Opinion

BC's Hard Hat Premier Builds Faulty First Nation Bridges

Twisted and uneven, Clark's reconciliation words betray 'brute force' development actions.

By Ian Gill 12 Sep 2015 | TheTyee.ca

Ian Gill's Tyee column, The Poor Mouth, appears every two weeks or so. Gill lives and writes in Vancouver and works on social innovation initiatives. Find his previous pieces in The Tyee here, and find him on Twitter @gillwave.

Another week and another bravura demonstration by our premier, Christy Clark. When it comes to levelling with First Nations people in British Columbia, she's at least a bubble and a half off plumb.

For someone who styles herself as our province's tradesperson-in-chief -- her love of safety jackets, work boots and hard hats borders on the kinky, and in her endless promotion of skills training she achieves almost religious rapture -- it is passing strange that there are no straight lines to be found in the house that Christy's building, and there is even less straight talk.

''We are done with approaches where the government of B.C. is telling you what's good for your communities,'' Clark told assembled chiefs and other First Nation leaders at the wrap-up of this week's second annual B.C. Cabinet and First Nations Leaders' Gathering in Vancouver. Clark, paraphrasing a chief she'd met during the gathering, made much of the notion that First Nations derive their culture from the land, and that without the land, they ''are nothing.'' She committed to creating a ''First Nations-shaped economy'' that would, among other things, ''honour B.C.'s long tradition of protecting our environment.'' All this in service of ''one value we all share … our love for our children.''

Cue the announcement of that urgently sought and desperately needed gesture on the province's part, a new Premier's Award for Aboriginal Youth Athletic Achievement, and a Parliamentary Secretary assigned to make it happen a year from now.

Somehow, it was hard to reconcile that announcement with what the Canadian Press, reporting on the previous day's meeting between the cabinet and the chiefs, described as the ''chasm that exists between British Columbia's political and aboriginal leaders.'' The reliably straight-shooting president of the Union of B.C. Indian Chiefs, Grand Chief Stewart Phillip, told CP the government has one more year to figure out what reconciliation really looks like, failing which ''it will be back to the courts and pretty much back to the barricades. We need a legislative framework and a policy framework we can rely on that allows us to reconcile aboriginal rights and interests and other Crown and industry interests,'' Chief Phillip said on Wednesday. ''We don’t have that.'' But by Thursday, the chiefs at least had a promise that a year from now, the government will be ready to give out awards for shot put, or the long jump, or better yet, the marathon.

Court-affirmed 'certainty'

As for the real business confronting the province, and for all the feel-good talk about reconciliation and families, Clark and her cabinet confront the inalienable fact that, as one aboriginal observer told me recently, the ''Crown'' no longer has any more special a claim to unceded lands in B.C. than the First Nations communities that never ceded them in the first place. In fact, the Crown may have no claim at all.

Since about six per cent of B.C. is land held in fee-simple that First Nations have agreed not to claim back in treaty negotiations (although compensation may still be due, depending on the nature of its alienation), that leaves about 94 per cent of B.C. that is considered by the government to be ''Crown'' land. But in the eyes of First Nations, these are, effectively, unceded ''aboriginal title'' lands over which, increasingly, the burden now falls on Victoria to prove its authority to further alienate (or develop) lands that don't belong to the Crown and never have.

This is a problem when the government's business model amounts to what Joan Didion once called the ''subsidized monopolization'' of the state, in which governments ''(build) the dams and the weirs and the railroads that made the state economically exploitable, public money spent on behalf of private business.'' Which is exactly what the B.C. model has been for as long as anyone can remember, and which has worked -- after a fashion, and only for a few -- for as long as the Crown has been able to exert ownership control over resources, and while any First Nations claims to the contrary have been considered mere assertions of an alternative to Crown jurisdiction.

That all changed last year with the Tsilhqot'in decision, a ruling of such fundamental import that it frightened Christy Clark into calling the first of these so-called ''all chiefs'' meetings in September last year. When the Supreme Court of Canada ruled two months earlier that the Tsilhqot'in had actual title to actual lands that, the court agreed, they originally owned, still occupied, and had never surrendered, the province shuddered, and rightly so. ''The decision provides additional certainty,'' Attorney-General Suzanne Anton disingenuously said at the time, given that the most fundamental business asset the government possessed, certainty, had just changed hands.

