Wednesday, July 16, 2014

Average Size of BC Wild Fires is going up over 1991-2014

Another graph using the Ministry of Forests data on wild fires in BC.   I will get around to doing one that shows the 10 year running average for the size of fires.

The other graphs I have done today:

Graphs of Area Burned in BC and Annual Wild Fire Spending from 1991 to 2013

I thought these two graphs would be interesting to see

In area burned four years really stand out but I think more telling are the minimums.  the 2008 and 2012 low fire years are much higher than the lows in the 1990s.

 I have not corrected this data for inflation

The average area of forest burned in BC each year has quadrupled since the 1990s

I noticed that in BC the area burned each year seems to have been going up since the early 1990s.   I decided to graph this and here is what I got.

The graph seems to show a fairly clear upward trend.   If 2014 continues as it seems to be at the moment, the 10 year average for 2005-2014 will be in the range 110,000 hectares.  If it becomes a big year, more than 200,000 hectares, that average rises to over 114,000

The data comes from the Ministry of Forests statistics for each year from 1991 to 2013.   I can only access data back to 1991 online.  

Meanwhile at the same time the average number of fires each year has held steady.  So far we have only had 562 fires this season.  The 10 year average would suggest we will see another 1400 more fires this year.

I will do some more on the data later.   

Wednesday, July 9, 2014

Crown Infringement of Aboriginal Title will not be easy

People have pointed to the fact that the government retains the right to infringe Aboriginal Title.  I think this is a misplaced hope because I think the right to infringe is only a theoretical right and a right that could ever be exercised in reality.

The Tsilhqot'in decision of the Supreme Court of Canada included the following
[77]  To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow.
What is important here is to understand what the three parts of this paragraph from the judgement mean.

(1) that it discharged its procedural duty to consult and accommodate

From the judgement
[79] The degree of consultation and accommodation required lies on a spectrum as discussed in Haida.  In general, the level of consultation and accommodation required is proportionate to the strength of the claim and to the seriousness of the adverse impact the contemplated governmental action would have on the claimed right.  “A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties” (para. 37).  The required level of consultation and accommodation is greatest where title has been established.  Where consultation or accommodation is found to be inadequate, the government decision can be suspended or quashed. , 

Aboriginal Title will require the highest degree of consultation and accommodation of the government.   In many ways a the highest level of consultation is not far short of getting agreement.   If the government is headed down the path of consultation means it has already received a No from the First Nation.  

Next, how do you accommodate Aboriginal Title?  Aboriginal Title will be the single most valuable asset First Nations will have.  It means that the government has to minimize their taking of Aboriginal Title land as far as is possible, ideally not using at all.

(2) that its actions were backed by a compelling and substantial objective

What is a compelling and substantive issue?   The Supreme Court of Canada looked back to the Delgamuukw decision

from the Delgamuukw judgement
[165] In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.  Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis
The court allows a broad range of reasons for the compelling and substantive issue that could justify the infringement.   What will be the question in court is what is meant by substantive and compelling.   A right of way for drive way is clearly not it.  

(3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow

[85] The Crown’s fiduciary duty in the context of justification merits further discussion. The Crown’s underlying title in the land is held for the benefit of the Aboriginal group and constrained by the Crown’s fiduciary or trust obligation to the group.  This impacts the justification process in two ways.
[86] First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group.  This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.
[87] Second, the Crown’s fiduciary duty infuses an obligation of proportionality into the justification process.  Implicit in the Crown’s fiduciary duty to the Aboriginal group is the requirement that the incursion is necessary to achieve the government’s goal (rational connection); that the government go no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (proportionality of impact).  The requirement of proportionality is inherent in the Delgamuukw process of reconciliation and was echoed in Haida’s insistence that the Crown’s duty to consult and accommodate at the claims stage “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” (para. 39).

