Friday, July 25, 2014

The Tsilhqot’in Decision

Tsilhqot’in Nation v. British Columbia , announced on June 26, 2014, is the most important case on native rights since the Delgamuukw  decision back in December of 1997.  Since it originates in a dispute about aboriginal title right in our own backyard, I decided to read the decision in its entirety, instead of just relying upon press and media reports. In 1983, the Government  of British Columbia granted a commercial logging licence  to Carrier Lumber on land that the Tsilhqot’in considered their traditional territory.  One of the six Tsilhqot’in bands (the Xeni Gwet’in)  sought a judicial declaration prohibiting commercial logging on the land.  Relying upon the 1973 Calder decision recognizing aboriginal title, and the then brand-new Section 35 of the Canada Act, 1982,  the band amended its original land claim to include a claim for Aboriginal title to the land on behalf of all the Tsilhqot’in people.  The federal and provincial governments both opposed the title claim, and the B.C. Court of Appeal overturned the trial judge’s decision, because it used a narrower test for determining what constitutes “occupation” sufficient to ground Aboriginal title as “only specific, intensively occupied areas.”

The crux of the Supreme Court of Canada’s decision to grant a declaration of aboriginal title after all was an understanding of sufficient occupation that compares the requirements of common law “in a culturally sensitive way” to Aboriginal culture and practices. Thus “occupation”  was taken to mean not just specific sites of settlement but tracts of land regularly used for hunting, fishing, and so on. Once this threshold was held to have been reached, it remained to simply apply the “section 35 infringement and justification framework”  first elaborated in Delgamuukw to the case.  That framework permits “provincial legislative incursions on lands held under Aboriginal title,” including the Forest Act, but  “the level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.” In this case the B.C. Government was found to have breached its duty to consult.
As I see it, Tsilhqot’in is a good decision from a legal perspective, because the Supreme Court found that the trial judge (B.C. Supreme Court justice David Vickers) had “identified the correct legal test of aboriginal title and applied it appropriately to the evidence.” Tsilhqot’in is also a good decision from an economic perspective because the basic prerequisite of economic development is clarity concerning property rights. This case clarifies the notion of aboriginal title sufficiently to enable future parties to economic development to negotiate on the basis of commonly agreed terms. Tsilhqot’in is also a good decision from a political perspective, because it will force a recalcitrant government to consult First Nations meaningfully in all future economic development projects passing through their land, without giving every First Nation an absolute power of veto. Of course, there is a down side: this decision makes litigation look more attractive than negotiation, and that could mean more bad news for the Treaty process and more native claims clogging the courts for years to comeJ

Sunday, June 29, 2014

Chilcotin Decision Underlines Need to change approach to development projects

Vaughn Palmer has written a good column about the legacy of David Vickers. I would like to add the remarkable parallels between David Vickers and Thomas Berger, politically, legally, and  specifically with respect to the aboriginal title file.

The Chief Justice concluded that Vickers had “identified the correct legal test of aboriginal title and applied it appropriately to the evidence.” The test being that the band in question had demonstrated occupancy of the claimed tract of land to a sufficient degree, continuously and exclusively.

Thursday, June 26, 2014

Have the Conservatives Finally Learned Their Lesson?

The federal Conservative government has been pulling its horns in lately:  witness the low-key way the Enbridge pipeline approval was announced recently and how Conservative MPs ducked the media;  the better late-than-never overtures for environmental cooperation with U.S. in late 2013; and the opening of an office for First nations consultations surrounding the Enbridge proposal (“too little too late,” according to BC Grand Chief Stewart Phillip) in May of 2014. The great victory of the Chilcotin Nation announced by the Supreme Court on June 26, which recognizes their aboriginal title to over1,750 square km, should help to ensure that the federal government recognizes the futility of its ways.

Does this mean that the government has finally recognized the error of its ham-fisted, counter-productive ways,  and is turning a completely new leaf?  I wish I could say yes, but the evidence points to the contrary.  After having added these two sorry chapters to the book How Not to Get a Pipeline Built, the government has continued to chip away at the historical standards of acceptable conduct with one abuse of power after another.  The prostitution bill is written not in compliance with the Supreme Court’s attempt to protect prostitutes’ constitutional rights, but as a pretext for imposing new restrictions and making the sex trade even more dangerous by driving it further underground.   Similarly, the cyber-bullying bill sneaks a number of measures into the law that are unrelated to the root cause of bullying and teen suicide:  measures that would make it even easier for police and other political authorities to obtain your personal data from telephone and internet providers. The appointment of Daniel Therrien as the new privacy commissioner and the attempt to appoint Marc Nadon to the Supreme Court; the determination to proceed with the F-35 contract despite a rise in price from $9 billion to $45 billion, still without open competitive bidding.  The notorious Bill C-38 Omnibus Budget is still being implemented, gutting thousands of environmental assessments. The forced backtracking on the so-called Fair Elections Act and the Temporary Foreign Workers laws are hardly reassuring:  they still bear the marks of the chronic audacity that gave them birth.

