">“[I]n the end, the public anticipates that the claims will be resolved by negotiations and by settlement. This judicial proceeding is but a small part of the whole process which will ultimately find its solutions in a reasonable exchange between governments and the Indian nations." </span></div>
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<span style="letter-spacing: 0.0px;">What will that reasonable exchange look like? </span></div>
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<span style="letter-spacing: 0.0px;">I suggest that the Tsilhqot’in decision has reset the relationship scales. Now it’s more like a dialogue among equals.</span></div>
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<span style="letter-spacing: 0.0px;">Of course, doing nothing is an option. It’s always an option. In fact, to let you in on a little secret, doing nothing is always one of the options on any cabinet submission. Sometimes it’s option one: “maintain status quo.”</span></div>
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<span style="letter-spacing: 0.0px;">But doing nothing here would guarantee more litigation, more problems, and more conflict.</span></div>
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<span style="letter-spacing: 0.0px;">There are two variants of the do nothing option which must surely be tempting to government. </span></div>
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<span style="letter-spacing: 0.0px;">First, there is option “one a”: </span></div>
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<span style="letter-spacing: 0.0px;">In this option, the government’s lawyers are in charge. They observe, as is undoubtedly the case, that aboriginal title only exists as a matter of law on the 1700 km2 of land that has been awarded to the Tsilhqot’in. And that the rest of the province, putting treaty lands to one side, is land where title may be asserted, but has not been conclusively proven and therefore does not yet exist. And they say that not much has really changed, so it’s stay the course for the vast majority of the province.</span></div>
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<span style="letter-spacing: 0.0px;">In this option the government chooses as policy to do only that which, in its opinion, the law requires. There are many who would defend this approach. I am not one of them. In the first place, I have already pointed out how spectacularly unsuccessful the province’s legal strategies have been when it comes to aboriginal title. Option one a is just an updated expression of the failed ethic of denial.</span></div>
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<span style="letter-spacing: 0.0px;">But more importantly, I respectfully suggest that Tsilhqot’in represents a turning point, an opportunity for government to choose a policy direction which reaches beyond what it must do into what it ought to do, if it were to take constitutional recognition and affirmation seriously.</span></div>
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<span style="letter-spacing: 0.0px;">There is also option “one b”. In this option government leaves it to the private sector to figure out how to get access to the land base. To get the consent to operate by dealing directly with First Nations. </span></div>
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<span style="letter-spacing: 0.0px;">How does this happen? Government officials say to resource companies, “We will not give you your permit unless you obtain aboriginal consent.” </span></div>
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<span style="letter-spacing: 0.0px;">I have reason to believe government has been doing a lot of that over the past six months, in the aftermath of the Tsilhqot’in decision and even before.</span></div>
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<span style="letter-spacing: 0.0px;">Now this approach may make life easier for front counter bureaucrats trying to manage risk by forcing someone else to solve their problem. But it’s wrong in principle and dangerous in practice.</span></div>
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<span style="letter-spacing: 0.0px;">It’s wrong in principle because fundamentally the constitutional imperatives of recognition and affirmation are the responsibility of governments. When the courts speak about reconciliation they are speaking about a dynamic interaction between the Crown and First Nations, the parties, if you will, to the original bargain by which the assertion of Crown sovereignty was exchanged for the recognition of pre-existing aboriginal rights. It’s the honour of the Crown that is at stake in relations with First Nations, and its wrong for government to hand off that responsibility to businesses. </span></div>
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<span style="letter-spacing: 0.0px;">It’s also dangerous in practice because to default to the business community as the problem-solvers, in the absence of government leadership, is simply to licence ad hockery. And while it may work for one company in one place dealing with one First Nation in respect of one project, the cumulative effect of hundreds of privately negotiated, self-ordered transactions is not certainty, but uncertainty.</span></div>