Note here the sentence in [85] The Crown’s underlying title in the land is held for the benefit of the Aboriginal group and constrained by the Crown’s fiduciary or trust obligation to the group.   The underlying Crown interest in the land where there is Aboriginal Title is not intended to benefit the government or the private sector.   This line alone is a huge limitation on when the government could ever infringe Aboriginal Title.

When trying to infringe Aboriginal Title land the government has to put the best interests of the First Nation ahead of almost everything else.   Effectively the government trying to infringe has to at the same time vigorously work against the infringement on behalf of the First Nation.   If the government does not succeed in protecting the Aboriginal Land have they failed in their fiduciary obligation to the First Nation?

The next line to consider is in [86] This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.   This dramatically limits for what reasons the government could ever infringe Aboriginal Title.  How could you justify a mine or a hydro development?

For the reasons aboive I would argue that the government right to infringe Aboriginal Title is one that will realistically never be used because the restrictions on it are too difficult to meet the test. 

2002 Vancouver Civic Election Results

I am posting the 2002 results for City of Vancouver civic elections because I have not seen any concise place with them online

Ballots Cast/Reg. Voters : 139761 / 280055
Total Votes: 137907

  1. Larry Campbell COPE 80,772
  2. Jennifer Clarke NPA 41,936
  3. Valerie Maclean VCA  7,843
  4. Raymond Chang        2,777
  5. Marc Emery      VMP  2,014

11 others            2,565
COUNCILLOR (10 to be elected)
Ballots Cast/Reg. Voters : 139761 / 280055
Total Votes: 1145519

  1. Fred Bass         COPE 70,525
  2. Jim Green         COPE 67,841
  3. David Cadman      COPE 66,805
  4. Tim Louis         COPE 66,348
  5. Time Stevenson    COPE 57,901
  6. Anne Roberts      COPE 55,685
  7. Raymond Louie     COPE 55,605
  8. Ellen Woodsworth  COPE 53,388
  9. Peter Ladner      NPA  41,755
  10. Sam Sullivan      NPA  40,372
  11. B.C. Lee          NPA  39,868
  12. Don Lee           NPA  39,225
  13. Duncan Wilson     NPA  38,692
  14. Cheryl Chang      NPA  38,633
  15. George Puil       NPA  32,318
  16. Sancy McCormick   NPA  32,042
  17. Nancy Chiavario   VCA  30,853
  18. Janet Leduc       NPA  30,432
  19. Connie Fogal     Green 30,305
  20. Richard Campbell Green 23,599
  21. Doug Warkentin   Green 20,510
  22. Art Cowie         VCA  18,535
  23. George Chow            17,849
  24. Alan Herbert      VCA  16,397
  25. Stephen Rogers    VCA  12,759
  26. Sarah Albertson   DPP  11,132
  27. Wendy Turner      VCA  10,669
  28. Constantine Bonnis VCA  9,785
  29. Brent Bazinet     VCA   8,356
  30. Scott Yee               8,053
  31. Lou Demerais      VCA   7,805
  32. Jon Ellis         VCA   7,615
  33. Ryan Millar       DPP   6,086
  34. Barney Hickey     VCA   5,121
  35. Patricia Lovick   VIP   4,787
  36. Brian Godzilla Salmi    4,631
  37. Roslyn Cassells         4,511
  38. Kelly Alm               3,793
  39. Vicky Jassal            3,698
  40. Nick Walter       VIP   3,376
  41. Ken Bergman             2,938
  42. Greg Reid               2,648
  43. Joan Rowntree           2,561
  44. Carlo Fortugno          2,043 
  45. Kyle Cunningham         1,938

PARK COMMISSIONER (7 to be elected)
Ballots Cast/Reg. Voters : 139761 / 280055
Total Votes: 735578

