Un-Canadian, eh?

The Globe & Mail published this on October 13.

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.

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.

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.

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.

And so it is being argued by Stephen Harper’s Conservatives that Real Canadians would not seek to hide their faces in public places.

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.

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.

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.

But it is much worse than that.

There is a principle which is truly fundamental to our country.  It is that we do not simply tolerate difference, we celebrate it.

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.

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.

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.

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.

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.

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.

The problem, however, is this.  If we reward them now for their intolerance, we can expect more of it.

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.

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.

I gave away my record albums today

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.

My record albums.

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, Springfield plane is going to carry me back to my baby’

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. Sgt. Pepper's Lonely Hearts Club Band. Bookends. After the Goldrush. Sweet Baby James.  For Everyman. Bringing It All Back Home. 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.

She’s got everything she needs she’s an artist she don’t look back.  

Sailing heartships through broken harbours, out on the waves in the night. 

Sunny skies sleeps in the morning. 

When I think back on all the crap I learned in high school.

Ribbon of darkness over me.

I always think that everyone of my generation knows all these tunes and words and am surprised when they don’t.

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 In the Falling Dark, and the hours I spent learning to play 'Festival of Friends' in the winter of 1976-77.  David Lindley’s El Rayo-X, an absolutely spectacular record whose tracks jumped out of the speakers like wild animals.  Keith Jarrett’s Staircase: 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 A Gift from a Flower to a Garden. Well, I had not forgotten that; it’s just that seeing it in my hands again sent me somewhere quite else.

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.

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.

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.

Like the poet said, Time it was and what a time it was, it was.

A year after Tsilhqot'in it's time to move from analysis to action

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.

Here is the text of my remarks, more or less as delivered.

1

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.

This is an important gathering, you know.

Just imagine, for a moment, what might get done here, starting tonight, and over the next few days.

Meaningful progress in creating tangible opportunities for economic and social development, founded on mutual recognition and respect. 

You are here because you are leaders, because you sought out leadership and because your communities chose you as leaders.  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.

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.

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.

So where are we at?

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.

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.     

Let me offer some observations intended to help get past reflection and into real progress.

2

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.

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.  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.

Last summer, in the aftermath of the Tsilhqot’in decision, First Nations sent a letter to government proposing four principles.  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.  But they were intended as a start for a new conversation.

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.  It’s a time for problem solving, not problem defining.

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.

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.

But certainly now is the time for change.  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.  What we need to focus on is how to deliberately, systematically, and programmatically, create economic and social opportunity for everyone.  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.

3

How should we frame our engagement?

First, I do not suggest we can or should overreach - we’re simply not going to get to comprehensive reconciliation with one bold leap. 

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.  It may not even be desirable to try, given the diversity of experience and perspective that lives within our province. 

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. 

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.  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.

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.  Real progress is not rooted in expedience.  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.

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.  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.  This will be particularly challenging if negotiation becomes – as I hope it does not - an exercise in the valuation of asserted rights and title. 

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.  But also because a growing public record of best practices, will help demonstrate what kinds of arrangements are more likely to succeed than others.  Again, I am not suggesting that what is needed is strait-jacket uniformity imposed through the back door.  I’m just saying, keep the confidentiality clauses to a minimum, let’s talk about what’s going on, and let’s keep track. 

I’m not trying to make this sound harder than it needs to be.  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.

This work is not, at its heart, positional jousting to reduce costs and minimize the distributional effects of rights and title.  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?  Are we ready to lead in ways that are more enduring for our communities, shareholders and families?

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.  But rather than be defeated by cynicism, let’s choose to be inspired by the profound importance of the work that lies before us.

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.  

4

In closing, you are here given an opportunity to direct the course of history.  I’m not afraid to put it in such terms.  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.  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.    

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.  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.  Onto the rocks maybe, or stalled forever in some backwater.  Or you can decide to sit up straight, put your back into it, and paddle. You’ll get wet, maybe blisters, too.  It’s going to be harder to find and hold the course than you would like.  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.

We should nurture the principle of open courts

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

But fundamentally, we should nurture, not further erode, the principle of open courts.

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.

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.

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.

Two residential school desks dare us to respond more powerfully than a report

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.

























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.

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.

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.

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.

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.

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.

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?

I thought about this as I stood in the quiet art gallery and looked at the two school desks.

