SAVE BC'S PUBLIC LANDS

Backgrounder on

Privatisation - Implications
for First Nations

Background

• Aboriginal title is an interest in land held communally by a First Nation. It encompasses the right to exclusive use and occupation of land, and the right to choose the uses to which land will be put. In the 1997 Delgamuukw decision, the Supreme Court of Canada held that the provincial government never extinguished aboriginal title in BC, because it did not have the jurisdiction to do so. The province never had this right and does not have it today. First Nations have the option of going to court to demonstrate aboriginal title over their territories; however, the Supreme Court of Canada has encouraged negotiated solutions to the land title issue. 51 First Nations are currently involved in some level of treaty negotiations under the auspices of the BC Treaty Commission.
• The Canadian courts have held that any government interference with aboriginal rights or title must be justified. It must advance a compelling and substantial legislative objective, and the interference must be consistent with the special "fiduciary" relationship between the Crown and aboriginal people. This special relationship always requires consultation with the First Nation before government action that will affect First Nations’ rights, and in some cases may require their full consent.

Specific Impacts on First Nations

• To date, the treaty negotiations have followed the "land selection model" whereby First Nations are encouraged to select particular lands within their traditional territories where they wish to have primary jurisdiction or ownership at the end of the treaty process. By negotiating privatisation deals with timber tenure holders the province has given these corporations first pick of lands which should have been available to First Nations, thus undermining the treaty process.
• Based on the provincial position that private lands are not on the table in treaty negotiations, privatisation deals could permanently exclude First Nations people from portions of their traditional territories.
• Even if the privatised portions of First Nations’ traditional territories were ever returned to them, their resources may well be degraded, as privatisation deals will reduce or eliminate government oversight of forest practices on the privatised lands.
• Furthermore, based on aboriginal law principles, the privatisation deal negotiated between the province and MacMillan Bloedel (MB), and other deals which are in the works, are of questionable legality. Thus, the principle impact of the privatisation deals may well be protracted litigation. Time consuming and costly litigation hurts everyone.
• Two key legal problems with the privatisation deals are: failure to consult with First Nations, and lack of provincial jurisdiction to carry out the agreements.