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<span style="letter-spacing: 0.0px;">This is not what the Supreme Court meant when it emphasized the idea of consent in its reasons for judgment. The preference for consent reminds us that what is being talked about is the intersection between the larger public interest in social and economic development, and the aboriginal interest in title lands. Consent is simply the idea that this intersection can be a place of agreement rather than conflict. </span></div>
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<span style="letter-spacing: 0.0px;">Think of it this way: If you want to do something on your neighbour’s land, what do you do? You ask him for permission. Sometimes the answer will be a straightforward “sure.” Other times there will need to be a discussion about terms and conditions.</span></div>
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<span style="letter-spacing: 0.0px;">These kinds of discussions have been going on for a decade (and more), as governments, resource companies and First Nations have worked within the framework created by the Supreme Court of Canada in the Haida Nation case. There the court held that whenever government contemplates conduct that may adversely affect an asserted aboriginal right, government is obliged to consult and, in some cases accommodate the asserted aboriginal right or title.</span></div>
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<span style="letter-spacing: 0.0px;">Because process takes time, and time costs money for businesses and their investors, the Haida principles have encouraged the negotiation of a variety of different kinds of agreements in which, in return for certain benefits, assurances are given which create process certainty.</span></div>
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<span style="letter-spacing: 0.0px;">A great many of these arrangements have been successfully entered into over the last ten years. Because the title is asserted, not established, it’s not quite the same as asking permission to cross your neighbour’s yard, but it’s similar.</span></div>
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<span style="letter-spacing: 0.0px;">More of this is likely to happen in the aftermath of Tsilhqot’in. We should applaud this practice and recognize that, contrary to those selling the message of economic paralysis, our province is or at least has the real potential, to be a leader in business-aboriginal and government agreements that promote economic reconciliation</span></div>
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<span style="letter-spacing: 0.0px;">We should also, I suggest, consider two lessons learned from the experience of the last decade.</span></div>
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<span style="letter-spacing: 0.0px;">First, those who think that t consent is just about paying for the right to infringe aboriginal title, are bound to find that they have missed the point.</span></div>
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<span style="letter-spacing: 0.0px;">Consent, as I have said, is actually a way of describing a process of reconciliation. It’s more about relationships than transactions. It’s more about recognition and respect, than about commercial bargaining.</span></div>
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<span style="letter-spacing: 0.0px;">Those who invest first in the relationship itself, in the time required to listen and learn from each other, are much more likely to find a durable path forward than those who, like the 19</span><span style="font: 8.0px Arial; letter-spacing: 0.0px;"><sup>th</sup></span><span style="letter-spacing: 0.0px;"> century treaty commissioners, show up in aboriginal communities, offer take it or leave it deals, and stay around just long enough to get the required number of signatures on the page.</span></div>
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<span style="letter-spacing: 0.0px;">Secondly, there is a need for principles and frameworks, for the development and adoption of best practices, and for transparency to guide consultation and negotiation. </span></div>
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<span style="letter-spacing: 0.0px;">Random, ad hoc arrangements – one private deal at a time – are a recipe for uncertainty. Government simply must take the lead here. And many of you, as business, community and First Nation leaders, should seek to encourage government in this effort. </span></div>
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<span style="letter-spacing: 0.0px;">There are other options to pursue.</span></div>
