Aboriginal Title - John Cummins, MP

June 10, 2009 - Globe - Federal Officials Scolds B.C. for Native-Rights Bill

But it was the last-minute decision to pull out of a native fishing court case - a manoeuvre that was tied to winning aboriginal support for the Recognition Act - that seems to have rankled Ottawa even more.

Mike de Jong, B.C.'s Aboriginal Relations Minister, met the province's native chiefs in March.

He was seeking support for the unprecedented legislation that would recognize aboriginal rights and title and lay the groundwork for revenue-sharing on such resources as mining and forestry.

On the eve of that meeting, he let it be known that the province was dropping out of a native fishing-rights case that had been before the B.C. Supreme Court for 125 days. In the week after that meeting, Madam Justice Nicole Garson had expected to hear final arguments from federal and provincial lawyers disputing the Nuu-chah-nulth Tribal Council's fishing claim.

Instead, the province decided not to submit a final argument, leaving Ottawa alone to carry the case to its conclusion.

"It is in this context that I would like to express our concern," Mr. Wernick wrote. "You will understand that such an unprecedented, unexpected and last-minute decision founded explicitly on the legislative proposal raises many questions as we think forward to what the province is thinking . . . in any number of matters." He went on to note that Ottawa will eventually have to respond to media questions that have been raised about the proposed recognition act. Those answers "are likely to create at least some controversy," and a courtesy briefing from B.C. would help "avoid unnecessary misunderstandings and wrong impressions." The proposed recognition act is still being drafted.

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Letter to British Columbia - March 23 2009

It is this context that I would like to express our concern regarding British Columbia's decision to inform the British Columbia Supreme Court recently of its decision not to file written submissions nor to make closing arguments in the Ahousaht case. Again, while we respect British Columbia's right to make such a decision, you will understand that such an unprecedented, unexpected and last-minute decision founded explicitly on the legislative proposal raises many questions as we think forward to what the province is signalling in relation to the Roger William appeal, the conclusion of existing British Columbia Treaty Commission negotiations and any number of other matters. The Government of Canada has received no explanation or briefing to help us understand better your intentions or the implications that this decision may have on many other critical files before us.

June 9, 2009 - Globe - Gary Mason - It's Time Campbell Talked About Native-Relations Plan

Mind you, all that most British Columbians know about the Premier's intentions comes from a discussion paper released a couple of months ago...

The proposed Recognition and Reconciliation Act would supersede all other provincial laws dealing with land use and resource management, completely altering the province's political and economic landscape in the process...

There also seems to be frustration, shared by non-aboriginals, about the process behind the planned legislation, one conducted entirely in private. Many believe there should have been wider consultations - among aboriginals and non-aboriginals alike - before any discussion papers were written and legislation drafted.

The whole matter seemed to come out of the blue and, for policy that is potentially so groundbreaking, you would have thought there would have been some type of public discussions beforehand...

The debate that should have happened during the provincial election may yet take place. If Mr. Campbell hopes to change the aboriginal-relations landscape in the province, he is going to have to sell the merits of his vision and sell them hard.

June 8, 2009 - National Post - John Carpay & Jeffrey Rustand

A "Seismic Shift"? Most Certainly

In February, the provincial government and the First Nations Leadership Council agreed in a joint discussion paper to support new legislation to recognize 30 "reconstituted" indigenous (aboriginal) nations, and divide B.C. into aboriginal territories, each with its own aboriginal government and aboriginal laws. This "Recognition and Reconciliation Act" would also recognize that these indigenous (aboriginal) nations, and divide B.C. into 30 aboriginal territories, each with its own aboriginal government and aboriginal laws. This "Recognition and Reconciliation Act" would also recognize that these indigenous nations have aboriginal title throughout British Columbia, including the power to make laws.

