Thursday, September 29, 2022

Nuchatlaht First Nation fights to reclaim territory in landmark court case

 Global BC reporter, Kylie Stanton, interviewed me for her story on the Nachatlaht rights and title case. Here is her story. 


The full transcript of my comments, for context, are printed below. Lightly edited for clarity. Section quoted in newscast is bolded and underlined.

[00:02:02.590] - Kylie

… Charles this case is being called a landmark case. It could be precedent setting in terms of the way that the BC government deals with these declarations and the land back movement. … What is it that you think is driving this issue that's brought it to court? …


[00:02:46.870] - Charles

Well, there's a couple of things that are kind of interesting about this case. For one, they're looking at a relatively speaking small piece of land. So there's a very specific focus. But this is outside something that's called specific claims, which is a different category of legal claims. And so often times some of the smaller land claims cases, I'd say with the Squamish Land Court case that fit under specific claims. There was a case with Hagwiget up in the north that was against specific claims. So there's a different category of things that have occurred so that's kind of unusual that they've gone the litigation route with this particular avenue. Also just the nature of some of the issues about the way the court determines how, under Canadian law, aboriginal rights and title are passed along. So one of the big differences that people, the Canadian government considers, according to the constitution and legal history, sort of structure, is that there has to be a kind of continuous chain from a pre contact existing polity or entity and then that kind of carries its way forward. Of course, the reality is today many different First Nations are combinations of different groups of people.


[00:03:55.090] - Charles

Sometimes they're not actually in the places originally from, or if you were trying to sort this all out in a different direction. So I think there's elements of that here, where you've got a very small community that has members from other locations also making claims to a specific place that maybe other groups also have claims to, but they're making a particular way that is actually stands up and makes that unique. For those of us who are really into this kind of stuff, the nuance and very detailed complexity is quite interesting from an intellectual perspective. For the regular observer, they're going to look at this and think, what the hell, what gives here? It's like a small chunk of land, a small group of people. How come people can't get along with it? But of course, as logging proceeds and removes the timber from the land, the land gets fundamentally changed, ceases to be what it was to begin with. So part of what's at stake here is that First Nation is trying to prevent the logging from continuing. So at least there's something left at the end of the day. And the left, it's not necessarily the value in the timber, it's the value of the timber, of the fact of it being there, and the different types of life and practices and histories to carry on.


[00:05:00.980] - Charles

So that's kind of a combination answer. What might make this, particularly, I have noticed, because you can't help but observing people, colleagues talk about different things that are paying attention to, there are some peculiarities as well about the case and different things. The way the Crown has been arguing that essentially there's kind of limitations and saying that it isn’t the right people and all this kind of stuff. But at a political level, if we're talking about reconciliation and trying to resolve things, there's a real question about why is the government continuing? Why is the Crown continuously and without hesitation basically fighting back on everything all the time? And everywhere you look there's a similar kind of issues. Only rarely do they actually make it in to court. But it's practically the entire playing field across the province of BC.


[00:05:53.800] - Kylie

…  you're saying this happens all the time, this pushback [from government] is happening all the time. [But], isn't this supposed to just be a part of reconciliation, our way of moving forward by repatriating these lands? ...


[00:06:30.450] - Charles

And it doesn't seem to matter whether it's a Socred government, a Liberal government, an NDP government, whomever it seems to be, they act and behave like the Crown [because they are the crown]. And the Crown is pretty belligerent in an interesting way about what's going on. But when I say it's happening all over the course of BC; essentially what's going on is people will be saying, let's say a government official will come to a First Nation. There's a project going on. And they'll basically say:


“Let's just sign an agreement. A memorandum of understanding. And we realize it's a big issue. But we'll just do a memorandum of understanding right now. And are you willing to accept some cash. Some job. Something else? And we'll put off the big issue.” 


So they keep putting off the big issue. But ultimately, and I think the big issue will actually come home and will be a big explosion that people [non-Indigenous people] won't really understand. They'll be shocked when it actually works in the favour of First Nations. So you take a look at the Chilcotin case. Which actually declared Land Title exists (which is a pre-UNDRIP decision). And you also see some of the court decisions they're challenging something called this idea of universal possession.