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<span style="letter-spacing: 0.0px;">I continue to believe that the treaty process is a viable way to negotiate comprehensive frameworks that can lead to reconciliation.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The treaty process has been agonizingly slow. Progress has been frustrated by its own design. If you set up a process that allows anyone to bring any issue they want to a negotiation that has no time limits, don’t be surprised if it’s hard to get to yes.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">But the treaty process has also been held back by inflexible mandates, by unreasonably high expectations, and by the fear that any compromise will be seen by stakeholders and citizens as an unnecessary give-away.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">For all of that, the treaty process is a table at which comprehensive solutions can be found, rules, relationships, and accountabilities established, that provide opportunities for First Nations, certainty for everyone, and a foundation for reconciliation. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">To make the treaty process viable, I suggest, all that is required – and I don’t mean to underestimate the challenge of this – is for governments to offer more at the table.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">And there is surely a rational basis for thinking that in the aftermath of Tsilhqot’in, First Nations are justified in coming to the table with an expectation that their ownership of what we used to think of as Crown lands might count for a bit more than has been offered to date.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">There are other options. I’m not going to suggest that one size fits all will work. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">That is, there is no reason to believe that there is one single set of processes that can be layered on top of a map of the province and made to work the same way everywhere. Our aboriginal reality – with over 200 Indian Act bands, most of whom see themselves as free-standing First Nations – is too complex for a one size fits all framework.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">There has to be room for nuance and flexibility.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px; text-align: center;">
<span style="letter-spacing: 0.0px;">…</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">What made the New Relationship of a decade ago different was the idea that government and First Nations could sit down together and work their way together towards new principles and terms of engagements.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">That dialogue needs to continue and to find the ways and means to shape both policy and practice – moving beyond good intentions and toward action. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The Cabinet’s meeting with the chiefs of British Columbia last September, Premier Clark’s trip to Tsilhqot’in territory, the apology for the Chilcotin massacre, and the appointment of Sean Atleo, as Shqwi Qwal [she qwall], the Speaker for Indigenous Dialogue, all represent constructive steps towards meaningful, continuing dialogue.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Let me offer two suggestions about what needs to happen next.</span></div>
<ol style="list-style-type: decimal;">
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="letter-spacing: 0.0px;"> Include the business community in the discussion.</span></li>
</ol>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Yes, the dialogue between governments and First Nations is unique. First Nations are not ordinary stakeholders, they have legal rights that need to be taken into account. There needs to be a place for government-to-government relations.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">But the fact is that the business community has a great deal to contribute to the development of the ideas needed to achieve reconciliation. In particular, business knows best how to unlock the value of our resources, and that expertise is necessary at any table where land and resource planning is being discussed. There are too many bilateral conversations happening now, between government and First Nations. There needs to be more multilateral conversations and processes. The idea that government can effectively represent all of the multiplicity of interests that are at stake in this dialogue, without allowing those interests a direct voice in the discussion is self-defeating. Without multilateral action, we run the risk of quickly dissipating some of the successes achieved over the last decade in BC on the economic reconciliation front – this is a foundation that must be built and expanded upon in a timely fashion and not feared. And there is no reason to believe that the business community isn’t ready for this – on the contrary. </span></div>
<ol style="list-style-type: decimal;">
<li style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;"><span style="letter-spacing: 0.0px;">Government has to find the resources to support the provision of greater opportunity to the aboriginal owners of what we used to call Crown lands.</span></li>
