A modest electoral reform proposal - weighted voting

We are only two days away from a provincial election in BC.  I don’t know about you, but I’ve found the whole campaign more than a bit disheartening. The unjustified timing of the election, the seeming inability of any party to offer credible proposals for restoring some sense of financial sanity, the endless parade of promises that no serious person thinks will be kept, and the tiresome attacks on individual candidates are hardly reasons to celebrate this opportunity to exercise our franchise. 

But hey! the leader of the Green Party says that if her party holds the balance of power in the Legislature after the election, she will require the implementation of electoral reform as a condition of Green Party support. Specifically, she will demand proportional representation. The end to our “first past the post” electoral system. BC has experienced several attempts to implement forms of proportional representation over the past two decades. None have succeeded. But since electoral reform is being discussed, why not take this opportunity to highlight another unfairness in our electoral system and offer a proposal to address it? (If that’s not interesting enough for you, then I suggest you play a round of what I call Delta Whack-a-Mole: bridge, tunnel, bridge, tunnel, bridge, tunnel, ad infinitum.)

More seriously……

The way our governments are chosen is that the country and its provinces are divided into electoral districts. In the case of BC there are currently 93 electoral districts. One member of the legislative assembly (MLA) is elected in each district. The government is formed by the leader of the party (or anyone else for that matter) who commands the support of the largest number of MLAs. Most often, this will be someone who leads a political party that has an absolute majority of seats in the legislature – a majority government. But if the leader of a party with the most seats lacks a majority, they can enter into a formal or informal arrangement with another party to obtain a functional working majority or simply govern on the basis that on any given day they will succeed in any vote in the legislature –a minority government.

The point here is that for this purpose, each MLA has one vote. They are all equal. It’s a simple calculation. Political power is achieved if you have the support of the most MLAs.

Many people probably think that the basic principle of our electoral system is “one person one vote.” Not so. While representation by population is recognized as the starting point for determining the democratic fairness of our system, there’s a second principle that does the main work. It’s called “effective representation.” This is the idea that other considerations beyond the simple calculation of each vote should bear on the determination of electoral districts. This principle became part of our constitutional law in a Supreme Court of Canada decision from 1991 called the Reference re Provincial Electoral Boundaries (Sask.) [1991] 2 SCR 158, a decision that interpreted the guarantee of voting rights in section 3 of the Charter of Rights and Freedoms.

 MacLachlin, J. wrote for the majority in that decision, and here is some of what she said: 

 I turn finally to the admonition that courts must be sensitive to practical considerations in interpreting Charter  rights.  The "practical living fact", to borrow Frankfurter J.'s phrase, is that effective representation and good government in this country compel those charged with setting electoral boundaries sometimes to take into account factors other than voter parity, such as geography and community interests.   The problems of representing vast, sparsely populated territories, for example, may dictate somewhat lower voter populations in these districts; to insist on voter parity might deprive citizens with distinct interests of an effective voice in the legislative process as well as of effective assistance from their representatives in their "ombudsman" role.  This is only one of a number of factors which may necessitate deviation from the "one person - one vote" rule in the interests of effective representation.

 

In the final analysis, the values and principles animating a free and democratic society are arguably best served by a definition that places effective representation at the heart of the right to vote.  The concerns which Dickson C.J. in Oakes associated with a free and democratic society -- respect for the inherent dignity of the human person, commitment to social justice and equality, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals in society -- are better met by an electoral system that focuses on effective representation than by one that focuses on mathematical parity.  Respect for individual dignity and social equality mandate that citizen's votes not be unduly debased or diluted.  But the need to recognize cultural and group identity and to enhance the participation of individuals in the electoral process and society requires that other concerns also be accommodated.

 

 In summary, I am satisfied that the precepts which govern the interpretation of Charter  rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation.  The concept of absolute voter parity does not accord with the development of the right to vote in the Canadian context and does not permit of sufficient flexibility to meet the practical difficulties inherent in representative government in a country such as Canada.  In the end, it is the broader concept of effective representation which best serves the interests of a free and democratic society.