[00:07:41.010] - Charles

This kind of radical sense of possession the Crown has claimed. Court cases started to chip away at that. Which basically moves us to an idea of shared governance with the Crown and First Nations. That idea, when people start to realize that that is likely what's happening, moving forward will be a bit shocking for people because they don't understand it. And if the government was really moving and working in that kind of direction to begin with, we would have a much smoother, more comfortable going in that direction. And we have lots of examples of First Nations being very happy to co-partner with non-First Nations, both governments and private industry and NGOs all over the place. So it's not like there'll be a big disaster. But I think we're actually moving toward the idea of this kind of shared governance. You see examples in New Zealand, this idea emerging and very likely what's properly happening to be happening here, especially if the government forces everything into the court, because these court cases keep constantly ratcheting things forward in this direction.


[00:08:44.530] - Kylie

[asked to explain shared governance]


[00:09:05.420] - Charles

No, because that's why I say the crown is quite belligerent in it's refusal to accept the possibility of there being other models. They will enter into co-management agreements, which doesn't question the underlying rights or title. It doesn't redress this. But some of the things that happen in New Zealand actually point in this direction where between the Maori and the New Zealand State, this recognition that there's actually a kind of shared governance between the crown and Maori, and that really transforms the situation. So it doesn't give one more power over the other, but it really is conceptually a different way of thinking. It's like having two crowns ruling one land, I guess you could put it that way, which may be a way of thinking of it.


[00:09:49.150] - Charles

I suspect by looking at some of the way the court decisions are moving and some of the different decisions, it's conceivable. And clearly it strikes me as a reasonable and appropriate kind of measured policy to put into place. If I always like to ask my students, if they had a magic wand, what would they change? Well, if I had a magic wand, that's what I immediately pop in the head of all the different political leaders in the province to make them think about shared governance without hesitation. That would be my sort of wave of the wand.


[00:10:23.710] - Kylie

[asked if I thought this was precedent setting]


[00:10:33.730] - Charles

I think very likely that this goes forward. If they don't win, it won't necessarily be precedent setting because a lot of times things shift around. So there's been First Nations that have lost court cases, and so it ends up, like with the Lax Kw'alaams and the fishing rights for Salmon case. They lost that one. But that doesn't preclude another First Nations from gaining the same right. It might actually inhibit their ability.  But a positive win, actually, because the way the court system and the judicial decisions work in a precedent setting will actually make a difference. So I think that's how I would frame it. Of course, a more learned legal scholar might have a totally different take on this than what I.


[00:11:13.850] - Kylie

Thank you so much for your time.

Saturday, June 18, 2022

Data Transparency and the Faculty Union

A group of faculty members organized a drive to get a data transparency motion on the agenda for the UBC Faculty Association's AGM, held June 16/22.  They managed to collect about 150 signatures in support of their resolution.  The history behind their motion and the driving subtextual motivations are not clear, but the

argument made is one based in terms of the current moment of intersectional values and intersectional theory.

The idea seems to be that the UBC FA is not taking into account diversity amongst complainants, that the assumption is there are "particular groups of faculty more likely to experience injustice in the workplace," and that concerns related to equity need to be highlighted. This, it would seem, the proponents argue can only be effectively dealt with through a compilation of a detailed report made available to the entire membership of the faculty union on an annual basis.  They don't really say what the fundamental purpose of this might be. Nor do they say how their analysis might be different or better.  I appreciate that as academics many of us deal with all kinds of data and we often run the risk of becomings experts in all manner of things related to and well beyond our own professional fields. One supposes, sitting somewhere sub-textually in all of this, there is an idea among a subset of the proponents they are better suited than the professionals our union has hired to do this work.  

The current faculty association executive disagreed with the specifics of the resolution and recommended defeating it, or at least referring it to a joint committee

(comprised of members of the executive and signatories to the resolution) that would report back to the fall AGM.  As the meeting stretched well past its scheduled end time I had to leave before the matter was resolved. I was subsequently informed the motion was deferred to committee.  

A limited circulation summary document, described by proponents as legal advice from a labour lawyer (who is not named, nor is it disclosed what kind of labour lawyer they are and whether they work mostly for business or unions or individuals), was used to counter the executive's statement. The excerpted comments in the summary, as pertains to the data transparency resolution, mostly referred to the ability to protect individual member's privacy and offered some fairly pro forma commentary. 