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The proposed act would extend aboriginal title over all or most of the province. Aboriginal title includes the right to exclusive occupation and land management, and entitlement to rents, such that 30 indigenous nations would have effective ownership over most of B.C. This is fatally flawed because aboriginal title, as defined by the Supreme Court of Canada, gives aboriginal peoples only a fraction of the province's land base: those areas over which they can prove continuing and exclusive occupation. Moreover, aboriginal title does not include the power to make laws.
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Gordon Campbell's proposed act would also give these new aboriginal governments shared decision making power with the provincial government regarding economic development of land and resources. This power would be very real, providing the new layer of aboriginal government with a potential veto over new economic activity anywhere in B.C. The legislation would lay the foundation for a whole new set of compensation claims, and would create mechanisms for "revenue sharing" to divert revenues from taxes and royalties to the aboriginal governments.

May 25, 2009 - BC Chamber of Commerce - News Release

Business Leaders Urge Great Care with Recognition and Reconciliation Act

"We'd like to be very clear on this," said John Winter, President and CEO of the BC Chamber of Commerce. We think this legislation is extremely important .... We have one chance to do this right."

The contents of the proposed Recognition and Reconciliation Act were released in an outline document entitled "Discussion Paper on Instructions for Implementing the New Relationship," in March, 2009. Although the document contained very little in the way of specifics, it included reference to dramatic changes including "shared decision-making" and recognition of aboriginal title throughout the province "without requirement of proof or strength of claim."

May 19, 2009 - Prince George Citizen - Julia Serup - Who Owns B.C.?

Campbell, after announcing the intention to introduce recognition legislation, apparently told the Supreme Court that it was withdrawing from the Ahousaht case because the government was no longer able to take "a strictly legal position regarding the test for aboriginal title."

This was a signal that apparently aboriginal title in B.C. is henceforth to be based not on the law, but on Campbell's whim.

With Gordon Campbell's re-election as premier as B.C., there is a need to stop him from implementing these proposals by using referenda and recall.

May 23, 2009 - Norman Dale - responds to Julia Serup's "Who Owns B.C.?"

Fact Check of Norman Dale's criticism of Julia Serup's "Who Owns B.C.?"

May 13, 2009 - Talk 1410 Radio Vancouver - John Cummins

May 11, 2009 - National Post - John Cummins - Who Owns B.C.?

B.C. Premier Gordon Campbell has proposed legislation that would:

· Recognize that aboriginal title exists throughout B. C.;

· Give unelected native leaders a veto power over mining, forestry, recreation and other development activities on Crown land; and

· Require that all revenues from stumpage fees, mining royalties and recreational fees be shared with the native leadership.

More than 95% of B. C. is Crown land. Title is currently held by the province on behalf of all British Columbians. If Mr. Campbell's recognition legislation becomes law, title will be held instead by about 30 powerful yet-to-be created "indigenous nations," which would be entitled to the revenues from all activities on Crown land.

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Document Referenced in Who Own B.C.?

March 4 2009 - B.C. Withdraws from Ahousaht Indian Band et al v. AGBC et al- Letter to Court

"We are counsel for the defendant, Her Majesty the Queen in right of the Province of British Columbia, in the above-captioned matter. The trial of this matter is being heard by Madam Justice Garson. We ask that you bring this letter to her attention in regard to the legal submissions by the Province due last week."

"Our client feels that it cannot continue with its productive discussions with First Nations while it is at the same time taking a strictly legal position regarding the test for aboriginal title in this case. As such, we are instructed that the Province has determined it can take no position in upcoming closing arguments in the Ahousaht litigation. In that regard, we can advise that we will not be filling a legal argument, nor will counsel for the Province appear at the closing arguments except to advise this Court of this decision and to respond to any questions or concerns."

May 10, 2009 - Vancouver Sun - Geoff Plant Attacks Cummins on Aboriginal Title

May 11, 2009 - Cummins responds - Letter to the Editor

Mr. Plant seems offended by my observation that on aboriginal title Gordon Campbell "snatched defeat from the jaws of victory." So be it.

I am sure that Mr. Plant knows full well that the Supreme Court of Canada made the issue of aborignal title largely irrelevant in British Columbia in 2005 when it rejected the approach to aboriginal title now espoused by Gordon Campbell.

