SpruceRoots Magazine - February 2001

 

ALL THE FACTS FOR TITLE

by Ian Lordon

The decision came down on November 21 and it was, in many respects, an appealing one.

In a case challenging Weyerhaeuser's right to log on Haida Gwaii, round one of the Council of the Haida Nation and Guujaaw v. The Minister of Forests and Weyerhaeuser Company Ltd. went to the defence as Justice D. A. Halfyard decided the 1980, 1995, and 2000 replacements of Tree Farm Licence 39 were legal.

Last summer the CHN brought a petition before the BC Supreme Court which argued the licence allowing Weyerhaeuser to log on Haida Gwaii is no good because the province had no right to issue it. After a week of hearing evidence and arguments, then deliberating for three months, Justice Halfyard released his decision and in a nutshell he said Weyerhaeuser can keep on bucking.

"We've filed an appeal already," CHN president Guujaaw said. "We're not through with them yet, none of these cases are won in the lower courts."

The CHN maintained that before the Ministry of Forests could issue, transfer, and re-issue TFL 39, the Ministry had to prove the Haida didn't have title to any part of it. Until then, Haida title would constitute a legal encumbrance upon the area and this encumbrance would have to be addressed before government could make decisions about what happens to the land.

The CHN told the court that the province knew the Haida had been asserting title to Haida Gwaii for more than a century, that there was ample evidence of Haida use and occupation of the land in question supporting their assertion, and that much of this evidence was contained in BC's own public archives. This knowledge implied the province had something less than clear title to TFL 39 and was not in a position to dispose of the land as though it did.

The Ministry of Forests and Weyerhaeuser replied they will not acknowledge Haida title until its existence is proven in court.

The CHN also argued the Minister of Forests did not consult the CHN before replacing and transferring TFL 39, and that this failure to consult was a breach of the Crown's fiduciary duty to the Haida.

The encumbrance argument didn't wash at all. Terri-Lynn Williams-Davidson, one of the lawyers representing the CHN in the case, said Justice Halfyard agreed with the province and ruled the Haida have to prove title in court before it can be considered an encumbrance upon Weyerhaeuser's licence.

\In response to the fiduciary duty argument, Will-iams-Davidson said the judge held that without knowing all of the legal rights the Haida may be entitled to on the islands (because title hasn't been proven), in his view it was impossible to determine the nature and extent of the Crown's fiduciary duty. And because he didn't know the extent of this duty, Justice Halfyard was not in a position to say whether or not that duty had been breached when Weyer-haeuser's licence was replaced.

"He did say if he was wrong and there was a duty, then the province had failed that duty," noted Williams-Davidson.

Three years ago there wasn't much legal confusion concerning the extent of the government's fiduciary duty towards First Nations, but late in 1997 the Supreme Court of Canada muddied the legal landscape when it handed down the Delgamuukw decision. Delgamuukw formally introduced the legal concept of aboriginal title in Canada, and opened the door to new interpretations of old law.
"Because title is a new issue and only recently held to exist in BC, we don't know what the fiduciary obligations are with respect to it," Williams-Davidson said. "We have an idea what fiduciary obligations are when they are dealing with reserve lands, and what they are with rights, but it's not clearly stated with title."

Since Delgamuukw, several non-treaty BC First Nations have brought cases to court looking to clarify and elaborate on the extent of the potential rights which arise from aboriginal title. In particular, Williams-Davidson said, the cases are concerned with the scope of consultation required when land-use decisions are made.

"All the cases now are trying to sort out what happens when you have title. Is consent required, or is it something less?" she said. "We say consent is required. But because we're dealing with an asserted right, that's where it gets grey. In our case we're asking what happens when you're dealing with the replacement of a Tree Farm Licence and you're not trying to prove title, is consent required?"

Williams-Davidson said the CHN is arguing that even though the Haida haven't proven aboriginal title to TFL 39, government must obtain the consent of the CHN or engage in meaningful consultation before replacing the licence because the Haida have asserted title to the area in question.

"The argument is that at the very least there should have been consultation substantially addressing the Haida's concerns," she said. "But the judge found in the facts that there was no consultation. So if there was a fiduciary duty, they've definitely failed it because they didn't consult - they didn't believe they had to consult with respect to replacements or transfers, and this position is reflected in their consultation guidelines."

Because he rejected all the arguments advanced by the CHN in the petition, on the surface of it Justice Halfyard's ruling may not appear to be especially favourable. However, the judge never said the Haida haven't got a case, merely that the CHN may be barking up the wrong tree. Throughout the decision Justice Halfyard suggests many of the issues are really matters for trial, rather than a petition, and even speculates the Haida could have much better luck should the CHN choose to pursue that route.

"I think the fatal flaw is that the petitioners want results that could only be achieved at a trial, and only after the Haida proved their aboriginal title and its infringement," the judge wrote in his decision. "In my opinion, there is a reasonable probability that the Haida will be able to establish aboriginal title to at least some parts of the coastal and inland areas of Haida Gwaii."

Upon examining the evidence, Justice Halfyard found the basis for this 'reasonable probability' in what he concluded were the facts of the case - facts which meet many of the tests for proof of aboriginal title the Supreme Court of Canada developed in Delgamuukw.

The judge found it was 'inescapable' that the Haida were the exclusive aboriginal occupants of Haida Gwaii from at least 1774, through the assertion of British sovereignty in 1846, to the present day. That the Haida were never conquered, never surrendered their aboriginal rights through treaty, and their rights were never extinguished through legislation. That for more than 100 years the Haida have claimed aboriginal title to all of Haida Gwaii, and that old growth red cedar is an integral element in the lives of Haida people.

"Basically he found all the facts for title," Williams-Davidson said. In spite of Justice Halfyard's nudge towards a title trial, Williams-Davidson said the CHN isn't ready to abandon the TFL 39 petition yet.

"There are two lines of cases concerning fiduciary duty. One line says you must prove the right before the duty follows. Another says you don't have to prove your rights before the fiduciary duty is engaged, and the fiduciary duty is always there whether you prove a right or not," Williams-Davidson said. "Now we're left having to settle this issue at a higher level of court because it's clearly not been resolved at the BC Supreme Court. With the appeal we're proceeding with the best possible facts- far better than any of the other cases out there trying to resolve this issue."
Guujaaw said he's not discouraged by Justice Halfyard's ruling, that win or lose the CHN expected they would be heading to appeal court.

"None of these cases are won at the provincial court level," he said. "That includes Delgamuukw, that includes our encumbrance case on TFL 39."

Guujaaw also said the CHN is preparing to launch a case to prove title and expects to go ahead with it while the TFL 39 case proceeds through the upper courts.

"We will prove title. The case will probably be concurrent with this one," he said, but added the CHN believes it's still important to settle the encumbrance and fiduciary duty issues in order for government to acknowledge its duty to consult First Nations before making land-use decisions in BC.

"They're saying title has to be proven first, and we don't want it to stand that way because this one effects everybody. If we let it stand that basically means the province or Canada has no obligation to consult."

Williams-Davidson said the lawyers representing the CHN will be preparing the appeal over the coming months and she expects the BC Court of Appeal will schedule a date this spring to hear the case later this year. ·

SpruceRoots Magazine - February 2001