The new 鈥榃ar in the Woods鈥� to protect old-growth forest in Fairy Creek and far beyond raises an important issue that has been neglected. By what right are those trees being cut? Who gets to decide?
In some ways, the easiest answer is 鈥渘ot us,鈥� meaning not the settlers who came to this land within the past 200 years or so. We came to a land that was already occupied by a population of Indigenous people estimated to have been in the range of 200,000 to one million people, according to the First Nations Health Authority, although the population had been massively reduced by a smallpox epidemic that arrived in sa国际传媒 around 1780.
Yet the European-style state that was 颅created here claims state ownership of 94聽per cent of sa国际传媒 as 鈥淐rown land,鈥� with five per cent in private hands and one per cent federally owned, according to the Land Title and Survey Authority of 颅British 颅Columbia. Meanwhile, the sa国际传媒 Treaty 颅Commission notes 鈥淚ndian reserves cover just 0.4 per cent of the sa国际传媒 land base.鈥�
This, of course, conveniently ignores the fact that, with few exceptions, none of this land was legally purchased from, or ceded by, the hundreds of Indigenous bands and tribes that actually lived on and drew 颅sustenance from the land. In fact, 95聽per cent of sa国际传媒 is unceded, 颅according to 颅鈥淧ulling Together,鈥� a guide for 颅Indigenization of post-secondary institutions from BCCampus.
Indeed, in 1997, the Supreme Court of sa国际传媒 found that aboriginal title still exists in sa国际传媒 and that 鈥渁boriginal title is a right to the land itself 鈥� not just the right to hunt, fish and gather.鈥� Unsurprisingly, 颅overlapping Indigenous land claims cover more than 100 per cent of sa国际传媒, the Canadian Encyclopedia notes.
In an interview with CTV News in 颅February 2020, Kim Stanton, a lawyer at Goldblatt Partners LLP who specializes in Aboriginal law, noted that because so much of sa国际传媒 was never ceded, the imposition of the Indian Act was illegitimate and thus while 鈥渟a国际传媒 and sa国际传媒 assume that they have jurisdiction 鈥� they never legally got it.鈥�
So by what right is the sa国际传媒 government granting any kind of logging, mining or other rights to private companies for lands that the sa国际传媒 government does not legally own? And if the sa国际传媒 government does not legally own the land, then what right do these companies have to log or mine or otherwise use the land, unless they have agreements with the First Nations that hold Aboriginal title? But then, who should they have an agreement with?
In both the Fairy Creek and the earlier Wet鈥檚uwet鈥檈n case (a dispute over the Coastal GasLink pipeline), hereditary leaders and elected leaders have been in disagreement. Stanton notes the law of the hereditary chiefs 鈥渋s the law that pre-exists colonization in the territory,鈥� and their 鈥渁uthority is with respect to all of their ancestral lands.鈥�
Meanwhile, the elected band council is a colonial imposition under the Indian Act, not part of the traditional governing mechanism of First Nations. According to Pam Palmater, an Indigenous lawyer and the chair in Indigenous governance at 颅Ryerson 颅University, in an interview with CTV鈥檚 Power Play in February 2020, the elected councils 鈥渄on鈥檛 have the authority under the Indian Act to make decisions on traditional territory,鈥� only on the reserve lands. And anyway, Stanton suggests the Indian Act is illegitimate in sa国际传媒
Missing in all this, of course, are the rights of the rest of humanity, of future generations and of nature itself.
Does not the rest of humanity have an interest in the forests here, just as 鈥� many would argue 鈥� people outside Brazil have an interest in not seeing the Amazon destroyed?
Do people in sa国际传媒, and humanity as a whole, not have the right to a healthy 颅environment, which must surely include intact and healthy 颅ecosystems?
Finally, what about the rights of nature, which we are slowly beginning to 颅recognize. Given the growing recognition of the 颅benefits of stewardship of traditional lands by Indigenous people, guided by 颅traditional 颅values, would we all be better off if we gave the land and waters personhood, 颅represented and safeguarded by traditional 颅Indigenous leadership, as is beginning to happen in Aotearoa, New Zealand?
Dr. Trevor Hancock is a retired 颅professor and senior scholar at the University of 颅Victoria鈥檚 School of Public Health and Social Policy.
