Implications of Failed R&R Act for 1st Nations in B.C.

The proposed New Reconciliation and Recognition Act by the British Columbia government failed in 2009, largely due to the withdrawal of support by 1st Nations leaders. Vic Burstall, a retired lawyer in Victoria, outlines the developments today in the Times Colonist.

According to the province, the legislation was intended to:

• increase partnerships and bring certainty to the land base in B.C.;
• establish a flexible framework to avoid the costly and lengthy litigation that has too often characterized relations with First Nations in the past;
• ensure constitutional or common law on rights and title remain unchanged;
• not affect Crown-granted interest on the land; including fee-simple and tenures; and
• will not provide First Nations with automatic veto authority for land projects and economic developments.

A draft of the legislation was never released, but a discussion paper from February 2009 is available. The March 2009 releases by the B.C. government and the Union of B.C. Chiefs are also available.

Thomas Isaac and Keith Clark, lawyers with Aboriginal litigation experience who appear to be retained by the business community, provided some legal observations on the government discussion paper in March 2009.

Days later, the Executives of the BC Assembly of First Nations, First Nations Summit, and Union of BC Indian Chiefs in turn released joint comments on the legal observations by Isaac and Clark.

Burstall also claims that the failed proposed Bill, which was never introduced, has relevance to the B.C. cases in Ahousaht First Nation v. Canada (Fisheries and Oceans), Ahousaht v. Canada (Attorney General); and Ferguson v. Lax Kw’Alaams, Ferguson Gifford v. Lax Kw’alaams Indian Band.

Burstall concludes,

The proposed R&R Act is at best amateurish and exhibits a lack of understanding of the issues involved. Admittedly, progress is slow in resolving aboriginal claims, but the reality is that the courts are the only institution with the respect necessary to decide the major issues in aboriginal rights and title claims.

It is not likely that Indians will settle without the major issues being decided by the courts, nor should governments. Most British Columbians would like to see an early settlement of native claims, especially if the benefits of settlements find their way into the hands of individual Indians.