</ol>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Some may say that the best course for First Nations is simply to assert their rights as landlord and charge rent for the use of their lands. I think what is called for here, and what is more likely to create real, lasting prosperity, is not so much a transfer of wealth in monetary terms, as the creation of opportunity. An opportunity for First Nations to become real partners in the resource economy – with revenues coming from business opportunities, employment, investment , ownership, as well as revenue/royalty sharing. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">This won’t happen quickly. It’s a project of a generation. In some places it’s underway now, thanks to creative and clever protocols and agreements entered into around the province. So we don’t have to invent it from scratch. But what we have to do is commit ourselves collectively to this work, not just to admire it, but to make it real and to understand better how we can collectively achieve this and maintain some our underlying competitive advantages that have been foundations of our economy.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">For me, this is the work of creating competitive advantage, not just adding cost.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It’s what can happen when we reject denial and embrace reconciliation; when we truly recognize and affirm, when we all - and I mean all of us - collectively see aboriginal people and their unique rights not as threats, not as the “other”, but as part of the larger “us.” That justice for First Nations is justice for all of us.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It’s our leadership opportunity as British Columbians. It can be the thing we actually get right here in this glorious province. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It starts with mutual recognition and respect; it is founded on relationships; it’s risk-taking. It’s real work, it’s hard work. I will tell you from my own experience that sometimes it’s uncomfortable work. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It’s what happens when the CEO and the chief have a meeting where the only item on the agenda is to get to know and understand each other. To listen, to learn, adapt and grow. Together.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">Perhaps even to have a paddle together.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px; text-align: center;">
<span style="letter-spacing: 0.0px;">…</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">You have work to do, over the next couple of days, and it is time for me to finish. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">The last sentence in Chief Justice Lamer’s judgement in Delgamuukw is often quoted. He was trying to give expression to the possibility of co-existence between the sovereignty of the Crown, and the persistence of indigenous rights. He said, “Let us face it, we are all here to stay.” By that he meant that there could be reconciliation without assimilation.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">But there has to be more than the cold and isolating clarity of two solitudes. Reconciliation is both about recognition and respect for difference, and the search for common cause. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">We all have a stake in the responsible, sustainable, profitable stewardship and development of our natural resources. It’s how we got here. And it’s where we want to be.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">I want to remind you again about those canoes crossing the Fraser River: early summer mornings, Tleidli Tenneh community members paddling to work; all those years ago.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">I hope you know that wonderful sculpture, Bill Reid’s magnificent Spirit of Haida Gwaii. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">What appeals to me most about this tremendous creation is not just the beauty of its execution, or the stories that lie behind each of the mythic passengers in the canoe. It is simply the idea that somehow or other, all these fractious characters are in the same boat, paddling together.</span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">It’s not easy to get into a canoe. They tend to tip over if you’re not careful. Until you’ve had some practice at it, it’s a bit risky. And you don’t really get to do your own thing. If you’re not all paddling together, in the same direction, you won’t get anywhere. You might even tip over. </span></div>
<div style="font: 12.0px Arial; margin: 0.0px 0.0px 10.0px 0.0px;">
<span style="letter-spacing: 0.0px;">So you have to take the risk, and then choose to paddle with each other. And yes, from time to time, you might tip over. But you can right the canoe, get back in, and paddle on. And then who knows what marvelous journeys we might make together.</span></div>
<div>
<span style="letter-spacing: 0.0px;"><br /></span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com1tag:blogger.com,1999:blog-7873333393421984078.post-33347482447847313882014-10-11T13:52:00.000-07:002014-10-11T13:57:22.044-07:00Two more observations about the court hearing fees decision<div class="MsoNormal">
Two more points about the court hearing fees decision of the
Supreme Court of Canada, <i>Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) </i>2014 SCC 59.</div>
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1.</div>
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The decision creates an asymmetrical principle of access to
justice.<span style="mso-spacerun: yes;"> </span></div>
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<br /></div>
<div class="MsoNormal">
The majority held that there is a constitutional right of
access to the province’s <i style="mso-bidi-font-style: normal;">superior</i>
courts.<span style="mso-spacerun: yes;"> </span></div>
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<br /></div>
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This right is grounded in section 96 of the 1867
