SpruceRoots Magazine - July 2004

Some of the delegation from Haida Gwaii that attended the Supreme Court of Canada to hear:

The Minister of Forests et al. and
Weyerhaeuser Company Limited
Council of the Haida Nation and Guujaaw et al.

left - right:
Chief Sgaann 7wi 7waans, Alan Wilson
Chief Iljawuus, Reynold Russ
Chief Git’kun, Johnny Williams
Chief Niis Wes, Ernie Wilson
Peter Lantin, Chief Councillor, Old Massett
Violet Collison
Richard Russ, Councillor, Skidegate
Guujaaw, President, Council of the Haida Nation
Dale Lore, Mayor of Port Clements
Irene Mills, CHN Director
Barry Pages, Mayor of Masset
Elsie Stewart-Burton, CHN Director
Margaret Edgars
Barbara Clayton
Trish Collison, in front
Eddie Russ, Councillor, Skidegate
Arnie Bellis, Vice president, Council of the Haida Nation

So Now

By Ian Lordon

So now it’s up to the ultimate judicial authority in Canada to determine the ultimate decision-making authority on the Islands. Or to rephrase things through a colloquial, sexist, but easily understood expression – the Supreme Court is gonna tell us who wears the pants on Haida Gwaii.

Whether or not wearing the pants means you’re giving orders or taking them, seeing as how Haida society is traditionally matriarchal and the Chief Justice of the Supreme Court of Canada is a woman, is open to debate. But you get the point. Or at least that was the point Chief Justice Beverly McLauchlin seemed to be making when she questioned Louise Mandell, lawyer for the Council of the Haida Nation, last month in Ottawa.

“Who decides when the parties can’t agree?” Justice McLauchlin interrupted as Ms Mandell presented her case. “Successful negotiations usually take place against a background of an ultimate authority. If the province makes a decision and the Haida don’t like it, what can they do? Are you asking for a veto?”

On the surface of it, the hearing was scheduled to consider whether or not the BC Court of Appeal was right when it said the province and third-party interests like companies must consult and accommodate First Nations when they make decisions that could affect lands they claim rights or title to. If recent press reports are to be believed, then Justice McLauchlin and her residing judges had already made up their minds about that question. The one it appeared they still wanted answered was who, if anyone, would government and First Nations turn to when they disagreed over whether the accommodation had gone to the extent required by law?

The BC Court of Appeal said the buck stops at a court-appointed officer when it introduced the concept of accommodation in two precedent-setting decisions. The first overturned the approval of a 120-kilometre access road through virgin wilderness in territory claimed by the Taku River Tlingit, and the second found the transfer and replacement Haida Gwaii’s largest Tree Farm Licence, Weyerhaeuser’s TFL 39, was illegal. But Justice McLauchlin’s questions hinted the Supreme Court is not entirely satisfied with that solution and is looking for something else.

Earlier, on the first day of the hearing when the appellants had their say, the Attorney General of Canada in the guise of a Mr Mitchell Taylor claimed the Haida, the Tlingit, and every other non-treaty First Nation were already granted a veto over land-use decisions when the BC Court of Appeal ruled accommodation was the standard that had to be met when aboriginal title was an issue before decision-makers. Mr Taylor also suggested the BC court was mistaken in doing so.

“Aboriginal interests must be taken into account but they must not be the trump card,” he said. “The position of the Attorney General is there is no duty to consult and accommodate where there is no proven right. The Court of Appeal assumes rights that don’t exist and that’s a fundamental error.”

Emphasis on unproven aboriginal rights and title was a popular theme when the court heard from the appellants and their interveners — the federal Attorney General, most of his provincial counterparts, and several BC business interests. First among them was BC Crown counsel Paul Pearlman who foreshadowed the arguments to come when he claimed the BC Court of Appeal went too far by insisting provincial administrators accommodate aboriginal interests when making decisions that involved unproven rights or title.

“The effect is one of legal entitlement before the rights have been proven,” Mr Pearlman said. “In order for negotiations to resolve these issues a balance must be reached between the ability of government to govern and rights that may never be determined to exist.”

Mr Pearlman explained that existing legislation, specifically public administrative law, was up to the task of meeting government’s duty to consult aboriginals where unproven rights or title might be implicated. He said to suggest, as the BC Court of Appeal did, that the province’s duty to consult is a constitutional and fiduciary one was too great a burden to impose on government at this stage.

