Duty to consult Aboriginal communities

[charter.rights]

Ever heard of sarcasm?

So tell us why natives can't train there own plumbers and fix the sewers themselves?

Unlike non-natives they do get free post secondary education after all.

Bursaries, scholarships, grants and student loans all help non-native students get and education at a low cost.

natives do not get a "free education". That is just another of the many myths perpetuated by non-thinkers. Instead they get funding (at 10 % of the rate of mainstream students) towards education that is award to some students as a full scholarship to college or university. For many First Nations it is awarded to students on a lottery basis, when 10 may get full or partial funding and 90 will get none........

That would be comparable to the various scholarships and bursaries available to mainstream students.

On the issue of training, in the past agreements made by big corporations to employ some natives in their ventures resulted in the natives only being awarded menial and labour jobs. In order to become plumbers and skilled trades, one must have skilled trades doing the training in apprenticeship programs. While this is the focus of modern agreements (and often a sticking point with corporations) native people are beginning to obtain the necessary skills and training. However, it is still not enough to cure entire communities of their social and economical problems.

[Wild Bill]

Gee, I have no idea why Aboriginal complaints don't get taken seriously around here. Their arguments are always so rational, and they always supply such workable solutions.

There's another possibility. Perhaps who we think are aboriginal spokespeople are actually white supremacist 'moles'.

By being so irrational and boorish with their manners they cheapen the image of aboriginals. Making natives out to look emotional, irrational and even racist towards whites is exactly the sort of goals professed by 'clansmen'.

It's a wild shot but after all, the 'Net is rather anonymous. We have no way of knowing for sure who is who when they use an alias.

We can only judge by their words. That's what's making me so suspicious!

[Bryan]

There's another possibility. Perhaps who we think are aboriginal spokespeople are actually white supremacist 'moles'.

By being so irrational and boorish with their manners they cheapen the image of aboriginals. Making natives out to look emotional, irrational and even racist towards whites is exactly the sort of goals professed by 'clansmen'.

It's a wild shot but after all, the 'Net is rather anonymous. We have no way of knowing for sure who is who when they use an alias.

We can only judge by their words. That's what's making me so suspicious!

Never thought of that. It would certainly make more sense than taking what they're typing at face value.

[M.Dancer]

This is racist:

report

ignore

I have a feeling that Tango doesn't know what "Intellectual capital" means....

Oh to be young and clueless

[M.Dancer]

you'd wonder why the Reserve isn't overrun with civic planers, engineers, plumbers and electricians.

No desire to invest in intellectual capital? I bet they are chock full of social workers, sociologists and political scientists....just no one who can fit pipes, clear drains, wire transformers....

reminds me of a Douglas Adams Chapter where all the useless people were put on a spaceship (mainly advertising types) and evacutated...they were in danger of starving cause all they could do competantly was scheduale meetings and focus groups.

[M.Dancer]

Why shouldn't they be paid?

Gosh....she went from "I don't believe it" to Why shouldn't they be paid" in a nano second....

uncritical support for extortionary practices.

[charter.rights]

No desire to invest in intellectual capital? I bet they are chock full of social workers, sociologists and political scientists....just no one who can fit pipes, clear drains, wire transformers....

reminds me of a Douglas Adams Chapter where all the useless people were put on a spaceship (mainly advertising types) and evacutated...they were in danger of starving cause all they could do competantly was scheduale meetings and focus groups.

Nope. No need to control what everyone does.

Our towns and cities used to be like that too until dogooders started butting in where they weren't wanted.

In Texas, I understand they do not require building permits. Anyone can build how they want. If a builder botches the job then the owner simply get into court (which only takes weeks to start trial) and let the courts decide. Any builder would be a fool to build shoddy construction.... Makes lots of sense to me...

People on reserves attempt to take responsibility for themselves when it comes to matters of building and planning. Unfortunately the government tries to interfere in that too...

[Wild Bill]

reminds me of a Douglas Adams Chapter where all the useless people were put on a spaceship (mainly advertising types) and evacutated...they were in danger of starving cause all they could do competantly was scheduale meetings and focus groups.

The 'B' Ark! The Hitchhikers' Guide to the Galaxy!

