Doubling Down on Denial

By Bruce McIvor

This first appeared as 'My Two-Bits' in our February 7th Aboriginal Law Report

Last week I had the benefit of hearing Grand Chief Stewart Phillip’s remarks at the Aboriginal Land and Resource Management Forum in Vancouver.

The Grand Chief spoke eloquently about First Nation frustration with the British Columbia provincial government’s refusal to meaningfully engage on the Tsilhqot’in decision principles.

As the Grand Chief said, “BC won’t engage with First Nations on Tsilhqot’in; instead it has chosen to hunker down.”

The consequences of the Province’s intransigence are illustrated in its response to the Secwepemc Aboriginal title claim to the Ajax mine site near Kamloops.

While there is much that is objectionable and questionable about the Province’s response, two arguments stand out above others.

First, the Province argues that the Secwepemc can’t make out a claim to Aboriginal title because at the time Europeans arrived in their territory the Secwepemc were not an ‘organized society.’

In other words, according to the Province, the Secwepemc were an assortment of small groups of opportunists hunting, fishing and gathering to scrape together a meagre subsistence but without a political identity or the ability to control access to their territory.

Second, the Province argues that if the Secwepemc can prove Aboriginal title, their title was extinguished through the Province’s granting of fee simple interests in their land.

These types of insulting, ahistorical arguments are a direct result of the Province’s unwillingness to engage meaningfully with First Nations on the Tsilhqot’in decision.

While they might play to the government’s political base in the lead up to next year’s provincial election, they are the antithesis of honour and reconciliation.

They represent a desperate attempt to double down on denial. Any political advantage the provincial government derives from these positions will be short lived. The tide of history and public opinion is against them.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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