  1. Heather Deal             COPE 60,873
  2. Loretta Woodcock         COPE 54,955
  3. Anaita Romaniuk          COPE 53,112
  4. Lyndsay Poaps            COPE 51,571
  5. Eva Riccius              COPE 48,298
  6. Suzanne Anton             NPA  41,338
  7. Allan Degenova            NPA  41,249
  8. Dianne Ledingham          NPA  36,995
  9. Clarence Hansen           NPA  33,374
  10. Laura McDiarmid           NPA  33,069
  11. Catherine Carter         Green 32,613
  12. James Love               Green 31,392
  13. Ian Haywood-Farmer        NPA  30,146
  14. Christopher Richardson    NPA  29,875
  15. Dawn Buie                Green 28,694
  16. Scott Nelson-Braithwaite Green 25,887
  17. Kelly Wong                VCA  18,925
  18. Raymond Eng                    11,132
  19. Kristina Parusel          VCA  11,075
  20. Erik Whiteway             VCA   9,447
  21. Dave Pasin                VCA   8,949
  22. Helen Boyce                     8,725
  23. Gordon Kennedy                  6,345
  24. Matthew Sullivan                4,090
  25. Greg Edgelow                    3,399
  26. Eleanor Lena Hadley             3,362
  27. Angus Carten                    3,126
  28. Korina Houghton                 3,097
  29. A. Pepper                       2,532
  30. Douglas Weisberg                2,396
  31. Thomas Deak                     2,349
  32. Joseph Paithouski               1,828
  33. Bobus Undem                     1,360

SCHOOL TRUSTEE (9 to be elected)
Ballots Cast/Reg. Voters : 140332 / 280055
Total Votes: 917097

  1. Allen Blakey             COPE 70,455
  2. Allan Wong               COPE 65,758
  3. Jane Bouey               COPE 65,509
  4. Noel Herron              COPE 63,607
  5. Adrienne Montani         COPE 62,533
  6. Kevin Millsip            COPE 57,669
  7. John Cheng               NPA  45,984
  8. Andrea Reimer           Green 44,951
  9. Richard Lee              NPA  44,810
  10. Ken Denike               NPA  43,542
  11. Judy Johnstone          Green 41,907
  12. Bill Brown               NPA  41,492
  13. Ted Hunt                 NPA  41,137
  14. Cherie Payne             NPA  38,155
  15. Elyn Dobbs               NPA  34,776
  16. Debbie Desroches-Fulton  NPA  32,150
  17. Angelle Desroches-Rosner NPA  28,813
  18. Bill Ritchie                   9,946
  19. Brian Godzilla Salmi           7,802
  20. Tea Buechner                   7,421
  21. Ringo Taylhardat               4,240
  22. Keir Vichert                   4,098

What is Aboriginal Title? A quick primer

The shortest definition I can create:

Aboriginal Title is First Nation's ownership and governance of the land.

