Oh what a little information about BC Rail can do

The Liberal government’s scandalous behavior in deceiving the public about the BC Rail privatization is not just a one-day political fender bender, it is a train wreck the could scuttle their hopes for re-election.

New revelations reveal the government misled the public and lied to First Nations, all to secure some short-term revenue to offset their ill-advised tax cuts to the rich and fulfill their promise to balance the budget.

This latest scandal du jour may have a longer shelf life–and more profound political consequences–than previous corruption and influence-peddling scandals.

Why? Because it has triggered an increasingly co-ordinated backlash from First Nations that directly threatens the Liberals’ quest for certainty–for making BC “good for business.” This quest is the foundation of the party’s political strategy in the run up to the next election.

How has this backlash developed? In meeting after meeting with dozens of First Nations across the province, Dogwood Initiative staff have been emphasizing the opportunities presented by the changes in control of resource companies operating in First Nations territories.

When control over companies like BC Rail, Slocan, Lignum and Doman transfers to new owners, the transfer triggers the court-imposed duties of companies and the Crown to “consult and accommodate First Nations.”

And Dogwood Initiative is not alone in highlighting this opportunity. The leadership of the Title and Rights Alliance (TRA) has also been spreading the word about problems with the BC Rail deal. Justa Monk and Chief Stewart Phillip from the Steering Committee of the Title and Rights Alliance, have counseled leaders to not participate in the $15 million trust that was used to entice Aboriginal groups to sign off on the BC Rail deal.

And that was before information was leaked that highlighted the latest of the government’s duplicitous actions:

  • The government attempted to structure the deal to create the illusion that it was a lease, not a transfer of control–just to avoid the duty to consult First Nations;
  • The government lied to First Nations when trying to entice them to sign off on the deal in exchange for a $15 million trust. They repeatedly assured affected First Nations that there would be no effect on Aboriginal Rights or Title;
  • Simultaneously, in conflict with their constitutionally-imposed fiduciary duty to protect First Nations’ financial interests, the government offered CN Rail land which is subject to Aboriginal Title claims for the appallingly nominal sum of $1.00;
  • The structure of the lease was not 60 years, as the government claimed, but a rolling lease that effectively transfered the company to CN rail.

Why did the government contort the deal this way? Besides wanting to avoid more backlash against privatization, clearly they were concerned that First Nations affected by BC Rail might scuttle the transfer of the company.

BC Rail’s tracks and ancillary operations run directly through the reserve lands of twenty-five Aboriginal communities. Under the current law, each and every one of these communities must be consulted and accommodated. Given the government’s duplicitous actions, 25 First Nations now can intervene and challenge the deal.

This process has already begun. The UBCIC has sent the federal Competition Bureau a letter asking them to investigate the government’s “fraud and deciet.” The Competition Bureau has a legal duty to “determine whether or not government has fulfilled their fiduciary legal obligations to Indigenous people.” Given the recent disclosures, the Bureau is unlikely to find the government has fulfilled these obligations.

But it is not just the BC Rail deal that is in jeopardy. As we have reported previously, through our support of the Title and Rights Alliance WCEL and Dogwood are helping a number of First Nations challenge the Canfor-Slocan deal.

The government’s double dealing, and the growing collaboration among First Nations to protect their interests by challenging tenures, doesn’t bode well for government’s and corporations’ goal of certainty on the land.

In fact, far from creating certainty, the government’s arrogance, duplicity and unilateral approach to governing may be exacerbating the problem, pushing First Nations toward more confrontational tactics on the ground, in the courts and in the financial markets.

Since the government appears to be unwilling to put the brakes on the BC Rail deal, a train wreck may be inevitable. It’s going to be a long, hot summer. The sparks from the crashing interests on the attempted BC Rail privatization may ignite a First Nations fire, that will be difficult to put out.

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