In BC electoral boundaries (and the number of MLAs) are determined by the Legislative Assembly, informed by regular reports of an independent, impartial electoral boundaries commission. The statute that empowers that commission requires it to take into account considerations reflecting the principle of effective representation: issues such as geography, “communities of interest”, and the availability of communication and transportation.  

In the most recent report in 2023, (which the legislature adopted) the Commission recommended increasing the number of electoral districts from 87 to 93. It also determined something called the ‘electoral quotient”, in effect, the median population number if districts were defined purely on a one-person one-vote basis. That number was 53,773.  The basic requirement is that districts generally should not deviate more than 25% from the electoral quotient. Applying the 25% deviation principle in its report led the commission to propose districts within a range of 40,330 and 67,216. 

The commission however then identified (and proposed boundaries for) several districts in the north of the province where the population deviated more substantially. For example, the population figure for the proposed district of Bulkley Valley Stikine was 20,552, or 61.8% less than the median, and for the district of North Coast Haida Gwaii was 21,980, or 59.1% below the median.

Compare those two districts with West Vancouver Capilano, with a population of 62,569 (16.4% above the median) or Port Coquitlam, with a population of 61,483, or 14.3% above the median. (These are two constituencies with the largest deviation above the norm.)

To illustrate the significance of these differences, imagine an election in which every person in the district can vote, and there are only two candidates in each riding. (I recognize that the figures used by the commission are population numbers, not a calculation of the number of eligble voters but bear with me.) Put another way, what is the minimum number of votes required to get elected in, say, Bulkley Valley Stikine, or West Vancouver Capilano? In Bulkley Valley Stikine the number is 10, 277. In West Vancouver Capilano, you’d need three times as many votes, 31,285.

I want to be clear about one thing here: I am not criticizing the work of the electoral boundaries commission. Drawing constituency boundary lines is a complicated and difficult job. Although I have some concerns with the principle of effective representation , for the purpose of this analysis I am accepting that this principle bears legitimately upon the question of determining electoral boundaries. 

But in my view the principle fails adequately to account for the basic fact of our politics: power is achieved by adding up the number of MLAs you have on your team. This in turn is a function of how many votes is required to get elected. Put bluntly, you need fewer votes to become premier in Bulkley Valley Stikine (and all the constituencies with population below the median) than in, for example, West Vancouver Capilano.

Put another way, a vote in West Vancouver Capilano is only worth one third of a vote in Bulkley Valley Stikine. I think this is unfair. Unacceptably and unnecessarily so.

The question then is whether this basic unfairness is a necessary result of a system based on the principle of effective representation, or can the two principles, representation by population and effective representation, live together?

I think they can be reconciled. The solution is weighted voting. In a weighted voting system, there would still be 93 MLAs, and the different regional and community interests, and geographic considerations would be unchanged. The so-called ombudsman function performed by MLAs would be unaffected. But when it comes time for MLAs to vote in the legislature, their votes would be weighted according to the population of their constituencies. The MLA representing a constituency with a population of 53,773 (the electoral quotient I identified earlier) would have precisely one vote. The MLA representing West Vancouver Capilano would have 62,569 divided by 53,773, or 1.164 votes (corresponding to the percentage deviation from the median), and the MLA representing Bulkley Valley Stikine would have (by my calculation) 0.382 votes.

In this system, every MLA would have an equal right to speak, vote and to bring the considerations of their constituents to the floor of the legislature. But on the central question of the allocation and distribution of political power – the question of who is to govern – the primary and ruling principle would be the equal worth of each citizen. 

For the purposes of this argument I am willing to accept (because the Supreme Court of Canada requires me to do so) that for some purposes the residents of Bulkley Valley Stikine should have, numerically speaking, greater access to – a disproportionate voice in - the legislature than, say, the residents of West Vancouver Capilano. But I am not willing to accept that when it comes to the actual exercise of political power – votes – the vote of someone who lives in Smithers should be three times more powerful than the vote of someone who lives in West Vancouver. So if we are going to continue to have a system in which “effective representation” is the principle for determining the geographic boundaries of electoral districts, we should have “weighted voting” to ensure that some citizens of the province do not enjoy more political power than others. 

