by Ian Lordon

WITHOUT EQUIVOCATION

SpruceRoots Magazine - November 2002

SpruceRoots Magazine - February 2002

SpruceRoots Magazine - November 2002

SpruceRoots Magazine - November 2002

Well, they asked for it.

The latest battle in the ongoing legal war the Haida are waging with the provincial government in BC’s courtrooms was won, once again, by the Council of the Haida Nation.

This latest chapter in the continuing saga could prove pivotal because for the first time the Court has suggested that anyone who proposes to use land where aboriginal rights exist is obliged to consult First Nations before doing so.

Following the last CHN victory in February when the BC Court of Appeal ruled the Haida had not been adequately consulted by the province when Weyerhaeuser’s Tree Farm Licence 39 was replaced in 2000, lawyers for the Crown and the company asked the Court to clarify one surprising aspect of the decision.

Weyerhaeuser’s lawyers were concerned by the Court’s declaration that “the Crown Provincial 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 endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short term and long term objectives of the Crown and Weyerhaeuser to manage TFL 39 and Block 6 in accordance with the public interest, both aboriginal and non-aboriginal, on the other hand.”

The source of their concern was that the Court had included the company in the duty to consult aboriginals regarding decisions which may affect their traditional territory, whether or not aboriginal title has been established. This aspect of the ruling made an already exceptional decision even more remarkable, because nowhere else in the annals of Canadian law had a party other than government been directly implicated in this duty. Weyerhaeuser requested clarification from the Court on this portion of the decision. In effect, the company asked “did you really mean to do this? And if you did, are you sure this is legal?” On August 19, the Court answered a qualified but emphatic yes to both questions.

It was, it should be noted, a split decision. Two of three judges asked to clarify the original decision, Justice Lambert and Chief Justice Finch, answered ‘yes,’ while the third, Justice Low, said ‘no.’

Justice Low didn’t say no because he believed the Court made a mistake about including Weyerhaeuser in the duty to consult, but rather because he didn’t think the court had been asked to address the question in the first place.
“I think we erred in extending that duty to Weyerhaeuser. I do not say the duty on Weyerhaeuser does not exist. I simply say that the issue is not properly before the court,” Low wrote.

Chief Justice Finch took the middle road. He didn’t go as far as saying that in every case a third party owes the duty to consult with aboriginals, but in this particular instance he felt that only by including Weyerhaeuser could the Haida be given the appropriate influence over the many decisions the company makes with obvious implications for their traditional territory.

“If the position of the Crown and Weyerhaeuser were accepted, and Weyerhaeuser had no duty to consult, the Crown would lack effective power to address any of the Haida’s concerns, or to accommodate their legitimate economic objectives,” Finch wrote. “A declaration against the Crown alone is no remedy at all. Justice cannot be done in these proceedings without a declaration against Weyerhaeuser as well.”

Justice Lambert went the furthest of three judges. He said without equivocation that Weyerhaeuser owed a duty to consult the Haida, and that if the company (or the Crown for that matter) were to fail in that duty it could face significant financial consequences down the road if the Haida succeed in establishing aboriginal title to some or all of the TFL.

“If the claim to aboriginal title is supported by a good prima facie case, then anyone who violates the title will be liable when title is either conceded or proved,” Lambert wrote. “Again, the aboriginal people collectively holding the title would be entitled to compensatory damages and, depending perhaps on the strength of the prima facie case or the purposefulness of the violation, to aggravated and punitive damages.”

The prospect of third parties being obliged to consult with BC First Nations concerning land use decisions drew plenty of attention to the case from the province’s business community. Attention which manifested itself in a list of new parties seeking intervenor status in the proceedings. They were the BC Council of Forest Industries (COFI), the Business Council of BC, the BC Chamber of Commerce, the BC Cattlemen’s Association, and the Squamish Indian Band.

Terri-Lynn Williams-Davidson, one of the lawyers representing the CHN, said all the intervenors except the Squamish Band were there to argue Weyerhaeuser’s side of the case. She said COFI, the Business Council, and the Chamber of Commerce were all there to repeat Weyerhaeuser’s argument from the original decision which implied that if the Courts impose the duty to consult on third parties business in BC would come to a standstill.

“It’s what we call the ‘floodgates argument,” she said, because Weyerhaeuser already used the argument in the original Appeal, lawyers for the company weren’t allowed to repeat it during the clarification. And judging from the decision, the argument was no more persuasive the second time around.
As for the Cattlemen, Williams-Davidson said they told the Court that because most of them were individual ranchers they lacked the resources to consult aboriginals who might be affected by their herds.

The Squamish Band was in court to provide examples of how consultation was not an overwhelming burden on business, and demonstrate that First Nations are capable of working with industry to the benefit of both.

None of the intervenors seemed to have influenced the judges hearing the case as the decision essentially reaffirmed what was said in the original reasons. If anything, the clarification they received from the Appeal Court on August 19 only solidified what for Weyerhaeuser was a decision that clearly didn’t sit well to begin with, and Williams-Davidson figures they like even less now.

“I think they’re sorry they asked for it,” she said. •