The hikers land on an immense ship. They meet one of the inhabitants, who informs them they are on the 'B' Ark. He related a story of how long ago their scientists and engineers had discovered that their world was about to be destroyed by some cosmic calamity. They built two giant Arks to save the people.

They filled the 'B' Ark with all the politicians, beauticians and telephone sanitizers, sending them off first with promises that the rest of them "would be along by and by".

Of course, that was a LONG time ago and the inhabitant confessed that everyone was a little worried about those who were supposed to follow!

What a hilarious solution to purging a society of useless chaff!

[M.Dancer]

The 'B' Ark! The Hitchhikers' Guide to the Galaxy!

The hikers land on an immense ship. They meet one of the inhabitants, who informs them they are on the 'B' Ark. He related a story of how long ago their scientists and engineers had discovered that their world was about to be destroyed by some cosmic calamity. They built two giant Arks to save the people.

They filled the 'B' Ark with all the politicians, beauticians and telephone sanitizers, sending them off first with promises that the rest of them "would be along by and by".

Of course, that was a LONG time ago and the inhabitant confessed that everyone was a little worried about those who were supposed to follow!

What a hilarious solution to purging a society of useless chaff!

Thanks....been over 2 decades since I read that. "Mostly harmless" "Thanks for the fish"

A friend of mine had the original BBC radio play....Mostly Odd!

[eyeball]

If people think the duty to consult is enough to scare off big corporations imagine the hurdle an individual has to face. The problem with the duty to consult Aboriginal communities in my case was that no matter how much I personally consulted chiefs and councils in my region, the government (Province of BC) insisted on doing their own consultations as well. I was able to conclude mine in a matter of a few hours through phone calls, emails, a visit or two to the local band office or over coffee at the local deli. It usually took the province 5 - 6 months, minimum. After going through this humiliating frustrating process every year for 6 years I just finally gave up. I've concluded its virtually impossible for an individual to conduct just about any sort business involving the small scale harvesting of natural resources or the use of crown land. I think the only answer is to cede complete soverignty to First Nations so individuals like me can just sidestep the province altogether.

In addition to just creating a new level of government we also need to eliminate one, at least for really small almost micro-level entrepreneurs.

[Riverwind]

If people think the duty to consult is enough to scare off big corporations imagine the hurdle an individual has to face.

The SCC has ruled that corporations and individuals have no duty to consult. That ruling may have come after your experience.

I think the only answer is to cede complete soverignty to First Nations so individuals like me can just sidestep the province altogether.

That is like saying we should simply hand over the streets to the drug dealers.

[eyeball]

The SCC has ruled that corporations and individuals have no duty to consult. That ruling may have come after your experience.

What's the point of these consulting when the government can do it for you eh?

That is like saying we should simply hand over the streets to the drug dealers.

Or handing over even more of our governance to the government.

[tango]

If people think the duty to consult is enough to scare off big corporations imagine the hurdle an individual has to face. The problem with the duty to consult Aboriginal communities in my case was that no matter how much I personally consulted chiefs and councils in my region, the government (Province of BC) insisted on doing their own consultations as well. I was able to conclude mine in a matter of a few hours through phone calls, emails, a visit or two to the local band office or over coffee at the local deli. It usually took the province 5 - 6 months, minimum. After going through this humiliating frustrating process every year for 6 years I just finally gave up. I've concluded its virtually impossible for an individual to conduct just about any sort business involving the small scale harvesting of natural resources or the use of crown land. I think the only answer is to cede complete soverignty to First Nations so individuals like me can just sidestep the province altogether.

In addition to just creating a new level of government we also need to eliminate one, at least for really small almost micro-level entrepreneurs.

Thanks for that perspective. It's good to know where the process bogs down. Provinces are usually the culprit.

[Riverwind]

What's the point of these consulting when the government can do it for you eh?

It means it is not your problem once the government issues the permits and that even if you did your own consulation it means nothing if the government has not done its own.

I can understand where you are coming from with the suggestion that private individuals should, in theory, be able to come to an arrangement with the local indian band without government involvement.