Of course, any serious consideration of this idea would have to take objections into account. (A hundred political science professors are probably lining up right now to shoot this idea down.) Some might say, for example, the result would be to dis-enfranchise rural voters, by diluting the strength of their MLAs’ vote in the legislature. But that’s not what would happen. Every citizen’s vote would now count equally on the critical question of who is to govern. There’s no persuasive reason why someone who lives in a northern community should have a more powerful voice on that issue than someone who lives in the Lower Mainland – and MLAs from rural constituencies would still have every opportunity to raise their issues in the legislature. Yes, they should be heard, but so should we all. In a society where the foundational principle is the equal worth and dignity of every individual, we should all have an equal say on the question of who is to govern.

Of Earthquakes and DRIPA

Everyone is expecting that the Declaration of the Rights of Indigenous Peoples Act – DRIPA – will be front and centre in the upcoming session of the BC Legislature. I've been talking about it a lot lately, and I'm going to talk about it again here.

But first, let’s talk about earthquakes. As everyone knows (or should know!) the Pacific Coast is the most earthquake-prone region of Canada. Earthquakes occur here regularly. Those of us living in the southwest corner of British Columbia have long been warned to protect ourselves against the risk of the big one, which the experts tell us is not a question of “if” but “when.”

What do we do about that risk? 

In Vancouver, most of the schools were not originally built to withstand any serious earthquake, let alone a major one. We know more now than we did when these schools were built, and we know the damage that a major earthquake would cause.

The situation presents two options for policy-makers. 

One is to wait for the earthquake to occur, express our thoughts and prayers for all those who have been injured or killed, and then build a new school afterwards.

Another option is to take steps to mitigate the risk of that harm by earthquake-proofing schools, where that is feasible, or in some cases, building the new, earthquake proof schools now.

As a grandfather of two boys who attend an old school in Vancouver where these steps have not been taken, I am acutely aware of the risk we subject these boys to when they head off to school every morning.

There is strong public support for all efforts undertaken by government to mitigate or prevent the risks associated with major earthquakes. You don’t hear people say, “well, we should just wait for the earthquake to happen and then do something about it.” 

The idea of risk mitigation and avoidance is pervasive in our lives. We vaccinate our children and ourselves to mitigate or prevent the risk of serious disease.  We exercise not just because we feel better doing it but because it’s a way of lowering the risks of poor health. We encourage governments to provide deposit insurance for our savings as a way of mitigating the risk of bank failure. We buy insurance to avoid the risk of personal financial disaster if our house should burn down or we are involved in a catastrophic car accident. We don’t wait for the bankruptcy or the fire or the collision. We take steps now. We take those steps not because we are obliged to, but because we choose to.

So now let’s talk about aboriginal rights and title.

We know that substantially all of British Columbia is subject to claims of aboriginal rights and title. We also know that in the most recent three court cases involving disputed claims of aboriginal title, the courts ruled in favour of such claims, and in fact there is no case in British Columbia where a court has ever rejected a claim of aboriginal title. Aboriginal title is not a question of “if”, it’s a question of “where” and “when.”

What do we know about Aboriginal title? Aboriginal title confers the right to the exclusive use and enjoyment of the land and the right to decide how the land will be used. This is the law as it has been established by the Supreme Court of Canada. 

We also know that a finding of Aboriginal title imposes significant constraints on the ability of the Province to make land and resource laws and decisions. It was conclusively established by the Supreme Court of Canda in 1997 in a case called Delgamuukw that the province has never had the authority to extinguish aboriginal title. The province does have the authority to infringe aboriginal title (not the same as extinguishment), but only if it can justify that infringement, and the bar for justifiable infringement is high – there is no aboriginal title case in British Columbia where a court has upheld an infringement argument. But more importantly, whenever the province makes a decision that may infringe Aboriginal rights or title, the indigenous group has the right to take government to court, to challenge the decision, and as I have said elsewhere, it is the courts, not government, that have the last word on whether the infringement has been justified.

