SpruceRoots Magazine - February 2002

SpruceRoots Magazine - April 2002

A Measure of Control

by Ian Lordon

Terri-Lynn Williams-Davidson has waited a long time for this.

"It's why I went to law school."

It, of course, is the Council of the Haida Nation's attempt to become the first to prove title to their traditional territory in court. The case officially got underway on March 6th amid a storm of media hype at the BC First Nations Summit in Squamish. After a ceremony and press conference at the Summit, Terri-Lynn along with Amos Setso and Nika Collison set the wheels in motion when they filed a writ of summons in BC Supreme Court that afternoon.

"I'm happy that we've begun the process. It was very exciting to finally be bringing forward the case that a lot of people have been waiting for." Although Williams-Davidson stressed to succeed in establishing aboriginal title to Haida Gwaii people can't sit back and wait for the lawyers to do it. "It needs to be broader than just those who have their sleeves rolled up in the case. The real battle will be among ourselves because there will be all kinds of efforts to pull us apart. The Haida need to start seriously thinking about what they want from this, it's a huge responsibility and we need people committed to it in the long term."

In the meantime, the long and difficult task of preparing for the case, a task which she expects will take up to eighteen months, is just getting started. Williams-Davidson said the CHN's legal team is busy putting the finishing touches on the statement of claim which should be ready to be submitted to the court in a few weeks. And after that, depending on whether the province decides to try and stall the case, it's anybody's guess when the trial will actually begin.

"The crown could employ any number of delay tactics," she says. "We might get caught up in a bunch of pre-trial motions."

The title case is the logical next step after BC's Court of Appeal agreed with a Haida petition arguing Weyerhaeuser's Tree Farm Licence 39 had been transferred and replaced illegally because the company and the province had failed to accommodate Haida interests before doing so. Ultimately, the Haida would like to see the licence quashed, and the Court's decision implies the Haida must first prove aboriginal title to Haida Gwaii in order for that to occur.

"We haven't quashed the licence yet and that will be done with title." Williams-Davidson says the province hasn't decided if it will appeal the TFL 39 decision to the Supreme Court of Canada, however, it may be appealing an earlier ruling which set the precedent that helped the Haida win their case. "There was a dissenting judge in that case so it's more likely they can obtain leave for an appeal in that case than in this case."

Taku refers to a case the Taku River Tlingit brought against the province after a mining development had been approved in their traditional territory. The Tlingit argued they hadn't been adequately consulted by the province before the approval was issued, and the BC Court of Appeal agreed one week before the CHN's TFL 39 appeal went to court.

While the province mulls over an appeal on Taku, both sides are waiting for the BC Court of Appeal to rule on an important point of clarification concerning the TFL 39 ruling. The decision went further than Taku when it indicated the obligation to consult and accommodate aboriginal interests went beyond the Crown and included Weyerhaeuser as well, something the company wants to make sure the court had done deliberately.

"We supported their [Weyerhaeuser] application because we thought it would be beneficial to have clarification on that point," says Williams-Davidson. "The court has granted that rehearing and we'll be in court on June 4th."

Williams-Davidson said once the statement of claim in the title case is submitted, the CHN's lawyers will concentrate on assembling the people they will want to call to testify at the trial.

"Our first priority is to begin on the witnesses' testimony and compile a list of experts and Haida people." She says the list will be protracted, and the trial should be as well. "It'll be a long trial-the trial in Delgamuukw was six months. It might be a month and a half to three months."

If the Haida succeed in proving aboriginal title in court, it won't mean they have exclusive title to Haida Gwaii. Aboriginal title, as it was defined in Delgamuukw, coexists with Crown title, neither enjoys complete supremacy, but it does confer rights upon the First Nation in question. Rights which go beyond traditional land-use practices and can include modern economic tenures like mineral and forestry rights.

"Title will include a share in the resources," she says. "It is a compromise we're making, but when I look at where we are now if it helps us bring a measure of control over what happens on Haida Gwaii and preserve something for future generations, then it's worthwhile."

Louise Mandell, who worked the TFL 39 case for the CHN, will be joined by Victoria lawyer Joseph Arvay when the title case goes to trial. Arvay was intimately involved in the appeals of the Delgamuukw decision, although he was representing the Crown and arguing the other side. This time around Arvay will try his hand at representing aboriginal interests, a conversion he explains with a lawyer's logic.

"It's an entirely different case, with entirely different clients," he says. Although Arvay wouldn't say much else-he prefers to do his talking in the courtroom. "It's too early in the day to be arguing the case in the media. Our clients are such articulate people, I'll leave the talking to them."

Mercifully, Williams-Davidson doesn't share Arvay's aversion to the press.

"The media attention definitely helps," she says. "Especially in places like New York and Washington where the shareholders will be exposed to it."

And the Haida are bound to get plenty more exposure themselves as this case progresses. So far the media appears most interested in the offshore implications of Haida title, particularly with respect to oil and gas. Williams-Davidson says this aspect of the case is one the CHN's lawyers have been considering carefully because there is little in the way of precedent to build a case around.

"It's a new area of law, so we have to decide what approach we're going to take. We held a brainstorming session and brought together a team of lawyers with expertise in aboriginal law to get their ideas." She says the session helped define what the CHN's lawyers need to address before they go to trial. "It gave us a sense of the case's strengths and weaknesses."

Should the Haida succeed and prove their title, Williams-Davidson believes everyone on Haida Gwaii stands to gain from more control over how decisions concerning local resources are made, and how the benefits from them are distributed.

"It's a good opportunity to change the direction of the globalization trend," she says. "In the best of all worlds we will see the Haida people and local people with a greater say in what happens to the land and the sea where they live."

Back when she was studying to be a lawyer, it was a future Williams-Davidson could only imagine. Today, it's a future which is only one favourable court ruling away-even if it happens to be many years from now.

"When I went to law school the Haida said they would never bring a title suit to court. That was before Delgamuukw." Since then, through the efforts of other BC First Nations, Williams-Davidson will get the chance to help her people make history. "We owe a huge thanks to the Gitksan and Wet'suwet'en people."

SpruceRoots Magazine - April 2002