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. 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. Thus, the principle impact of the privatisation deals may well be protracted litigation.
Time consuming and costly litigation hurts everyone.
First, First Nations were not consulted before the province signed the MB deal, contrary to clear direction from the Supreme Court of Canada that consultation or consent from First Nations is required when government action will infringe their rights or title. The BC Court of Appeal recently confirmed that aboriginal title is an encumbrance on Crown land, and specifically the timber on Crown land. The province does not have the constitutional jurisdiction to extinguish the aboriginal title that encumbers these lands. Thus, this aspect of the agreement is likely unconstitutional, unless the lands were transferred subject to aboriginal title. The Campaign to Save BC's Public Lands is a loose network of social justice, environmental and labour groups that support a set of core principles about resisting privatisation and promoting community control of forests, in a manner that is fair to all British Columbians and respects the rights and title of First Nations.