Title law would undermine native rights, lawyers say

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A proposed law that is being drafted to recognize aboriginal title in B.C. may "fatally undermine" those rights, a group of lawyers specializing in native law argues.

The 22-page legal opinion, signed by 14 lawyers, is feeding into an intense debate within the province's native communities over the creation of the tentatively named Recognition and Reconciliation Act.

The law is still in the drafting stage, but a framework document generated so much alarm from industry that the province shied away from introducing the legislation this spring.

Consultations within native communities started earlier this month and will carry on through the summer, but proponents' hopes that a bill would be ready this fall appear to be fading.

"The form of title proposed for recognition appears to be a significantly watered-down version of aboriginal title," states the paper, signed by well-known native-rights lawyers including Jack Woodward, Robert Morales and Greg McDade. "In our view, that is legally a net loss for first nations."

Grand Chief Ed John of the First Nations Summit, one of the architects of the proposed law, said the assessment is off base because the province does not have the constitutional authority to weaken aboriginal title.

"It's wrong in law, it's wrong in the policy and it's wrong in the politics of our community. We are not giving away the farm," he said in an interview.

Chief John is one of three top native leaders who have been helping to draft the proposed law. Native leaders have formed a Recognition Working Group that is pursuing the consultation meetings with native communities.

In response to the critique from Mr. Woodward and others, the trio has sent letters to all first nations leaders in B.C. asking that their lawyers deal directly with the working group "so they provide advice from an informed basis."

Chief John met with the signatories to the legal paper last week and said more discussion is needed before the province's aboriginal leadership will be prepared to sign off on any legislation.

The recognition law was tentatively slated for passage before the May 12 election. Described by the B.C. government as a "seismic" change in its approach to land claims, it would eliminate the need for native bands to prove their aboriginal title in court. It would also establish a system for shared decision-making and resource-sharing on Crown land.

Finally, it would provide for the creation of a new system of native governance that could replace the 203 bands in the province with 30 Indigenous Nations based on pre-contact native society.

But opposition from business interests - particularly the mining industry - prompted Premier Gordon Campbell to put the brakes on the drafting process in March, allowing more time for consultation.

A legal opinion produced by two lawyers for the mining industry warned that the law would give native bands a veto over resource development in British Columbia. "The legislation proposes power and control to the first nations well beyond what has been established by the Supreme Court of Canada," they argued.

Lawyers representing native interests, however, conclude the opposite. "This legislation will offer a shadow of the recognition promised [by the Constitution]… in exchange for allowing the province to carry on its intrusions and infringements." They suggest native bands will do better by fighting for rights in court than by locking in to "this limited form of revenue-sharing now."

The May 26 legal opinion from Mr. Woodward and others also takes aim at the Indigenous Nations concept, arguing it is being designed for the convenience of the provincial government. "Many bands throughout the province are likely to resist the concept of 'reconstituting,' " they wrote. "Years could be wasted on the reconstituting process and debate - distracting from the real agenda."

Chief John suggested the lawyers have skirted the point of the Recognition Act, which is to circumvent more litigation and move forward with treaty-making and economic progress. "Having to prove aboriginal title in court is an expensive, time-consuming process," he said.