It’s Not Just Culture. It’s a Constitutionally Protected Right
Sunday, July 31st, 2011This article was originally published in BC Forest Professional in the September – October 2010 edition.
The landscape for the average forestry professional has changed dramatically in the last few decades with respect to regulation. As we have moved from the pioneer days of no to low regulation to today with more regulation than ever one of the primary issues influencing forestry regulation today, along with environmental protection, are Aboriginal issues like land claims and self government.
We have seen everything from blockades, negative media campaigns, and legal action all which have far reaching consequences for the forestry industry. Part of the response from government has been to introduce or change regulation designed to address Aboriginal Peoples and their cultures.
Before discussing balancing regulation with culture I think it is important to know what culture is. The Merrium-Webster dictionary describes part of the definition of culture as “the integrated pattern of human knowledge, belief, and behavior that depends upon the capacity for learning and transmitting knowledge to succeeding generations and the customary beliefs, social forms, and material traits of a racial, religious, or social group.”
The problem with this definition of culture is that comes across as non threatening concept. It makes people think that culture is language, dancing, and crafts. One might think, ” Why should I, or the government for that matter, be worried about culture? We live in a society that allows people to be who they are by providing freedom of religion and all manner of other freedoms.”
This in turn can make forestry consultants think, “It will be easy to balance their culture with regulation and the regulators will be happy with me. I will get my permit and things will proceed as planned.” However, this is not the case and is a total underestimation of what we are actually dealing with.
To get to the root of what we are dealing with we need an equation. Culture equals something? Culture in the case of Aboriginal Peoples equals constitutionally protected legal rights. These legal rights are the leverage that Aboriginal Peoples have to protect their cultures. Below is Section 35 of the Constitution of Canada. Be sure to pay particular attention to section 35(1).
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
Recognition of existing aboriginal and treaty rights
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Definition of “aboriginal peoples of Canada”
35. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
Land claims agreements
35. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
Aboriginal and treaty rights are guaranteed equally to both sexes
35. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.(96)
There is a lot of meaty stuff in section 35, but from the perspective of regulation and culture section 35(1) says it all. It states that the existing aboriginal and treaty rights of the aboriginal peoples in Canada are recognized and affirmed.
What does this mean? It means that, from a federal and provincial government perspective, governments have to recognize and affirm rights and not take them away through regulation or subsequent activity or activities. There is a legal principle from the Sparrow decision (R. v Sparrow, [1990] S.C.R. 1075) that states that any proposed government regulation that infringes on the exercise of Aboriginal rights must be constitutionally justified.
Further, the Delgamuukw and Gisdaway Supreme Court decision of December 1997 stated that Aboriginal Title and rights exist and governments must design regulations to avoid infringing on constitutionally protected rights. Keep in mind that from the courts perspective the discussion about whether Aboriginal rights exist is closed. The Supreme Court of Canada has required the government to shift their focus to a process of defining those existing Aboriginal and treaty rights through regulation, consultation, or treaty and reconciliation negotiations.
It follows then that Aboriginal Peoples for the most part look at the world through section 35 glasses and ask themselves a simple question. Does this regulation and subsequent activity, forestry, for example, infringe on the exercise of our constitutionally protect rights? If the regulation or subsequent activity does infringe then they have legal remedy not available to other peoples or their cultures.
One potential remedy is to go to court and seek judicial reviews challenging permits usually on the basis of lack of consultation. Such judicial reviews can tie projects up for lengthy periods of time incurring huge project delay costs as well as associated legal fees.
What then can you do to balance culture with regulation? Change the focus from culture to constitutionally protected legal rights and do whatever it takes to avoid infringing on constitutionally protected rights. The key is to work effectively with Aboriginal Peoples early and often, avoid infringing, seek accommodation and don’t assume that by simply fulfilling legal and regulatory requirements that projects will proceed as you wish. Lots have tried this approach and many have failed.
Robert PC Joseph is the President of Indigenous Corporate Training Inc. an Aboriginal company committed to providing training geared specifically at helping individuals and organizations to work effectively with Indigenous Peoples. www.ictinc.ca