Thus Harper continues to pursue the limits of what he can get away with, to the detriment of Canadian democracy. The current overtures to natives and to environmentalists are simply reluctant, tactical retreats.  At bottom, being a citizen is no more difficult , and no more easy, than training a pet, raising a child or being a wise consumer. You can either punish bad behavior, sending the signal to all political actors that standards of truth and parliamentary appropriateness must be raised, or you can reward bad behaviour, sending the message that standards are to be lowered.  That is the choice we face in 2015.

Mark Crawford is a former public servant and now teaches political science at Athabasca University. He can be reached at


Wednesday, May 07, 2014

Margaret Wente's "Takedown" of Thomas Piketty

Marget Wente’s purported “takedown” of Thomas Piketty’s Capital in the Twentieth Century ( "Who Cares About Inequality? Wonks") Globe and Mail, May 3, p. F2), while anti-intellectual in tone, reminds me of  the philosophical arguments made against idealist theories of equality decades ago.  Friedrich Hayek railed against what he called the “mirage” of social justice, since  "the results of the individual's efforts are necessarily unpredictable, and the question as to whether the resulting distribution of incomes is just has no meaning" (The Constitution of Liberty, ch.6). Likewise, Robert Nozick pointed out that any attempt to build a just society around a preferred distribution would be intolerable, because   “liberty upsets patterns”. 
 Like Wente, both Hayek and Nozick  thought that inequality was a problem only in some people’s heads. Get rid of the egalitarians and their misplaced notions, and you get rid of the problem. But their arguments don’t address a more recent line of thinking about inequality, which gives it a different ontological status from simply being an expression of envy or of subjective notions about "justice".  Fred Hirsch's Social Limits to Growth (1977) analyzed society's declining ability to simply buy social peace and legitimacy through growth  in terms of the growing importance of inherently scarce positional goods.  Richard Wilkinson and Pickett’s The Spirit Level (2009) was written by two social epidemiologists who found stronger correlations between the degree of inequality and various social ills than existed between those ills and any other social determinant. Their conclusion: "societies with more equal distribution of incomes have better health, fewer social problems such as violence, drug abuse, teenage births, mental illness, obesity, and others, and are more cohesive than ones in which the gap between the rich and poor is greater."  
Robert Frank (The Darwin Economy: Liberty, Competition, and the Common Good , 2011) has found that it is indeed getting harder and harder to join the middle class. His views are supported by the researches and arguments of prominent economists like Tony Atkinson, Joseph Stiglitz, Robert Reich and Paul Krugman.  Now, Thomas Piketty has tied a lot of this together and looked at several national economies over centuries and has demonstrated convincingly that there is an inherent tendency within capitalism for the return from wealth to grow faster than the return from work. This "rich-get-richer" dynamic is the norm in capitalism. America in the 18th and 19th centuries (which because of the abundance of land and higher productivity had much lower capital/income ratios)  and in the early-mid 20th century (because of Depression and war) was an aberration; it is now reaching capital/income ratios more like those that have been found historically in Europe. Piketty expects global capital/income ratios to reach about 6.5 in this century --barring another cataclysm.  That is why he argues for a global wealth tax as the best long-run solution, even if that is not practicable in the short term.
Even in societies where basic living standards and a full panoply of civil and political rights have  been achieved, much depends upon the assumptions of upward mobility  and equal opportunity. This is why Piketty threatens to turn conservative views upside down, because he shows once again that the problem may not be the virus of class consciousness or socialist attitudes coming from Europe, but the actual economic dynamic underpinning them. If that is true, then the baneful consequences of inequality will be felt here as well, whether we like to think about them or not.

Friday, May 02, 2014

The Federal Government and Healthcare Reform

The future of health care may be the most important issue that Canada faces heading into the 2015 federal election year.  The 2003 First Ministers’ Accord on Health Care Renewal injected $36 billion in federal money into health spending and the 2004 10-Year Plan to Strengthen Health Care added a further $41 billion over that decade in order to, in then-Prime Minister Paul Martin’s words, have a “fix for a generation” that would “buy change”. On March 31 that Accord expired.
Unfortunately, all this  federal spending mostly did was to buy the avoidance of  change for about half a generation. Hardly a “fix”.   And by avoiding hard choices, progressives in the Liberal Party and the NDP have opened the door for Stephen Harper – a man who was once the President of the National Citizens Coalition (an organization founded by an insurance salesman who hated Tommy Douglas for getting in the way of profits)—to do things his way.  The really scary part is that Harper doesn’t have to commit political suicide to undermine medicare. As prime minister, all he has to do is cap funding (with reductions conveniently scheduled to commence after the next election), not enforce the Canada Health Act very vigorously, and let nature take its course.  
But if  throwing more money at the provinces won’t work, what should we do instead?  We need only go to the source: when he first implemented medicare, Tommy Douglas was against the fee-for-services approach as something that blunted the cost effectiveness and equity of the single-payer system. Half a century of experience with our healthcare system (not to mention the analysis of the world’s most reputable health economists and policy analysts) shows that Tommy was right.  We need a federal government that will use its spending power to accelerate  the creation of a strong primary care foundation that is more patient-centred, more focused on prevention and chronic care,  and less focused upon high-cost providers simply billing the government for their services. We need to stop using acute-care hospitals as long-term care facilities.    And we need a national drug strategy so that we can  use the power of the single-payer to lower drug prices.
That drug strategy could have been accomplished by now.  Every business person understands that the larger your bulk order, the greater your chance of lowering the price. Economists estimated in one study that for four major drugs the savings in Canada of a single national drug plan could be as high as 50 percent.  Premiers Lorne Calvert of Saskatchewan,  Ralph Klein of Alberta, and Gordon Campbell of British Columbia all  called for a national pharmacare program. But prime minister Martin was too busy, and  he dithered. As a consequence, the deal was killed in 2006 when we elected the Harper Conservative government.

