Topics of Interest

Something Fishy is Happening in Victoria

By: Jeffrey Rustand
Canadian Constitution Foundation

Here is an extract from a letter by John J.L. Hunter, counsel for British Columbia, to the Supreme Court of British Columbia, dated March 4, 2009:
“The province of British Columbia has been involved in a dialogue with first nations’ leadership for some time regarding the resolution of longstanding barriers to the reconciliation process . . .

Our client feels that it cannot continue with its productive discussions with first nations while it is at the same time taking a strictly legal position regarding the test for aboriginal title in this case.

As such, we are instructed that the province has determined it can take no position in upcoming closing arguments in the Ahousaht litigation.”
In other words, the government abandoned the case and declined to defend the claim for aboriginal title by the Ahousaht Indian Band and other plaintiffs to the seabed off Vancouver Island and to the marine resources in, on and above that seabed. In the result, the court did not address the claim for aboriginal title but only because it found that the plaintiffs had the aboriginal right to fish and sell fish (commercial fishing rights), and there was therefore no need to consider the aboriginal title claim.

This was risky conduct by Premier Gordon Campbell and his attorney-general. Typically, when a defendant fails to defend a claim in litigation the plaintiff gets what it claims. The plaintiffs claimed the seabed to a distance of 100 nautical miles from the shoreline of Vancouver Island along about two-thirds of its length. Such a judgment, on its own and as a precedent, could have thrown the commercial and recreational fisheries into turmoil all along the B.C. coast. Yet Campbell and the attorney-general, Michael de Jong, walked away from the trial without arguing a defense. It was left to Canada as the sole defendant still standing to carry the defense. The judgment came down on Nov. 3, 2009. Canada, but not British Columbia, has appealed.

Earlier in the year the premier sought to deem virtually all land in British Columbia to be aboriginal title land, meaning that “indigenous nations” would have been treated by the government as if they had proprietary title, meaning right of possession and ownership of resources, to almost all land in British Columbia. This initiative was the proposed Recognition and Reconciliation Act. This was so extreme that even the quiescent business community roused itself to protest. So extravagant and weird was the proposal that in the end even most aboriginal groups objected, thinking it was a trick. Fortunately, the initiative was stillborn because of these objections.

Has the premier found a new way to give away British Columbia? Aboriginal groups claim approximately 110 per cent of the province. Campbell may have hit upon a strategy to give the province away by simply letting the courts give it away piecemeal, on a case-by-case basis.

According to the Supreme Court of Canada, the test for aboriginal title is continuous and exclusive control over the claimed land by the aboriginal claimant, from when the Crown acquired sovereignty in British Columbia in 1846 through to the present. This is a rigorous test, and for good reason, since aboriginal title gives exclusive ownership over the land, including surface and subsurface resources. Applied in British Columbia, with appropriate defense evidence, the test would recognize aboriginal title to only a small percentage of the provincial land base. A very generous estimate would be about five per cent.

Yet the premier seems intent on giving far more than that away, up to the entire province, without legal basis. The premier and his attorney-general owe it to the people of this province to explain this new strategy of non-defense, and how refusing to defend the legal rights and economic interests of British Columbians is a rational and responsible course of conduct.

Jeffrey Rustand is in-house counsel with the Canadian Constitution Foundation

Vancouver Sun, December 23, 2009

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