Attributes of Aboriginal Title
  • It is a continued land tenure from before the arrival of the Europeans
  • It is a collective title owned by a definable group of people and governed by them
  • This collective title is restricted because it can not be misused or encumbered in ways that prevents future generations from using the land.
  • It is an exclusive ownership of the land
  • Aboriginal Title has ownership rights similar to fee simple, including:  the right to decide how the land will be used; the right of enjoyment and occupancy of the land;  the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.
  • The Crown does not retain a beneficial interest in Aboriginal Title land
  • The Crown does retain some right to create laws and regulations on Aboriginal Title land, but the form is this takes is not entirely clear when it comes to anything related to land management or land based tenures
  • Only the Crown may seek to buy the land outright from a First Nation and then only with the consent of the First Nation
  • The Crown has a limited ability to infringe Aboriginal Title if it is in the best interests of the First Nation and there is a compelling and substantive objective
History of Aboriginal Title in BC
  • Aboriginal Title is the oldest land tenure in BC.  It is older than any private land ownership, it is even older than any Crown ownership of the land.   
  • 1763 Royal Proclamation - this was a proclamation of the Crown after the Seven Years War that dealt with numerous issues related to the British Colonies in North America and the Caribbean.  One important aspect of if it was a recognition that aboriginal societies had rights to the land and that only the Crown could buy the land from them.   For many years governments argued that the Royal Proclamation did not apply to BC.
  • 1846 Oregon Treaty - This Treaty with the US has been taken by the Courts as the date of assertion of Crown sovereignty over BC.   This matters for Aboriginal Title because part of the test for title includes proof of control of the land before this date
  • 1850s The Douglas Treaties.   Jame Douglas signed a number of agreements with Vancouver Island First Nations to purchase lands from them.   In the 20th century these were recognized as Treaties.  These agreements are important because they are a clear recognition by the Crown at the time that unless a Treaty is signed with First Nations the land could not be made available for sale to the public.  It is also any early recognition that BC First Nations were land owners.
  • 1870s to 1890s Indian Reserve Commission in BC creates Indian Reserves without any Treaty settlement.   In most cases these Indian Reserves were created after the best lands were already pre-empted by settlers.   The commission took as their mandate to keep Indian Reserves small and site specific.  At no point were First Nations given any meaningful role in the commission.  In no case did the commission return to aboriginal people any lands that were taken from them without right. 
  • 1899 Treaty Eight is signed.   This Treaty covers north eastern BC and and was intended to extinguish their Aboriginal Title and rights
  • 1890s to the 1920s - Most First Nations in BC at some point made a declaration of owning the land or tried to go to court to have their land recognized.  They were politically well organized and well educated.  
  • 1912 to 1916  McKenna-McBride Royal Commission unilaterally acted as if the Crown could give and take land from BC First Nations without any consent.  In the process much of the best land allocated to First Nations by the Indian Reserve Commission were taken away from them.
  • 1920s to the early 1960s BC First Nations were legally prohibited from working on any claims of Aboriginal Title or Rights.  First Nation governments were not allowed to hire lawyers.   Many professions were closed to aboriginal people.
  • 1949 BC allows aboriginal people to vote and Nisga's leader Frank Calder is elected as an MLA.
  • 1969 creation of the Union of BC Indian Chiefs, the first modern Aboriginal Title and Rights advocacy organization in BC.
  • 1973 The Calder decision finds that Aboriginal Title did exist in the past but the decision does not come to an agreement if it still existed today or was extinguished - the justices ruled three no to extinguishment, three yes and one said the Nisga'a did not have permission to sue the government and therefore the case failed.
  • 1980 Hamlet of Baker Lake ruling - for the first time the courts offered a test for aboriginal title.   The core of this test is what is still applied by the courts in aboriginal title cases.
  • 1980s to 2007 - Postage stamp versus a large area of land debate.  Governments insisted that if anyone did have Aboriginal Title it would be a small postage stamp around existing Indian Reserves.   On the aboriginal side people insisted that title existed over large areas.    
  • 1996 Nisga'a Treaty signed.  The Treaty does not formally extinguish their Aboriginal Title but no longer allows them to make any claim of title.
  • 1997 Delgamuukw decision expands the Baker Lake test for Aboriginal Title and for the first time gives some idea of what Aboriginal Title confers.   Before this time many people worked on the assumption that Aboriginal Title was some larger bundle of Aboriginal Rights and certainly was not like any modern sense ownership of the land.   The powers that the Supreme Court of Canada enumerated in the 2014 Tsilhqot'in decision were all first referred to in Delgamuukw