Mr. Plant fails to mention that on February 27, 2009 John Hunter QC, former president of the Law Society of British Columbia, who acts on behalf of the Province on aboriginal matters, stated that the territorial approach to aboriginal title that is central to Mr. Campbell's proposed aboriginal title legislation had been "decisively rejected by the Supreme Court of Canada." more

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Mr. Plant is a former B.C. Attorney General and an advisor to the Campbell government on aboriginal issues.

The former Attorney General appears to be referencing an observation made in an April 27 opinion page article in the Vancouver Sun by Cummins entitled, "Aboriginal Title? Mr. Campbell, Meet Mr. Harcourt," where Cummins stated:

"Again, as Harcourt had done in 1992, Campbell snatched defeat from the jaws of victory."

The Supreme Court of Canada made the issue of aboriginal title largely irrelevant in British Columbia in 2005 when it rejected the approach to aboriginal title now espoused by Gordon Campbell.

Mr. Plant fails to mention that on February 27, 2009 John Hunter QC, former president of the Law Society of British Columbia, who regularly acts on behalf of the Province on aboriginal matters, stated that the territorial approach to aboriginal title that is central to Mr. Campbell's proposed aboriginal title legislation had been "decisively rejected by the Supreme Court of Canada."

Mr. Plant also fails to mention that on March 4th Mr. Hunter, acting on behalf of the Province, advised the B.C. Supreme Court that the Province was withdrawing from the Ahousaht trial as it was no longer able to take "a strictly legal position regarding the test for aboriginal title." Mr. Hunter went on to advise the Court that he had been instructed by the Province that it would take "no position in upcoming closing arguments" and that the Province would not be filing a legal argument, "nor will counsel for the Province appear at the closing arguments."

Apparently Mr. Plant supports the Province's refusal to argue the law in the B.C. Supreme Court. This is surprising as it is normally considered the job of the B.C. Attorney General and his solemn duty to put sound legal arguments before the courts and to leave the politics to others.

April 27, 2009 - Vancouver Sun - John Cummins - Aboriginal Title? Mr. Campbell, Meet Mr. Harcourt

There is again a political desire to breathe life back into "aboriginal title," a moribund concept that has seduced politicians and bedevilled the courts for nearly four decades. History has a way of repeating itself in British Columbia politics and nowhere is this truer than in the recognition and reconciliation legislation promised by Gordon Campbell.

March 9, 2009 - Legal Observations concerning the "Discussion paper on Institutions for Implementing the New Relationship"

- 1. The legislation will give First Nations a veto.

In short, First Nations will have a veto over every aspect of resource development in B.C.
Also, First Nations have a clear view as to what is intended by the phrase "shared decision-making" - namely a veto, as expressed in the numerous documents recently made available on the B.C. Union of Indian Chiefs' website associated with the November 2008 "All-Chiefs Assembly on Proposed Recognition Legislation" (see in particular the discussion paper entitled "Shared Decision Making").

- 2. The legislation will recognize aboriginal title throughout all of B.C., potentially giving enormous power and control to First Nations and inconsistent with current law relating to aboriginal title.

Discussions with senior official regarding the paper appear to confirm that there is a fundamental lack of understanding by the persons who drafted this Paper for B.C. concerning the significance of recognizing aboriginal title throughout all of B.C.
No final court decision has actually found aboriginal title anywhere in Canada.
The Supreme Court of Canada has ruled specifically on aboriginal title in two decisions (Delgamuukw (1997) and Marshall/Bernard (2005)), which confirm that aboriginal title ... is very difficult to prove, and when proven will not be over expansive 'traditional territories' but rather will be found in limited areas where the evidence supports physical occupation of defined tracts of land.
In our view, a paper delivered on February 27, 2009 by John Hunter Q.C., former President of the Law Society of British Columbia, who has also acted on behalf of the Province in many aboriginal law cases, accurately sets out the law relating to aboriginal title. Mr. Hunter's paper concludes that the territorial approach to aboriginal title that is central to the proposed recognition legislation has been "decisively rejected by the Supreme Court of Canada."
It is because aboriginal title is so significant - giving a right to choose the use to which the land is put - that the courts have been so careful about it and have indicated that it will be found only very rarely. Aboriginal title is not commonplace and certainly does not exist throughout the entire province as is proposed by the recognition legislation "without requirement of proof or strength of claim."

