‘Scaring Off Investment’

“At a so-called ‘Canada Day’ event at a March, 2015…conference in Hong Kong attended by over 2,000 people, several speakers specifically advised investors not to invest in Canada or B.C. because of the ‘Tsilhqot’in’ decision. It seems a safe assumption this sentiment is not restricted to the mining sector.” ERBLScaringOffInvestment800x800Finally, the business community in B.C. seems to be waking up to the dangerous reality of ‘Race Based Law’, and the government’s cowardice in the face of it. Aboriginal Bands are deliberately exaggerating court rulings in an attempt to expand their power and the government continues to back off, thereby failing in its duty to the rest of the citizenry.  

Here, the B.C. Chamber of Commerce reminds the government of the legal reality, and their role in representing all the other citizens of British Columbia: 

BCChamberOfCommerce--VoiceOfBusiness“The province has been silent on important aspects of the ‘Tsilhqot’in’ decision. Most discussion has focused solely on the court’s declaration of ‘aboriginal title’ and the powers and authority such a declaration provides to a ‘First Nations’. Not enough has been said about how the Tsilhqot’in decision emphasizes the rights and powers of the province — of particular importance is THE RIGHT TO INFRINGE ABORIGINAL TITLE WHERE JUSTIFIED IN THE PUBLIC INTEREST, and the court’s unequivocal finding that PROVINCIAL LAW APPLIES IN TITLE AND TERRITORIAL AREAS 

“The courts have been clear that ‘First Nations’ DO NOT HOLD A VETO over projects or developments even where aboriginal title is proven, let alone on asserted territorial lands where overriding public interest can be demonstrated and an infringement of title can be justified according to a long-established legal principles…  

“An example of unmanaged expectations are ‘First Nations’ so-far uncontested assertion that their own mining policies and laws will apply in their asserted ‘territories’ — rather than the province’s — and ongoing demands for ‘Impact Benefit Agreements’, payments to consult or to even access lands (among other things).  NONE OF THIS seems to have a firm foundation in the body of aboriginal title decisions by the courts.  RedChris“A body of jurisprudence, including the recent Tsilhqot’in decision of the Supreme Court of Canada (SCC), clarifies ‘First Nations’ title rights.   

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do

“They provide a framework for government, industry and ‘First Nations’ to address these rights. Such clarifications should increase certainty for investors and the public.  

“ ‘First Nations’, at times, appear to be the only prominent voice discussing the implications of court decisions affecting aboriginal title. They also appear, at times, to be further asserting aboriginal title in ways that address neither the letter nor the spirit of the full court decisions and the body of jurisprudence 

“The province has been silent on important aspects of the Tsilhqot’in decision. Most discussion has focused solely on the court’s declaration of aboriginal title and the powers and authority such a declaration provides to a ‘First Nation’.  

Not enough has been said about how the ‘Tsilhqot’in’ decision emphasizes the rights and powers of the province, of particular importance is the right to infringe aboriginal title where justified in the public interest, and the court’s unequivocal finding that provincial law applies in title and territorial areas. 

    “In 1990, this Court held that s. 35 of the Constitution Act, 1982[2] constitutionally protected all aboriginal rights that had not been extinguished prior to April 17, 1982, and imposed a fiduciary duty on the Crown with respect to those rights: ‘R. v. Sparrow, [1990] 1 S.C.R. 1075’.  The Court held that under s. 35, legislation can infringe rights protected by s. 35 only if it passes a two-step justification analysis: the legislation must further a “compelling and substantial” purpose and account for the “priority” of the infringed aboriginal interest under the fiduciary obligation imposed on the Crown (pp. 1113-19).”

(SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’  Date: 20140626 ; Docket: 34986, Paragraph 13)  The Supreme Court of Canada justices-the new power in the land-THE CANADIAN PRESS-Adrian Wyld    “Once aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the aboriginal group; for purposes of determining the validity of provincial legislative incursions on lands held under aboriginal title, this framework displaces the doctrine of interjurisdictional immunity.”  

(SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’  Date: 20140626 ; Docket: 34986, Paragraph 2)

 “Balanced discussion of the rights accorded by the SCC both to the province and to ‘First Nations’ is essential.  Not managing expectations in regard to public interest and ‘First Nations’ ‘rights’ can plant new seeds of discord, as well as create uncertainty for investors and the public on how the province will represent the interests of all British Columbians.  

