Thursday, November 18, 2004

Court First Nations' rulings set stage for progress

VICTORIA - It's no cure-all, but the Supreme Court of Canada has just made a big contribution to ending some of the uncertainty about land use and First Nations in B.C.
The court weighed in Thursday with two important decisions.
In one, the court rejected the provincial government's claim that it had no legal duty to consult with First Nations before handing over land that they were claiming for development.
The government has an obligation to act honourably, the court said. And it is dishonourable to ignore the rights of people who have lived on the land for centuries and never signed away or sold their rights. (The NDP and Liberals took the same position in this long-running case.)
Score one for the First Nations. It is now law that they have a right to serious consultation and accommodation when changes are planned for any land they are claiming. They have the right to expect proposals to be changed, or cancelled, based on their concerns.
But the court also ruled that First Nations have an obligation to participate in discussions and negotiations aimed at balancing their interests with other factors, including jobs and economic development. They can't just say no, or refuse to enter into talks. They have no veto, and ultimately the government has the right to make land use decisions.
Score one for the government.
The rulings still leave problem areas, which will likely be tested in future court cases.
What is a serious attempt at consultation, and when can government decide it's done all it can to accommodate and simply go ahead?
That depends, the Supreme Court ruled, on how strong the claim is to the land and how serious the long-term effects of development. If there's evidence to suggest that a First Nation has a strong claim to a piece of land, it has a greater right to a be involved in land use decisions. And a First Nation would get a greater say over a mine development than over a temporary road.
The standards aren't definitive, and the government would be wise to accept the court's recommendation that some form of dispute resolution be established. But at least the need for consultation has been established, and some broad guidelines set out.
The Supreme Court also ruled - usefully - that private companies don't have a legal duty to accommodate First Nations' interests. They have the right to rely on the government's efforts when they are granted the right to operate on Crown land.
All those principles were set out in a case involving a dispute between the Haida First Nation and the province and Weyerhaeuser over a timber licence on the Queen Charlotte Islands.
At the same time the court ruled on another similar issue, involving the Tlingit First Nation's opposition to a road needed to re-open a mine in the Taku River valley. The court ruled that the Tlingit had a reasonable claim to the land, and a right to consultation. But the court found that the government had made a reasonable effort to accommodate the band during a three-year environmental assessment review.
Business, First Nations and government all welcome the rulings, each praising a different aspect.
The bottom line is that the decisions remove uncertainty and force government and First Nations to face up to their obligation to deal with critical development issues.
The decisions could also help create pressure for more activity and faster progress at the treaty tables. First Nations can strengthen their right to consultation by showing the strength of their claim to traditional lands, effectively staking their claims.
And government has a powerful incentive to push forward with treaties now that it faces an increased obligation to deal with First Nations even before any agreements are in place.
Solutions are still going to be found through negotiation, not in the courts. But the Supreme Court rulings increase the chance that will happen.
Footnote: A BC Business Council report earlier this year called for the establishment of an "Aboriginal Consultation and Accommodation Panel" that would bring First Nations, the BC Treaty Commission, federal and provincial governments and the business council together to sort out development issues. The idea looks even more useful now..

MLAs' budget hearings a magical mystery tour

VICTORIA - That was a weird report from the legislative committee that toured the province getting ideas for the coming budget.
They were supposed to listen, and report on the results of the consultations.
But the committee - 14 Liberal backbenchers and New Democrat Joy MacPhail - seemed to get lost between the time they listened to people across the province and the time they wrote their report.
"During the public consultations, the finance committee heard another loud and clear message from rural British Columbia for the provincial government to invest more money in economic development," the MLAs dutifully reported. "Most of the public’s suggestions stressed the importance of enhancing opportunities for smaller, traditionally resource-based communities to diversify their local economies."
Since lots of the MLAs, including chair Bill Belsey of Prince Rupert, hail from those communities, you would think they would heed that "loud and clear" message.
Nope. Their 19 recommendations don't include coming up with economic development help for resource communities. Maybe, the committee suggests, the government could restore funding cut from a program that mapped geological formations. Oh, and it could keep building roads. But no proposal for an economic development plan targeting the needs of B.C.'s regions.
It's not just economic development.
"One message the committee heard in regards to K-to-12 education was the importance of having a class size that is optimal for both students and teachers. Parents and teachers from both rural and urban parts of the province, as well as local chambers of commerce, called for government to reduce the teacher/student ratio," the committee reported. Surely that message got through.
Nope. The committee recommended more money for special education, but offered nothing on class sizes.
How about health care? "Another plea heard by the finance committee was for funding to upgrade or, in some cases, utilize existing diagnostic and other equipment more effectively. The need for more magnetic resonance imaging (MRI) equipment was mentioned repeatedly."
But alas, the committee didn't recommend more funding for needed equipment. Instead it called for the health ministry to "encourage the health authorities to utilize existing diagnostic equipment and surgical facilities more efficiently." (A prize awaits a reader who can explain what that means.)
The committee's task was to listen to British Columbians and "report on the results of those consultations." It heard from almost 2,000 people and organizations. While it is obviously not going to act on the demands of every presenter, you'd expect some reflection of what they heard in the recommendations.
Yet in each of these three critical examples there was a consensus about what needed to happen to improve life in B.C. And without explanation the committee blew those people off.
The committee did have concrete recommendations.
It called for a debt reduction plan, which is useful enough but didn't seem to be a big theme in public presentations. (B.C.'s debt is easily manageable, but it's just common sense to pay down your debts.)
The committee says the government needs to increase funding for intermediate and long-term care beds for seniors, and provide more care and respite help services for people who are staying in their own homes. (The Liberals have failed to deliver on their promise for 5,000 new beds in this sector.)
It called for an end to the cuts that have reduced community living services for people with disabilities and more support for people with multiple barriers to employment.
And - after cuts to women's centres across the province - the committee recommended more services for women and children leaving abusive relations.
I like and admire MLAs for their willingness to take on a tough job and serve.
But despite the usefulness of some of the recommendations, this is a lame report. British Columbians went to some effort to tell the committee what they wanted for the province's future. Their commitment and passion and hope aren't reflected in the committee's recommendations.
Footnote: Based on the committee's findings, the sales tax cut should be the last tax reduction. People who used an on-line form thought only six per cent of expected surpluses should be used to fund tax cuts. They said thought 28 per cent should to health care; 34 per cent to education; and 18 per cent to other spending priorities. They said 14 per cent should go to debt repayment.