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.

But I worry, too, that the focus on the institutional recommendations, and the government response to them, may miss the main point.

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.

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.

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.

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.

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.

The right to strike and the Charter "at work".

 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).

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.”

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.

But that does not relieve us from the task of asking whether this particular decision is justified.

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. 

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.

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 International Covenant on Economic, Social and Cultural Rights, enacted in 1966. 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 always been an essential feature and central purpose of associations of labour, even if the law has not always recognized the fact.”

And yet the Charter (unlike the constitutions of dozens of countries) does not say anything about a right to strike.

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.

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.

The majority of the Court unintentionally admits as much in this critically important passage from its reasons:

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:

"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 — in all its simplicity — is the essence of the matter."

(Laws Against Strikes (1972), at p. 8)

The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

Yes, the source relied upon for this statement is a book written in 1972. 

I agree with Eric Adams when he says, “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.  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.  

The rule of law and the Supreme Court's decision on the right to strike -

Today’s Supreme Court of Canada decision in the Saskatchewan Federation of Labour case is remarkable on many levels.

Both the majority and minority judgements deserve to be read: 2015 SCC 4.

In brief, the Court has, for the first time in history, constitutionalized the right to strike.

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. 

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.

All that changed in the Health Services 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.

What the Supreme Court decided in Health Services 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”

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.

What about the right to strike?  Well, in a 2011 decision called Fraser, 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.” 

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. 

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.”

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. 

Imagine trying to govern when you have no idea, week in or week out, what the courts will allow you to do.

That’s not the rule of law, it’s whipsaw whimsy.

Aboriginal title, Tsilhqot'in, reconciliation, and the way forward

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.

Here is the text, more or less as delivered.  

I am honoured to have been asked to speak here tonight.

It’s a special honour to speak at a forum on natural resources in Prince George.

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.  

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. 

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.

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.  

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.

So with one eye on the past, and another on the future, I hope you will forgive a little personal history.

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.

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.

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.

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.”  

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.

Thirty years ago this week the trial judge refused the First Nations’ injunction.  He held that aboriginal title in British Columbia had been extinguished. 

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.

It was a near thing, and rightly seen as a remarkable victory for the First Nations.

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.”

The injunction was intended to remain in place for a short time, to allow for an early trial of the aboriginal title claim.

Thirty years on, the logging has never occurred.  The trial did eventually begin, but it ended with a settlement agreement.

Why does all this history matter?

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.  

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.  

The answer is that Aboriginal title does exist on the lands of British Columbia, and its constitutional recognition and affirmation do mean something.

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. 

And there have been other profoundly important decisions. Sparrow, Delgamuukw, Haida, to name but a few.

In all of these cases, and indeed throughout its history, British Columbia has argued against aboriginal title. 

Its arguments have taken many forms: 

• title never existed in law; 
• if it ever existed, it was extinguished; 
• it may exist somewhere, but not here; 
• the claimants have waited too long; 
• government has no obligation to respect rights and title until they are proven, and so on.  

The golden thread that connects these arguments is a persistent, pervasive ethic of denial. That ethic of denial is deep-rooted.  

Denial, I think, is an expression of ignorance, perhaps even intolerance..   

It’s a refusal to admit that the history of what happened before Europeans were here has present relevance.

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.  

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.

One thing we can say about the ethic of denial is that, as a litigation strategy, it’s been a spectacular failure.  

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.”

Government has been more successful in those cases where there has been meaningful consultation and engagement. 

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. 

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. 

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.

BC’s Court of Appeal, in a unanimous decision, accepted the government argument and dismissed the Tsilhqot’in claim to aboriginal title completely.

And then the Supreme Court of Canada unanimously overturned the Court of Appeal.  

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.

I say this is a big deal.  

It’s a big deal:

• when the Supreme Court makes new law, as they did here, 
• when they reject the arguments of both the federal and provincial governments about the meaning of the Constitution, as they did here, and 
• when they unanimously overturn the highest court of the province, as they did here.

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.

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?  

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. 

For this reason, the Tsilhqot’in declaration of title has much richer, deeper significance than lines drawn on a map.

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.

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. 

This needs to be emphasized – but as I’ll lay out shortly, this emphasis should not strike fear of a new reality for BC. 

