Here is the fundi(fundamentalist) reply.
Unfortunately he confuses a minimum standard established by a conservative institution (the Courts) with a ceiling. Called lowering expectations. Old negotiation trick for the labor lawyer turned elder statesman.
The intent here is to marginalize the so called sovereigntists. Split the First nations into two groups; those who want to make deals and those who don't and then stigmatize and marginalize those who fail to "get real."
Following on the recent BC Tsilhqot’in Nation Decision on title( seehttp://www.blakes.com/english/view.asp?ID=1902) it won't work. Nice that Mike forgets to mention that case.
Mike wanted to log most of Clayoquot Sound. A mass movement led by first nations and environmentalists said no. He lost that one and his credibility as a leader vanished. He only looks good in comparison to the Glenn Clark fiasco that followed.
Harcourt fingers the flaw in treaty process: 'People need to get real'
Vaughn Palmer
Vancouver Sun
Saturday, April 05, 2008
B.C. has reached bipartisan agreement on recognition of aboriginal
rights, title and the need to settle land claims, notes one of the
architects of that consensus, former premier Mike Harcourt.
The government is behind it. The Opposition is behind it. Ditto, the
federal parties, municipalities, business, labour, most opinion leaders
and interest groups.
Why then is the treaty-making process "bogged down," as Harcourt
complained to me recently?
"People need to get real," Harcourt says, "and drop the myths and the
BS."
Except he didn't say "BS" but rather the full eight-letter word.
Harcourt uses strong language to underscore a point: At a time when
governments are more committed to the treaty process than ever before,
the process is faltering within the native community.
Unpreparedness is one reason, and Harcourt doesn't fault the natives
for that. But he also sees "wilful blindness" in the native community
regarding recent court decisions over native rights, title and
treaties.
"I think the courts have been extremely helpful in providing guidance,"
Harcourt says. "They have been very disciplined."
He cites in particular the two "brilliant" decisions the Supreme Court
of Canada delivered in late 2004 on the Haida and Taku River Tlingit
cases here in B.C. Both unanimous, both written by Chief Justice
Beverley McLachlin.
Together the decisions established the obligation of governments to
"engage, consult and accommodate" first nations where their rights,
title and interests are at stake.
While natives and their lawyers have been quick to remind the Crown of
those obligations, Harcourt says they need to pay closer attention to
some other things the high court said about the process of consultation
and accommodation.
The judges did not give natives a veto. Nor did they say that
aboriginal rights and title would necessarily trump other rights and
interests, Harcourt says.
After hearing him on that score, I reread the two decisions -- both are
posted on the Supreme Court of Canada website -- and readily found
passages to support the Harcourt view that the court adopted a balanced
approach to consultation and accommodation.
For instance: "This process does not give aboriginal groups a veto over
what can be done with land pending final proof of the claim."
Or this: "Consultation must be meaningful. There is no duty to reach
agreement."
This: "At all stages, good faith on both sides is required. Sharp
dealing is not permitted ... Mere hard bargaining, however, will not
offend an aboriginal people's right to be consulted."
This: "Accommodation requires that aboriginal concerns be balanced
reasonably with the potential impact of the particular decision on
those concerns and with competing societal concerns. Compromise is
inherent to the reconciliation process."
And especially this: "As for aboriginal claimants, they must not
frustrate the Crown's reasonable good faith attempts, nor should they
take unreasonable positions to thwart government from making decisions
or acting in cases where, despite meaningful consultation, agreement is
not reached."
On recap: The Crown is obliged to engage aboriginal bands, consult
meaningfully and strive to accommodate their interests. But it is under
no obligation to concede all demands or reach agreement at any cost.
Nor can aboriginal bands refuse to negotiate, delay unreasonably, balk
at compromise or act as if they have a veto over the exercise of the
concerns of society at large within their traditional territory.
Apart from the failure to grasp what the courts are actually saying,
Harcourt believes another obstacle to treaty settlements arises from
what he calls the "sovereigntist" native leaders.
"Their view is: 'We still own B.C. You are at best tenants and at worst
trespassers.' "
But that hardline position is not supportable in law or the judgment of
the courts.
"Like it or not, the Crown has established its rights and title over
the past 150 years and all those legal rights and title are in place,"
Harcourt says. "Aboriginal rights and title and Crown usage coexist on
the same territory."
Those two obstructionist strains of thought -- wilful ignorance of what
the courts have been saying and the hardline sovereigntist position --
encourage inaction among first nations that simply aren't ready for
full-scale treaty negotiation.
"They don't have the capacity," Harcourt says. Alternatively, there is
"some fear about giving up the security blanket" of the current
relationship with governments.
He doesn't say this to let governments off the hook. They have to
provide the resources to both build capacity on the native side and
engage first nations meaningfully in the interim.
Nevertheless, the goal should be to get everyone to the table and to
get on with it.
"Focus on the end game," the former premier says. "Peaceful coexistence
to our mutual benefit."
vpalmer@direct.ca
