February 09, 2021- 930am Douglas White, B.A., J.D., First Nations Lawyer -Topic “Indigenous Law” – ZOOM

Douglas S. White, B.A., J.D.

Coast Salish name: Kwulasultun
Nuu-chah-nulth name: Tliishin
Métis name: L’om fore de shenn (Michif) / Mistikominâhtik napîw (Plains Cree)

Doug is a practising lawyer (called to the Bar of British Columbia in January, 2008) and negotiator for First Nations across the country. He is also: the Chair of the BC First Nations Justice Council; Co-Chair of BC’s Provincial Advisory Committee for Indigenous and Specialized Courts and Related Initiatives; and, Director of the Nanaimo Port Authority (appointed by the provincial government in July, 2019).

He is a member, former Chief (2009-2014), and former Councillor (2016-2020) of the Snuneymuxw First Nation in Nanaimo, BC. From 2010 to 2013, he was a member of the First Nations Summit Task Group and the BC First Nations Leadership Council working on common issues with BC First Nations and advocated on their behalf with the governments of British Columbia, Canada and internationally at the United Nations. He was also the Director of the Centre for Pre-Confederation Treaties and Reconciliation at Vancouver Island University from 2014-2020.

After completing his B.A. in First Nations Studies (with distinction) from Malaspina University-College (now Vancouver Island University), he graduated from the Faculty of Law at the University of Victoria in 2006 and was called to the Bar of British Columbia in January 2008. He has been granted Distinguished Alumni Awards from both Vancouver Island University (2013) and the University of Victoria (2015).

Doug talked to us  from his home in Nanaimo to present a short snapshot of the history of Aboriginal title and the political and legal processes that have led to the relationships between Indigenous peoples and the Crown today..

Presentation

The relationship between the Crown and Indigenous peoples in Canada has been fraught with conflict and tension since colonizers first arrived. It is an issue rooted in deep complexity, misunderstandings, and historical erasure. For example, between 1850-1854, Governor James Douglas negotiated 14 treaties with the First Nations of Vancouver Island. However, in 1963, when two Snuneymuxw men, Clifford White and David Bob, tried to defend their off-season hunting activities with the terms of one of these treaties in Nanaimo, the courts were completely unaware of the existence of such an agreement. From 1860-1960 this treaty was completely denied as the province decided to shift its policies away from this formal recognition. Through a powerful tradition of oral history, the Coastal First Nations maintained this treaty’s existence for generations while the Crown operated under a lens of historical denial for over a century. Despite the lack of common knowledge of such a treaty by the judge, White and Bob worked with Frank Calder and Thomas Berger to establish that there was, in fact, a treaty for the area. Through the appeal process, they took the case up to the Supreme Court and won. This set in motion a series of events that would open change history.

This alternative conception of law in 1963 really shook things up. There remained a massive omission in the law – the basic premise that Indigenous peoples have had their own societies with their own laws, orders, and traditions pre-contact. These laws were not extinguished once the Crown asserted sovereignty in 1846. They continue to carry on today. In 1967, Calder, along with other Nisga’a elders, sued the BC government, declaring that Nisga’a title to their lands had never been lawfully extinguished through treaty or by any other means. While both the BC Supreme Court and the Court of Appeal rejected the claim, the Supreme Court of Canada made a ground-breaking landmark ruling. In 1973, the court ruled that Aboriginal title had indeed existed at the time of the Royal Proclamation of 1763. The Supreme Court’s 1973 decision was the first time that the Canadian legal system acknowledged the existence of Aboriginal title to land and that such title existed outside of, and was not simply derived from, colonial law.

This ruling opened the doors to 40 years of the court system entertaining Aboriginal title cases. While courts accepted these cases, it became clear that the court system’s adversarial nature made it very ill-equipped to manage the complexities of Aboriginal rights and titles. Judges were willing to provide some theory and support in establishing facts but advised that these conflicts would be much better resolved at a negotiation table as opposed to the court system. Politicians needed to do the work to establish solid foundations and relationships with the Indigenous peoples to find real on-the-ground models for proper relations and solutions.

The Calder case led to a wave of activism that resulted in the withdrawal of the White Paper and the implementation of Section 35 to the Constitution Act in 1982. Section 35 articulated that rather than pitting Aboriginal peoples against the Crown in the litigation process, both must work ogether to reconcile their interests within a larger context of the Crown’s obligations toward the Indigenous peoples in Canada. There was a condition that there needed to be constitutional conferences to talk about the substance of Section 35 and what it meant with more specificity. Unfortunately, these conferences were unsuccessful, leaving no substantive agreements, answers, or clear directions between the parties. Instead of working together in something like a cooperative federalism, conflict on the ground has continued, and the Aboriginal title cases are still being decided on in the court system.