All this might have been avoided when the settlers first arrived in B.C., had they heeded the orders of King George III, whose proclamation of 1763 enjoined settlers to ensure there was consent on the part of aboriginal people, and compensation paid for any lands and resources taken, upon the signing of treaties. In the settlement of British Columbia, that happened in only a few instances before the resource lust of the settlers ran ahead of the bureaucrats and left what's since been called a ''gaping hole in the colonizers' paperwork.'' It remained unfinished business when B.C. entered Confederation in 1871 and it came back to haunt Canada and B.C. a century later as First Nations communities began to recover from sustained attempts to eradicate them altogether.

The Tsilhqot'in case is one of about 200 land rights cases that Canada's aboriginal people have launched, and mostly won, over the past few decades. But those ''wins'' have proven mostly Pyrrhic. Title, after all, was at the heart of the Calder case that the Nisga'a and Thomas Berger launched back in 1969 (a split decision of the Supreme Court in 1973 gave sufficient encouragement to the Nisga'a for them to arrive at a treaty, finally, in 2000). In 1997, the Delgamuukw case brought by the Gitksan and Wet'suwet'en found that aboriginal title had not been extinguished and was, in fact, ''a burden on Crown title.'' The court added: ''There is always a duty of consultation.''

The B.C. government, for all practical purposes, ignored the court. It continued to develop the province as it, and its industry partners, saw fit. (In fact, it still does). So it was that the Haida, outraged at the ongoing issuance of logging permits over their sustained objections, sued the province and won. The Supreme Court ruled in Haida in 2004 that the province had failed in its duty to consult and accommodate the Haida, whose mere assertion of rights and title was sufficient to trigger that duty (though the court did not confer a development veto on the Haida).

You would think that by then, the province would have got the hint, but a 2012 report presented at a Canadian Institute conference on consultation and accommodation said that, despite the clarity provided by Haida, ''the law on consultation continues to evolve on an incremental basis,'' which of course suited the province just fine.

Nations in waiting

Meanwhile, the West Moberly First Nation, the Nlaka'pamux Tribal Council, the Fort Nelson First Nation, the Da'naxda'wx/Awaetlala First Nation, the Halalt First Nation, the Upper Nicola Indian Band, the Stellat'en First Nation, the Adams Lake Indian Band, the Neskonlith Indian Band, the Kwicksutaineuk Ah-Kwa-Mish First Nation and the Tsilhqot'in Nation were all in court on issues ranging from permits for coal mines, for clear cut logging, rights to hunt and trap game, an environmental assessment of a landfill, expansion of a conservation area, groundwater extraction, transmission line construction, upgrades to a molybdenum mine, incorporation of the Sun Peaks ski resort as a municipality, construction of a shopping centre, permitting of fish farms, and the biggest mother of them all -- the claim by the Xeni Gwet'in people of the Nemiah Valley to title of all 800,000 hectares of their traditional territory.

That case, Tsilhqot'in, also known as the William case after Chief Roger William, was decided last year and the government has been on the back foot ever since, confronted by a ruling that theoretically lifts that old hippie saw -- ''It's all aboriginal land'' -- off a bumper sticker on a VW bus and onto the statute books of the land.

But there's the rub. For government, and even some chiefs, it is far too radical a notion to contemplate that the entire foundation of our province is built on a fiction -- some might say an outright lie -- and so it is little wonder that Clark and her cabinet would rather talk than actually enact the sort of changes that the William decision portends. Clark was happy this week to support a 12-page document that touts ''achieving predictability and stability in the economy'' as a central tenet of reconciliation, and fair enough, if you are content with motherhood statements of principle.

But in practice, how to account for the government's behaviour towards the West Moberly First Nation over that hardly inconsequential matter of the biggest infrastructure project in the history of B.C., the Site C dam? If the raft of court cases and the stack of favourable decisions are to mean anything, then surely Site C is the acid test.

