SpruceRoots Magazine - February 2002

SpruceRoots Magazine - April 2003



by Ian Lordon

Late last year in Skidegate, perhaps to avoid any plea of ignorance, tenure holders on Haida Gwaii were brought up to speed on recent developments in aboriginal jurisprudence when they received official warning that they are breaking the law if they fail to consult the Haida and accommodate aboriginal rights before they go about their business.

The notice came on the heels of a successful court action by the Haida where they contested the transfer and renewal of Weyerhaeuser’s Tree Farm Licence 39. The case, known colloquially as the TFL 39 decision, established that government and third parties like Weyerhaeuser are legally duty-bound to consult and accommodate First Nations before decisions which may implicate Aboriginal rights or title are made. The BC Court of Appeal ruled Block 6 of Weyerhaeuser’s TFL was acquired and renewed illegally because neither the company nor the provincial government had adequately consulted the Haida or accommodated their aboriginal rights when the transfer and renewal were executed. And although the decision will be appealed, it is binding pending a review by the Supreme Court of Canada.

The precedent set by the TFL 39 decision cast doubt upon the legitimacy of every tenure issued and land-use decision made on Haida Gwaii after 1997— the year the Supreme Court of Canada defined aboriginal title and imposed the duty to consult First Nations in the case called Delgamuukw. On November 21, 2002 the Council of the Haida Nation officially informed the islands’ tenure holders by registered letter of their uncertain legal status. The letter also invited tenure holders to a meeting in Skidegate where they could learn more about the decision and what it means to them:

“Like Weyerhaeuser, your company has been granted“a tenure from the Province which interfaces with Haida Rights and Title. By this letter, the Haida Nation gives notice to your company that the Province has not accommodated Haida Rights and Title, in the context of the tenure you hold.

The Haida Nation has also filed a Writ, suing the Crown for infringement of Haida Title. At this forum, the Haida Nation will make available for your review, evidence of our Aboriginal Rights and Title to Haida Gwaii. The meeting will provide an opportunity for the Haida Nation to introduce ourselves to your company, and for your company to reach a better understanding of your legal standing and what accommodation could be implemented to meet any obligations.

We welcome this opportunity to open the dialogue, which we expect will lead to accommodation and conciliation.”

It was a curious and somewhat subdued group of individuals and company reps which gathered in the Skidegate community hall a week later to hear from Louise Mandell and Terri-Lynn Williams-Davidson, two of the lawyers representing the CHN. Small business operators, industry reps, fishing lodge owners, mineral claim holders, offshore oil and gas interests, government bureaucrats, and interested locals had all turned up to find out what the Haida had in store for them.

“The reason you’re here is to put you on notice that the law has stated that there has to be accommodation in respect to the tenures that you’re holding,” Mandell explained. “Both in terms of the tenures you’re presently holding and the ones you may want to acquire. That there has to be some sort of accommodation reached with the Haida.”

“Part of the duty of third parties is to ensure the provincial and federal governments live up totheir duties,” Williams-Davidson added. “It’s making sure the provincial and federal governments are accommodating Haida interests and not just sitting idly by and waiting for the province to eventually deal with the issue.”

Naturally, many of the tenure holders wanted to know what the court means by ‘accommodation,’ and how they were supposed to go about it. Mandell told them the courts hadn’t specifically defined accommodation, but she suggested it meant developing a relationship with the CHN which would allow the Haida to provide input and direction to tenure holders concerning decisions or actions which might affect Haida Aboriginal Rights.

“The courts have given us some really broad-brush strokes about what kind of issues will be on the agenda for reaching accommodation. In a nutshell, it’s to try and work out a relationship where the Haida and the people that are using the land will find a way to live and work together in the context of the tenure that you’ve been issued, or other rights to the land that you’ve asked the province to issue you for future developments. The sooner there is a working relationship which everyone is happy with in terms of the resources of Haida Gwaii the better it will be for all of us.”

Many were curious about what the consequences might be for tenure holders who refused or failed to accommodate aboriginal rights or title. Mandell said it would depend on the circumstances, but in the worst case the Haida would seek to eliminate the tenure in question.

“If accommodation doesn’t happen there will have to be decisions made among the Haida people about what to do about it,” she said. “There are a whole range of remedies that could be taken. One of the remedies that is being sought in the title litigation is the actual quashing of certain existing tenures.”

CHN President Guujaaw said that although the Haida will be looking to find accommodation with most tenure holders, inevitably some by their very nature are going to be incompatible with Haida rights and title.

“In the end, I think that anybody who is using these lands has to look after them in the kind of way that we are expected to and within the definition of what aboriginal title is,” he said. “There are certain licences, tenures, and activities going on that we don’t expect we’ll be able to make compatible with our use and enjoyment of this land, and in which our core action is to get rid of those tenures.”