I have served several terms on the Faculty Association Executive, though it has been about a decade since I last served. During my three terms on the executive I was there immediately after UBC's voluntary recognition of the Association as a union and during the acquisition of Okanagon College's academic programs and facilities. As an executive member I was party to discussions of reports from the member services committee which involved all manner of issues (tabulated summaries of which have been included in annual reports to the membership for years, if not decades).  I gained a deep appreciation of the work the member services professional staff do and the amazing volunteer work of chairs of the standing committees, like the member services committee. My experience on the executive left me knowing we have strong staff and committed volunteers dedicated to considering the wellbeing of our collective membership.

A union has many responsibilities, but one of the most important is the duty of fair representation. In practical terms this means that as a member of the union I can bring a complaint about my work to the union and it is within their discretion how to proceed. The union has to fully and fairly consider my complaint (if it merits going to grievance). I might not agree with their decision, but once the union decides how they are proceeding I have no recourse unless they acted arbitrarily or discriminatorily.  

At the same time the union cannot simply refuse to consider my request for representation. This is an important point. Especially in the context of a university workplace were political ideologies and cultural beliefs can play an oversized role in workplace relations. So even a worker with an unpopular perspective has to be fairly represented in conflicts with management, even if a majority of other union members disagree (There are implications in the resolution that seems to imply that the focus of union support should tend toward equity groups - a union must represent all members fairly and without bias no matter who we are or what we believe). 

One of the best pieces of advice in my career at UBC came early during the first or second year of my employment.  I was chatting with a senior colleague in their office.  They were asking me how things were working out. I was quite naively optimistic about things. "Well," my colleague said, "if ever anything was to come up you should talk to the staff in the faculty association for their advice." At the time it seemed a non sequitur.  How did we get from casual chat about settling in to UBC to seeking advice from the faculty association? The conversation continued on its path as I reflected on the advice I had been given.

In retrospect I'm glad my colleague shared that advice. I had a prior working life that involved membership for many years in an industrial trade union.  As a student I was also involved in the TA union at SFU and the academic staff union at York University. So I was familiar with the idea of going to the union for help in tricky spots. Yet, I had this impression that UBC's faculty association of the day (before it became a union under the Labour Code) acted closer to management than to frontline or junior staff. But I kept my colleague's advice in mind.

As it turns out there are many reasons to contact the faculty association and ask for help. I don't wish to innumerate all the reasons I've emailed or called or visited. For one reason it makes me feel uncomfortable. Despite my experience in industrial trade unions I've found the university workplace less supportive of going to the union for help. It's almost as though going to the union is an admission of personal failure, an admission of not having what it takes to be excellent. I want to be clear, the union staffers have always been supportive and encouraging. My discomfort comes from the comments in the hallways shared with me and overheard over the years, the tone in meetings about excellence combined with the devastating critical comments colleagues provide in reviews and evaluations, and simply a strange antipathy toward unions I have observed here over the years. My experience with unions in other workplaces was far more affirming (not from the bosses) - these unions weren't perfect, but fellow workers didn't act like going to the union for help was my fault.  Just the same when the need arose I went to the faculty association for advice and support and it has been a positive circumstance each time. 

Most of the kinds of concerns and question I have had have not ended up in a formal grievance process. It is possible that some could have, but with advice and support I had positive outcomes instead. The idea though, that the nature of any of my requests for support tired to my demographic attributes, might be collated into a detailed report available for all to read and review does not sit well with me. I think that if others thought about it, it shouldn't really sit well with them either.  While UBC itself is a big corporate entity with thousands of staff, as academics we work in relatively small units with low turn over.  It doesn't take very much effort to piece together who might be referenced from considering the nature of a concern with how that concern is related to equity, and then how it was resolved (especially if one is party to the concern in some way via management - and many faculty are also implicated in our academic management structures).  Even with PIPA (not FOIPA) like controls at play, the act of making these data reports public runs a risk of worsening an individual's situation, not improving it.