<i>Constitution Act</i>, buttressed by the so-called unwritten principle of the rule
of law.<span style="mso-spacerun: yes;"> </span>Section 96 deals with the
appointment of judges to the provincial superior courts.<span style="mso-spacerun: yes;"> (In our province this is the Supreme Court of British Columbia.) </span>It has no application to provincial
courts.<span style="mso-spacerun: yes;"> </span>Accordingly, while there
is a constitutional right of access to the superior courts, there is no such
right of access to provincial courts.<span style="mso-spacerun: yes;">
</span>Litigants who may wish to
complain about the difficulty of access to provincial court justice will not be
able to rely upon this decision.</div>
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<br /></div>
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Interestingly, there are no hearing fees in provincial
court.<span style="mso-spacerun: yes;"> </span></div>
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<br /></div>
<div class="MsoNormal">
And in fact, you can deal with most family law issues in
provincial court.<span style="mso-spacerun: yes;"> </span>Including
custody, for example, which was the major issue in the trial in this case.<span style="mso-spacerun: yes;"> </span>There was a property issue that could
only be decided in a superior court, but the issue that took the most time at
this trial was a question of custody.<span style="mso-spacerun: yes;">
</span>There is surely some irony in the fact that the major issue in this case
could have been decided in a provincial court where there are no hearing fees.</div>
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<br /></div>
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2.</div>
<div class="MsoNormal">
<br /></div>
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The $3500 court hearing fee was held to be unconstitutional
because, in the words of the majority, “for many litigants [payment of the fee]
would require sacrificing reasonable expenses.”</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
I don’t disagree that litigation is expensive, unbearably so
for most people, but it’s not the hearing fee that is the real problem.</div>
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<br /></div>
<div class="MsoNormal">
Somehow or other, no one thought to ask about lawyer
fees.<span style="mso-spacerun: yes;"> </span>In this case, of course, the
litigants were not represented by counsel.<span style="mso-spacerun: yes;"> </span>What if they had been?<span style="mso-spacerun: yes;">
</span>Well, it’s not easy to estimate the legal fees for a ten-day trial.<span style="mso-spacerun: yes;"> </span>But I can make some conservative assumptions.<span style="mso-spacerun: yes;"> </span>One is that a ten-day trial is the
culmination of approximately 30 days of preparation, a three to one
factor.<span style="mso-spacerun: yes;"> </span>Two, that a ten day trial
should have a lawyer of some experience, and so I will assume that the lawyer
is charging $250 per hour, and only charging for 8 hour days.<span style="mso-spacerun: yes;"> </span>(In the heat of trial, lawyers often
work 10 or 12 hours a day.<span style="mso-spacerun: yes;"> </span>$250
per hour would buy you a very junior lawyer in downtown Vancouver, but probably
would buy you a lawyer of considerable experience in other communities in BC.).<span style="mso-spacerun: yes;"> </span>Simple arithmetic.<span style="mso-spacerun: yes;"> </span>The legal fees for one party for a ten-day trial
would be $80,000.</div>
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<br /></div>
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So what it is that really restricts access to justice – the
$3500 hearing fee or the $80,000 legal bill? </div>
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<br /></div>
<div class="MsoNormal">
And yes, careful readers will note I left something
out.<span style="mso-spacerun: yes;"> </span>The tax on legal fees. Which,
for $80,000 in fees, would be $9600 – GST and PST.</div>
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<br /></div>
<div class="MsoNormal">
Now you may not like those taxes.<span style="mso-spacerun: yes;"> </span>But what we know about them is that there was a
constitutional challenge to them in a case called <i style="mso-bidi-font-style: normal;">Christie</i>. The Supreme Court of Canada dismissed the challenge. As
the majority in <i style="mso-bidi-font-style: normal;">Trial Lawyers</i> says, “<span style="font-family: "Times New Roman"; mso-bidi-font-family: "Times New Roman"; mso-bidi-font-size: 16.0pt;">The tax at issue in<i> Christie</i>,<i> </i>on the evidence
and arguments adduced, was not shown to have a similar impact.”<span style="mso-spacerun: yes;"> </span>That is, while the hearing fee “has the
potential to bar litigants with legitimate claims from the courts”, the tax did
not.<o:p></o:p></span></div>
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<br /></div>
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<div class="MsoNormal">
<span style="font-family: "Times New Roman"; mso-bidi-font-family: "Times New Roman"; mso-bidi-font-size: 16.0pt;">Apparently the $9600 tax is not
