First Nations Go to Court for Land, Resources

Archaeological evidence shows that indigenous civilizations, known in Canada as “First Nations,” have occupied British Columbia for at least 12,000 years.

Before Canada was a country Britain recognized that aboriginal people living there had title to land. When BC joined Canada in 1871, only 14 treaties on Vancouver Island had been signed, and aboriginal title to the rest of the province was not resolved. Little changed for more than a century . Starting in 1973 a series of Canadian court rulings determined that First Nation rights to land, sea and resources have never been adequately recognized or respected by the BC government. 

Over the decades, First Nation leaders demanded treaties to guarantee their possession of their territories for present and future generations, while expressing a willingness to share land and resources with the settlers. The demands went unanswered. BC offered no compensation to First Nations for the loss of traditional lands and resources and refused to even participate in negotiations. 

Finally , in the late 1960s, the Nisga'a First Nation went to court seeking a declaration that they had held aboriginal title to their land before colonization, and that their title had never been extinguished. Eventually , the case proved successful, giving First Nations traction in the courts for protecting the resources on their lands. At the same time, a growing public understanding and acceptance of First Nation rights took hold in the province.  

In 1997, the Supreme Court of Canada ruled that aboriginal title not only exists in BC, but that the government must consult with First Nations when making decisions affecting crown (public) lands and may even have to compensate First Nations whose rights are affected. The full extent of First Nation rights, however , remains unresolved by the courts.

In September 1992 an agreement among Canada, BC and the First Nations Summit established the BC treaty Commission as the independent keeper of the BC treaty process. Fifty- three First Nations are now participating in the six-stage treaty process. They represent 122 bands — 114 in BC and eight in the Yukon — and two-thirds of all aboriginal people in BC. Because some First Nations negotiate at a common table, there are 42 sets of negotiations. Issues include: aboriginal rights, which refers to practices, traditions and customs that distinguish the unique culture of each First Nation; the right to self-government according to their own traditions; ownership of land and resources; and funding for First Nation government and services.  

Many BC political leaders seem more interested in undermining the treaty process. Before coming to power in 2001, the right-wing BC Liberals, went to court in 1998 to block the landmark Nisga’a Treaty . In 2000, the BC Supreme Court upheld the treaty .

And in 2002, the BC Liberals held a controversial referendum designed to gauge public support for taking a hard line in negotiations with First Nations.

The referendum called for stripping First Nation rights to govern as sovereign nations, and to provide compensation to timber companies for the disruption of licences to log public lands. Voters approved it by a wide mar gin, but 65 percent failed to send in the mail-in ballot. Many joined native, labor , religious and environmental groups in a boycott of the vote, with some condemning it as “racist.” Indeed, it appears some voters supported the referendum because it was racist, such as BC White Pride, a Kelowna-based group which said the referendum would make BC “a better place for white families,” according to its web site.

The referendum's effects are of uncertain legality .

This government’ s approach to treaty issues is hardly unique. Over the years, a series of BC governments encouraged timber companies to remove timber from aboriginal lands.

One of the most contentious practices is the ongoing liquidation of western red cedar , a species of great cultural significance to coastal First Nations. In 2002, the Council of the Haida Nation won a lawsuit against the provincial government and Weyerhaeuser . A central issue in the case was the province's refusal to acknowledge Haida title to any portion of the islands when it allowed Weyerhaeuser to log several areas that included old-growth cedar . The Haida Nation later filed a lawsuit seeking title to the islands of Haida Gwaii and the surrounding ocean waters. Among other things, the suit could block of shore oil drilling.

First Nations have also petitioned the International Convention on Biological Diversity to investigate cedar logging practices in BC. The petitioners — the Heiltsuk Nation and the Haida Nation (as well as Greenpeace Canada, Sierra Club of Canada, BC Chapter ForestEthics) — have amassed both first-hand observations of logging on the coast and scientific studies reveal the harm being done. They claim logging companies are cutting the higher trees — the oldest, lar gest old-growth cedar — at a higher proportion than other species.

The large old-growth trees are turned into siding, fencing, shakes and shingles. BC cedar fetches a high price due to its resistance to rot and its clear grain. The Heiltsuk estimate that the current trend of overcutting cedar has been going on for more than 15 years and that it has not been a short-term market “blip.”

They also estimate that, if logging companies maintain the current rate of cutting, most of the high-quality cedar will be gone by 2026.

Another study released in draft form in 2002 suggests that the prevailing forest management practices in BC are leading to the rapid depletion of large and medium sized old-growth trees, including cedar Over -cutting threatens many First Nations cultural traditions by eliminating the larger cedar trees needed for traditional uses like dug-out canoes, totems and beams for longhouses. And it undermines new economic opportunities in a sustainable tourism economy.

Courts have declared that First Nations have every legal right to call on the BC government to stop the overcut- ting of cedar . So far , the logging continues.

Paul Koberstein