Considering that Canada has operated under a model of sovereignty that is dispersed betwe en the federal crown and provincial crowns, a cooperative federalism that also includes Indigenous Nations would make sense. However, up until now, the Crown has been too concerned about giving Indigenous people the power to veto instead of seeing this model as an opportunity to work in a manner that is firmly rooted in the idea of recognition and respect for each other. Finally, with the Truth and Reconciliation Report’s recommendations, the Crown now has some kind of a framework to pave the path forward. In tandem with the years of continued Indigenous advocacy, Canada as a country is in a critical moment where we need to decide upon our most cherished values and principles and decide what we want our future relations to be based upon. Armed with this roadmap, we’re finally seeing significant shifts in the right direction. If Canada takes the right steps, this could be a remarkable moment in our country’s development.

Questions & Answers 

Question from Ian Carmichael: Talking in circles about reconciliation. What is the ultimate objective? No taxes? Self-rule? Own laws? Independence? Not subject to the laws of Canada?

Answer: There are some people that would stand up and say, “we just want to be left alone.” Right? Like what the goal is and the objective is of all of this advocacy of all of this work is to please for god sakes just leave us alone, let us do our own thing. I think that’s sort of an extreme position. So, let me talk a little bit about my work as the chief negotiator of Lake Babine up in the interior because that’ll be a quick snapshot of what that work is all about. This work came about effectively in some ways because of the failure of the BC treaty process. It was established in the early 1990s to try to address the issues of self-government and land rights and all of these things. Because of Crown policies around mandates and whatnot, it was not productive of the kinds of answers and solutions that everybody expected. I remember I was called as a witness when I was a young man in Squamish at the major event that opened up the BC treaty process. The Prime Minister was there, and the Indigenous peoples of British Columbia were there to mark the opening of what was expected to be important work. And I remember late Chief Joe Mathias from Squamish and what he talked about and what he said at that session. He talked about how now the era of extinguishment is behind us, and we’re going to be entering into an era of the recognition of our Aboriginal rights, and through this work, we will achieve that. And unfortunately, the Crown didn’t show up, and it became clear over the course of a period of time that wasn’t exactly the Crown’s vision for the treaty process. It worked in Tsawwassen, and it worked at Maa-nulth, Tla’amin, but generally speaking, it was not an approach that was embraced by the Indigenous peoples of British Columbia. So now, once again, what do we do when we’re not making the kind of progress that we need to? We’re creating the context for conflict on the ground. And so, the government of BC sought to start to, on a bilateral basis with Indigenous peoples, create spaces where they can make changes in terms of revenue-sharing with Indigenous peoples and other matters in forestry and mining and elsewhere. But the kinds of agreements that they put forward were quite impoverished in their approach and very short-term and did not really, you know, they were in part in response to the Haida Nation decision, the duty to consult and all of that, but they were not reflective of the ideas of the Chilcotin Nation and Aboriginal title. And so, the Lake Babine negotiations came about. Lake Babine and BC got together and said, “look, we want to be able to develop an approach to a relationship that’s premised on the idea of recognition and respect of Lake Babine Aboriginal title and self-government, and we’ve got to be able to sit down and figure out as mature governments, how to craft a model of agreement that can lead to an orderly transition that doesn’t swing like a wrecking ball through economies. It’s not like a lightning strike coming from a court or whatever it may be, but this is the work between the government-to-government basis of mapping out the kind of transition that’s required to get to the place we need to get together.

And so, Lake Babine’s approach in the Lake Babine Model is premised on that idea of real recognition. It’s premised on the idea effectively that what we’re getting to is a cooperative federalism approach to a relationship where we work out the relationship between Lake Babine and the provincial and federal governments in a way that everyone can predict, everyone understands, and a way that is just simply based on basic respect and recognition. So, in that case, it’s not about just ‘leave us alone,’ it’s about ‘recognize that we exist, recognize that we have a special relationship with this part of our world, and let’s figure out how we’re going to work together.’ How do we craft an idea in terms of ‘look into the future of how Indigenous peoples and the provincial Crown should be working together,’ and we’ve also, over the past couple of years, brought the federal government to that work as well. So now if I can go back a little bit to you know, “why do I think the UN declaration is so important,” because I do think it is. I think it’s important because we don’t, in the past century, have a domestic tradition in Canada of recognition and respect of Aboriginal rights and title. We have the opposite of that. And so, that has put us into a really significant deficit in terms of the status quo and how it’s structured. When you look at the provincial UN Declaration law, one of the basic provisions of it is that there has to be work done to take a look at the body of provincial law and to work through to amend it to start to bring it into alignment with the UN declaration and that’s a huge project. When you think that 100+ years of lawmaking and policymaking and patterns of behaviour are all premised on the idea that Aboriginal title doesn’t exist, then you can see the great difficulty that we have when courts are starting to make decisions. It will make legal declarations of Aboriginal title, and it is expansive and its nature. So we’ve got a lot of hard work to do together and, it’s important for us to grapple with these things now.