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: 

• Orders to consult and accommodate.  
• Orders to consult further.  
• Orders setting aside government decisions but only so that further consultation can take place. 
• 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.  

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.

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.”

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.  

And governments also have the power to infringe aboriginal title.  But such infringements must satisfy rigorous tests of justification.

Justification requires consultation with the aboriginal titleholder.  Governments must act honourably.  Infringement must be minimized.  Justification requires “a compelling and substantial objective.”

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.

And then in 1997, in Delgamuukw, the Supreme Court said the same framework applies to aboriginal title lands.  

But it all means so much more when aboriginal title is not just an idea, but a real place on the earth.

So the court has established a framework for interaction between the First Nations who own the land and the public interest.

Where does that leave us?

First, I need to say something about the implications of the new reality of a province with extensive aboriginal ownership.

Once again I need to go back to the Meares Island case.

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.

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." 

For thirty years and more, governments and businesses have resisted claims of aboriginal title by raising the spectre of economic paralysis.  

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.  

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.  

Well, we’ve heard that before.

The sky did not fall on the resource economy of British Columbia in the spring of 1985, and it didn’t fall last summer. 

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. 

There are still today, as there were in 1985, opportunities aplenty for nimble, creative, forward-looking resource businesses to thrive and prosper.

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

Which brings us to the a principle that the courts have invoked to guide action.

It’s reconciliation.

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.”

This is the law’s objective.  I suggest it should also be the objective of our public policy.

So what does reconciliation mean? And how can we move it forward to create a stronger economic foundation and a better, fairer province?

Dictionaries define the word as the “restoration of friendly relations” or the “action of making one view or belief compatible with another.”

Inherent in these ideas, it seems to me, is the acknowledgement of the mutual legitimacy of distinct persons and perspectives.

Reconciliation thus implies both mutual recognition and mutual respect.

And real reconciliation requires something more than saying, it requires doing.  Actions that reflect recognition and respect.  

This is much more than just being nice to each other.  

It’s a way of relating that acknowledges and legitimizes the possibility of different perspectives.

It’s about listening, and learning, and then acting on what you’ve learned.

It’s not a project you start and finish.  It’s work that carries on.

It’s not transactional.  It’s relational.  

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.  

How, then, to reconcile?

Not, I hope, by more litigation, though I’m sure there will be more litigation.  But we need to work harder to avoid it.

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.  

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.

Litigation also converts the complex nuances of social and economic relationships into questions of law and legal remedies.  

Litigation doesn’t create reconciliation, because reconciliation can only be created by willing hands, it cannot be imposed. 

Reconciliation requires discussion, consensus-building and negotiation.

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.

Thirty years ago, in the Meares Island case, Justice MacFarlane was direct about this: 

“[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." 

What will that reasonable exchange look like?  

I suggest that the Tsilhqot’in decision has reset the relationship scales.  Now it’s more like a dialogue among equals.

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.”

But doing nothing here would guarantee more litigation, more problems, and more conflict.

There are two variants of the do nothing option which must surely be tempting to government.  

First, there is option “one a”:  

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.

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.

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.

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.  

How does this happen?  Government officials say to resource companies, “We will not give you your permit unless you obtain aboriginal consent.”  

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.

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.

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.   

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.

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.  

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.

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.

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.

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.

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

We should also, I suggest, consider two lessons learned from the experience of the last decade.

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.

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.

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^th 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.

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.  

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.  

There are other options to pursue.

I continue to believe that the treaty process is a viable way to negotiate comprehensive frameworks that can lead to reconciliation.

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.

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.

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.  

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.

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.

There are other options.  I’m not going to suggest that one size fits all will work.  

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.

There has to be room for nuance and flexibility.

…

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.

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.  

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.

Let me offer two suggestions about what needs to happen next.

1. Include the business community in the discussion.

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.

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. 

1. 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.

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. 

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.

For me, this is the work of creating competitive advantage, not just adding cost.

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.

It’s our leadership opportunity as British Columbians.  It can be the thing we actually get right here in this glorious province.  

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. 

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.

Perhaps even to have a paddle together.

…

You have work to do, over the next couple of days, and it is time for me to finish.  

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.

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. 

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.

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.

I hope you know that wonderful sculpture, Bill Reid’s magnificent Spirit of Haida Gwaii.  

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.

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.  

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.