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.