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VICTORIA

he B. C. Liberals are facing the

first major challenge in their

new relationship with aboriginal people, deciding how far to go in negotiating forestry agreements.

The controversy involves Forest and Range Agreements, which set out procedures for resource use and management on land held by the crown and claimed by first nations.

The Liberals negotiated more than 50 agreements during their first term of office. More than words, they provided natives with $ 100 million in shared revenues and access to nine million cubic metres of timber.

But some first nations refused to participate, deploring the government’s “ take - i t- or- leave i t ” approach. Others challenged the agreements, arguing they did not go far enough in recognizing aboriginal interests.

Then came the new relationship. On election eve, Premier Gordon Campbell and aboriginal leaders signed an accord on a new way of doing things.

They were trying to find an alternative to the frustrations of the courts and the treaty table.

The hope was to manage land, resources and revenues in a way that would benefit first nations and the province in the here-and-now.

The partnership was to be grounded in consultation and accommodation, two principles laid down by the courts for situations where land held by the crown is claimed by first nations.

In that spirit, the two sides agreed to rework the forest and range agreements. But as is often the case in government-to-native dealings, the best of intentions did not translate into quick results.

The talks stretched through the summer and into the fall, bogging down over concerns, mainly on the government side, about legal and financial implications.

The key point of contention involves the wording of a single sentence in a dozen pages of text.

The passage would commit the province to recognizing that a particular first nation [the one signing the agreement] “ has aboriginal rights and/ or title within its traditional territory.”

That may not seem like a big deal because Premier Campbell has regularly spoken of the need to recognize aboriginal rights and title.

But it is one thing to say so in general terms, referring to the whole province; quite another to concede ownership within the narrow confines of a specific agreement covering a particular native band’s traditional territory.

The general statement merely recognizes what the courts have already ruled, namely that rights and title existed when the Europeans occupied B. C. and have never been extinguished.

The specific statement might do something that the courts have not done — which is recognize aboriginal rights and title on a defined tract of land.

TThat legal concession, might severely constrain the government’s options in the future. If there were a breakdown in cooperation, the first nation could go to court and say there was no need to prove title because government had already recognized it owned the land.

Moreover, by conceding rights and title, the government might also be recognizing that it has a fiduciary (trust- or guardian-like ) relationship with the first nation.

That, in turn, would rule out the current policy of trying to balance aboriginal interests and the interests of all British Columbians in land and resource management decisions. In a fiduciary relationship, the crown would be obliged to put aboriginal interests first.

Or so said a strongly worded legal brief that has been making the rounds inside government for almost as many weeks as the proposed revisions in the forest and range agreements.

The brief also took issue with another aspect of the proposed agreements: how they were rewritten to eliminate any obligation for first nations to acknowledge that government was meeting courtmandated tests of consultation and accommodation.

In the absence of those commitments, first nations would be free to sign the forest and range agreement, and still go to court and argue they had been denied sufficient consultation and accommodation.

These arguments, grounded in the government’s long- standing legal position, are being discounted by advocates of the new relationship.

Time to reach out to first nations, demonstrate trust, take risks — that sort of thing. “The path to prosperity does not lie in the denial of aboriginal rights or in the discredited approaches of the past,” to quote the recent speech from the throne.

Thanks to the premier, the new relationship has a great deal of momentum behind it.

For a while there was some doubt as to whether the cabinet would be made aware of the legal arguments against the new forest and range agreements.

Now I’m told both texts will be on the table when the cabinet takes up the issue, perhaps as soon as next week.

Should be a good debate. But given the stakes, I doubt it will be one of those open cabinet meetings.

vpalmer@direct.ca