Aboriginal title has not been found in many places. But there is a risk it could exist anywhere. 

There’s that word: risk.

So, faced with a risk, policy makers once again have two options. They could ignore the risk and simply wait for title claims to make their way through the courts and then deal with the consequences afterwards. 

Or they could take steps to avoid or mitigate the risk.

Here is where DRIPA comes in. DRIPA is legislation that creates frameworks for government to enter into agreements with indigenous governing bodies with respect to such matters as land and resource decision making. In these agreements, arrangements are made for indigenous participation in decision making. Decision making may be shared. It may be that both government and the First Nation will have to agree before a tenure or permit or Crown grant can be issued. 

One way to understand DRIPA is as a framework for dealing ahead of time with the risks of a finding of aboriginal title, and to secure the agreement of First Nations that in lieu of pursuing a claim of aboriginal title, or litigating government’s decision-making, they will agree to participate in land and resource decision-making, and share in the benefits that will accrue from resource development or protection.

The uncertainty and risk that flow from claimed aboriginal title are exchanged for the certainty and benefits of agreement.

If DRIPA is repealed, the framework will be gone. But the risk of aboriginal title claims will remain. And because of decisions of the Supreme Court twenty years ago, government will still be required to consult and in some cases accommodate asserted rights and title, even if they have not been proven. Repealing DRIPA will not eliminate these constitutional obligations. But there will no longer be a framework for doing this work, and no obligation on government to implement any plan to make sure this work is done. 

We are much better off with this framework than without it.

But some say, ah, but there is no constitutional requirement for indigenous consent.  The Supreme Court, they say, has said that aboriginal people do not have a veto over government’s decisions.

Here is my response to this argument.

First, shared decision-making is a political choice, not a constitutional obligation. So, too, is the enactment of DRIPA, and the acceptance of the principle that governments are to consult and cooperate in good faith with indigenous peoples in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.

But now let’s see what the Supreme Court of Canada has said about consent. The word consent appears eleven times in the text of the Supreme Court of Canada decision in Tsilhqot’in. What the court is dealing with is the question of what is left of Crown authority after a declaration of title has been made. It’s worth reading all of these statements. I’ve footnoted some of them.^[1] But here’s the most important sentence:

[97]                          Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

To say that “consent” is not a constitutional obligation, or that aboriginal people have no constitutional “veto” over Crown decision making is to miss the point altogether. Negotiating shared decision-making agreements is a way of avoiding a charge of infringement or failure to adequately consult. It’s a way of trading the uncertainty of court challenges for the certainty of agreement. It’s a way of trading the paralysis of endless delay and litigation, with all of the harm to investor confidence that flows from that, for the certainty of agreements in which, yes, decision-making is shared, but opportunity is created, and benefits are also shared.

The other day I was thinking about how the world changed when the Supreme Court of Canada held in the Haida Nation case in 2004 that government is constitutionally required to consult with First Nations whenever it “contemplates“ conduct that may adversely affect asserted aboriginal rights and title. What Haida Nation has meant is that every government land and resource decision can be judicially challenged. And every judicial challenge creates delay and uncertainty – driving up project costs, putting jobs and communities at risk. Is this a big deal? I decided to ask AI: how many Haida Nation cases have there been? Google AI said this: “Since November 2004, the Haida decision has been referenced in thousands of legal contexts, including federal and provincial court decisions, tribunal hearings, and legal arguments regarding resource development.”

Wouldn’t it be better to live in a world where we could negotiate these things, rather than spend all our time fighting about them?

To all those who say the province will be better off without the framework of DRIPA, I say, go ahead. Wait for the earthquake. And in the meantime, maybe you’d like to have a chat with the private landowners in the Cowichan Tribes title lands?

