B.C. moves to recognize native rights

The volumes of the province's legal history, bound in stiff tan buckram cloth, fill a bookshelf in a corner of Mike de Jong's legislature office. In the next four weeks, the Aboriginal Affairs Minister hopes to bring in a new statute that will take precedence over all of them.

It is the most expedient path to untangling hundreds of B.C. laws that are rooted in a contentious proclamation issued on Valentine's Day 150 years ago.

With the proposed Recognition and Reconciliation Act, Mr. de Jong, along with a small team that includes the Premier's deputy minister and the province's top three native leaders, have decided it is possible to rewrite that history.

On Feb. 14, 1859, British Columbia's new governor, James Douglas, proclaimed that all the lands in British Columbia - and all minerals below the surface - belonged to the Crown.

The commander-in-chief of the newly minted colony was preoccupied with controlling the gold rush, but, with his decree, he dismissed any claims of the aboriginal population in B.C. - in fact, the governor described the lands as "unoccupied."

Premier Gordon Campbell has pledged his support for a new law to enshrine aboriginal rights and title in law. With it, he hopes to create "partnerships and prosperity" through shared decision-making and revenue-sharing.

The province is also drafting a new proclamation, one that would provide the language of reconciliation that doesn't come across in the dry realm of legal statutes.

"You can't undo history but you can rectify it," said Ed John, grand chief of the First Nations Summit.

It is principled stuff, but it has generated high anxiety for the province's resource industry.

Aboriginal leaders have produced a draft mining action plan, based on the notion that they will soon have the province's formal backing to their claims for a share in the control and profits of mining activity in B.C.

"For our continued survival, dignity and well-being," the plan states, "any and all development of our lands, territories and resources requires our free, prior and informed consent."

The plan calls not just for consultation; it foresees natives "benefiting from all phases" of the mining process, including revenue-sharing, employment quotas and contracts for mining supply. There are action plans, too, for forestry, fisheries and energy - anything that deals with the economics of land and resources in B.C.

"It's not enough for a mining company to go to government for a permit," said Mr. John, one of the six key people involved in developing the proposed recognition law. "It's not going to happen any more. ... The reality of conducting business will change."

The details of the proposed recognition law are still under wraps. It is expected to create mechanisms for involving native communities when a company wants to invest in a new mine, for example.

Just how the rules will change is still a huge uncertainty for those outside the drafting process.

"We are all a little bit skeptical and a little bit worried," said Pierre Gratton, president of the Mining Association of B.C.

Nirvana, to his industry, would be a time when all the province's land claims are settled. In the meantime, it would like to see a system that is rules-based and predictable. "Who makes the decision is less important," he said. "But it can't be something that finishes with a plebiscite at the end."

The mining industry isn't the only sector where land-claims issues have held up investment, but a number of mining projects are tied up in litigation or, like Northgate Minerals Corp.'s Kemess North gold mine, have been killed outright.

"What we are seeing," Mr. Gratton said, "is a political struggle over B.C.'s resources - over control and who benefits from them - between the province and first nations. And how they solve it will determine whether or not industry decides this is a good place to invest."

If the law is passed before the May 12 election - it's an ambitious time frame - it may still take years for the resource industry to decide if recognition is a good thing for its interests.

In the meantime, the province continues with business as usual in the courts. In the B.C. Court of Appeal yesterday, the province won the right to challenge a landmark ruling that found the Tsilhqot'in Nation has aboriginal title.

Another of the key players in drafting the recognition law, Chief Shawn Atleo, is also tied up in court on behalf of his Nuu-chah-nulth Tribal Council in a case where the Crown's opening statement denies the existence of his people.

"What a place to begin a discussion about how we are to co-exist," Mr. Atleo said yesterday.

Will the province withdraw from such court battles on the day it passes a new law? It would be a concrete way to demonstrate the spirit of reconciliation Mr. Campbell is offering.

Sir James's legacy

Much of the conflict over land claims in British Columbia can be traced to a single document that was issued during the colony's founding year.

The past

On Feb. 14, 1859, Governor James Douglas issued a proclamation that reads in part: "All the lands in British Columbia, and all the Mines and Minerals therein, belong to the Crown in fee." Land not reserved for townsites would be available at a price of ten shillings per acre, although the government could also "reserve such portions of the unoccupied Crown Lands" as it saw fit.

The present

On Feb. 16, 2009, Lieutenant-Governor Steven Point read the government's Throne Speech:

"This government is working with First Nations to develop a Recognition and Reconciliation Act that will ... acknowledge, and place in a provincial statutory context, that Indigenous people have long lived throughout British Columbia and that this fact does not require proof. It will recognize constitutionally established Aboriginal rights and title, and will facilitate partnerships and prosperity through shared decision-making and revenue-sharing. ... It will create process certainty for third parties and Indigenous Nations as they pursue economic development."

The future

A new royal proclamation is being considered by the provincial government, one that would revoke part of the 1859 law. The wording is not yet public but it might say, in effect: "We are sorry, this province was in fact occupied long before Sir James set eyes on its tall timbers and lucrative gold fields."