EDITORIAL — Delgamuukw ties B.C. in knots — The pall of uncertainty

As Eastern Canada trucks along to economic recovery and Alberta basks in its status as an investment haven, British Columbia is floundering under the combined weight of the Asian crisis and poor governance. Confidence in the New Democratic Party (NDP) government led by Premier Glen Clark is barely measurable, owing to unbalanced budgets and ill-advised initiatives that have tied the province’s resource industries in knots.

Granted, the Premier has met with business leaders to find ways to get the economy moving forward. He’s trying to attract more high-tech industries to the province, and he’s travelled to California to convince movie moguls there that film-making ventures are welcome in Hollywood North.

At presstime, Clark’s government announced new incentives aimed at reviving mining and exploration. Included are tax relief, some streamlining of environmental guidelines and promises to compensate if claims are expropriated for parks. While this is welcome news, it does nothing to reduce the cloud of uncertainty cast by aboriginal land claims, which now blanket the entire province.

Making progress on this front will not be easy, as it exposes an ideological divide in Clark’s government. While the labor wing launches initiative after initiative to revive the moribund economy, the left-of-left urban wing continues to advance an agenda that undermines the province’s resource base.

One manifestation of this is the Delgamuukw ruling on aboriginal land-title rights announced by the Supreme Court of Canada late last year.

The ruling has undermined land tenure and the government’s authority over Crown land, which makes up more than 90% of the province’s land area.

Resource companies and their suppliers, small-town mayors and regional economic development commissions are all fuming about the decision, which they believe will increase unemployment and deepen the province’s near-recession.

Delgamuukw also exposes a growing dissatisfaction about the role of the courts in policy-making, particularly where decisions are based on nebulous interpretations of the Charter of Rights and Freedoms. Blame for this has been heaped on Pierre Trudeau, the flower-powered architect of the Charter, who first opened the Pandora’s Box of collective rights. Some argue that the courts have lost sight of the public good, and are using the Charter for social engineering, making a mockery of the law in the process. But, in the case of Delgamuukw and others, it is fairer to say some governments are using the courts and the Charter to bypass their electorate (and thus, democracy) in areas of contentious policy-making.

Delgamuukw, for example, reflects an NDP government effort to overturn a judicial decision made in the 1980s that denied natives ownership rights, as well as the inherent right to self-government (though certain traditional rights were upheld). Shortly after being elected, the NDP hired a team of lawyers to appeal the ruling and began discussions with native groups, mostly behind closed doors. And so began a decade-long legal battle — costing taxpayers about $20 million — culminating in the Delgamuukw ruling, which advocates a complex, perhaps unworkable, model for land-claim settlements.

Delgamuukw has supporters who argue that relations with B.C.’s 100,000 natives have never been formalized by treaty. But they have been formalized in other ways: through a large chain of reserves, through $1.5 billion in transfer payments each year, through free education and through the guarantee of rights for fishing, hunting and other traditional activities.

What is needed now is a less adversarial, less complex model for land-claim settlements that is more fitting for the 21st century. At the very least, it should be a public process involving all stakeholders.