The Crown's quest for "certainty"

Oh how Gordon Campbell’s government and its corporate supporters yearn for the bygone days of certainty. The “good old days” (from their perspective) when BC resource companies and ministries ruled. When extractive industries got everything they wanted without having to comply with pesky environmental and labour laws. When tenure holders were able to log, mine and drill where they wanted, when they wanted, without having to even acknowledge the indigenous people whose territory they operated in.

Unfortunately, this yearning for a bygone era is not just a wistful dream, or the subject of small talk among those waxing nostalgic at corporate wingdings. It has become the foundation of the Campbell government’s political agenda. In fact, the Campbell government has staked its political future on resurrecting this bygone era for BC resource industries.

At least the government has been up front about its quest for certainty. In addition to the rhetoric in virtually every political speech about “making BC good for business” and “improving the investment climate,” the policies of all the resource ministries baldly state that the province’s objective in addressing “asserted aboriginal rights and title” is to “create certainty on Crown lands and promote economic development.” Justice, sustainability and protecting the public interest aren’t the goal; certainty for industry is.

The province’s quest for certainty was derailed (no reference meant to the BC Rail fiasco) by a series of court decisions that affirmed that the Crown, and in some cases third-party tenure holders have a continuing, legally enforceable duty “to consult … in good faith and to endeavor to seek workable accommodation” of First Nations interests. Making tenure and allocation decisions without meeting these duties could invalidate the decisions.

Nothing could create more uncertainty than the threat that First Nations could invalidate tenures and interfere with a company’s right to operate. And many First Nations are doing just that.

Campbell’s government responded immediately to reduce this threat. They had two choices in how to react to these court decisions: (1) rewrite law and policy to acknowledge First Nations’ expanding role in resource activities that affect their lands, or (2) attempt to undermine, obscure and impede the exercise of the Crown’s court imposed duties in order to increase corporate control of unceded public lands and resources.

Obviously, the government chose the later option. But how, in light of these cases, are they attempting to achieve genuine certainty for resource corporations?

The government of BC has used three means to attempt to systematically reduce the uncertainty created by the legal precedents in the Haida and Taku River Tlingit court cases.

  1. The province has unilaterally amended its forestry, mining and land-use legislation to attempt to avoid or reduce its duties to consult and accommodate First Nations;
  2. The province has entrenched its negotiating position about consultation and accommodation in policy documents and government directives;
  3. The province is pushing band councils to sign Forest and Range Agreements (FRAs) that offer small amounts of money and wood supply (AAC) in exchange for agreement that the First Nation’s interests have been accommodated.

We have written extensively about the changes to law and policy this government has introduced as part of its agenda to downsize government, privatize public resources and turn over the commons to industrial self-management. What have not received much attention are the insidious Forest & Range Agreements.

On their face, FRAs appear to be an advance for indigenous groups. But what are these groups giving up in exchange?

The agreements provide a small, non-replaceable tenure and a pro-rata amount of money, determined by the band’s population (that is, $X per member). For bands facing extreme economic hardship, the offer is tempting, and some twenty bands have signed. But a closer look reveals the terrible inequity (indeed, iniquity) of these FRAs.

While the money and timber may be nice, especially for poverty-stricken communities, to receive these benefits Aboriginal leaders must agree in writing that some or all aspects of their Title and Rights have been accommodated in relation to a broad range of future tenure and forestry decisions. In other words, these FRAs require First Nations to lay down all the tools created by the recent court precedents in Haida, Taku and Yal.

As a result these agreements have been controversial in many communities.

In a defensive reaction against the controversy, the Crown and Aboriginal supporters of the Forest & Range Agreements claim the agreements will not “preclude the proving of Aboriginal title in court.”

While correct, this is only part of the story. What is not said is that the FRA will be treated as accommodation of those title interests, and signing the agreement will seriously undermine the nation’s ability to challenge industrial activity in its territory. In fact, the terms of the agreements make it clear that the signatory First Nation’s interests have been accommodated for the term of the agreement.