 

Question from Bill Hooker: Are you hopeful of a national model since there are similar challenges nationally?

Answer: Yeah, I do think that. I think that Canada believes that Lake Babine can serve as something of a national model for the country. I do think that it’s important. In my work in the criminal justice system as the Chair of the BC First Nations Justice Council, our work began directly with the government of BC going back into September 2017. We entered into an MOU with ministers David Eby and Mike Farnworth on behalf of the government to craft a justice strategy for British Columbia for the first time about First Nations people. So, obviously, there’s a long-distance we can go on a bilateral basis just here in the context of British Columbia, and we’re doing that work. We signed the First Nations Justice Strategy in March of last year.

There are two main pathways to the Justice Strategy. First, the Justice Strategy is aimed at making changes to the existing justice system to make it less harmful and more appropriate to Indigenous peoples. And then second, we had a meeting back in, I think November 2018 in Victoria at the legislature where the First Nations Leadership Council, the First Nations Justice Council, and the ministers were together to talk about the basic ideas of the Justice Strategy and what it would entail, what it would look like, what’s the basic architecture of it. And I was able to point out the window to across the Strait of Juan de Fuca to the United States, and I talked about how the Coast Salish world, you know around the Salish Sea with the northern part in Canada and then the southern part of the Coast Salish world is down in the United States. I said so, “you know, there’s something that we need to grapple with here in Canada here in British Columbia. If we’re being serious when we’re talking about the recognition and respect of Aboriginal rights and self-determination in applying and implementing the UN declaration here in this province, then something that we have to think about is what that looks like in the context of the justice system.” And so I said, “When you look down across the water down to the United States, you’ll see that down there in Tulalip and Lummi in different spots in the Coast Salish World down there, what you’ll find is Indigenous courts with Indigenous judges applying Indigenous law, and this has been going on for decades. It’s not a particularly controversial reality, the recognition of that. But when you come up to the Canadian side of the Border, it’s an entirely different story. There is a complete lack of any acknowledgement of any significance of Indigenous people’s authority and decision-making with respect to criminal justice matters.” And so when we talked about that, I said, “so if we’re going to talk about a longer-term strategy around the justice system, we have to be able to grapple with that. Like we must. It’s something that we need to do. So we need to know from you if that’s what you’re willing to talk about.” And so, the Government of BC ultimately agreed with that. They agreed there, and we got the mandate from the Government of BC to have that as part of the strategy that longer-term work will be about bringing about that reality. And so, now we can achieve as much as we can with BC, but part of our work right now is to bring the Government of Canada into that work and to encourage it. So, I’ve been advocating for the development of a National Justice Strategy as well so, I was so happy to see when Minister Lametti in January had his mandate letter revised and that it included direction to facilitate the development of a National Indigenous Justice Strategy. So, I think that’s important because some of the dimensions of this are definitely federal and require nationwide approaches, and I think that we can do much more here in BC, obviously for dealing with Canada’s well, and if there’s a common approach across the country, recognizing distinctions across the country.

 

Question from Mark Johnson: Who speaks for Indigenous people?  We hear about hereditary chiefs and elected chiefs. I guess elected chiefs would be an imposed colonial idea, but we have a strong preference for democracy. Who do the courts recognize?