A union represents a segment of a workforce in its struggle (negotiations) with their employer to better lives of all members.  It is na├»ve to think an employer, no matter how liberal, is unconditionally interested in the wellbeing of their workforce outside of their particular vested interests. We need to be cognizant that a union is not the same as an employer, the university, a human resources office, or an equity and diversity office.  A union has different obligations and responsibilities.  

That doesn't mean this kind of data shouldn't be collected, analyzed, and used in the functioning of the union as it fulfills its duty to represent.  We need such data to shape bargaining, to inform professional member services staff in their work, and union leadership in the setting of policies.  This kind of data is indeed critical for the operation of a union. I don't, however, need to have a big data report to pour over to satisfy my own analytic needs. Neither should my employer have it in hand so they can determine which groups of us are going to our union and which are not (they will already have their own data where they track 'incidents'). Making union data freely available to the boss helps the employer shape the terrain of interaction in ways that may well undermine the wellbeing of all of us.

It may be possible to mitigate individual risk with such data as the resolution's proponents suggest. I, however, prefer an approach that doesn't create the risk in the first place.  Let's not share our data with the bosses, let's keep the data in house.

Wednesday, May 18, 2022

Round-Up Update

I received the following response from Kavie Toor regarding the use of ORUnd Up on fields at UBC. [see previous blog post]


Dear Charles 


Thank you for your email,  


I was able to connect with my grounds team and am able to share the below response from them:


Within Thunderbird Park we currently have significant areas that we have limited active maintenance program, this allows and encourages the biodiversity to flourish and these areas are the home to a large variety of flora and fauna. We are also looking at ways we can enhance these areas and other areas within the park to encourage the growth of the biodiversity within the park. For example, we encourage the areas around all our grass fields to be as diverse as possible (i.e. have weeds in them) we do not treat or spray these areas, allowing these areas to flower to encourage pollinators.  The majority of the footprint of the park is still biological as you probably know grass is an excellent carbon sink, that is very effective at exchanging carbon. We also typically allow clippings to return to the ground to provide a natural fertilizer or to composting system for clippings. Part of the maintenance programs also involves returning materials to flower beds and other areas. 


We take the use of chemicals very seriously and do not use them without prior thought being given to adverse effects.  We strive to use the least amount of product possible and to use products that have been deemed safe to the environment and within the related guidelines. We currently use Roundup because it is an approved BC Ministry of the Environment product and becomes inert very shortly after contact with the soil.  We use best practices when spraying (i.e. spraying only when there is no rain and minimal wind to cause drift in the forecast). 


As a point of clarification the link you provided was to a study on use of Roundup by farmers on crops. This is broadcast spraying that covers all plant material and not spot spray. As mentioned we are very selective on what and how we spray, we abide by the guidelines for safe and effective application and we limit use.


Within the park, there are very limited areas that spray is used. The areas include: bark mulch areas under bleachers and besides the South Turf field, gravel areas around buildings, the retaining wall between the baseball diamond and the edges of all synthetic fields (were the turf meets any of the concrete border) to prevent damage to the fields. We try to limit use of herbicides to spot spraying of the weeds that develop in these areas, we do not spray wide areas just to kill grass.   


Thank you for the opportunity to discuss our herbicide program 



My admittedly snarky reply;

Dear Kavie,


You did exactly what I though you would – tell me not to worry, it’s fine, etc, etc and gently point to some possible errors or misconceptions in my observations.


I suggest sit back, relax and reflect on whether this is really the right thing to do [use round up], even if you can be comfortable in your answer and point to bc approval (which merely allows one to say its okay without considering wider implications).


Also, pointing to the fact that the one link I provided was to [use on] a farm doesn’t really exonerate your use, it’s a simplistic deflection by saying the article doesn’t pertain. Obviously, that link wasn’t directly relevant [to athletic fields], it was merely an example of some of the issues and with critical laterally thinking could have been used to consider potential adverse impacts in this industrial educational plant.


Let me apologize for not being super clear in my original email. I know that many in the field of landscape arts consider roundup to be minimally destructive and, if used sparingly, to have minimal adverse health effects.  My point was to ask that you and your team take a momentary break, consider some alternative perspectives, not to get defensive and fragile, and consider (since you have acknowledged you are all concerned and seriously great on this topic) how you can be even better.


With regards,