Friday, June 15, 2007

An overdue move to address native claim backlog

Give Stephen Harper credit for promising a long overdue plan to fix the way the federal government deals with native land claim issues.
This isn't about new treaties. That's a different, tough problem.
But while First Nations and the federal and B.C. governments have been struggling to sign treaties, hundreds of disputes about existing treaties and agreements have been piling up. Those are the kind of disputes that sparked protests and blockades, like the ongoing battle over land at Caledon in Ontario.
The federal government has behaved in a truly appalling fashion. The most amazing thing about the whole affair is how little protest there has been from First Nations as they waited and waited for answers. The average time to have a claim dealt with was 13 years.
The disputes mostly involve existing treaties, reached in the 19th century. The British were keen on treaties. They wanted a written record showing the natives had given up their land in exchange for compensation, even if the deals looked a little unfair.
But once the treaties were signed, things tended to slide a bit. A neighbour decided a chunk of reserve land would be a useful addition to a pasture. Settlers squatted on unoccupied land. The province wanted to put in a highway and decided it was easiest to go through a reserve. Or perhaps promised land was never actually included in the reserve.
The legislature, for example, is built on land listed in documents as being set aside for a reserve for the Songhees and Esquimalt First Nations in Victoria. Somehow it just got taken. (The governments paid $31 million to settle the claim last year.)
As First Nations started relying less on the Indian Affairs Department and looked into their rights, they started trying to get back - or get compensation - for land that was wrongly taken.
The response was appalling. Claims were stalled and ignored. In 1991 the government acknowledged the problem, sort of. It set up the Indian Claims Commission, an appeal tribunal that could investigate claims and mediate or make recommendations.
It would be fair to describe the progress as hopeless.
The Saulteau First Nation near Chetwynd, for example, made a claim to the Indian Affairs Department in 1997 alleging it was shortchanged by about 5,000 acres under an 1899 treaty. The government didn't say yes or no. It ignored the claim for six years.
The Indian Claims Commission accepted the claim for review in 2003.
Only last month was it resolved, in the band's favour.
I was going to write that it was a typical case, but that wouldn't be true. It took 10 years. The average is 13.
And at least the government didn't fight the referral to the claims commission, as it did with the Blueberry and Doig bands in northeastern B.C. In that case, the government didn't respond to a claim over land taken for a road for eight years - and then argued the commission couldn't hear an appeal because the government had never turned down the claim. (The commission over-ruled the bizarre argument.)
The end result is that today there are 850 claims outstanding, about half. At the current rate of progress, some will still be unresolved in 2090.
The government's position is baffling. There are a handful of big claims. But about half are worth less than $3 million, even if the First Nations win. It doesn't cost much to compensate a band for the loss of some land in a remote area.
But the government wasn't interested.
Harper promised this week to change that, prompted by Indian Affairs Minister Jim Prentice, a former co-chair of the claims commission.
The commission is to be replaced by a new board, with the power to decide claims, rather than just make recommendations. There will be deadlines for responses. And, probably most importantly, the government will set aside $250 million a year for 10 years to cover the costs of settlements.
The changes are useful. The delays hurt First Nations, poisoned relations and increasingly have sparked disruptive protests.
Harper is doing the right thing in getting on with the work.
Footnote: The changes, which will take a year to put in place, were seen by some as way to reduce the intensity of an aboriginal national day of protest June 29, which some feared would include blockades. If so, the move may be successful. The claims plan was quickly welcome by the B.C. First Nations Leadership Council and national native groups.

Wednesday, June 13, 2007

Liberal bullying handed unions their big win

Well, you brought it all on yourself.
People hate to hear that, especially because it's so often true. It certainly is for Premier Gordon Campbell and the Supreme Court of Canada ruling on Liberal legislation that gutted union contracts and permanently limited some employees' rights.
The Supreme Court broke new ground in the judgment, finding for the first time that the right to form unions and bargain collectively is protected by the Charter of Rights and Freedoms. In the past, the court had taken the view that those weren't charter rights.
No one knows exactly what this is going to mean. But it isn't good news for employers.
And the only reason the court went so far was the Liberals' unreasonable heavy-handedness in 2002 when they brought in Bill 29.
The legislation was extraordinary. It gutted the contracts of health employees, removing all protection against layoffs and contracting out. The goal was clear. The government wanted the employees fired and replaced with people who could be hired at much lower ages.
So it changed the rules to clear the way.
And it went further. The legislation said that health employees, whether they worked for government or a private company, could never again negotiate the same kind of job protection that everyone else in the province could seek.
It was extreme legislation, but the government maintained it had no choice. The health employees were paid too much. Their rights had to be sacrificed.
The legislation sailed through on a weekend. The Liberals had 77 of 79 seats. There weren't many questions from the obedient backbench MLAs.
The unions challenged the legislation in court, losing in the B.C. Supreme Court and the Court of Appeal. Both noted previous decisions that found bargaining rights weren't protected by the charter.
The unions pressed on to the Supreme Court of Canada. And the justices, hearing the facts of the case, decided that their earlier judgments were wrong. Canadians had accepted that people had the right to band together and negotiate contracts with their employers. The federal government had signed international agreements recognizing the principle.
The Supreme Court said they are now to be counted among the individual rights protected by the charter.
And the B.C. government had illegally violated those rights, the court found.
What's striking when you read the judgment is how easily the government could have avoided this. The justices accepted the fact that health care costs were a problem that needed to be addressed. And they were clear that government had the responsibility and authority to take the steps needed to manage tough public-policy issues.
But that isn't a licence to stomp all over citizens' rights. What got the Liberals in trouble was indifference and arrogance. The court noted that the government didn't try and sit down with the unions and find a solution. There was no consultation, just a phone call 20 minutes before the bill was introduced. There was no debate. And the government couldn't offer any evidence it had looked at less draconian solutions.
The Liberals went straight to bully tactics, using the power of the state against citizens. And it lost in court because of that.
Efforts to negotiate savings likely wouldn't have worked. The unions had won some pretty good deals under the NDP government. And Gordon Campbell had promised to respect those agreements in an interview with the Hospital Employees' Union newspaper.
But the government's failure to try has proved costly.
The Supreme Court suspended its judgment for a year, giving the government time to right the wrong.
So far, Campbell has been talking tough. That can't last long. The onus is on the government to respond to the ruling. It needs to come up with a proposal that reflects the damage done to the thousands of people who lost their jobs or took pay cuts as a result of the legislation.
And it needs to show how it will allow legal bargaining in future.
If it doesn't, the unions will be presenting their solutions to the Supreme Court a year from now.
Footnote: The ruling opens the door for more cases. The government used legislation to strip class-size limits from the B.C. Teachers Federation contract. The union can now argue that those kinds of working conditions should be subject to bargaining, even if the government can ultimately impose a solution.