Answer: This is a challenging issue, and everyone remembers what the main national crisis was right before this awful pandemic, a crisis that came out of the Wet’suwet’en part of the world. And I think that one of the things that the Wet’suwet’en conflict highlighted is this issue – this distinction between. What do we do when, I think that I’m correct when I say that, all of the elected Indian Band governments, all the Chiefs and Councils, had negotiated agreements around the pipeline up in that part of the world, but yet, there were hereditary Chiefs that were fundamentally opposed to the pipeline. When Canada and British Columbia sat down and negotiated, the elected chiefs were not even in the room. They were negotiating with the hereditary Chiefs and their people. So for me, that really highlighted how important it is, and I saw, from a distance, the internal stress that creates inside of the Wet’suwet’en people, let alone the external sort of infusion or stress it creates for other people that leads to this question – Who speaks? For me, this is a complicated issue that when we think about who is the proper rights and titleholder, at least if we look at the Common Law sort of description of if there’s such a thing as an Aboriginal right, who holds it? It’s not necessarily an Indian Act Chief and Council or even an Indian Act Band that holds that. We can look at different examples like the Chilcotin Nation litigation itself where it was brought, in the first instance, by one of the Indian bands, but ultimately it was changed to be in the name of the Chilcotin Nation itself as the titleholder. The important thing too about the jurisprudence in our country on Aboriginal issues is that probably more than 90% of the time, these are cases that were not even brought by the Aboriginal Nation itself or by an Aboriginal Government and sometimes they weren’t even in the room. For the most part, these are mostly statutory offence charges against individuals. So, White and Bob were two Indigenous guys that were hunting. They were not representatives of either the Snuneymuxw or the Stz’uminus people. So, the instructions that they gave to their lawyers were not instructions that came directly from the Nation. So, keep that in mind too, as sort of a background thought or comment about that point. But now, when we think about how these sorts of histories, of if we have the Indigenous orders and traditions that have a set approach to organizing government and decision-making that includes hereditary leadership and hereditary Chiefs that you have to keep in mind, there are multiple different Indigenous peoples in the province of British Columbia. They don’t all have similar histories of hereditary Chiefs. Some are matrilineal. Some are not. There’s a lot of distinction and difference, so we’ve got to think about how do we grapple with the continuity of that, with overlaying that over the past century and longer Indian Act forms of government that were specifically put in place to displace hereditary and inherent forms of self-governance, self-determination, this is still a little bit of a messy situation where there’s some complexity that has to be worked through. So, there’s internal work to be done on the side of Indigenous peoples to help clarify this. In terms of Lake Babine as an example, what’s happening is that they’re going to be spending the next number of years working through that issue because they have about a hundred hereditary Chiefs across their nation, and then they have their elected Chief and Council government, but they’re going to work together over the next number of years to sort out what the future government should look like. So I think that’s important work that needs to be supported and get on with sorting those hard questions out.

 

Question from Bob Nash: What is your opinion of Chief Louie of Osoyoos?

Answer: Chief Clarence Louie of Osoyoos is a very famous character and leader in British Columbia. He’s been a long-term Chief. Whenever I think about Chief Clarence Louis, I think about the land base that he has to work with. I was in a meeting with him once, and I did some quick numbers, and so I think that Osoyoos has about 32,000 acres of Indian Reserve Land, and I think it’s about 300-400 hundred members. At the time I was chief of Snuneymuxw, we have just under 2,000 members and about 600 acres of Reserve Land. So I think Osoyoos is in one of the best positions on a per capita basis with respect to Indian Reserve land base, and Snuneymuxw might be in one of the worst. But, I think it was close to 200 times more land available on a per capita basis in Osoyoos as compared to Snuneymuxw. So you know 32,000 acres is bigger than the city of Nanaimo. So, it’s not hard to understand why there’s some economic success there, which I acknowledge and celebrate. I mean, it’s great for them to be in that position. I just wish that there weren’t so many First Nations that were in the same position as Snuneymuxw or a similar position to Snuneymuxw, where there is very little Indian Reserve Land to work with. We all know how important land is in terms of economic development.

 

Question from Pamela Chaun: Could you talk about restorative justice?

Answer: Okay, so let me talk about the establishment of the BC First Nations Justice Council and what its mandate is. The 200 and something First Nations of British Columbia got together and established the BC First Nations Justice Council, and they gave us a dual mandate that said, “your work and your job is to go and deal with, on the one hand, the over-representation of our people in jails, and the over-representation of our children and care. So, if you just look at the mandate really plainly, then you’ll see that it’s sort of focused on dealing with that sort of an offender-focused mandate the way it’s described, but that’s not the way that we approach the work. There’s just no other way to understand the over-representation than systemic racism at play in multiple different ways. Our people are over-policed, overcharged. Our people are over-prosecuted. Our people get less access to bail, we’re convicted at a higher rate, and when we’re convicted, we’re sentenced to longer terms. And when we serve our sentences, we’re subjected to more oppressive conditions. I mean, it makes your head spin. Out of all of the work that I do, this is the work that makes me lose the most sleep, I think – this work dealing with the criminal justice system and the child welfare system in the province.

Going back into the 1990s. There was a recognition by the federal government that I think they called it a crisis, the crisis of over-representation of Aboriginal peoples in jail. They said, “We got to do something about this so, let’s change the criminal code to give some direction to judges when their sentencing Aboriginal people.” And so they did that in 1996. They gave that direction, and that direction was interpreted by the Supreme Court of Canada in 1999 in the Gladue decision. The crisis of overrepresentation that they were talking about was the reality that 10% of the prison system in the country were Aboriginal people when Aboriginal people only make up 4-5% of the overall national population. This is very concerning and upsetting. And so, they gave that direction.