Land question issues have typically fallen within the exclusive purview of government and First Nations, and the meeting in Skidegate was a departure of sorts in that it marked the first time aboriginals had taken the question of their rights directly to the land users themselves, circumventing government entirely in the process. No longer was government acting as middleman between industry and First Nations, translating aboriginal demands and weighing them against the law before informing tenure-holders of their obligations, but instead it became something of a spectator as the Haida took it upon themselves to uphold the law.

Doug Caul was among the handful of government spectators at the Skidegate meeting. A chief negotiator with the Ministry of the Attorney General’s treaty negotiations office, Caul insisted after the meeting that the direct relationship between tenure holders and First Nations created by the court in the TFL 39 decision has not reduced the role or relevance of government where land question issues are concerned.

“The courts haven’t taken us out of the equation here,” he said. “In fact the courts continue to add clarity to our responsibilities and obligations, so we’re still very much into it.”

If the role of government wasn’t changed by the TFL 39 decision, there are at least clear signals that its attitude was as the province seems to be taking its responsibilities more seriously. In the immediate aftermath of Delgamuukw the province tended to ignore its duty to consult, or point to token efforts such as making a phone call or faxing copies of logging permits to band offices as proof that consultation had taken place. These half-hearted attempts failed to live up to the expectations of the Supreme Court which had specified in Delgamuukw that consultation had to be ‘meaningful’ in order for it to be viewed as legitimate. Obviously, the province’s interpretation of meaningful consultation didn’t agree with the Haida’s, setting the stage for the TFL 39 case where the court introduced the term ‘accommodation’ to help clear things up. And now, at last, Victoria is starting to catch on.

“The courts have raised the bar, they continue to clarify, and that prompts everybody along, there’s no question about that. But if we get past the court decisions I think in many cases around the province we’re well-positioned to do the kinds of things the courts are talking about,” Caul said. “When First Nations, the provincial government, an industry partner, and some other partner like local government or a non-profit organization—when you get the right partners together it just makes sense that you can do a lot more in terms of meeting First Nations’ interests, but also those of the other parties. We all come into a partnership with expectations and we all want to be able to come out of that with something that works for all of us, but we have to know that we have to bring something into that partnership as well.”

Among the many things this talk of partnership implies is that the province is willing to consult and accommodate First Nations by negotiating solutions to individual land use disputes away from the treaty table. An approach which suggests a future of impromptu, informal, issue-based negotiations as the need arises, rather than the forfeit of aboriginal title in exchange for land and money as the all-encompassing solution to the land question which treaty is inclined to represent. In this new scenario, the land question is never resolved but plays into every decision the province is called upon to make. First Nations never surrender their title, and the provincial Crown must take it into account as long as the two coexist. If this new approach proves to be a successful one, it might mean the end of the treaty process in BC and pave the way for the introduction of a new and permanent Ministry of Accommodation and Consultation—a development that likely wouldn’t sit well with government.

It doesn’t appeal much to Caul who argues that even though the treaty process isn’t moving much doesn’t mean it’s dead, and sees consultation and accommodation more as a stopgap remedy than a permanent alternative.

“The treaty process is still out there, it’s still alive and well and we feel that on a number of fronts elsewhere in the province we’re making very good progress,” Caul said. “But we all know that the treaty process has been around ten, eleven years now. We’ve put a lot of time, a lot of effort, and a lot of resources including money into it and we’ve all come to realize that it isn’t going to fix the problems or address the issues in a short period of time. It’s (accommodation and consultation) not a replacement, but something you do in front of a treaty or at the same time as a treaty.”

Another shift the TFL 39 decision may be responsible for on Haida Gwaii is that the province has clearly backed off its earlier position of not negotiating where litigation is involved. Caul maintains the province was never bound to this stance in the first place, but is always willing to look at negotiated solutions to issues which are before the courts if there is incentive to do so from a provincial perspective.

“There has been that message out there, but we’ve always looked at each case individually and it’s no different whether we’ve got a First Nation or a company suing us,” he said. “We look at the case individually and if it makes sense for us to continue to negotiate and litigate at the same time we do that. I will acknowledge that we suspended the forestry interim measures four years ago, but we’ve offered to get back into that.”

The fact the Haida are preparing to prove their aboriginal title in court demonstrates that at least on Haida Gwaii the province and First Nations still have plenty to talk about. However, Caul won’t comment on the strength of the CHN’s case except to say the province isn’t ready to recognize title.

