We Are All Here To Stay, Aren't WE?

Undoubtedly, it seems, the proposed Recognition and Reconciliation Act will be introduced in the British Columbia legislature in the coming year. (Apologies to those whose political hopes outstrip political reality, but the Liberals will again assume the responsibilities of governance in this province after this election.) One of the remarkable aspects of the campaign in favour of the Act has been the invocation of the maxim, "We are all here to stay." The underlying idea is that since WE, that is, both the original indigenous and the subsequent non-indigenous peoples who have made British Columbia their home, "are all here to stay", WE may as well accept one another's presence and get on with life, together, and to this end, the proposed Act is the best vehicle for making this happen.

The maxim has a history and more saliently an eminently authoritative source. In the final paragraph of his reasons for judgment in the Delgmamuukw case, Antonio Lamer, the Chief Justice of Canada, wrote the following:

Finally, this litigation has been both long and expensive, not only in economic but in human terms as well. By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As was said in Sparrow, at p. 1105, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place”. Those negotiations should also include other aboriginal nations which have a stake in the territory claimed. Moreover the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet..., to be a basic purpose of s. 35(1) -- “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. Let us face it, we are all here to stay [emphasis added].

Identified with its source, what I have called "the maxim" has a larger context. The larger context is the long overdue work of political reconciliation, that is, the reconciliation of indigenous and non-indigenous peoples and their respective jurisdiction and authority through negotiated settlements (i.e. treaties). The advancement of such reconciliation requires an acceptance on both sides that "we are all here to stay" - neither of us is going anywhere. Hence the Chief Justice's plea, "Let us face it."

In 2005, when the Province and the leadership of the First Nations Summit, the Union of BC Indian Chiefs, the BC Assembly of First Nations agreed to a shared vision statement of a New Relationship, they choose to open the first paragraph of their historic joint statement with the Chief Justice's words:

We are all here to stay. We agree to a new government-to-government relationship based on respect, recognition and accommodation of aboriginal title and rights. Our shared vision includes respect for our respective laws and responsibilities. Through this new relationship, we commit to reconciliation of Aboriginal and Crown titles and jurisdictions [emphasis added].

Curiously - although to some, perhaps not surprisingly -, Chief Justice Lamer's maxim is being employed rhetorically in support of the proposed Recognition and Reconciliation Act. I say "curiously" because the Act would legislatively legitimize the Province's (i.e. the Provincial legislature's and government's) intrusions into the lives of indigenous peoples for time without end. In other words, the majority of indigenous peoples within the boundaries of British Columbia would have virtually no space other than their current postage stamp reserves free of the Province's jurisdiction and designs.

As I've discussed in a previous post, the notion of aboriginal title lands which are wholly (or virtually wholly) open to Provincial interference is inconsistent with the notion of exclusive aboriginal title lands as previously articulated by Chief Justice Lamer in Delgamuukw. All of which leads one to infer that when the Chief Justice said, "Let us face it, we are all here to stay," he implied that the indigenous peoples of British Columbia are here to stay as peoples rightfully and in some crucial areas free of Provincial interference in their lives. The Chief Justice's "WE" implied not only difference but also distinct spheres of self-determination and liberty, an appreciation of which is hard to detect in the current discussions.

True, as we are all here to stay, the indigenous and non-indigenous peoples of British Columbia must share the space, physically, politically, and legally. But must we share all the space? And if we come to share all the space, will a genuinely plural WE still be here to stay? Let us face it, such are the questions surrounding the proposed Recognition and Reconciliation Act that ought to be weighed and deliberated more explicitly and openly than they have heretofore been.

Michael Lee Ross