  • 2014 Tsihlqot'in decision makes the first declaration of Aboriginal title land in BC.
Important legal cases related to aboriginal title
Canadian Cases
  • St Catherine's Milling - An 1888 decision that stated Aboriginal Title could only exist at the pleasure of the Crown and the Crown could take this away at any time.  What is important from this case is that the Privy Council affirmed that Aboriginal Title had existed and was specifically part of Canadian legal history because of the Royal Proclamation of 1763.   St Catherine's Milling found the title was a personal and usufructuary right 
  • Calder - This 1973 decision found that Aboriginal Title existed in BC in the past and could still exist at the time of the case.  It is the first time that ruling raised the possibility that Aboriginal Title did not depend on any action of the Crown.
  • Baker Lake - This 1980 decision was important because it created the first test for Aboriginal Title.   There had to be an organized society that exclusively occupied a specific area of land at the time of the Crown asserting sovereignty. 
  • Guerin - This 1984 decision is important for Aboriginal Title because it makes it clear Aboriginal Title was not created by the Royal Proclamation of 1763 or any other act of the Crown but exists independent of the Crown.  It also expands on what Aboriginal Title could be.   The ruling stated that the title was more than a personal and usufructuary right but not wholly a beneficial ownership of the land.  The Justices specifically do not attempt to describe the extent of Aboriginal Title powers.
  • Roberts - This 1989 decision affirmed that Aboriginal Title is part of Canadian common law
  • Sparrow - This 1990 decision clarified that Section 35 of the Constitution protected existing Aboriginal rights.   Most importantly, an act of government could never have extinguished an Aboriginal right.
  • Delgamuukw - This 1997 decision provided a more detailed ruling on what Aboriginal Title is, specifically "Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures. The protected uses must not be irreconcilable with the nature of the group’s attachment to that land."    The ruling also expands on the Baker Lake test with a lot more detail on how the test should be applied.  Finally, the ruling made it clear there is no way in which the province could extinguish title
  • Bernard and Marshall - This 2005 ruling provided further guidance in the test for Aboriginal Title.  Most importantly it gave more weight to large areas of land being Aboriginal Title than a small area.
  • Tshilqot'in - This 2014 ruling was the first declaration of Aboriginal Title in Canada.   It affirmed the test for the existence of Aboriginal Title and further clarified what Aboriginal Title is 
Other Cases
  • Johnson v M'Intosh 1823 - This US decision made the Royal Proclamation of 1763 effective constitutional law though hinted at the idea of aboriginal title to the land legally existing before then.   The case recognized that only the government could buy the land from aboriginal people.
  • Cherokee Nation v Georgia 1831 - This US decision is important because it recognized that European assertion of sovereignty did not extinguish aboriginal governments.  Aboriginal people retained some of the rights of being a nation.
  • Amodu Tijani v. Southern Nigeria (Secretary) 1921 - This decision makes it clear that a Crown declaration of sovereignty does not extinguish existing titles.   It is a recognition that land tenures do not begin with the Crown and can continue to exist.  
  • Mabo v Queensland 1992 - This Australian decision is important because it overturned the idea of terra nullius.  Terra nullius was the idea that the land was empty and belonged to no one before the Crown asserted sovereignty.  Even though legal precedence in Canada indicated that terra nullius could not have been the case in BC, the governments would still raise it as an issue in court cases.   This case ended it forever.
Terms Related to Aboriginal Title
  • Terra nullius - An old international law concept that a land was empty and available for the European country that discovered it to own it outright.   It has not been defacto relevant in BC for decades but finally with the Mabo (1992) case in Australia it was struck down as a legal concept at all.
  • Doctrine of Discovery - It was under this doctrine that European nations claimed lands in the rest of the world.  The assumption was that the existing nations, governments or societies could not be sovereign in the face of the Europeans.  The problem with this concept is that in many cases there was no attempt to hold areas that were discovered, there was no attempt to actually assert sovereignty on the ground.
  • Allodial Title - This is the underlying title to the land.   It is an ancient form of land tenure now normally only ever held by the Crown.   Effectively what this title grants is the right to govern the land.  It is from the Crown's Allodial title that the government has the right to decide what happens on private property and gives the government the right to expropriate land.  It can also be called plenun dominium or radical title though the terms are not 100% interchangeable.  
  • Usufructuary Right - This is the idea that the person has the right to use the land for their benefit that belongs to someone else but can not change the nature of the land
  • Section 35 - This is Section 35 of the 1982 Constitution Act and is what protects Aboriginal and Treaty rights.   This not with standing clause does not apply to this section