Things are this way because the SCC has ruled itself into a corner with this entire aboriginal title concept and it is trying to now limit its effect on private citizens for fear of a political backlash. This is what happens when you get judges you think promoting social change is part of their job description.

[tango]

It means it is not your problem once the government issues the permits and that even if you did your own consulation it means nothing if the government has not done its own.

I can understand where you are coming from with the suggestion that private individuals should, in theory, be able to come to an arrangement with the local indian band without government involvement.

Things are this way because the SCC has ruled itself into a corner with this entire aboriginal title concept and it is trying to now limit its effect on private citizens for fear of a political backlash. This is what happens when you get judges you think promoting social change is part of their job description.

The only issue I can see with individuals making their own arrangements is that the consultation/accommodation agreement has to be signed off by the province.

The only reason I can see that they would not do so for an individual is ... prior committment to a larger corporation, or holding out for a bigger deal, maybe?

Seems strange to me.

In what respect do you believe the SCC is wrong, riv?

[Riverwind]

In what respect do you believe the SCC is wrong, riv?

It created this nonsense category of land ownership called aboriginal title which is 'like' ownership but it is not really ownership. If they really believed that aboriginals had exclusive title to the land they should have said that and let the political chips fall where they may. If all they wanted to do is provide a legal framework that would encourage the government to offer more generous settlements then they could have done that without the use of terms that were likely to be misinterpreted.

The net result is we have a ridiculously cumbersome process where the aborignals believe they own the entire province and the government is force to fight aboriginal title claims in long court battles designed to reduce that claim as much as possible based on the rules set out by the SCC.

We would have been a lot better off if the SCC had limited aboriginal title to something that was largely symbolic while making it clear that the government was going to have to better than postage stamp treaty offers that were on the table at the time.

Edited August 20, 2009 by Riverwind

[tango]

It created this nonsense category of land ownership called aboriginal title which is 'like' ownership but it is not really ownership. If they really believed that aboriginals had exclusive title to the land they should have said that and let the political chips fall where they may. If all they wanted to do is provide a legal framework that would encourage the government to offer more generous settlements then they could have done that without the use of terms that were likely to be misinterpreted.

The net result is we have a ridiculously cumbersome process where the government has to fight aboriginal title claims in long court battles designed to establish which pieces of land the group in question actually used.

We would have been a lot better off if the SCC had limited aboriginal title to something that was largely symbolic while making it clear that the government was going to have to better than postage stamp treaty offers that were on the table at the time.

But the concept of Aboriginal title did not originate in Canada's Supreme Court:

Aboriginal title is a common law property interest in land. It has been recognised in Canada, Australia, New Zealand, the United States, and increasingly in other common law countries as well, such as Malaysia and Nigeria[citation needed].

The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) aboriginal occupation from a long time ago, i.e. before the assertion of sovereignty, and continuity to the present day.

The concept of aboriginal title was first promulgated in the United States Supreme Court decision of Johnson v. M'Intosh (1823). This decision changed the existing legal norm that the right of discovery by a European nation-state secured an exclusive right to treat with the Indigenous Peoples. The decision, authored by Chief Justice Marshall (see also Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832)) established the notion that legal title could only rest with the discoverer and that the Indian Nations has a right of use and occupancy as an encumbrance on the discovering nation-state legal title.

Reading that last bit, though, I can see why some Indigenous people might also want to get rid of it.

I've always wondered about that: How can pre-existing possession of the land suddenly become an encumbrance on the title of some new arrival?

The Pope's Doctrines of Discovery?

http://en.wikipedia.org/wiki/Discovery_Doctrine

This has always seemed absolutely ridiculous to me.

It was based on Christians being able to take over the land of non-Christians.

How valid can that be in law?

[Riverwind]

the notion that legal title could only rest with the discoverer and that the Indian Nations has a right of use and occupancy as an encumbrance on the discovering nation-state legal title.

This is a completely different definition from the SCC definition. The label might be the same but the legal significance is completely different.

I am suggesting that the SCC goofed with the aboriginal title definition it created and has made resolution of aboriginal claims more diffilcult but setting expectations too high (e.g. it leaves the false impression that aboriginals have 100% onwership of all land they claim and the only thing to negotiate is the hand over - the reality is much more complex than that because SCC created a situation where multiple entitles have valid legal title to land and exclusive right of occupation).