After her feel-good wrap-up on Thursday, I asked the premier how she reconciles talk of a ''First Nations-shaped economy'' with the outright opposition to Site C that has been expressed by the West Moberly First Nation. Chief Roland Willson, whose band seeks a stop-work order to prevent early work on the $9 billion hydroelectric project on the Peace River, said the province approved permits for land clearing and road building earlier this year before consulting the West Moberly. He described the province's so-called consultation a ''farce.''

''We disagree on that,'' Clark said on Thursday. ''We have consulted adequately, more than adequately,'' she told me, claiming that the province had ''met the requirements of the law… I don't believe there wasn't consultation because there was.'' Willson doesn't dispute that there was, in the end, consultation -- meetings held, emails exchanged -- but he said it's the content and the intent that counts. ''They just let us blow off steam and then go ahead with their plans anyway,'' he said in an interview. They came to consult ''with no intent to do anything other than building Site C.''

The province, of course, claims that the project is in the larger interest of B.C. It will create jobs and power the equivalent of 450,000 homes, it says. As to protecting a territory without which, to quote the premier, the local aboriginal people ''are nothing,'' kiss goodbye to more than 300 culturally important locations in a 5,000-hectare flood zone, including multiple gravesites. ''It's going to cause a lot of grief among aboriginal people,'' Gerry Attachie, whose grandfather was one of seven chiefs who signed Treaty 8 in 1899, told the Globe and Mail last month. ''This will be under water. We'll never see it again.''

What is particularly galling in this case is that the West Moberly and several other bands in the Peace River region actually have one of the very few treaties signed back in the settlement era in B.C., and that treaty is supposed to guarantee their rights to traditional practices that depend on the very places that will be inundated by Site C. So the West Moberly, whose bid to force the province to stop work was turned down by the courts in late August (the band is appealing that decision), is also suing the federal government for infringing on its title. ''If the federal government does not have to take into account infringement,'' Willson told me, ''there’s no point in having treaties.''

Willson decries Clark's sweet talk about reconciliation as posturing, pure and simple. The decision to build Site C was made in Gordon Campbell's day, he claims, and it's as if none of the court victories since ever happened. ''There's nothing to force them to do anything other than sit there and listen,'' and then go do what they want to do anyway. Site C. LNG. You name it. And all because Christy Clark, and for that matter John Horgan, and all the pretenders currently jockeying for the keys to the Prime Minister's Office, are working with a broken development model in Canada whose time is up.

WAC Bennett-era vision

Large dam projects like Site C are ''brute force, Industrial Age artefacts that rarely deliver what they promise,'' author Jacques Leslie wrote in a New York Times opinion piece last year. He cited a ''stunning'' Oxford University study published in March, 2014 in Energy Policy, that said ''the actual construction costs of large dams are too high to yield a positive return'' -- and that's without taking into account social and environmental impacts, ''which are almost invariably negative and frequently vast… Instead of building enormous, one-of-a-kind edifices like large dams, the study's authors recommend 'agile alternatives' like wind, solar and mini-hydropower facilities.''

Just such alternatives have been proposed in place of Site C, with a report by Clean Energy B.C. showing that the province could save $1 billion over the projected life of Site C by pursuing myriad smaller alternatives that would generate just as much power. As Roland Willson told me, ''We're not opposed to the creation of that energy. We're just opposed to destroying that valley.'' But Christy Clark -- a sort of latter-day mini-me to Wacky Bennett -- has her feet, and her head, planted deeply in the 1950s. Maybe she thinks they'll even rename Site C after her, honour her legacy as a great builder in the Bennett tradition, with her very own Christina J. Clark Dam.

Clark is clearly not deaf to the entreaties of B.C.'s aboriginal people, but she's not dumb either. Her corporate sponsors demand of her that she walk a political and diplomatic tightrope with the chiefs and that she gives them just enough to keep them in play.

But time is running out. In Stewart Phillip's opinion, the government is currently at ''strike two,'' and it's hard to imagine that handing out youth sports medals a year from now is going to keep Christy at the plate. What this week revealed, and what her actions underline when it comes to Site C, is that Clark's government is confused and conflicted and lacks either the moral courage, or the vision, or both, to reconcile honourably with B.C.'s First Nations. Deaf? No. Dumb? Far from it. Visionary? On that score, she's as blind as a welder's dog.  [Tyee]

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