Reconciliation act is dead on the vine - what next?

The provincial government had high hopes its proposed recognition and reconciliation act would bring "seismic change" to relations with First Nations in the province.
But the plan has collapsed in the face of native concerns, as this memo shows, and its back to the drawing board.


July 14, 2009

Dear UBCIC Chiefs Council,

Re: Proposed Recognition and Reconciliation Legislation Process-to-Date and Next Steps

The UBCIC Executive takes this opportunity to provide an update regarding the proposed Recognition and Reconciliation Legislation.

The legislative initiative was a step which the UBCIC, First Nations Summit and BCAFN mandated the FNLC to advance with the Province, designed to compel the Province to implement commitments contained in the New Relationship (2005), including to recognize Aboriginal title and rights, to respect First Nations' laws and responsibilities, to reconcile Aboriginal and Crown titles and jurisdictions, and to close the socio-economic gap through agreements about revenue and benefit sharing.

In February 2009, a "Discussion Paper on Instructions for Implementing the New Relationship" (the "Discussion Paper") was released to generate dialogue on the proposed legislative initiative. A series of regional sessions and community visits to explore the content of the Discussion Paper have been held with First Nations across the Province, and these are continuing.

In many ways, the first several community/Tribal group visits represented a 'test drive' of the original discussion paper. Based on the feedback, it is clear that many concepts expressed in the Discussion Paper are unacceptable. Concerns have been raised, including that 'reconstitution' will interfere with self-determination; that the Indigenous Nation Commission could become another bureaucracy; that there is risk of including Aboriginal title recognition in legislation which also recognizes Crown title in any form; that the nature, scope and substance of the title being recognized will weaken the title recognition within s. 35. We have heard questions raised whether the Province has jurisdiction to pass such legislation, and doubts expressed whether they will implement it. Questions have also been raised about the absence of Canada.

We have also heard expressed the opportunities which title recognition could bring. Consistently we heard the message, "we generally accept and support the concept of the need to achieve recognition, but not in its current form". In other words, not as currently articulated in the original Discussion Paper. The Discussion Paper has done its job, but it has now become an impediment to carrying forward a constructive and productive dialogue.

Consequently, on June 25th, the FNLC made a decision to 'set aside' the discussion paper to provide the space and opportunity to carry on an inclusive and cohesive dialogue. The Recognition Working Group ("RWG"), who had been instructed to develop with the Province language that might serve as detailed instructions to legislative drafters, has been directed to stop that work and not engage in any legislative drafting.

We believe our decision has significantly improved the tone of our dialogue; both politically and legally. When we finalize our Regional and community sessions, we will be in a position to deliver a summary report to the delegates of a Provincial-wide meeting at the end of August.

We welcome the formation of a lawyers' caucus comprised of First Nations' lawyers who wish to participate, who are working together to prepare other options for consideration at the All Chiefs' Assembly this summer.

We are at an important time in answering the land question. We have an opportunity unlike any other in our history. The Province has been compelled through law and politics to agree to recognition of title. We must use this opportunity well. Through recognition legislation or other initiatives, we must now compel the provincial government and every civil servant to act based on recognition and not denial of Aboriginal title. Now it is time to listen to our communities. We believe we will be given clear direction in terms of a 'forward looking' mandate when we next meet.

United we stand; divided we perish. We will work together to identify consensus for the steps we will collectively take together.

Sincerely,

Grand Chief Stewart Phillip
President

Chief Robert Shintah
Vice-President

Chief Robert Chamberlin
Secretary-Treasurer