Tuesday, August 28, 2012

BC Conservative Party Approach to Aboriginal Issues


This is from the BC Conservative Party proposed policy document to be adopted at their September AGM.

ARTICLE 15.  Aboriginal Affairs.
The BC Conservative Party recognizes that:
15.1. The Constitution of Canada grants to the federal government exclusive jurisdiction over Aboriginal Affairs and land issues related thereto.
15.2. The constitutional obligation of British Columbia toward Aboriginals was set out in the terms of union under which British Columbia entered Confederation. That obligation was to set aside provincial Crown lands for reserve lands, which the federal government has acknowledged as been discharged by British Columbia.
15.3. Provincial Crown lands in British Columbia are held by the Crown in trust for all British Columbians and must not become part of settlements of Aboriginal claims except to the extent where the courts have held Aboriginals are entitled to ownership

This policy is a throw back to several decades ago and completely ignores the Canadian constitution and legal precedence of the country.

With 15.1 they are trying to get out of having any responsibility for aboriginal issues,  section 91(24) says the Federal government has exclusive legislative authority over "Indians, and Lands reserved for the Indians".   This only means that feds are allowed to make laws that apply on reserve or make laws specific to aboriginal  people.   This has nothing to with Aboriginal Title and Rights because it only relates to reserve lands, more than 99% of BC is nor reserve land.

It also ignores the difference between BC and most of the rest of Canada.  BC was an independent colony of the UK that chose to unite with Canada.   Canada could not do as it had on the prairies and retain control over the land until Treaties were settled.  BC came into confederation with control over the land.   BC also told Canada at the time of confederation that it had settled with the First Nations, which it had not done at all.   We have the blind stupidity of Joesph Trutch to blame for this.

15.2 misses out a whole host of issues that made the declaration in the 1920s that BC had fulfilled their obligation null and void.   Canada chose not to sign Treaties with the First Nations which means that there was no desire or intent to extinguish existing rights of aboriginal people in BC.   BC retains a constitutional obligation to aboriginal people for as long as there are no Treaties.   The BC Conservatives seem to want to continue this and not come to a settlement with aboriginal people.

This settlement between the federal and provincial Crowns was done at the same time that the federal government illegally and unilaterally stripped aboriginal people from an ability to seek redress.   Based on legal precedence of the 1920s, if the Nisga'a had managed to go to court at the time the courts would have found an obligation of the Crown to sign a Treaty with them and until that was done nothing could happen on the land.

15.3 ignores that BC does not have free and clear title to Crown land in BC.   First Nations have an existing clear set of rights and title to the lands in BC though successive provincial government have dragged their feet in recognizing these existing property rights.   BC could have unencumbered their provincial Crown Lands in the 19th century but chose in the face of all precedent not to do this.  

The courts have found over and over again that aboriginal rights exist.  The courts have also said over and over again there should be negotiations between the Crown and First Nations to resolve this.   The provincial government has rarely gone further than the minimum stated in the court decision.   Neither the federal nor provincial Crown has approached the First Nations in good faith and given an inch.   This is not entirely true, the current BC Liberal government has gone further than the minimum of what it had to and has tried to build an actual relationship with First Nations.

At the heart of it, aboriginal title and rights are constitutionally protected property rights.   This fact makes Article 9 of the BC Conservative policy document laughable.  


ARTICLE 9.  Private Property Rights.
The BC Conservative Party supports:
9.1.  Clarification of Property Rights and Land Titles.

9.1.1. Strengthening legislation for the protection of property rights for all British Columbians.
9.1.2. Strengthening laws relating to land title and land title registration to ensure that certificates of title issued to purchasers of property contain any and all reservations or charges as to any particular title. Once issued, such title shall be a complete defense against all unregistered claims of any nature and kind that may be put forward thereafter.

9.1.1 says they want to strengthen the property rights for all British Columbians which I assume they do not intend to include the oldest and most abused property rights in BC, those of aboriginal people.

Would they allow say the Ts'kw'aylacw First Nation to register their ownership over the Pavilion Creek watershed under 9.1.2?   I think not.  

 It is hard to think of any group in BC that has had more government interference and attack on their land than First Nations.   First Nations are at the forefront of protecting landowners from the interference of government.   They have done more in the courts than anyone to place some restrictions on the power of the Crown.

The BC Conservative approach to aboriginal issues is a recipe for a complete collapse of the natural resource sector in BC and through that a collapse of our economy.   The only upside is that it would it make probable that First Nations en-mass would finally go to the courts to get aboriginal title declared and an intransigent provincial government would force the courts to abandon the push to get the sides to negotiate.

Long term success of this province and keeping the rural milch cow subsidizing urban British Columbians will come about when the province recognizes full and clear ownership of First Nations to large parts of rural BC.


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