The government’s attempt to use FRAs against efforts to advance Title are not just speculation. They are real.

For example, on December 22, 2003 the Crown offered a FRA to Chief Roger William of the Xeni Gwet’in First Nation (Formerly Nemiah Valley Indian Band). Just days later, in early January 2004, the Crown’s lawyer used this offer (which was ultimately rejected) to challenge Chief Williams on the stand, when he was offering testimony as part of the Xeni Gwet’in’s longstanding Title case.

It is clear that every ofther First Nation that has been offered or has signed an FRA can expect similar attacks if they attempt to prove Title in court.

How do the agreements limit Aboriginal peoples? Specifically, the FRA agreements:

  • Place serious limitations on the ability of Aboriginal groups to exercise and defend Aboriginal Title and Rights during the term of the agreement:
  • In most FRAs, signatory bands must agree not to go to court or otherwise challenge a broad set of forestry decisions, and must accept limitations on exercising Title or Rights on land in a way that would interfere with “provincially authorized” forest development activities.
  • Require consultation processes that fail to meet minimum legal requirements: By signing the FRA, the leaders agree that the Province has “developed an adequate consultation and interim workable accommodation process.” However, the consultation process described in FRAs is inadequate and, in the absence of the signed FRA, would fall far short of the government duties to consult. For example, the FRA:
  • Reduce or remove the Crown’s obligations to share information with signatory group Ironically, instead of requiring the Crown to ensure that Aboriginal peoples “are provided with all necessary information in a timely way,” the FRA reverses the obligation and commits the signatory group to “provide the Party that supplied the plan to them w
    ith all reasonably available information that will identify any potential impacts on their Aboriginal Interests
    .” A First Nation who refuses to turn over data– even sensitive spiritual and cultural information–could potentially be found to be out of compliance with the agreement and find the FRA’s economic benefits cancelled.
  • Make First Nations just another “stakeholder”:– Limit consultation to site-specific impacts. Many important cultural and ecological uses cannot be addressed at the site level–for example, the habitat needs of wide-ranging animals like grizzly bears and salmon. Case law indicates that Aboriginal Title is an exclusive interest in the land itself, including the resources of that land, and gives the Title holder the right to choose how land can be used. The terms of most FRAs limit signatory groups to participating as just another stakeholder in important decisions about how much logging will occur each year within the territory. By signing FRAs, Aboriginal leaders may have unwittingly voluntarily agreed to limit pre-existing, constitutionally-protected interests to be substantively consulted on key land and resource allocation decisions.
  • Use unreasonable per capita formulas for determining revenue in order to limit economic benefits: Using per capita formulas to determine economic benefits and timber volume (which amount to only token amounts per person annually) does not reflect the real impact of extractive industries on the land or the prior interest of the Aboriginal People in the resource. This approach to determining the Aboriginal interest in resources is unlikely to be accepted by the courts, but through FRAs the province is seeking the agreement of signatory groups to this approach, at least during the term of the agreement.

Despite the province’s attempt to buy off First Nations with FRAs, Aboriginal resistance is growing.This past week thousands of First Nations elders, youth and leaders from communities across BC joined a caravan to Victoria for a historic meeting on May 19, and a rally at the Legislature on May 20. The participants of the province-wide Caravan protested the Aboriginal policies and legislation of the Gordon Campbell government.

“This was a historic event,” said Justa Monk, a member of the Steering Committee of the sponsoring organization, the Title & Rights Alliance. “First Nations are gathering in Victoria to make it clear to the Crown and BC industry that the continued infringement of our Aboriginal Title and Rights will not be tolerated!”

Part of the Title & Rights meeting on May 19 focussed on how to collectively respond to FRA agreements. A paper about the risks of FRAs will be presented by Jessica Clogg from West Coast Environmental Law, a member of the Alliance’s technical team.

As discussed in previous bulletins, the is new provincial Alliance will be implementing an action plan that includes legal, political, and financial strategies developed in coordination with Dogwood Initiative.

We’ll keep you posted on events as they develop.

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