“It is not the position of the province of British Columbia that it has no obligation, nor is it the position that aboriginal rights and title don’t exist until they’ve been proven,” he assured the court. “The province’s position is that it owes a ‘duty of fairness.’ That duty is informed by Section 35 (where the Constitution recognizes aboriginal rights) and the honour of the Crown and obliges it to seriously consider them before they’ve been proven to exist. The duty to consult is one of the elements of the duty of fair dealing.”

Mr Pearlman said to impose constitutional and fiduciary duties upon government decision-makers like forest managers would be asking too much of them. “Administrators are simply not equipped to handle fiduciary duty. Fiduciary duty tilts standards towards protection. My argument is that it implies priority. If these are public law functions then the fiduciary duty ought not to be imposed.”

Mr Pearlman also took exception to the BC appeal court’s decision to extend the duty of consultation to third parties like private companies. He argued licensees like Weyerhaeuser should be answerable to government alone and not First Nations, that government will take the necessary steps to ensure aboriginals are properly consulted before companies engage in activities on contested lands.

“The terms of the licence provide for consultation.”

This last point was elaborated by Weyerhaeuser’s lawyer, John Hunter, when he stepped forward to address the court.

“Whatever obligations exist, if they exist, are obligations of the Crown not the licensees,” he declared. “It’s essential that private sector licensees are able to rely on the documents they get from the Crown. The Crown is alive to the possibility that Section 35 rights may exist, and this awareness is affecting the relationship between the Crown and the licensees.”

Even if the court does insist on including third parties in the duty to accommodate, Mr Hunter argued it should not do so before First Nations prove their title in court because that obligation completely alters the decision-making environment.

“We’re in this pre-proof stage,” he said. “Risk management is different from a legal obligation.” As important as that distinction is, Mr Hunter brought up Weyerhaeuser’s Culturally Modified Tree policy and the fact that the company makes cedar available to the Haida for free as indications it is sensitive to aboriginal concerns. “We’re not here to protect an ability to ignore the Haida.”

But a cynic might claim Mr Hunter was out to do exactly that when he concluded his presentation by restating the obvious.

“Neighbourliness is different from a legal obligation.”

By the end of the first day everyone in court was undoubtedly very ‘alive’ to the fact that the BC Court of Appeal had introduced a ‘legal obligation’ making life difficult for business and governments. The following morning the Supreme Court heard that without the legal obligation in question a mining company would be punching road through Tlingit territory and Weyerhaeuser could enact its 20-year plan without restraint — liquidating what forests remain in TFL 39.

“An incredible amount of Haida Gwaii has been logged by Weyer-haeuser and its predecessor companies,” counsel for the CHN, Terri-Lynn Williams-Davidson, told the court. “It is clear from this map that the old growth forests of TFL 39 will not survive Weyerhaeuser’s logging plans.”

Alongside lawyers representing the CHN were fellow respondents the Taku River Tlingit, and many intervenors including the BC Union of Indian Chiefs, the First Nations Summit, the village of Port Clements, and the Haisla, Squamish, Doig River, and Dene First Nations.

Ms Williams-Davidson asked the judges to examine a 19th-century photo of Skidegate village depicting the many longhouses, totem poles, and canoes and remarked how “one is struck by the indisputable Haida use of the forest.”

“The cedar tree is our sister, providing for and sustaining our culture. Among the rights at issue in this case is the right to use the forest — which includes the right to leave the trees standing.”

Williams-Davidson concluded her remarks by telling the court the Haida hoped to see an equitable sharing of the benefits from the forests of Haida Gwaii and an Islands community characterized by cooperation and collaboration between Haida and non-Haida people.

Next came Louise Mandell who replied to Justice McLauchlin’s questions about ultimate authority by pointing to an earlier Supreme Court decision — 1997’s Delgamuukw and its definition of aboriginal title as the authority that government and licensees must defer to.

“Title is the standard. The decision-maker must judge whether the decision does not violate the standard definable by aboriginal title.” Ms Mandell said Delgamuukw imposed a duty to negotiate upon the Crown and licensees. The approval of the mining road and replacement of Weyerhaeuser’s TFL are proof that the duty went largely ignored until the BC Court of Appeal ruled it included accommodation. “The scope of the duty to accommodate is proportional to the likelihood that title or rights may be breached.”