“On the Queen Charlotte Islands/Haida Gwaii what one has to do is go back and look at some of the tests that have been established by the courts around establishment of rights and ultimately title. The Haida view is that they meet that test. This is why there is a title case because we may not entirely share that view. They’ve elected to litigate and we’ll see how it unfolds in court.” Since it could be a matter of many years before the court finally decides the issue, Caul said there is a need for negotiated arrangements in the meantime. “We’re always interested in negotiating with the Haida and I’ve told them that for years. We’ve got the land use planning process going and we’ve got huge hopes for success there. I think the relationship with the [Ministry of Forests] district office on the islands continues to evolve but is generally very good, and we’ve got some work going on around tourism opportunities with the Haida. Weyerhaeuser is certainly active in building their working relationship with the Haida and you have to acknowledge that as well. So we’ve got lots of really positive things going on with the Haida that I think address their interests and I believe would be considered accommodation.”

Accommodation may be the order of the day for the province and Weyerhaeuser, but as Guujaaw explained in Skidegate, some tenures go beyond accommodation. Caul wouldn’t offer any comfort to those concerned or speculate on how the province would deal with quashed tenures if the courts were to agree with the CHN in the future. Instead he emphasized that at this time government is concentrating on building strong relationships.

“I don’t want to speculate on whether they should be concerned or not. I certainly heard from the Haida that generally they want to work with tenure holders. This is one of these questions that I’m not going to be able to answer because we are in front of the court. I heard the message the Haida gave, but they haven’t taken those steps so it’s hypothetical at this point and I can’t comment on that,” he said. “It’s not a matter of us acknowledging this or that, there’s a court action going on that will help provide some direction. In the meantime we have to find a way to develop workable arrangements, so that’s the focus right now.”

And the goal of these arrangements isn’t to resolve the title question but to create a stable environment within which government, industry, and the Haida can operate on Haida Gwaii.

“It’s about providing whoever’s in whatever industry with some economic certainty,” Caul said. “And from a First Nation’s perspective I’ve heard various concerns. I’ve heard it’s about being respected as a form of government, I’ve heard it’s about getting involved in economic development or in land or resource management decisions. All those things have to come together to get that workable relationship.”

One recent example of that developing relationship inspiring certainty is the all-island land use plan the province and the Haida are set to begin in earnest this spring.

“We’re very excited about what’s going on with the land use planning process. There’s been an incredible amount of work by the Haida as well as the people from the Ministry of Sustainable Resource Management. That’s probably one of the highlights we can point to in terms of progress,” Caul said, and added there are promising signs of another ‘workable relationship’ evolving in the islands forest industry as well. “If we keep going the way we are we’ll have a highlight in the forestry area too because we’ve got some good discussions going on there between the Ministry and the Haida. I think that will bear fruit for the Haida as well as the companies and government.”

If Caul’s predictions for bountiful future relations are realized, it will distinctly underscore the importance of what one little word from the courts can accomplish because it seems that when ‘accommodation’ was introduced by the TFL 39 decision, the province suddenly began taking aboriginal rights and title much more seriously.

“The sooner there is a working relationship which everyone is happy with in terms of the resources of Haida Gwaii, the better it will be for us,” Louise Mandell, sounding a lot like Doug Caul, said in Skidegate while answering a question about how tenure holders could avoid having their licences quashed if the Haida succeed in proving title. “The court will be asked to deal with“the question of remedy, and the extent to which there has been a few years of good honest working together with the licensees will definitely go into the answer.”

But before the court can get to the question of remedy in the title case, it will be asked to comment on the TFL 39 decision once again. On March 20th the Supreme Court of Canada granted leave to Weyerhaeuser and the province to appeal the BC Court of Appeal decision and clarification. Whatever the court decides—if it confirms the TFL 39 decision, reverses it, or delivers a new interpretation—it will have immediate and tangible consequences here and elsewhere in BC. If the past is any guide to the future direction of the bench, the Supreme Court of Canada has exhibited an inclination to be sympathetic towards First Nations when addressing BC title claims. Delgamuukw very clearly urged government to get on with negotiations to settle land claims, and there is a good chance the court won’t take kindly to being asked these questions again six or seven years later. Besides, had the government taken aboriginal title seriously immediately after Delgamuukw, there would not have been a need for the TFL 39 case in the first place.

Meanwhile, away from the courtroom but prodded along by its influence, government and industry do appear to be getting on with the negotiations Delgamuukw was intended to inspire. Aboriginal title is manifesting itself on Haida Gwaii, at least to the extent that there are now efforts aimed towards accommodating title should the Haida successfully prove it in court. If respecting title on Haida Gwaii happens to be motivated more by self-interest than any moral duty, so be it. In the end, it is the results which will be judged. •