Tuesday, April 22, 2014

Senator Frum and Minister Poilievre Have a Strange--and Suspicious--Set of Priorities When it comes to Electoral Reform

Senator Frum seems to think that the route to higher voter participation lies not only outside the offices of Elections Canada, but primarily through the mechanism of restoring "integrity and public confidence" by demanding higher "common sense"  requirements of voter identification, even though there is no evidence that low turnout has in in any way been caused by questionable vouching for students and otherwise marginal voters and its supposed impact upon voter confidence in, or perceptions of,  the integrity of  the electoral process.  She and Minister Poilievre rely heavily on the 42% error rate in vouching, but that error rate is not linked in any significant way to specific cases of voter fraud. 

She also relies explicitly upon pages 23 to 27 of Harry Neufeld's report, which stresses the need to reduce error rates and to move to a new services model -- but in those very pages Neufeld stresses improved training for officials and the need to reduce, not increase, barriers to voting, and then goes on to discuss the New Brunswick model for accomplishing just that.  In his testimony to the Senate Committee, Mr. Neufeld himself  stated that “[i]In its current form, Bill C-23 creates a fundamental imbalance between accessibility and integrity.”

Which raises the questions of why this government persists in its misplaced and unbalanced focus on integrity, which is formulated unnecessarily at the expense of access, and its misplaced focus upon reducing vouching (as opposed to reducing the need for  vouching and registration without discouraging turnout) as a means of achieving integrity.  Why not simply weigh the competing arguments of Mr. Neufeld's report  and the response to it by the Chief Electoral Officer and other experts, and make that the focus of "common sense" reforms?

Nothing in Senator  Frum's comments on CBC radio have satisfactorily answered those questions.

The onus is not upon the critics to show that the government is not being self-interested; the onus is upon the government to demonstrate that it is not being self-interested. One traditional way of doing that is simply by stating that the controversial elements of the Elections Act will only take effect after next year's election.

Monday, March 31, 2014

What War Means

When I worked as a university instructor in Kiev in the academic year of 1994-95, my students were mostly young adults in their late teens or early twenties,  who  were already  bracing themselves for the second great public trauma of their young lives.  The first had come suddenly in the spring of 1986 when as young children many of them had been rounded up with little or no warning and whisked away to the south, preferably to the countryside or to some city on the north coast of the Black Sea such as Sebastopol or Yalta.  Many were fortunate enough  to escape  levels of radiation from the Chernobyl catastrophe that would cause cancer, limit their longevity, or stunt their growth.   Others were not so lucky. 

The second crisis came  not as a result of a sudden accidental explosion, but rather as a surfacing of tensions with deep historical roots—specifically, a structural conflict between the twin forces of Ukrainian and Russian nationalism, exacerbated by divergent economic prospects and regional power struggles. I recall visiting a student’s home in Lviv in western Ukraine during the  Christmas holidays in 1994. She confided to me her family’s worry that her brother might have to be conscripted to fight the Russians in Crimea or in the East, where secessionist sentiments were brewing thanks to a lower-than-Russian average  wage in Ukraine and a raging inflation that was quickly making the Ukrainian currency next-to-worthless in world markets. 

Today’s crisis is a continuation of this ongoing conflict, but one sharpened by several changed conditions on the ground. One is the poisoning of relations between pro-Russian and pro-Western factions in the country’s Parliament (I am not just using the wording “poison” metaphorically—recall the attempted assassination of  the increasingly popular Viktor Yuschenko by dioxin poisoning  in 2004, which left him permanently disfigured, and which helped to precipitate the “Orange  Revolution” later that year).  Since then, the question of how best to balance the need for good relations with Ukraine’s major creditor and supplier of energy, Russia, with the growing desire for gaining membership in the European Union became increasingly difficult: the attempted impeachment of  Victor Yanukovych (and the release of his opponent from prison) show that like other fledgling democracies, Ukraine has not yet learned how to share power.

Meanwhile, another one of my students from 20 years ago reports  that “the number of victims of police and snipers in Kyiv is growing every day (people are dying in the hospitals) and is already 100 … My family is OK. I just need to explain to my nearly 6 year old girl why people are flying to the sky forever and what ‘war’ means.”