She took issue with the appellants’ argument that “without proof we don’t know what we’re dealing with,” by suggesting legislation like the Constitution of Canada is hardly a secret “Section 35 didn’t create anything, it’s an entrenchment section.”

Ms Mandell closed by quoting Mark Twain who once said “my life has been filled with terrible disasters, most of which never happened,” as a reminder to the judges that they shouldn’t hesitate to rule in favour of the Haida because the Crown is making hysterical predictions of economic calamity if they do. She said the Haida aren’t asking the court to resolve all the issues between the Haida and the province, simply to provide them with the means to do so fairly.

“It’s impossible to set the limits, what we’re encouraging the court to do is set out a framework.”

The last of the intervenors supporting the Taku and Haida was Stuart Rush, counsel for the Village of Port Clements, who backed Ms Williams-Davidson’s claim that a Haida win would be good for everyone on the Islands when he told the court “the families and workers of Port Clements are some of the people closest to these events. The accommodation of rights and title will serve them better than the status quo. If the province permits Weyerhaeuser to continue logging at the current pace the village of Port Clements will die.”

Mr. Rush said if Haida interests are accommodated “there is a greater probability the forests will be managed in a sustainable manner” and that the BC Court of Appeal ruling “provided a framework for reconciliation that fulfills the promise of Section 35.”

When Mr Rush was finished BC counsel Paul Pearlman had a few minutes to deliver his rebuttal. In it he repeated the need for the province to have final say over decisions on the Islands.

“The role of government is to make policy decisions,” he said. “The purpose of consultation is to inform the decisions of government. Government should be able to govern.”

That same evening the Council of the Haida Nation and EAGLE (Environmental-Aboriginal Guardianship through Law and Education) hosted a reception and press conference at the Ottawa Conference Centre. Only a few blocks east of the Supreme Court, the Centre was once the city’s train station. More recently, but still 25 years ago, the provincial Premiers met there with then Prime Minister Pierre Trudeau to hash out the Constitution Act, passed into law amid great fanfare in 1982. It was Section 35 of that legislation which led to the Delgamuukw decision, which brought the Haida and the Tlingit to Ottawa in March. It was, Ms Mandell said at the press conference, the promising end to a long journey.

“Today was the end of a legal journey that EAGLE started in 1995. We were fighting over one hundred years of denial of aboriginal title. We feel we had a good hearing and we’re hopeful we’ll have a good judgement.”

Back in his Victoria office, Paul Pearlman said if the Haida win the appeal expect it to make life a lot harder for government administrators — the creatures of existing legislation like forest district managers.

“Where it becomes difficult, or where it moves beyond the expertise of foresters or administrative decision-makers, is when you say the decision maker has an obligation to determine the precise nature of the right being asserted. To determine the extent to which the right if it exists will be infringed. To essentially go through the same kind of analysis the court would take months or even years to go through in a title case. In other words, ‘we own that and we have the right to choose how it will be used.’ That really does put the decision maker in a very, very difficult position.”

CHN President Guujaaw sees it another way. He said the decision before the judges is a chance for the court to provide all the parties with a framework within which many of the outstanding issues can be addressed substantively until the Haida can prove their claim to title.
“What this thing does is gives us a mechanism to try and work things out between now and the establishment of title. So by the time we get to title everything should be settled. It’s a real good opportunity not just for us but for the Crown to try and figure this out.”

Guujaaw said the Haida can’t lose because even if the court rules against them, the case has to be viewed within the context of the larger quest for recognition of aboriginal title.

“If a decision is made that we don’t agree with we can always go back to court. We won’t lose. We don’t lose.”

Which is much the same way Louise Mandell looks at it.

“If the court says there’s no duty to accommodate then we’ll simply continue to push the agenda of aboriginal people and we’ll find another opening to make a different kind of argument to break the logjam. It doesn’t change anything, you just keep doing what you’re doing. As lawyers in your work you just keep looking for another opening. So if we push the agenda an inch not a mile, if we get consultation not accommodation, then we’ll have to push it the next distance by fighting another case. But nothing changes, it’s all the same struggle. It’s the same forces at play. It’s the same land that needs protecting, it’s the same people trying to protect it. What changes is another opportunity to make the struggle work.”

