Justice For B.C. First Nations

 

Recently I had the experience of sitting in on a First Nations land claims case in the B.C. Supreme Court, specifically that of the Nuchatlaht people who are one of the Nuu-chah-nulth (formerly called Nootka) communities on the west coast of Vancouver Island. It was a session for the lawyers on both sides to clarify a few key points for the judge and it provided me with some insight into the tortuous, overly complicated, process the Indigenous people have to go through to prove the obvious. 

In order to meet the standards of the Supreme Court of Canada for claiming Aboriginal title to the land, the Nuchatlaht have to prove they occupied the land exclusively since 1846, which is the magic year that Britain claimed sovereignty after signing the Oregon Treaty with the United States that settled the last part of the boundary dispute between them. Never mind that the Nuchatlaht people were already living there when Captain Cook visited the area in 1778 and sailed into what he thought was called Nootka Sound and, quite by accident, ended up starting a fur trade in sea otter pelts with China as a result of trading with them. The Spanish had already been there in 1774 to assert their Pacific Northwest claim under the Doctrine of Discovery but, to avoid warfare between Britain and Spain, the Nootka Convention in 1790 provided for both countries to share in the settlement of the Pacific coastline that  Captain George Vancouver mapped between 1792-1794.  Notice that neither Britain or Spain had to prove they occupied the land in order to claim it, but I digress.

The Russians also tried to get into the land claiming/fur trading act and, while they controlled most of the coast of what is now Alaska, they tried to expand further south but in 1824 they settled with the U.S. that their territory would end at the 54:40 latitude. South of Alaska, however, the coast was open to free trade and there was fierce competition between the British and Americans. The headquarters of the Hudson's Bay Company (HBC) was Fort Vancouver, built in 1824 on the Columbia River opposite the mouth of the Williamette River. To strengthen its coastal trade and drive away the American traders, HBC built a series of fortified trading posts, the first of which was Fort Langley, established in 1827 on the Fraser River about 50 km from the river's mouth followed by Fort Simpson (1831), Fort McLoughlin (1833), Fort Stikine (1840), Fort Durham (1840), and Fort Victoria (1843). In 1846 the Oregon Treaty extended the border between Britain and the U.S. along the 49th parallel from the Rockies to the Pacific ceding Oregon Country to the U.S. but giving all of Vancouver Island to Britain. With Fort Vancouver now in American territory it was no longer profitable to operate so HBC closed it down and moved its operations to Fort Victoria. In 1849 Vancouver Island and the surrounding Gulf Islands were made into a colony and put under the administration of HBC and the Governor James Douglas. It wasn't until 1858 (following the 1856 Fraser Canyon Gold Rush) that the mainland was added to Vancouver Island and made into the Crown colony of British Columbia with Douglas assigned as its first Governor. 

James Douglas

Until Vancouver Island and the mainland became a colony, the Indigenous people were free to live as they always had with no restrictions on the resources of the land and water they used. With Britain now claiming sovereignty over the land, Aboriginal title had to be addressed, as per the requirements of the 1763 Royal Proclamation, before these lands could be settled or otherwise exploited. In order to establish settlements on Vancouver Island Douglas negotiated a few small treaties and also set aside some land as reserves for the Indigenous people but these were reduced or eliminated in 1867 by the Commissioner of Lands, Joseph Trutch, who went on to become the Province's first Lieutenant Governor after it joined Confederation in 1871. Under the terms of the Union, trusteeship of land for First Nations was supposed to be a Federal responsibility with land provided by the Province. But the Province refused to recognize Aboriginal title, so no treaties were signed that would have transferred title in exchange for reserves as had been done in every other Province and, as a result, B.C. became the only Province to join Canada on unceded land. It's also worth noting that in 1871 the ethnic makeup of B.C. was 25,660 Indigenous, 8,500 white, 1,500 Chinese, and 500 Black residents but in 1872 a law was passed that prohibited Indigenous and Chinese people from voting in Provincial elections.

The 1997 landmark Delgamuukw trial ruled for the first time that Aboriginal title did in fact exist in B.C. and it also accepted that Indigenous oral history is valid evidence in court and must be given equal weight as written documents. Aboriginal title is a right to the land itself, not just the right to hunt and fish, and when dealing with Crown land the government must consult with First Nations people and may have to compensate them if their rights are infringed. Infringements can include the development of agriculture, mining, forestry, and hydro-electric power. However, to determine proof of Aboriginal title it must be demonstrated the land was exclusively occupied prior to sovereignty and that the occupation has been continuous from then until now.