Reconciliation in a judge-made world

I have been following the public discussion about recent court decisions and government's reconciliation policies with growing concern. As a result, I decided to put my thoughts in writing, and fortunately the online newspaper Northern Beat agreed to publish them.  Here is the link:

https://northernbeat.ca/opinion/judges-have-last-word-on-aboriginal-law-not-politicians-says-former-bc-official/

 It only takes two words to lose my vote: drug dens

Several days ago, John Rustad, campaigning in the BC provincial election as leader of the BC Conservative Party, promised to shut down all “government-sanctioned drug den injection sites.” The language deliberately echoes national Conservative Party leader Pierre Pollievre, who has similarly promised, if elected, to shut down supervised drug consumption sites, also calling them “drug dens.”

The phrase “drug dens” is certainly colourful. It conjures up images of smoke-filled rooms from the mid-nineteenth century Opium Wars in Asia, or the penultimate scene in Hollywood’s The Deer Hunter, when a drug-addicted Vietnam veteran plays Russian roulette and loses. 

But at a time when there is a crying need to de-stigmatize drug dependency, the phrase “drug dens” is plainly intended to re-stigmatize. 

It is also misleading. Anyone who has ever visited a supervised injection site knows that using the word “den” in this context is like describing a hospital operating room as a kitchen. Supervised injection sites are oases of clinical calm and order, not playrooms. 

Responsible political leadership is not about tossing catchy slogans to the faithful, it’s about offering solutions that recognize that some problems cannot be reduced to sound bites.

Here's what you will see at Vancouver’s Insite, for example:

·      Clean equipment to reduce the spread of infectious diseases such as HIV and Hepatitis C as well as bacteria

• Spectrometer testing of drug contents to reduce poisoning
• Immediate health professional response in the event of an overdose
• Clinical care – wound management, vaccinations, etc.

And for anyone who asks for it, there are connections offered to addiction, healthcare and community services. At Insite, it’s called Onsite, and it's just one flight of stairs away.

I understand public concern about the inept roll-out of the NDP’s drug strategy. While there may be a way to test drive decriminalization in carefully controlled circumstances, the spectre of open drug use in hospital rooms and schoolyards is bound to make anyone question whether government knows what it is doing.

But we also don’t need more people injecting themselves with dirty needles in the back alleys of our cities, which is where they will go if safe consumption sites are shut down.

After over a quarter century of paying attention to the policy and politics surrounding the intersecting issues of drug dependency, mental health and homelessness, I continue to be disappointed that our public discourse continues to over-simplify. As though there is only one answer: more treatment, or more law enforcement, or more social support, or more shelter, and so on, when the best chance of making progress in responding to an extraordinarily complex array of problems is with a range of options in which, frankly, every good idea is pursued and tested. We too often forget it is individuals who need our help. Their circumstances and needs are uniquely theirs. We have to stop pretending that we can force people into one-size-fits-all policy pigeonholes. 

So yes there is a need for supervised injection sites. Not for everyone, and most certainly not everywhere, but for those who benefit, they should be widely available. And yes there is a need for more and better treatment options, and for a wider range of shelter and housing options, and for shorter mental health treatment waitlists, and for safe supply of drugs in some circumstances, and for carefully calibrated movement away from criminalization. And even, in some cases, few in number, there may be a need to provide treatment to those who do not have the capacity to request it, whose condition is a danger to themselves and the community.

I know it's hard to fit all this into campaign announcements. It’s messy and complicated. But we won’t make progress by over-simplifying. And we won’t make progress by demonizing those who are trying to help. And we won’t make progress as long as political leaders throw slogans around that reveal attitudes born from ignorance and intolerance, rather than evidence and insight.

More thoughts on the Haida agreement

A few weeks ago I wrote a blogpost in which I expressed my support for the work being done by the province and the Haida to negotiate an agreement to recognize aboriginal title on Haida Gwaii.