Nevertheless she does grant that as a lawyer there is something special about taking that struggle before the highest court in the country.

“I’ve been there before several times, but every time is different. It doesn’t change it. You walk into… the performance, which in a way it is, needing to deal with your own fears. That you may not say perfectly what it is you’re feeling and afterwards you’re left with regret over what you could’ve said or should’ve said. And that’s a big responsibility. It’s a wonderful experience and it’s quite challenging.”

A challenge her co-counselor, Terri-Lynn Williams-Davidson, met with grace, composure, and what Ms Mandell described as precedent-setting style.

“I don’t think the court has ever had the facts rendered the way she did. It was very much done from a Haida perspective and not from an aboriginal law, non-aboriginal perspective. Which is what I and others have argued before because we’re not aboriginal. She did quite an unusual thing where she referred to the Haida in the personal sense as in ‘I,’ and ‘we,’ and ‘our.’ She rendered the facts from her perspective rather than the way the court is used to. I thought it was a first-time beautiful moment for advocacy. To see the way in which an aboriginal person speaking about their own rights and their own territory and their own people would try and get the court to see it from their perspective.”

Ms Williams-David-son said that part came easily.
“I think it was just natural. The whole reason for going to law school was to be arguing from that place. One of the goals I had as a lawyer was to argue at the Supreme Court of Canada, so I guess that means I can retire now.”

There is, unquestionably, an intimidation factor at play in the Supreme Court. Chief Justice McLauchlin does not gladly suffer fools and seems to delight in cutting off a lawyer in mid-argument to ask a pointed question or remind them to stay on track. Most in the profession regard an appearance in Supreme Court as an honour. A victory is all the sweeter. Several of the many lawyers who addressed the court over the two-day hearing were noticeably rattled, but Ms Williams-Davidson wasn’t one of them.

“I’d be lying if I said I wasn’t nervous because of course I was. The challenge was to get to a place where I was no longer nervous when I started speaking. Because if I had any weakness in the position I was coming from then that would have affected my presentation.”

Ms Williams-Davidson said preparing for her appearance was more than a matter of organizing her arguments. She also took pains to prepare herself mentally and familiarize herself with the environment ahead of time so she would be comfortable when her time to speak arrived.

“I thought about the case for about a year. I went to the Supreme Court of Canada last June to watch another case so I could see the bench and see how the court was and how proceedings went. I’m maybe not as intimidated as other people would be because I know that the Haida people are dedicated to protecting Haida Gwaii and that even if we were to lose we would continue pursuing that ultimate goal. So while there was a lot of responsibility on us in making those arguments I know that if we weren’t successful there would still be other ways for us to achieve our ultimate goals.”

With the hearing over, all that’s left is a wait of several months before the court releases its decision. In the meantime Ms Williams-Davidson said she’s not losing sleep over what that decision will be, although she does have ideas about what she’d like to see in it.

“I hope the court would give some definition not only about what the duty of accommodation means but also about when the inherent limit is engaged,” she said, referring to the Delgamuukw decision which said possessing aboriginal title to the land does not allow First Nations to destroy its ability to sustain their traditional cultural activities. “Because there’s not a huge passage in Delgamuukw about what it means on the ground. And in places like those where the Haida are and the Taku River Tlingit are, we’re stressing these inherent limits and the need to have the inherent limits respected. Given the work that we do, that’s where I’d really like to see more definition given.”

Ms Mandell figures there’s a good chance the court will uphold the principles established by the BC Court of Appeal ruling — the duties to consult and accommodate First Nations. But how it chooses to implement them is where she suspects the surprises might lie.

“That’s the issue that’s snagging the court’s thinking right now. If I can read the court what I hear them saying is that we’re convinced this duty is necessary. And we’re certainly convinced that it’s constitutional and it’s fiduciary — which are the kinds of words that bind the Crown and not just guide the Crown. But now it’s figuring out what the scope is and what does it look like when an appellant court looks at exercises of discretion. If there’s going to be a qualified win it’s going to be inside that question.”

Of course all these questions turn on the most fundamental one — the question of ultimate authority. Of who wears the pants. It’ll be months before we have an answer, and it might not be final, but when it arrives it will be delivered by seven men and women dressed in black robes.

Click here for a summary of intervenor arguments.