An educational and valuable experience
Written by Steven DeRoy
Written by Steven DeRoy
Vancouver, BC - The Stó:lô-Coast Salish Historical Atlas was awarded the prestigious Roderick Haig-Brown Regional Prize at the 18th annual B.C. Book Prizes Gala Dinner and Awards Ceremony, held at the Renaissance Harbourside in Vancouver on Saturday, April 27th.
Attendees of the event representing the Stó:lô editorial board of the atlas were honoured to find out they had been selected as the award recipients. "What a shock and an exciting surprise to hear we were actually nominated." said Leeanna Rhodes. "When they named our book as the winner we were ecstatic. I actually hugged our presenter Mr Terry Glavin so hard that I think I heard him go 'UUMF'".
The Stó:lô Atlas was published in April 2001 after 18 rigorous months of research. A team from the Stó:lô Nation's Aboriginal Rights and Title Department undertook the exhausting task of compiling traditional and scientific knowledge for the Lower Fraser River and Northwestern Washington. It describes a 15,000 year history with a brilliant combination of maps, photographs, artwork and text. This is one of the first publications of its kind in the world, presenting inclusive history of the Stó:lô and incorporating the history of non-native newcomers in southwestern British Columbia.
The B.C. Book Prizes, established in 1985, celebrate the achievements of British Columbia writers and publishers. The program is administered and awarded by members of a non-profit society who represent all facets of the publishing and writing community. "It was a record year in terms of the number of entries we received, making for a stiff competition between all of the nominees" said Bryan Pike from the West Coast Book Prize Society. "We were really happy to find out that the panel of judges chose the Atlas."
The Stó:lô Atlas was nominated for two categories, the Roderick Haig-Brown Regional Prize and the Bill Duthie Booksellers' Choice Prize. The Roderick Haig-Brown Regional Prize is awarded to author(s) who contribute most to the enjoyment and understanding of British Columbia. The book may deal with any aspect of the province (people, history, geography, oceanography, etc.) and must be original.
When I congratulated Leeanna Rhodes, she replied, "Thanks for the congrats but I believe it goes to all of the Stó:lô communities because without their help and support, the book pages would be blank."
Copies of the atlas are available at local book store outlets and through the Stó:lô Nation (you can call them at 604-858-3366 to place an order). All proceeds from the book sales will be used by Stó:lô Nation for future cross-cultural education and awareness programs.
(Content of this story courtesy of The Borneo Project.
The Impact of Recent Decisions on the Duty to Consult & the Determination of Aboriginal Rights
This paper was prepared by Barbara Fisher, Blake, Cassels & Graydon LLP, for the Continuing Legal Education course materials Aboriginal Law Conference-2002, March, 2002 and is reproduced with permission.
The Crown's duty to consult with a First Nation about Crown regulation or activity that affects the First Nation arises from a variety of legal sources. The first source emerges from the Crown's historical fiduciary relationship with aboriginal people. The common law duty, given constitutional protection under the Constitution Act, 1982, has been expanded to include a duty to consult about possible infringements of s. 35(1) rights. In addition, a statutory regime may set out specific duties to consult within the context of an approval process, government policy may establish consultation guidelines and finally, the rules of natural justice and administrative fairness also dictate to some degree the extent of the duty to consult.
The historical fiduciary relationship has been primarily between the federal Crown and aboriginal people. However, more recently, courts have identified a similar relationship between the provincial Crown and the aboriginal peoples of the province. The scope of this fiduciary relationship and the duties arising from it are still being defined through litigation.
Provincial jurisdiction over lands and resources, and provincial regulation and activity on Crown land has resulted in more frequent conflicts between First Nations' aboriginal rights and interests, the provincial Crown and third parties. According to recent authority from the B.C. Court of Appeal, the province does not have the constitutional jurisdiction to authorize any official, decision-maker or tribunal to determine the aboriginal rights of any First Nation. However, the province may still infringe aboriginal rights through valid provincial laws and regulations provided such infringement is justified. Only a court may ultimately determine whether a First Nation has aboriginal rights, what the scope of such rights are, whether there has been an infringement in any particular case and if so, whether such infringement is justified.
While there are as yet no court decisions defining the nature and scope of any First Nation's aboriginal rights, the Crown has a considerable amount of information about British Columbia First Nations' interests, since over 2/3 of these First Nations have been in the treaty process since 1994. Therefore, the Crown should be in a position to reasonably assess assertions of aboriginal rights in any particular case.
In addition to being a key element in the infringement and justification analysis, consultation is a practical requirement. However, because of the limitations on the province's jurisdiction, it must consult only about possible infringements of aboriginal rights and about the First Nation's interests (outside the constitutional context) in the lands or resources at issue.
The content of the Crown's duty to consult has not changed substantially over the past number of years. Regardless of the legal source of the duty, the province has for a long time been required, from a practical and economic perspective, to consult with First Nations about the use of resources in their traditional territories.
The consultation exercise essentially requires the following elements:
- The Crown fully informing the First Nation about the proposed regulation, permit, approval or activity;
- The First Nation fully informing the Crown about its assertion of rights, traditional practices, interests and concerns;
- The Crown assessing the First Nation's assertion of aboriginal rights and the scope of those rights;
- The Crown considering its fiduciary obligations to the First Nation and the possibility that its proposed action might infringe aboriginal rights;
- The Crown considering the First Nation's interests in the affected area;
- The Crown seriously considering alternative courses of action to address the First Nation's interests and to avoid possibly infringing its aboriginal rights.
In the writer's view, the courts have not done an adequate job of providing clear direction about the duty to consult that is conducive to achieving certainty or negotiated settlements. The courts have not clearly delineated the content of the duty to consult stemming from fiduciary, constitutional, common law or statutory requirements. Many decisions focus on the constitutional justification analysis, which is one element (albeit an important one) of consultation, but an element that creates a more adversarial environment for negotiation. Other cases focus on administrative law issues of procedural fairness, with varying results depending on the scrutiny of analysis. It is not clear whether a comprehensive statutory consultation regime that considers the Crown's fiduciary, constitutional and common law duties is sufficient for all purposes. Finally, the courts appear to separate process from substance. This is problematic, because the substance of a right in issue is relevant in determining the appropriate process to consult about activities that may affect that right.