The 2014 Tsilhqot'in trial went even further in clarifying Aboriginal title. While asserting that Aboriginal title constitutes a beneficial interest in the land the underlying control is still retained by the Crown. Aboriginal title includes the right to decide how the land will be used, to enjoy, occupy and possess the land, and to proactively use and manage the land but the Crown can override Aboriginal title if they have carried out sufficient consultation and accommodation, there is a compelling and substantial objective, and the Crown's action are consistent with its fiduciary obligation to the Aboriginal body in question.

In 2019 the B.C. government passed the Declaration on the Rights of Indigenous Peoples Act into law which is meant to align B.C. laws with the United Nations Declaration on the Rights of Indigenous Peoples which states "Indigenous Peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired." It is also part of the Province's framework for reconciliation as called for by the Truth and Reconciliation Commission's "Calls to Action" and their supposed new approach to litigation which is supposed to lead to more negotiated settlements and less legal action.

So with all the precedent setting legal cases spelling out that Aboriginal title is real and how to claim it, and with the Province finally on board with First Nations reconciliation, you would think this should be a slam dunk for the Nuchatlaht people. Not so. First off, for some reason nobody at the Attorney General's office bothered to tell the Crown attorney that fighting this claim was not something they should be wasting their time with. But the first thing the Crown attorney said was that nobody was living on Nootka Island which is where the bulk of their claim is. The Nuchatlaht had to then point out that clear cut logging and destruction of salmon streams made the Island uninhabitable. In other words they were forced off the Island without compensation. To prove they were there in 1846, after Captain Cook had long since left, they pointed to culturally modified trees, shell middens, forest gardens, and other evidence of human habitation that are still visible. The total claimed area is only 200 square kilometres and there are no conflicting or overlapping claims from anyone else, but the Crown is determined to contest things.

In the meantime, while we all wait for a verdict, Themis, the Goddess of Justice, waits outside the courtroom, blindfolded and holding the scales of justice, impervious to all the injustice that has gone on for so long. Will this be another landmark case in favour of First Nations people or will it be another excuse to deny them what is rightfully theirs? We will soon find out.

 

Bird Flu

What do dead sea lions on the beaches of Peru, minks on farms in Spain, otters and foxes in the U.K. and dead grizzly bears in the U.S. have in common? Avian flu, otherwise known as bird flu. Along with thousands of pelicans, various migratory birds, and millions of domestic chickens, turkeys, and ducks, this recurring virus has killed, it has now managed to spread into a variety of mammals as well and is posing a potential threat to humans.

Of the three types of influenza that infect humans (A, B, C) it is type A that has the zoonotic properties, (i.e. animal to human and vice versa) we are worried about and there have now been 6 avian subtypes that have infected humans; H5N1, H7N3, H7N7, H7N9, H9N2, and N10N8.

Avian flu infects the respiratory and gastrointestinal tract of birds and has been identified in more than 100 different species of wild birds around the world. Wild aquatic birds such as gulls, cranes, and shorebirds, and wild waterfowl such as ducks, geese and swans are considered natural hosts for bird flu viruses. Most wild birds with viruses are asymptomatic but can infect domestic poultry through their droppings. 

H5N1 first appeared in 1997 in China and killed millions of birds throughout Asia, Europe and Africa directly with millions more culled to prevent further spread. In 2022 alone there were over 50 million chickens culled in the U.S. and 5 million in Canada. However, the threat to humans has been low with only 1,000 people to date who have been infected, but more than half of them died with a mortality rate of around 60% or roughly 10 x that of COVID. Another strain, H7N9 also first appearing in China in 2013 and since then another 1,000 people have become infected with about the same mortality rate. The good thing is that avian flu does not appear yet to spread from human to human but rather from working with infected birds in the slaughter and plucking process. For the other mammals who died it was likely because they ate an infected bird.

However, with a mink to mink transmission of H5N1, the first among mammals, what is worrying health officials is the development of a human to human version of avian flu. Particularly in Asia, where the conditions there have humans, swine and poultry often in close proximity to one another, and able to infect one another, which could lead to a mixture of a pathogens that could create a human avian influenza. Recent research into the genes of the 1918 Spanish flu, which infected a third of the world population and killed 50 million or more people, indicate it was also a strain of both human and avian genes.

After everything we went through with COVID I think it's obvious the world can't be trusted to handle another epidemic, but it seems it is only a matter of time before something like bird flu makes its appearance. When it does watch out and remember hope is not a survival strategy. In the meantime, if you see a dead bird don't pick it up with your bare hands, put it in a plastic bag and dispose of it in the trash.