How valid can that be in law?

Because law is something we make up as we go along.

[tango]

This is a completely different definition from the SCC definition. The label might be the same but the legal significance is completely different.

I am suggesting that the SCC goofed with the aboriginal title definition it created and has made resolution of aboriginal claims more diffilcult but setting expectations too high (e.g. it leaves the false impression that aboriginals have 100% onwership of all land they claim and the only thing to negotiate is the hand over - the reality is much more complex than that because SCC created a situation where multiple entitles have valid legal title to land and exclusive right of occupation).

Because law is something we make up as we go along.

Sorry ... I'm confused ...

SCC says "100% ownership"

SCC says "multiple valid titles"

Is some of this confusion the difference between

- land with no settler treaties (BC) and

- land with settler treaties (most of the rest of Canada) ??

Or is that just confusing it further?

Edited August 20, 2009 by tango

[Riverwind]

SCC says "100% ownership"

SCC says "multiple valid titles"

Yes - that is the problem. The SCC tried to avoid conflict with private titles by setting out a cumbersome process to demonstrate the aboriginal title still exists. I think they assumed that it would work like Australia where existence of private title automatically negates an aboriginal title claim. The trouble is subsequent lower court rulings have used the technicality that private land titles cannot negate aboriginal titles since they are provincial rather than federal statutes. This means we have a situation where private title and aboriginal title can co-exist and the "just screw the private title holders" is not a politically viable option.

Gordon Campbell tried to do deal with issue by promising to recognize all aboriginal title claims without further litigation but his assumption was there would be quid quo pro on the part of the natives when it comes to private title conflicts. He did not get that quid pro quo so the proposal was quietly dropped.

In short, the SCC screwed up. It thought its rulings would encourage negotiation but it has only succeeded in making further litigation inevitable. In fact, I would say conflict is more likely now because the SCC has created unrealistic expectations in the aboriginal community which cannot possibly be met.

Edited August 20, 2009 by Riverwind

[tango]

Yes - that is the problem. The SCC tried to avoid conflict with private titles by setting out a cumbersome process to demonstrate the aboriginal title still exists. I think they assumed that it would work like Australia where existence of private title automatically negates an aboriginal title claim. The trouble is subsequent lower court rulings have used the technicality that private land titles cannot negate aboriginal titles since they are provincial rather than federal statutes. This means we have a situation where private title and aboriginal title can co-exist and the "just screw the private title holders" is not a politically viable option.

Gordon Campbell tried to do deal with issue by promising to recognize all aboriginal title claims without further litigation but his assumption was there would be quid quo pro on the part of the natives when it comes to private title conflicts. He did not get that quid pro quo so the proposal was quietly dropped.

In short, the SCC screwed up. It thought its rulings would encourage negotiation but it has only succeeded in making further litigation inevitable. In fact, I would say conflict is more likely now because the SCC has created unrealistic expectations in the aboriginal community which cannot possibly be met.

In the rest of Canada, where some land is not Aboriginal Title, the resolution, in theory, is to verify the claim and then substitute other land, and/or money, OR willing seller-willing buyer arrangements.

In BC ... it's a problem, since no treaties means all Title.

(And why on earth would they just 'fold'?)

In Australia, a claim was verified for Perth, and I believe they anticipated substitution/compensation just like here, but I'm not sure what happened.

Keep in mind that the SCC also ruled that there must be a balancing of competing interests, providing the ultimate tool for negotiations.

Edited August 20, 2009 by tango

[Riverwind]

In BC ... it's a problem, since no treaties means all Title.

Technically no title until proven by following the process outlined. The trouble is the process is unpredictable.

(And why on earth would they just 'fold'?)

Because they should be politically astute to know that they are shooting themselves in the foot.

In Australia, a claim was verified for Perth, and I believe they anticipated substitution/compensation just like here, but I'm not sure what happened.

In Austrilia the precendents 100% protect private title so all the ruling in Perth means is they can fish and hunt in the public parks and that is anout it.

