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The closed minds in the B.C. treaty process

Appeared in the Vancouver Sun
Release Date: August 11, 2008

In ancient Greece, teachers interested not in truth but in mere rhetorical points were known as Sophists and a favourite tactic was to engage in specious rather than sound reasoning. A modern example appeared last week in The Sun from Brian Mitchell, the communications manager for the BC Treaty Commission; he took issue with my Fraser Institute report on 15 years of treaty making in British Columbia, which criticizes the process and the results as incomplete, illiberal and expensive.

In his letter, Mitchell correctly noted that I erred in my description of his employer. In a 118-page paper, I once labelled the BC Treaty Commission as the body responsible for negotiating treaties when, of course, that body is responsible for facilitating treaty negotiations.

Mitchell attempts to dismiss my report but, beyond my error -- now corrected online, and which does not affect the substance of the study -- I can only assume Mitchell's vituperative letter might be the result of my dissection of wrongly promulgated assertions from various parties about claims of substantive finality, delegated powers or a liberal approach to treaties. Such parties no doubt dislike both a frank description of what has occurred and my proposals for B.C. and federal negotiating positions.

On that note, Mitchell mistakes my offering of alternative positions as naïve. Hardly. I am well aware of the opposition to government positions that might reflect an arguable majority of public opinion in British Columbia. When it comes to treaties, the public is entitled to firmer negotiating principles that reflect their priorities and interests, including affordability, a liberal approach to racial and cultural issues and substantive finality, instead of de facto open-ended agreements. Someone must point out how unrepresentative Ottawa and Victoria have become.

There are many instances in which governments have taken positions, signed treaties or abandoned principles in a manner not required by the courts or the Canadian Charter of Rights and Freedoms.

In 2005, in its "Lay Person's Guide to Treaty Making in British Columbia," the BC Treaty Commission wrote: "Under the B.C. treaty process, where there are competing interests, the first nations must resolve the overlaps before agreements in principle are finalized."

Contrary to the Commission's assertion, the Tsawwassen Treaty was signed as an Agreement in Principle by all parties in 2004. It proceeded despite multiple overlapping claims from other first nations -- four as reported in 2007, and as admitted to by the Department of Indian and Northern Affairs in 2008.

Further, Mitchell's claim that I advocate ignoring selected court judgments in favour of others is incorrect. I advocate that governments not take racially divisive, illiberal positions such as they have on commercial fisheries, not when they are not forced to by the courts.

A 2006 poll, sponsored by the department of Indian and Northern Affairs Canada, found an overwhelming majority of British Columbians wanted all commercial fishermen, regardless of aboriginal status, to be subject to the same rules and access. Public opinion aside, three Supreme Court of Canada judgments in 1996 clearly rejected the notion that aboriginals have a constitutional right to a preferential, race-based, aboriginal-only commercial salmon fishery on the Fraser River. But despite public opinion and despite SCC rulings, Ottawa and Victoria continue to negotiate commercial-fishing side agreements to treaties, which allocate preferences based on race.

Even the recent June ruling from the Supreme Court of Canada on commercial salmon fishing (R. v. Kapp) underscored that while governments may enact "race-based programs" under the affirmative-action clause of the Charter, (the "race-based" language is from Justice Basterache), "may" is not the same as "must."

It is a policy choice of politicians to go down that road.

As to Mitchell's suggestion that lawyers should have reviewed my study, two constitutional lawyers from the Canadian Constitutional Foundation in fact did, as did two academic experts in aboriginal matters.

I cite their criticisms in my report. I also note the assertions from William McIntyre and the late Willard Estey, formerly of the Supreme Court of Canada, and Michael Goldie, formerly of the B.C. Court of Appeal, that the Nisga'a treaty violates Canada's constitution.

In my report, I give more weight to the opinions of Estey et al than to missives that emanate from a communications office in the Leviathan of bureaucracies that have grown up around the B.C. treaty process.

So, too, should readers.