Life's A Beach

Another storm and more washed up sailboats around the city's beaches but more importantly is the ongoing damage to the seawall everytime a storm happens and how it highlights our failed efforts to try and push back against the ongoing erosion damage. Last year around the same time we had a nasty storm that took out the seawall and Kits pool and cost a few million to repair and experts say this trend is only going to get worse.

Ironically it's the seawall itself that aggravates the problem by increasing the waves energy as they get redirected after hitting the wall and then begin scouring the seafloor which ultimately results in the seawall itself collapsing. 

Removing the seawall and allowing the beach to revert to its natural state and installing an elevated boardwalk along the shoreline might be the ultimate solution but according to Parks Board estimates the cost of replacing the seawall around Stanley Park would be at least $250 million.

Another approach to combatting beach erosion is to construct "living dikes" along the shoreline which means adding soil and salt marsh vegetation to low lying areas along with sand, rock and driftwood berms which is what the cities of Surrey and Delta are doing around Boundary Bay. 

A similar approach is building a "dynamic revetment" or cobble berm of gravel and cobble-sized rocks to mimic a natural storm beach. Unlike seawalls this allows wave action to rearrange the stones into a stable profile that disrupts wave action and dissipates the waves energy as the rocks move around. Eventually sand settles in between the stones and a beach begins to form. This is what they've been successfully building at nearby Washaway Beach in North Cove,Washington State to counter the massive erosion the community was facing. 

Both of these approaches also have the pleasant side affect of promoting the habitat that supports ecosystems for a wide variety of migratory birds, and coastal marine life.

With tides and sea levels predicted to continue rising and winter storms only getting worse, how we approach the management of our shorelines will determine whether or not life's a beach or if we will even continue to have one. 

The Waiting Game

 

With our annual flu/cold season upon us in the midst of an ever mutating COVID epidemic, people are understandably focused on their health. Unfortunately they don't focus on the things that would make it less likely to catch these things, like wearing a mask, making sure you have lots of fresh air, and avoiding crowded areas. They don't want to make any changes to their routine and they expect a magic pill of some sort to immediately cure them if they do fall ill.

Of course getting a pill or any other form of treatment would mean being able to access a doctor of some sort and currently over 1 million people in B.C. alone have no access to a family doctor, never mind the line-ups they face at the nearest hospital or the wait time to see a specialist. The reasons for this are complicated but they are basically for the same reason we have a shortage of nurses and other medical professionals. Our medical/nursing/technical schools have a very limited enrollment, we don't recognize the credentials of fully qualified and trained immigrants, and we can't even agree on a national acreditation standard or process for allowing Canadian trained professionals to work anywhere they choose.

Health care in Canada is now approaching $3.5 billion dollars annually. Half of that is split between hospitals, physicians, and drugs. Health care is mostly paid for through our taxes but it doesn't include  all prescriptions, dental care, eye glasses or a wide range of other professional services not to mention home care and services for seniors . The average Canadian's medical services costs work out to $8,500.00 annually with this amount divided between the public and private sector at a roughly 75-25 split. Private health care services are paid for by patients primarily out of pocket and/or through private insurance.

But while the Canadian health care system is a federal creation with universal coverage, it's a provincial responsibility to deliver and herein lies the problem. While the federal government keeps expanding the scope of health care, the provinces are falling behind in delivering their part of the bargain. Without bothering to tackle some of the root causes within their own control, which include an antiquated family doctor system, bloated hospital bureaucracies, a professional registration system that operates like a closed shop union, underpaid health care workers, and no central electronic repository of health records, the provinces keep asking for more money and expect the federal government to pay for something it has no control over. 

There are no metrics for timely delivery of services, be they emergency or elective, and both levels of government have until now refused to allow private clinics to help with the heavy lifting. Why is it not a problem to find a family dentist? A well known business maxim states that you can't manage or improve what you don't measure and, before the federal government gives the provinces more money, they are saying, rightly so, that the provinces need to demonstrate they can set up some measureable delivery targets and hit them. Targets for wait times for surgeries, to see a specialist, and to be looked after in an emergency ward need be fair and they need to be achievable. Furthermore these targets need to be made public so that everyone knows what they are and can govern themselves accordingly. 

In the meantime we could all do our own part in keeping ourselves healthier instead of complaining about the line ups. In spite of all the advantages of exercise the average person doesn't even go for a daily walk never mind jogging, cycling or swimming. It's not that exercise will make you live longer but it will certainly make your life more comfortable and easier to manage. That and eating and drinking properly. A little less time in front of a screen and a little more time outside moving around would do wonders. After all what could be more important than looking after your body? It's better than playing the waiting game.