by Ian Lordon
The BC Court of Appeal gave the province an anticipated shove towards the negotiating table when it ruled the year 2000 transfer and replacement of TFL 39 were illegal on February 27.
In a unanimous decision, the Court agreed with the Council of the Haida Nations petition which argued the province had failed in its duty to consult the Haida prior to allowing the transfer and replacement of the TFL to proceed.
I would grant a declaration to the petitioners that the Crown Provincial and Weyerhaeuser have now, and had in 1999 and 2000, and earlier, a legally enforceable duty to the Haida people to consult with them in good faith and to endeavor to seek workable accommodations between the aboriginal interests of the Haida people and the short and long term objectives of the Crown and Weyerhaeuser, Justice John Lambert wrote in the 21-page decision. No accommodation with the Haida people was sought by the Crown, by MacMillan Bloedel, or by Weyerhaeuser. In my opinion, the Crown Provincial and Weyerhaeuser were in breach of these enforceable, legal and equitable duties to the Haida people.
The Court stopped short of declaring the transfer or the license void (suggesting that will have to wait until aboriginal title is proven,) however, it did order the province and Weyerhaeuser to negotiate an accommodation of the aboriginal and economic interests of Haida people under the supervision of a Court-appointed judge.
This is good news for the land, the indigenous people, and anybody else that cares about the earth, Council of the Haida Nation President Guujaaw said.
Louise Mandell, who along with Terri-Lynn Williams-Davidson, Cheryl Sharvit and Michael Jackson were the lawyers representing the CHN, was delighted with the Courts decision.
The province has spent 150 years making excuses and the courts have finally put an end to it, she said. Im really happy. Its good, lets see where we go from here.
Mandell was pleased that the Court held firm to the principles laid out in Delgamuukw, the 1997 Supreme Court of Canada decision which defined the modern legal relationship between non-treaty First Nations and the Crown. Delgamuukw essentially instructed the province to get on with negotiations and set out its obligations to First Nations, obligations which included meaningful consultation with First Nations before making land-use decisions which may affect their cultural or economic interests. The CHN argued, and the court agreed, that those consultations had never taken place before TFL 39 was transferred and replaced.
We thought the replacement and transfer of TFL 39 was downright illegal in light of Delgamuukw, she said, noting that Justice Lambert and fellow Justices Finch and Low added weight to the duty of consultation owed by the Crown to First Nations when they ruled on the appeal. The courts made it clear its not just consultation, its also accommodation.
For the Haida, that accommodation will be determined in negotiations with the province and Weyerhaeuser, negotiations supervised by a Supreme Court Judge to ensure they are in good faith and represent a true accommodation of Haida interests in the land.
Mandell also said the ruling has significant implications for land-use decisions made everywhere in BC over the past five years since Haida Gwaii isnt the only place where aboriginal interests were ignored while forest tenures were replaced or mining rights issued.
Its huge, its the entire province, she said, suggesting the BC government will have to come up with a province-wide plan to accommodate aboriginal interests if it hopes to avoid legal action from every quarter. The government has the option of setting in place a process that will deal with this, but that process will have to satisfy the courts.
The ruling did not, however, grant everything the Haida had argued for. The Court opted to defer a decision on the question of whether or not Haida title constituted an encumbrance on the TFL when it was replaced and transferred, declaring it would have to wait until title was established in court.
They didnt dismiss it, they just postponed it to another day, Mandell said of the encumbrance argument, speculating that the judges may have done so to serve as incentive for the province to begin sincere negotiations in earnest. They put those larger impact questions over to a trial on aboriginal title, they really leave it as a hammer hanging over the provinces head.
That hammer will fall if the Haida succeed in proving aboriginal title to Haida Gwaii in court. Earlier rulings have already established that if aboriginal title exists within TFL 39, the transfer and replacement of the license would be void.
SpruceRoots Magazine - February 2002