In the intervening weeks, the agreement has been finalized and more recently the government has introduced legislation (Bill 25) which provides that the government “recognizes that the Haida Nation has aboriginal title within the meaning of section 35 of the Constitution Act, 1982, to land on Haida Gwaii.” 

I continue to support this initiative. In my view, everyone who supports the objective of reconciliation of indigenous and non-indigenous claims and rights should welcome this important development. 

A chapter of our history long characterized by uncertainty and injustice – the uncertainty created by unresolved Haida claims and the injustice of the province’s failure to recognize Haida rights – will at long last be replaced by certainty and justice. 

I’m not going to repeat myself here. What I said in my previous post about the draft agreement remains true. But I think it might be worth taking the time to address three concerns that have been raised about this initiative. 

Private property rights

First, it has been said by some that this agreement threatens private property rights.

In support of this critique it is pointed out that it is difficult to reconcile fee simple property rights with aboriginal title. Generally, speaking, fee simple ownership of property entitles the owner to the full beneficial use of the land. With some exclusions that do not matter for the purpose of this analysis, the same can be said of aboriginal title. As the Supreme Court of Canada said in the 2014 Tsilhqot’in decision (at para. 73) “Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land: and the right to pro-actively use and manage the land.”

As a matter of law, the question of whether and how aboriginal title and fee simple title can co-exist in respect of the same property has not yet been judicially decided. It is a fair question to ask how these rights can live together in the same place. But that question does not arise in respect of the Haida aboriginal title recognition agreement. It does not arise because the province and the Haida have expressly provided that the recognition of Haida aboriginal title does not affect fee simple property interests on Haida Gwaii. Here is the language from the agreement:

“1.2 For greater certainty, nothing in this Agreement derogates from:

a.    Fee Simple Interests on Haida Gwaii.

…

4.4 The Haida Nation consents to and will honour Fee Simple Interests, including those held by Haida citizens.

4.5 The Haida Nation consents to Fee Simple Interests on Haida Gwaii continuing under British Columbia jurisdiction.

4.6 For greater certainty, this Agreement and the recognition of Haida Aboriginal title do not alter or derogate from those Fee Simple Interests or any rights or interests associated with them.

The terms Fee Simple Interests and Fee Simple Lands are defined in the agreement to mean exactly what you might think they mean, namely what we think of as land ownership.

For good measure, Bill 25 expressly provides that fee simple rights to land on Haida Gwaii are “confirmed and continued.”

It would be difficult to be any clearer than this. You don’t need to be a lawyer to read plain English. To argue that this agreement somehow threatens fee simple property rights on Haida Gwaii is to misread the agreement. To tell others that this agreement threatens fee simple property rights on Haida Gwaii is to mislead them. 

Is this agreement a worrying precedent?

The agreement is unprecedented. It’s not a treaty, and it’s not a court decision. It is the first time the province has recognized aboriginal title in this way.

But the circumstances are also unique. The Haida have been pursuing a court case claiming aboriginal title to all of Haida Gwaii for over twenty years and the trial of the case is approaching. The claim in the court case is for aboriginal title and jurisdiction over all of Haida Gwaii – including private land, municipal governments and public infrastructure. 

Twenty years ago, the Supreme Court of Canada held that the Haida had a good claim of aboriginal title to all of Haida Gwaii. 

And indeed, as I’ve said before, 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 vigorously and consistently asserted their title by protests and blockades against governments, logging companies and others. And a point that is not often made: there is very little privately owned land on Haida Gwaii (by one account, only 2.2% of the land of Haida Gwaii is privately owned).

Faced with the prospect of a long, expensive and divisive trial, and the possibility – even the likelihood – that the Haida would win the case, the parties have instead chosen to negotiate. The result is an agreement that is uniquely tailored for the unique circumstances of the case.

That is not to say that this tool of provincial recognition could never be used elsewhere. There are no one size fits all solutions for the challenge of reconciling aboriginal and non-aboriginal claims and rights. In some parts of the province the modern-day treaty process has led to successful outcomes. In other places, other approaches have been used to achieve equitable and effective arrangements.  But if a situation arises when something like the Haida agreement makes sense, it will undoubtedly be used. And we should welcome that.

