by Ian Lordon

SpruceRoots Magazine - February 2002

Council of the Haida Nation, Counsel and Friends (l-r) Michael Nicol Yahgulanaas, Robert Davidson, Louise Mandell QC, Guujaaw, Cheryl Sharvit, Terri-Lynn Williams-Davidson, Amos Setso, Michael Jackson QC.

THE ARTFUL DODGER

by Ian Lordon
This, in a nutshell, is why the Council of the Haida Nation was in Vancouver before the BC Court of Appeal on February 8th. The CHN was appealing a trial court ruling made in Masset a year and a half ago, denying their petition to quash the year 2000 replacement of TFL 39, Block 6 — the licence which allows Weyerhaeuser to log on Haida Gwaii for the next 25 years.

On a grander scale, the issue is aboriginal title. Specifically, the province’s steadfast refusal to acknowledge Haida title to any portion of the islands when making decisions about the land or resources. The legal concept of aboriginal title emerged slowly as the Supreme Court of Canada gradually recognized and clearly defined it in a series of judgements culminating with the Delgamuukw decision in 1997. In Delgamuukw, the court also urged governments to get on with the job of reconciling crown and aboriginal title under the terms it provided by negotiating treaties with BC First Nations so they would stop petitioning the court with questions of aboriginal law.

The beleaguered province, rather than deal with BC First Nations honourably, has chosen instead to resist the direction provided by the courts and avoid addressing title wherever possible. The result has been a series of court actions initiated by First Nations unwilling to allow the province to ignore their rights.
The CHN took the first step toward ensuring Haida concerns are met on-Island in 1997 when it established in court that the province does not have a free hand to dispose of Crown land where aboriginal title exists because it constitutes a legal ‘encumbrance’ upon it. What hasn’t been proven in court is that aboriginal title exists on Haida Gwaii — or anywhere else — and the first part of this recent case argues that the Haida don’t have to prove their title for it to be an encumbrance. Or, put another way, just because title hasn’t been proven doesn’t mean it isn’t there, and the government can ignore it when deciding what happens to land.

Justice Halfyard, when he established the facts in this case at trial, came to several what he called ‘inescapable conclusions.’ He found that Haida people have inhabited Haida Gwaii continuously since 1776. That since the Crown declared sovereignty in 1846, and likely for many years before, the Haida were the only inhabitants of Haida Gwaii. That the Haida were never conquered and never surrendered their title. That the Haida have used large red cedar trees both from coastal and interior areas of Haida Gwaii, and that old growth red cedar has long been, and still is, an integral part of Haida culture.

Based on these facts and what the courts have already determined about the nature and extent of aboriginal rights and title, Halfyard suggested there is a reasonable probability that the Haida will be able to establish aboriginal title to some coastal areas of Block 6, a reasonable possibility that the Haida could establish aboriginal title to inland areas of Block 6, and a substantial probability that the Haida will be able to establish an aboriginal right to harvest red cedar from old growth forest in coastal and inland areas of Block 6.

This is all basically legalese for odds. Halfyard was in effect providing his opinion on the betting line for proving aboriginal title on Haida Gwaii. He says he figures it’s a lock that the Haida can prove they have aboriginal rights to old-growth cedar on Haida Gwaii, a safe bet they can prove aboriginal title to coastal areas, and they have a decent shot at proving title to inland areas.

And this raises the crux of the matter: The province insists it won’t play the odds when making decisions concerning Crown land in British Columbia, that aboriginal rights must be proven in court before it will acknowledge them. The Haida insist the odds have to be taken into account because it knows that failing to do so could violate the Canadian Charter of Rights and Freedoms. That the province conveniently pretends not to know anything about Haida title when it renews forest licences, then turns around and tries to negotiate its surrender at the treaty table. The government can’t have it both ways.

Counsel for the Council - (l-r) Michael Jackson QC, Cheryl Sharvit, Louise Mandell QC, Terri-Lynn Williams-Davidson.

The second part of the case deals with consultation. It focuses on the government’s duty to consult with First Nations before disposing of lands or resources which may have aboriginal rights or title attached to them. Specifically, that Haida concerns should have been heard and addressed before TFL 39 was replaced, that it is the government’s duty to address these concerns, and that because the government neglected that duty the replacement of TFL 39 should be quashed. This argument became more compelling thanks to a BC Court of Appeal decision released one week before the CHN went to court.

That ruling involved a Project Approval Certificate issued by the provincial government to Redfern Resources Ltd. allowing the company to reopen an abandoned mine in northwestern BC and build a massive new road through the unspoiled Taku River watershed to truck ore from the mine to a processing facility in Atlin.

The Project Approval Certificate was issued over the objections of representatives from the Taku River Tlingit First Nation who were concerned that the environmental consequences of the project would jeopardize their traditional rights. The Tlingit brought the issue before the court and argued the government had failed in its duty to properly consult with First Nations by granting interests to land where they claimed aboriginal rights without their consent.

On appeal the court agreed, quashed the Approval Certificate, and ordered the government to properly address Tlingit concerns before attempting to approve the project again. The Taku decision had obvious ramifications for the CHN’s appeal, which also contends the province did not adequately consult with the Haida prior to replacing TFL 39.

Paul Pearlman, representing the Crown, admitted the province did not consult with the Haida about the replacement but argued it’s under no obligation to do so, or if it is, that the Haida concerns were being dealt with at the negotiating table.