Monday, November 15, 2004

Martens' case shows need for right-to-die law

VICTORIA - It strikes me as cruel and wrong that if I am sick and suffering, with no prospects of recovery, I can't take practical steps to end my own life.
It's not a choice I would make for anyone else. And I applaud the efforts to improve palliative care, so death comes with less violence to dignity, and less suffering.
But surely each individual capable of making an informed, rational decision, has the right to decide when it is time to end their own suffering.
We have not really accepted that right in Canada. And it is time people were given the freedom to decide how much suffering they wish to bear.
I stalled on writing about the trial of Evelyn Martens, the 73-year-old woman zealously prosecuted for aiding and abetting a suicide, a charge that can carry a 14-year jail term. It's an issue that inevitably raises issues of belief not readily dealt with in 700 words.
Martens was acquitted this month after a long and trial and longer investigation. She was accused of helping two women commit suicide. One was a 64-year-old nun suffering from chronic pain from a spinal condition; the other was a 57-year-old woman suffering from stomach cancer, who had planned her own farewell for friends
The law is the law, and if prosecutors believed there was enough evidence to ensure a conviction they have a duty to lay charges. But the energy that went into this investigation was extraordinary. An undercover RCMP officer even pretended to be the goddaughter of one of the dead women, sobbing as she told Martens that she felt guilty about not being more caring, while secretly taping the conversation.
Suicide isn't illegal. We have accepted the individual's right to choose, at least in theory.
But practically we've robbed people of that right. Sick and weakened, how is someone to figure out the means, and gather the necessary materials? It's illegal for your doctor to provide you with effective drugs. It's tough to buy heroin from your sickbed. It's hard to find a self-inflicted death that doesn't also inflict pain on others. By the time you recognize the need, it is too late to arrange the means. (I was struck by a magazine article this year on doctors' training. The author, a physician, noted that almost all of the surgeons he had spoken to had their own means of exit in place, in case.)
It's not simple. People must be protected from moments of irrationality, or outside pressure.
But doing nothing is much crueler.
If we do nothing people will suffer in their last days, against their wills and in violation of the way they had lived every day of their lives. Or they will seek out the help of someone like Martens, with no controls or guidelines or safety.
It's not a question of throwing open the doors to all forms of assisted suicide.
Oregon has had a Death with Dignity Act since 1998, and 171 people - 30 a year - have chosen to kill themselves with legally prescribed drugs. Most of them have been cancer patients.
The safeguards ensure informed choice. The law allows the prescription of lethal drugs, but only if two doctors confirm the person has less than six months and is mentally competent to make the request.
The law is a good cautious first step.
Encouragingly almost one-third of the people who received a prescription for the lethal drugs last year didn't feel the need to use them; death came in way they could accept.
There are no simple answers.
But what are doing now is wrong.
People can decide they have had enough - when the pain, and the indignities and the hopelessness and the terror are too much. Or they can decide that each second is to be counted.
It should be a right to make that choice. And we are taking that right away from them, with crude and cruel laws.
Footnote: The Oregon law faces a challenge as a result of the U.S. election. The Bush administration has asked the U.S. Supreme Court to overturn the law, arguing that assisted suicide is not a “legitimate medical purpose” and that doctors take an oath to heal patients. Belgium and the Netherlands have different right-to-die laws.