offensive to the constitution, but the $3500 hearing fee is.<span style="mso-spacerun: yes;"> </span>Go figure.<o:p></o:p></span></div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0tag:blogger.com,1999:blog-7873333393421984078.post-39912462750323704882014-10-10T08:43:00.001-07:002014-10-10T08:43:12.797-07:00We need a wider vision of Vancouver's economy<div class="p1">
As published in the Vancouver Province today (October 10).</div>
<div class="p1">
<br /></div>
<div class="p1">
<br /></div>
<div class="p1">
A friend asked me what I thought the ballot-box question will be in next month’s civic election in Vancouver.</div>
<div class="p3">
<br /></div>
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It’s a great question.</div>
<div class="p3">
<br /></div>
<div class="p3">
The emerging narratives of the two principal contestants do not really intersect.</div>
<div class="p3">
<br /></div>
<div class="p3">
Gregor Robertson’s Vision Vancouver trumpets its Greenest City agenda.</div>
<div class="p3">
<br /></div>
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So far, Kirk LaPointe’s NPA seems mainly focused on tapping into Vision resentment; more a complaint about process than substance, perhaps, but a resonant complaint nonetheless.</div>
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<br /></div>
<div class="p3">
Any government seeking a third term will have done something somewhere along the way to annoy just about everyone. And Vision politicians have not always been very good about including the rest of us citizens in their policy journey, so there’s a lot of grumpy folks out there.</div>
<div class="p3">
<br /></div>
<div class="p3">
Are there enough for the NPA to displace Vision in city hall? Is that enough of a vision to kick Vision out?</div>
<div class="p3">
<br /></div>
<div class="p3">
The Vision campaign is single-minded in its focus on the Greenest City agenda. I actually agree with much of it. Yes, even bike lanes. Most of them, anyway.</div>
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<br /></div>
<div class="p3">
But here’s the rub.</div>
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<div class="p3">
Vancouver’s prosperity is, in fact, largely dependent upon the provincial resource economy.</div>
<div class="p3">
<br /></div>
<div class="p3">
You will not see any acknowledgment of that reality in Vision’s plan. When it comes to the economy, </div>
<div class="p3">
<br /></div>
<div class="p3">
Vision talks about the city it wants Vancouver to be, and ignores the city that is.</div>
<div class="p3">
<br /></div>
<div class="p3">
This disconnect is not trivial.</div>
<div class="p3">
<br /></div>
<div class="p3">
The resource economy has been the foundation of our city’s prosperity for generations and still is. In GDP terms, B.C.’s natural resources were worth $5,200 per resident in 2013.</div>
<div class="p3">
<br /></div>
<div class="p3">
Vancouverites know our economy still depends upon quality, high-skilled, well-paying jobs in forestry, mining, oil and gas, engineering, construction, electricity generation and more.</div>
<div class="p3">
<br /></div>
<div class="p3">
A new study from Resource Works will show the profound impact resource-company spending has in the Lower Mainland.</div>
<div class="p3">
<br /></div>
<div class="p3">
The so-called green economy — the film studios, social media companies, free trade coffee roasters, gamers and biotech geniuses — plays an increasing role, but has not taken over yet.</div>
<div class="p3">
<br /></div>
<div class="p3">
Moreover, resource jobs are often urban, high-tech and green. A flood of job-ready young people goes forward every year to take up work in fields like environmental engineering, geology and all kinds of technical areas.</div>
<div class="p3">
<br /></div>
<div class="p3">
Innovations in mining and oil-and-gas extraction have meant $258 million in annual research-and-development spending across B.C., easily surpassing such spending in the information and culture industries.</div>
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<br /></div>
<div class="p3">
So here’s the point.</div>
<div class="p3">
<br /></div>
<div class="p3">
Why do we have to choose? Why can’t we have both? Why can’t Vancouver be both a progressive “green” city and one that thrives on responsible development of our province’s abundant resources?</div>
<div class="p3">
<br /></div>
<div class="p3">
Gregor Robertson looks out at our harbour filled with ships from around the world and sees, oh, I don’t know, relics? A threat?</div>
<div class="p3">
<br /></div>
<div class="p3">
Or maybe he just wishes they would all go away?</div>
<div class="p3">
<br /></div>
<div class="p3">
I look out at that harbour and see the Vancouver which is here and now, and the Vancouver that can be our future, along with all the exciting new industries.</div>
<div class="p3">
<br /></div>
<div class="p3">
Surely there is a vision for our economy that embraces all of these opportunities.</div>
<div class="p3">
<br /></div>
<div class="p3">
Does the NPA have something to say about that?</div>
<div class="p3">
<br /></div>
<div class="p3">
Perhaps the ballot box question is this: which civic party has a plan that supports and encourages all sectors of economic opportunity for Vancouver?</div>
Geoff Planthttp://www.blogger.com/profile/03781552226656073219noreply@blogger.com0