April 2004

The proposed BC Rail CN Rail transaction as it pertains to Aboriginal title.

When the initial announcement and call for proposals was put out by the provincial government with their intention to lease the BC Railway to a third party, the Statimc Chiefs Council notified the provincial government and the ministry of transportation reminding them of the many unresolved issues regarding the existence of the BC Railway within Statimc title territory.

A couple of months ago, the provincial government invited the 25 First Nations communities located along the rail-line to a meeting in Prince George to discuss the proposed First Nations Benefit Trust Act whereby First Nations that agreed to have their band names listed in the legislation would received $600,000 once the BCR/CNR deal was complete. Some astute Aboriginal leaders they are viewing the funds as hush money and have stated that that the provincial government is taking advantage of Aboriginal poverty.

There were many assurances, written and verbal, from the representatives of the Crown when proposing the trust fund that the BCR/CNR transaction would not affect title and rights and the acceptance of the $600,000 would be completely with no strings attached. This, of course, was based upon the political position of the provincial government that Aboriginal title does not exist on the ground and does not have to be dealt with until it is proven. This position flies in the face of the BC Court of Appeals ruling that title does not have to be proven before the legal obligations of consultation and accommodation are required.

Immediately after the deadline date passed for First Nations to have their letters into the government, Premier Gordon Campbell had in his hands the number of communities that signed onto the proposed benefits fund legislation. He was heard during news reports stating that 16 out of the 25 First Nations affected are in support of the BCR/CNR transaction.

In addition, a leaked document, the Revitalization Agreement, fell into the hands of news reporters and it soon became clear that the purported 60-90 year lease was only a segment of the larger picture. In actuality, the lease components covered in the agreement amounted to 990 years, and the land could eventually be sold to CNR for a dollar. While the provincial government has been adamant about the lease versus sale components of the transaction, for all intents and purposes, it is a sale. As a result of these new revelations, a number of First Nations communities have or are considering withdrawing their letters of support.

The federally created Competition Bureau is currently reviewing the proposed BCR/CNR transaction and will make its decision by April 30th. As representatives of the Crown, this entity also holds fiduciary obligations with respect to upholding constitutionally protected rights such as Aboriginal title. Several Aboriginal organizations, communities and leaders have sent in letters to the Federal Competition Bureau urging them to reassess the legality of the proposed BCR/CNR transaction. The privatization march continues, onward and upward.

Cathy Narcisse First Published in Bridge River Lillooet News April 2004
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