CHARBONNEAU – Relations with First Nations sour in British Columbia

 A FLAWED COURT DECISION has left British Columbians wondering about reconciliation with First Nations.

 The Cowichan decision leaves a sense of betrayal.

Until recently, I thought that  reconciliation was all about correcting the wrongs that colonisers inflicted on Canada’s First Nations.

Now I realize that reconciliation is a two-way process.

 In that decision, B.C. Supreme Court Justice Barbara Young found that the Cowichan’s ancestors had occupied their traditional territory since 1846 and established Aboriginal title to 800 of the 1,846 acres claimed.

 Unknown to home-owners, Justice Young gave the title of their property to the Cowichan. Private landowners had no say in the case — they were collateral damage.

She also ordered the province to negotiate with the Cowichan in an effort to reconcile the competing claims. Again, private landowners have no role in those negotiations.

 While appeals to the ruling take place, fee-simple holders remain in a prolonged state of legal uncertainty.

The Cowichan say they have no intention of seizing private land and while that may be the case now, future tribal leaders may decide to kick out the home-owners.

In a recent poll of British Columbians 60 per cent of respondents believe the ruling will harm the relationship between Indigenous groups.

 The B.C. government has taken a hit: 44 per cent of B.C. residents feel Premier David Eby’s government is “too focused” on reconciliation compared to other priorities.

Despite her ruling, Justice Young acknowledged that extending Aboriginal title to privately held lands produced what the law has always regarded as an “absurdity.” Two parties cannot logically hold “exclusive” rights to the same parcel of land.

Retired Judge Joseph Robertson brings some clarity to the Cowichan case. He served on the New Brunswick Court of Appeal. In his article for the Globe and Mail, he says:

“For more than three decades, the Supreme Court of Canada has articulated and refined the doctrine of Aboriginal title on the understanding that declarations of title, based on historical possession (prior tempore, or first in time), extend only to lands presently owned by the Crown. This limitation is firmly grounded in both law and logic.”

Aboriginal title extends only to lands presently owned by the Crown.

“Put plainly,” Judge Robertson continues, “Cowichan represents a substantial and unauthorized departure from the Supreme Court of Canada’s existing doctrine of Aboriginal title. Above all, the breadth of the declaration represents a clear departure from Supreme Court doctrine.”

The Truth and Reconciliation Commission adopted by Canada in 2017 listed 10 principles, most of them to remedy past mistreatment of First Nations and deceit by colonizers.

Reconciliation is not a static process. The report from the commission says:

“The Truth and Reconciliation Commission (TRC) outlines reconciliation as an ongoing process of healing relationships through truth-sharing, apology, and commemoration.”

One of the principles states that reconciliation is an:  “Ongoing Process: Recognizing that reconciliation is evolutionary.”

Reconciliation is a give and take process.

First Nations can’t expect that home owners will idly sit by as bystanders; that they should wait as all that they dreamed and worked for disintegrates in the name of reconciliation.

David Charbonneau is a retired TRU electronics instructor who hosts a blog at http://www.eyeviewkamloops.wordpress.com.