3. The legislation proposes power and control to the First Nations well beyond what has been established by the Supreme Court of Canada.

4. The legislation has core legal defects.

March 4 2009 - B.C. Withdraws from Aboriginal Title Litigation - Letter to Court

"Our client feels that it cannot continue with its productive discussions with First Nations while it is at the same time taking a strictly legal position regarding the test for aboriginal title in this case. As such, we are instructed that the Province has determined it can take no position in upcoming closing arguments in the Ahousaht litigation. In that regard, we can advise that we will not be filling a legal argument, nor will counsel for the Province appear at the closing arguments except to advise this Court of this decision and to respond to any questions or concerns."

February 19 2009 - Discussion Paper on Instructions for Implementing the New Relationship

- The purpose of the legislation will be to: recognize that Aboriginal rights and title exist in British Columbia throughout the territory of each Indigenous Nation that is the proper title and rights holder, without requirement of proof of strength of claim.

- The Province would adopt as a guiding standard for all of its conduct and negotiations with Indigenous Nations, including the creation and implementation of all enactments, policies and mandates affecting lands and resources, the following recognition principles:

That Aboriginal rights and title exist in British Columbia throughout the territory of each Indigenous Nation that is the proper title and rights holder. The Crown recognizes and affirms this without requirement of proof or strength of claim;
That Crown title exists with Aboriginal title throughout British Columbia;
That Aboriginal title is a pre-existing interest in land, is held collectively and includes a jurisdictional and economic component;

March 23, 2009 - Letter to B.C. from Government of Canada

It is this context that I would like to express our concern regarding British Columbia's decision to inform the British Columbia Supreme Court recently of its decision not to file written submissions nor to make closing arguments in the Ahousaht case. Again, while we respect British Columbia's right to make such a decision, you will understand that such an unprecedented, unexpected and last-minute decision founded explicitly on the legislative proposal raises many questions as we think forward to what the province is signalling in relation to the Roger William appeal, the conclusion of existing British Columbia Treaty Commission negotiations and any number of other matters. The Government of Canada has received no explanation or briefing to help us understand better your intentions or the implications that this decision may have on many other critical files before us.

March 17, 2009 - Globe - Native Leaders Unhappy About Bill Delay

"The legislation would also recognize the title and rights to land and resources that aboriginals claim as the historic first inhabitants of the province. Until now, bands have had to go to court to have those rights and titles recognized."

March 16, 2009 - Globe - B.C. Puts Aboriginal Recognition Act on Hold

"But industry leaders in particular expressed alarm over the prospect, buttressed by a legal opinion that the measure would give First Nations a veto over all land-use and resource-management decisions in the province."

February 27, 2009 paper by John Hunter QC referenced in legal opinion.

"The effect of the Marshall/Bernard decision is to resolve the debate over the scope of aboriginal title. The territorial approach to aboriginal title has been decisively rejected by the Supreme Court of Canada. The standard of occupation required to establish occupation is that of actual physical occupation of defined tracts of land."

ABORIGINAL TITLE DOCUMENTS

B.C. Government Implementing Document on Aboriginal Title

Map - Territorial Boundaries of Indigenous Nations

Union of B.C. Indian Chiefs - Discussion Paper - Implementing Aboriginal Title

Legal Opinion on B.C. Government's Implementing Document

B.C. Government - March 4 2009 - Withdraws from Aboriginal Title Litigation - Letter to Court

Canada - March 23 2009 - Response from Deputy Minister of Indian Affairs - Letter to B.C.

Current Developments on Aboriginal Title, John Hunter QC, February 27, 2009

Marshall/Bernard Decision of the Supreme Court of Canada