So, where are we at now, two decades later? Basically, every decade, 10% was added. Because we’re now at just over 30% of the prison populations of the country are Aboriginal people. And so, certainly, that is a sharp focus – dealing with trying to upend that basic scenario – because it’s really a bad place to be, and it’s not a good situation. Now, when we think about Gladue and what it entails, what the direction is to the courts and to the judges in terms of crafting fit sentences, victims, and the reality is that victims are a major part of that. There’s an ugly reality of internal addictions and domestic violence, and sexual assault in Indigenous communities. It’s a crisis that we’re struggling mightily to grapple with. So, we’ve seen to the work of the Murdered and Missing Indigenous Women and Girls Inquiry and the report that came out of that work a couple of summers ago. So, the work that we have in the work that we’re doing is focused both on offenders and on victims.

 

Question from  Zoobkoff: Thanks, Doug. When we speak of “justice,” does that not connote looking at both the offender and the victim? Could you discuss the two scenarios?  One where you have an Indigenous victim with a non-Indigenous offender, and two where you have an Indigenous offender and a nonindigenous victim.  Should/does “justice” operate the same for both offenders? Does “justice” operate the same for both non-offenders? The same could arise in the civil context.

Answer: I guess there’s a basic point about this that’s important to keep in mind. It is that the changes to the Criminal Code and what Gladue is all about, the focus and the emphasis is for them to be remedial in nature. They’re remedial provisions. The government recognizes that Indigenous peoples are not being treated properly through their experience in the criminal justice system, and we need to correct it. We need to create something more, you know, when they framed it around over-representation, the idea that if you get to the right numbers, then something must be working well. So, this isn’t a situation where the impulse or whatever is that we’ve got to treat Indigenous peoples differently because they’re different or they’re special. This isn’t a sort of special consideration. This is a corrective direction to ensure that Aboriginal peoples are treated the same as other people.

Now, the provision that I talked about, that was put in place in 1996 – the sentencing laws of Canada had never been codified before until 1996. So it was a historic development in Canadian sentencing law in general when they were codified in the way that they were in ’96. So, the direction in ’96 was for judges to find alternatives to incarceration for all offenders in Canada.

And then it said something along the lines of, “with particular focus on Aboriginal peoples.” So, when you look at part of the reason why more than 30% of the prison populations in Canada are Aboriginal, it is that over that time period, that basic premise was, in fact, applied to find alternatives to incarceration. Non-Aboriginal prison rates and numbers progressively went down. The trends went down in the way that Parliament directed. That happened for non-Aboriginal Canadians. It did not happen for Aboriginal Canadians. The numbers stayed the same or went up. And so, as a percentage, it grew to 30%. So, what we’re looking for is effectively justice. We’re trying to make sure that the criminal justice system is acting in a just way with respect to Aboriginal peoples – that it’s treating people in the same way. And because it hasn’t been, there’s been these remedial sorts of steps that have been taken, and there have been things like the development of the BC First Nations Justice Strategy to try to reshape the discretion of police, to reshape the discretion of prosecutors, to give them new kinds of directions and more specific directions. So that’s an important sort of reality to keep in mind.

 

Question from Pamela Chaun: Hych’ka Siem, Doug. I know this may not be an easy question to answer in such a short time, but what is the current status of the Indian Act – to abolish or re-write? (And for those who may not know, S. Africa’s apartheid laws were based on our Indian Act.)

Answer: You know, it’s an amazing thing that we have a country with such a law, but we do, and holy man, is it ever deeply entrenched in our country. Certainly, the Indian Act is fundamentally an offensive piece of legislation that doesn’t belong to any kind of a modern democracy or a modern country. But the project isn’t simply to rip-up an Indian act. What has to happen is, we’ve got to do the work of properly articulating Indigenous self-determination in this country and the right relationship between Indigenous peoples and the Crown. That’s where the work of reconciliation lies. It’s in doing that. So, I think that people have recognized that for a long period of time that that’s essential work in our country. But, the answer to it isn’t just simply tearing the Indian Act down. The proper establishment of First Nations governments has to be part of that work to replace the Indian Act regime. And that’s the work that we’re doing with the Lake Babine negotiation. So, the Lake Babine people are working through and developing their own internal model of governance. That will be developed, and then there will be a negotiation between Lake Babine and British Columbia and Canada to bring that about, and then ultimately, the Indian Act will start to fall away.

 


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