(Photo: Northern Shuswap Tribal Council)
(Photo: Northern Shuswap Tribal Council)

“In the ‘Delgamuukw’ decision, the SCC confirmed that infringements of aboriginal title can be justified under s. 35  of the Constitution Act, 1982  pursuant to the ‘Sparrow’ test, and described this as a “necessary part of the reconciliation of [A]boriginal societies with the broader political community of which they are part” (at para. 161), quoting ‘R. v. Gladstone, [1996] 2 S.C.R. 723’, at para. 73.  While ‘Sparrow’ had spoken of priority of aboriginal rights infringed by regulations over non-aboriginal interests, ‘Delgamuukw’ articulated the “different” (at para. 168) approach of involvement of aboriginal peoples — varying depending on the severity of the infringement — in decisions taken with respect to their lands. (SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’  Date: 20140626 ; Docket: 34986, Paragraph 16) 

    “In the wake of ‘Gladstone’, the range of legislative objectives that can justify the infringement of [A]boriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by [A]boriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive [A]boriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title.  Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis.” [Emphasis added; emphasis in original deleted; para. 165.]  

(SUPREME COURT OF CANADA, Citation: ‘Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256’  Date: 20140626 ; Docket: 34986, Paragraph 83) 

“Constructive engagement is important, which is why the province’s silence on the issue is such a concern.  

“The implications of this silence are clear.  For example, international investors are being advised to avoid investing in B.C. because of the uncertainties surrounding these issues.  

“At a so-called ‘Canada Day’ event at a March 2015 “Mines and Money” conference in Hong Kong attended by over 2000 people, several speakers specifically advised investors not to invest in Canada or B.C. because of the ‘Tsilhqot’in’ decision. It seems a safe assumption this sentiment is not restricted to the mining sector. 

“B.C. stands on the cusp of remarkable opportunity, particularly as the world’s economic centre of gravity shifts back to Asia. Our location on the Asia Pacific Rim positions us well to capitalize on emerging market opportunities. 

“But our ability to capitalize on these opportunities depends upon our ability to attract investment – and that depends upon establishing certainty surrounding ‘First Nations’ land and title issues, the public interests and government’s ability to respond and reconcile such issues in a timely, fair and just manner. demonstrators“The Chamber recommends

That the Provincial Government; 

    acknowledge and accept that the courts have given the province the right to uphold public interest rights where justified in the public interest in accordance with long-established legal principles in matters of aboriginal title; 

    develop a plan and institutional process for how to uphold public interest rights in regard to ‘First Nations’ interest; 

    pro-actively manage public interest expectations in regard to ‘First Nations’  and the appropriate guidance provided by the jurisprudence, and

    publicly state how it will use the public interest rights and obligations afforded it by the courts with respect to aboriginal title and land claims in asserted territories.” 

–‘Representing the public interest regarding ‘First Nations’ Title (2015)’,

B.C. Chamber of Commerce {CAPS added} 

http://www.bcchamber.org/policies/representing-public-interest-regarding-first-nations-title-2015 

PDF: http://www.bcchamber.org/sites/default/files/REPRESENTING%20THE%20PUBLIC%20INTEREST%20REGARDING%20FIRST%20NATIONS%20TITLE%20%282015%29%20-%20For%20Download.pdf  IndianBCFlagSee also:
‘The Emasculation of Crown Sovereignty’:
http://nodifference.ca/essay/chap21  

‘Dancing with Danegeld’:
http://nodifference.ca/essay/chap25  

‘The Solid Gold Resources Case: Ontario’s Sovereignty Giveaway’:
http://nodifference.ca/essay/chap31  

‘The Imperative of Sole Crown Authority’:
http://nodifference.ca/essay/chap30/chap33  ERBLSupremesGetItWrongAgain600x600And: 
‘Supremes Get it Wrong Again’ {November 21, 2015}: https://www.facebook.com/ENDRACEBASEDLAW/photos/pb.332982123470694.-2207520000.1448486333./694964840605752/?type=3 

‘Exploration Company Pushes Back’ {October 6, 2015}: https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/680619738706929/?type=3 

‘All Is Not Well In B.C.’ (‘Parallel Governments’ and Property Rights) {September 19, 2015}: https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/675343275901242/?type=3 

‘The Province Will Have No More Say’ {January 9, 2015}:
https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/584262041676033/?type=1 

‘Indians Vow To Stop B.C. Dam Construction’ {December 18, 2014}:
https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/573692469399657/?type=1 

‘Supreme Court Kicks Canada in the Teeth — Again’ (Tsilhqot’in) {June 26, 2014}:
https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/505070982928473/?type=1 

‘B.C. Aboriginal Title’ {June 26, 2014}:
https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/505008756268029/?type=1

‘Death Threat?’ {April 10, 2014}:
https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/476675072434731/?type=1 

‘St’at’imc: We have exclusive jurisdiction’ (B.C.) {April 3, 2014}:
https://www.facebook.com/ENDRACEBASEDLAW/photos/a.336196793149227.59519.332982123470694/474279012674337/?type=1
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#‎ENDRACEBASEDLAWCANADA

http://endracebasedlaw.com/petition

mail to: endracebasedlawpetition@gmail.com  

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