Monday, July 7, 2014

The Tsilhqot'in Decision Fixes One of the Major Flaws in the BC Treaty Process

With the declaration of the Tsilhqot'in aboriginal title by the Supreme Court of Canada there is finally a chance to fix a fundamental flaw of the BC Treaty process.  For the first time the First Nations have some real clout to come the negotiating table with because of aboriginal title.   For the first time the governments have a real incentive to try and come to agreements with the First Nations.

In the early 1990s a new Treaty making approach was started in BC based on the Claims Taskforce Report.  Out of this came the BC Treaty Process.   Core to it was that First Nations would not have to prove what aboriginal title and rights they had to be able to negotiate and they would not have to formally extinguish these title and rights.   The previous Federal comprehensive claims process required First Nations to spend a lot of time and money to prove they had aboriginal rights before they could negotiate a Treaty and the First Nation would have to agree to extinguish all their rights and title.

Fraser river near Fountain
The new BC Treaty Process sounded really good because it would speed up the process of settling Treaties, save First Nations money, and do away with extinguishment.   The First Nations assumed the feds and province would accept at face value the aboriginal title and rights of the First Nation.   This is not what happened, instead the governments acted as if the First Nations had no aboriginal rights worth anything in the modern world.   The effect of this was for the First Nations to have a very weak negotiating position.   I wrote an article in 2000 for Policy Options that outlined the problems with the BC Treaty process.

My experience was that the government negotiators took the traditional territory maps with a grain of salt and effectively approached the negotiations as if the First Nation had nothing it was bringing to the table.   The government negotiation approach was more like a one way deal in which the government was being magnanimous by offering much at all.

What I also saw was that the governments treated all First Nations at the negotiation table as they were all the same.    There was one model of Treaty available and a per capita formula for the value of land and money available in the settlement.   The process was in my opinion flawed and I could not in good conscience continue working as a negotiator for First Nations in the Treaty process because I did not think a fair settlement was possible.

Not surprisingly, in close to 20 years of negotiations there have only been four Treaties settled.   What First Nations are expected to accept in a Treaty settlement is no where close to what most aboriginal people think is fair.  The process has not been fast and because of that has left many First Nations deeply in debt to the federal government.
Ts'kw'aylcw negotiating team in 1999

Now that the Tsilhqot'in have a declaration of aboriginal title and the Supreme Court of Canada defined the relative strength of aboriginal title, there is something of real value to come to the table with.   The decision also makes it clear aboriginal title is something that most BC First Nations will be able to prove over large areas of land.

Up until now First Nations have been little more than a nuisance to the government when dealing with the land, but once large areas of BC are declared to be aboriginal title the world will fundamentally change for the province.  There will need to be a close partnership between First Nations and the provincial government to manage the land base of BC.   Ideally the province should be seeking Treaty settlements ASAP to try and create certainty on the land.

The BC government is still very dependent on revenues that come from natural resources, if large parts of best Crown Lands in BC are declared aboriginal title the revenues from those lands will flow to the First Nations and not the province.  When the natural resource revenues are no longer available the province will have to raise income taxes to compensate.  The province needs Treaty settlements to ensure a smooth transition in natural resources and a chance for the province to shift away from dependency on natural resource revenues.

The scope and scale of aboriginal title that would seem to be realistic for many BC First Nations means that they could very likely better off not settling a Treaty all.   The governments will have to radically rethink their mandate in the Treaty negotiations and come to the table with a lot more to interest First Nations in settling.

I remember in December 1997 thinking that the Delgamuukw decision would change the Treaty process because the Supreme Court of Canada said aboriginal title still existed and provided a clear test to prove it.  The court said the answer was to negotiate.   But nothing changed on the government side because First Nations still did not have anything real on the ground to bring to the table.  16 an half years later the Tsilhqot'in decision finally changed that.   This decision should finally mean the governments will be serious about negotiating with First Nations.