“While it is true to say that the Minister did not engage in consultation with the Haida regarding the replacement of the forest licence, there had been interim measures negotiations addressing the management of forests on Haida Gwaii,” he said. “This is not a case where the crown simply ignored the First Nation in question.”

The flaw in Pearlman’s argument is that interim negotiations do not qualify as consulting the Haida about the replacement of TFL 39. The government is bound to engage in meaningful consultation, consultation which produces results that actually reflect the concerns of First Nations and includes provisions for respecting their rights. Or as Terri-Lynn Williams-Davidson, representing the CHN, argued:

“There is no real ability for the Haida to protect key areas of environmental or cultural value.” She explained the Haida want to be involved in higher level planning, setting the Allowable Annual Cut (AAC), and to have the Haida Protected Areas removed from the land base— issues which are directly impacted by the terms and conditions of TFL 39. “This case is really about taking care of the forest.”

The facts in the case suggest the Haida have rights where the forests on Haida Gwaii are concerned, and the court in the Taku case acknowledged First Nations must be involved in decisions which affect their rights. Williams-Davidson said for the Haida, this involvement means taking care of the forest, something they were not permitted to do when TFL 39 was replaced.

Lousie Mandell, presenting the CHN’s argument to the three judges hearing the appeal, described the case as a justification test for accommodating aboriginal title and rights.

“What our case raises is the province’s capacity to infringe on aboriginal title and rights, and where that line should be drawn,” she said. “If Weyerhaeuser’s tenure is so complete that aboriginal title cannot be accommodated, then they have crossed that line.”

Mandell explained because Weyerhaeuser’s tenure makes no accommodation for Haida interests it amounts to an expropriation of Haida rights, which the court in the Taku case told the province was a no-no unless the duty to consult had been met:

“… prior to issuance of the Project Approval Certificate, the Ministers of the Crown had to be mindful of the possibility that their decision might infringe aboriginal rights and, accordingly, be careful to ensure that the substance of the Tlingits’ concerns had been addressed.”

The court was telling the province that it can’t ignore the odds when decisions are made about land that may be burdened by aboriginal rights or title. Otherwise, the rights become meaningless until they are proven in court which is precisely what the Supreme Court of Canada told the province it wanted to avoid when it encouraged treaty negotiations in Delgamuukw.

“To say, as the Crown does here, that establishment of the aboriginal rights or title in court proceedings is required before consultation is required, would effectively end any prospect of meaningful negotiation or settlement of aboriginal land claims.”

• • •

The court in the Taku case is really giving the province a shove towards the negotiating table. Four years after Delgamuukw, the province continues to ignore aboriginal rights and title, preferring to carry on as usual and engage in negotiations as a matter of form rather than substance, forcing First Nations to waste money and time going to court to prove their rights. By quashing land use decisions like Redfern’s Project Approval Certificate, the courts are telling the province to get on with settlement or forget about doing business in BC on contested lands.

It’s likely the court will give the province another shove in the CHN’s case, raising the very real possibility that Weyerhaeuser’s TFL replacement will be quashed. Revoked. Void. Which begs a fascinating question — what then?

When Justice Lambert asked John Hunter, Weyerhaeuser’s lawyer, this question he didn’t have an answer.

“I don’t know, it’s never been done.” Hunter said the TFL could revert back to the previous replacement from 1995, which would still be good for 18 years, or it could be gone completely. CHN president Guujaaw holds the second view, arguing the replacement is exactly that — a replacement — so that once it’s gone there is nothing to fall back on.

Hunter told the court that the Haida weren’t really objecting to the replacement of the TFL itself so much as using the case as a venue to raise grievances with government. He asked the judges to leave the TFL in tact even if they found in favour of the Haida.

“There isn’t really an objection by the Haida to the replacement of this licence. That’s only a trigger to bring up some issues they have which they brought up at the end of their submission. There’s a bit of a shopping list and it’s an understandable one, but my client has substantial contractual rights which do exist and that causes a bit of a dilemma,” he said. “The most draconian remedy this court could impose would be to quash the replacement of the TFL which visits the entire problem on my client, subject to claims upon the crown.”

Mandell reminded the court that Weyerhaeuser was well aware of Haida claims to portions of TFL 39 when it bought the tenure from MacMillan Bloedel and that for too long Haida interests have taken a back seat to those of industry and government.

“It’s only industry’s interest that’s really been balanced, not the Haida interest at all,” she said. “The forests are being depleted now and we’ve already waited a long time for some kind of legal remedy.”

Williams-Davidson told the court of the key role monumental, old-growth cedar plays in Haida culture, and suggested that if these trees are wiped out by logging, the culture will go with it.

“This is critical. We don’t have much time at the current rate of harvesting. Many Haida people are concerned that there will not be monumental cedar available to future generations,” she said. “The important thing about Haida culture is the relationship to the land — you change the land, and you change Haida people.”

The hearing concluded at the end of the day and the judges retired to consider the arguments, their decision, and the remedy. The lawyers for all three parties shook hands and talked among themselves about the day’s proceedings and eventually everyone filed out of the courtroom. While at this point the outcome remains uncertain, it is already plain that whatever Justices John Lambert, Lance Finch, and Richard Low decide in the coming months will certainly have implications for Haida Gwaii’s forests, and its people. •