Keep in mind that the SCC also ruled that there must be a balancing of competing interests, providing the ultimate tool for negotiations.

That is what the SCC wanted but I am really concerned that natives have missed the part of about "balancing competing interests".

[tango]

Technically no title until proven by following the process outlined. The trouble is the process is unpredictable.

Negotiations usually are. That's why they are necessary.

Because they should be politically astute to know that they are shooting themselves in the foot.

Maybe they know something you don't about their own affairs, eh?

In Austrilia the precendents 100% protect private title so all the ruling in Perth means is they can fish and hunt in the public parks and that is anout it.

That is what the SCC wanted but I am really concerned that natives have missed the part of about "balancing competing interests".

Again, that's a matter for contemplation, negotiation or the courts.

Verification of claims precedes negotiation of how legitimate claims will be settled.

For example, in Ontario it has been determined that the Tyendinaga Mohawks have a verified claim to the entire Culbertson Tract, containing a few small communities and many private lands, as well as the reserve itself, I believe. Now the challenge is how to settle that verified claim. And that's a sticky point, of course, and lengthy negotiations, no doubt, beginning with Tyendinaga wanting the tract of intact and contiguous land, and the feds offering only money, and then not returning to the table, of course.

No doubt it will be settled someday.

[Griz]

Ho Hum another twisted bimbo Man don't you anything better to than sit on a computer all day long, ride on welfare, drink vodka and bitch about indians

No desire to invest in intellectual capital? I bet they are chock full of social workers, sociologists and political scientists....just no one who can fit pipes, clear drains, wire transformers....

reminds me of a Douglas Adams Chapter where all the useless people were put on a spaceship (mainly advertising types) and evacutated...they were in danger of starving cause all they could do competantly was scheduale meetings and focus groups.

[tango]

Keep faith with Ontario's far north

Toronto Star

EDITORIAL

Aug 23, 2009 04:30 AM

Premier Dalton McGuinty says his government is building a "new respect and working relationship" with First Nations.

Yet chiefs of the Nishnawbe Aski Nation (NAN) territory – seething over new planning legislation for the far north – are now threatening to "exercise full and exclusive jurisdiction" over traditional lands.

NAN, which represents most of the people who live in the northern boreal region (the northernmost 40 per cent of our province) increasingly feels betrayed by Queen's Park for failing to deliver on its promises to First Nations.

When Ontario was updating the antiquated mining act, the aboriginal minister of the day said "there will be no situation where exploration will take place on traditional territories ... without the consent of First Nations."

The changes, introduced in May, required far more consultation and cooperation with First Nations. Now, natives are understandably disappointed to learn they will not get any clear power to veto attempts to stake claims on traditional lands.

Last year, McGuinty made Canada's largest conservation commitment by pledging to permanently protect at least half the northern boreal region – 225,000 square kilometres of traditional NAN territory. The Premier said it would empower First Nations and ensure their communities benefited from development on the remaining land.

Yet, the legislation – which passed first reading in June and underwent hurried committee hearings this month – is such a disappointment to First Nations that NAN chiefs are vowing to fight it.

The bill requires the creation of land-use plans before development can take place. But the government controls the process, the money to create a plan and the final approval of a plan.

This does not feel like the "true partnership" First Nations were promised. Indeed, it is a continuation of the old paternalistic relationship.

It also goes against the advice of the government's own advisory council, made up of environmental and industry representatives. The council called for a planning board, jointly appointed by First Nations and the government, to manage the region.

The province should consider including this in amended legislation to ensure it delivers on its stated vision of protection, and economic development, for Ontario's far north. It would also go some way to bringing First Nations back into the fold.

If the government unwisely continues to ignore the views of those who have long called this region home, there is little hope the province's legislation will succeed in meeting its goals.

MORE ...

http://www.thestar.com/comment/article/684888

So the new mining act doesn't seem to protect Indigenous communities from the disastrous environmental effects of mines, because they cannot say no. Neither can we: If someone wants to prospect on your land, you cannot say no. They can cut down trees for access, drill test holes, etc and there is nothing you can do.

Unfortunately, it seems that this attempt to improve the Mining Act really hasn't changed a thing.

Edited August 23, 2009 by tango