Unanswered questions

I’ve read a number of analyses – especially by some of Vancouver’s corporate law firms – which raise what they say are troublesome questions about this initiative. I’m not going to suggest that there are no good questions here. This is a new approach to reconciliation and so there isn’t a lot of judicial guidance directly on point. More importantly, the agreement itself does not attempt to answer all questions about all aspects of the future relationship between the Haida and the province. What the agreement does do is commit the parties to a process for the consideration, negotiation and resolution of these issues over time.

Unfortunately, the analyses I’ve read are so hostile to this initiative that they do not answer the really important question: if not this, then what? 

The answer to that question is pretty obvious: if not this agreement, then there will a trial.

Litigation is not a tool for creative problem solving. It’s a fight. It’s not about getting along, it’s about arguing and disagreeing, and it's about letting someone else, a judge, decide who wins the fight.

As the courts of Canada have said many times, the pathway to reconciliation is not litigation, but negotiation. In this negotiation the Haida and the Province have done what often happens in negotiation. There’s been give and take and compromise. Some issues have been resolved while others have been left for future negotiation. The result in my view is far better than leaving all these issues to the courts.

One question that has been asked is whether the province has the constitutional authority to recognize aboriginal title and to enshrine that recognition in legislation. 

To state the obvious, because this agreement is a new form of aboriginal title recognition, there is no binding judicial authority directly on that point. 

What is clear is that the Province has the constitutional power to defend aboriginal title claims. Surely if the province has the power to defend a claim of aboriginal title, it must have the power to choose to admit that claim. That is what is happening here. The province is changing its position. Instead of opposing the Haida title claim it has decided to accept it. (Similarly, the Haida have relinquished their claim to privately owned land and public infrastructure.)

There’s another point that the nay-sayers do not acknowledge. If you look at the history of court challenges to aboriginal treaties and agreements, you will not find a case where a court has ever struck down a government initiative to recognize or give effect to aboriginal title. What you will find instead are cases where courts make orders upholding and enforcing the promises made by the Crown in its dealings with First Nations.

And so I have a question. Given decades of judicial statements preferring negotiation to litigation, and a long history of court decisions upholding and enforcing the honour of the Crown in all its dealings with First Nations, does anyone seriously think that a court would declare that the Province does not have the constitutional authority to enter into an agreement recognizing Haida aboriginal title? 

On this point, I speak with some experience. When the province and Canada concluded the first modern day aboriginal treaty in BC, I was one of three members of the BC legislature who launched a court challenge to part of that agreement. We argued that the self-government provisions were unconstitutional. We relied for this argument on the existing jurisprudence with respect to aboriginal self-government rights.

The court dismissed our challenge. The court had no difficulty updating the law concerning the constitutional division of powers to make room for the Nisga’a treaty self-government provisions.

My point is that you can always dig around in the dusty corners of constitutional law to find arguments that appear to support your opposition to an initiative intended to advance reconciliation. But the law will adapt as required to give governments, supported by First Nations, the power they need to advance that goal. 

 

In conclusion, it’s good to ask questions. But be clear about where you really stand. Reconciliation is not just pretty words. It’s real change. It’s an opportunity to right historic wrongs, to honour the constitutional promise of recognition and affirmation enshrined in section 35 of the 1982 Constitution Act, and to work towards the realization of the famous admonition of Chief Justice Lamer that “we are all here to stay”. Recognition will create certainty where now there is uncertainty. The Haida aboriginal title recognition agreement is a powerful statement that the government of British Columbia is moving from a legacy of denial to a future based on recognition, and an equally powerful statement that the Haida are willing to work with the government to sort that future out together.

 

Recognising Haida Aboriginal Title

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

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

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

…

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

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

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

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

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

Are these questions we should leave to the courts? 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BC needs a dedicated seat on the Supreme Court of Canada

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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