{"id":44871,"date":"2018-09-13T03:00:11","date_gmt":"2018-09-13T07:00:11","guid":{"rendered":"https:\/\/quotulatiousness.ca\/blog\/?p=44871"},"modified":"2018-09-12T09:59:02","modified_gmt":"2018-09-12T13:59:02","slug":"the-lasting-impact-of-haida-nation-vs-british-columbia","status":"publish","type":"post","link":"https:\/\/quotulatiousness.ca\/blog\/2018\/09\/13\/the-lasting-impact-of-haida-nation-vs-british-columbia\/","title":{"rendered":"The lasting impact of Haida Nation vs. British Columbia<\/em>"},"content":{"rendered":"

I was not aware that a single case had such a major influence on relations between the federal and provincial governments on the one hand and First Nations groups on the other. Barbara Kay<\/a> explains just how we got to the point of overturning decades of settled legal practice in the wake of the Haida Nation<\/em> decision:<\/p>\n

In his newly published book, There is no Difference: An Argument for the Abolition of the Indian Reserve System<\/em>, lawyer Peter Best devotes a chapter to unpacking the consequences of Haida Nation<\/em>. It makes for fascinating reading.<\/p>\n

Before this decision, Best says, it was understood \u201cthat aboriginal claims and rights over the land were more than \u2018reconciled.\u2019 In fact, Canadians, Indians and non-Indians alike, thought they were, especially in treaty areas, extinguished<\/em>, plain and simple,\u201d apart from the right to hunt, fish and trap on unoccupied wilderness Crown land, and even then with Crown sovereignty. Haida Nation<\/em> \u2013 and cases decided since then \u2013 reversed the meaning of the treaties.<\/p>\n

The SCC read in an intent \u201cmerely to \u2018reconcile\u2019 Indians\u2019 prior sovereign occupancy of the land with the new sovereignty of the Crown.\u201d That is, they were \u201cinstruments of power and land-sharing, not instruments of rights extinguishment.\u201d<\/p>\n

So it seems we are now in a never-ending power-sharing arrangement, \u201crequiring the constant, expensive, uncertain fine-tuning and adjustment from time to never-ending time of the granted Crown rights with the retained sovereign Indian rights.\u201d This new jurisprudence, Best says, decrees a devolution of Crown sovereignty to Indians \u2013 a handing back of previously surrendered power, effectively turning Indian bands into a third order of government.<\/p>\n

The key words, \u201cto consult and where appropriate, accommodate the Aboriginal interests\u2026\u201d give Indian bands across the country power over all kinds of economic development \u2013 mines, forestry, wind power installations, roads, and of course pipelines.<\/p>\n

Following Haida Nation<\/em>, any band that asserts a proposed off-reserve project affects an Indian interest, actual or projected, the \u201cconsultation and accommodation if necessary\u201d process is automatically launched. No evidence has to be produced, no threshold of importance to be met. (\u201cSacred ground\u201d is always effective \u2013 and what ground is not sacred to aboriginals who live on it?).<\/p>\n

In most negotiations with conflicting interests, each party has a motive to see the deal done. But \u201cconsultation\u201d is not negotiation, and aboriginals often have no particular reason to settle. Best notes that during consultations, there\u2019s a great deal of travel, expense account living, important meetings and pleasant busywork, with most politicians lacking the courage to utter the words \u201cnot appropriate\u201d with regard to further \u201cconsultation.\u201d<\/p>\n

There is also no incentive for aboriginals to settle for anything less than exactly what they want. The Lax Kw\u2019alaams of B.C. turned down a billion dollars in exchange for their support of an industrial project. There was no downside for them. They had the power and knew it. No matter how long they held out, their transfer payments flowed in as usual, and they took no economic risks if the project failed. If one side has nothing to lose and the other side has everything to lose, Best says, \u201cyou don\u2019t have negotiations \u2013 you have a shakedown.\u201d<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

I was not aware that a single case had such a major influence on relations between the federal and provincial governments on the one hand and First Nations groups on the other. Barbara Kay explains just how we got to the point of overturning decades of settled legal practice in the wake of the Haida […]<\/p>\n","protected":false},"author":1,"featured_media":35193,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[6,84,7,9],"tags":[438,752],"class_list":["post-44871","post","type-post","status-publish","format-standard","hentry","category-cancon","category-government","category-history","category-law","tag-firstnations","tag-supremecourt"],"jetpack_featured_media_url":"https:\/\/quotulatiousness.ca\/blog\/wp-content\/uploads\/2016\/06\/favicon.png","jetpack_shortlink":"https:\/\/wp.me\/p2hpV6-bFJ","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/44871","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/comments?post=44871"}],"version-history":[{"count":1,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/44871\/revisions"}],"predecessor-version":[{"id":44872,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/44871\/revisions\/44872"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/media\/35193"}],"wp:attachment":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/media?parent=44871"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/categories?post=44871"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/tags?post=44871"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}