SpruceRoots Magazine - September/October 2000
Weighing in for the title challengeby Ian Lordon
A decision with the potential to affect nearly everyone on Haida Gwaii could be made in Masset at the end of July when the court will hear a petition launched by the Council of the Haida Nation (CHN) aimed at quashing the replacement of Weyerhaeuser's Tree Farm Licence 39, Block 6.
Block 6 of TFL 39 encompasses 236,000 hectares of land - nearly a quarter of the Haida's traditional territory - most of which is found on Moresby, Louise, and Graham islands. The licence was granted to MacMillan Bloedel in 1961 and stayed in the company's hands until it was sold and transferred to Weyerhaeuser in 1999. In recent years the licence has provided an annual harvest of 1.2-million cubic metres of wood.
CHN president Guujaaw said the petition is arguably the biggest case before the courts at this time. The Haida are taking the petition to court because when talks fail the court provides another potential remedy. Recently, negotiations and consultation with industry and government were not adequately addressing Haida concerns about how the land is managed on Haida Gwaii.
"What's at stake here is Haida Gwaii and our culture. Over the last 40 years industry has run the government on an election to election basis," Guujaaw said. "Corruption is institutionalized throughout the entire forest industry. The very licence that gives them the 'right' to cut has always been illegal and this is what we've set out to prove."
Terri-Lynn Williams-Davidson is the lawyer representing the CHN which is claiming the provincial government illegally replaced TFL 39 in 1981, 1995, and 2000. The CHN petition comes on the heels of a 1997 BC Supreme Court decision which found that aboriginal title, if it exists, constitutes an encumbrance on crown land, and as such must be considered when land-use decisions like timber allocations are made.
"In 1997 the court held that aboriginal title could be an encumbrance and said the whole purpose of the Forest Act is to prevent the illegal distribution of timber," Williams-Davidson said. "A lot of us thought that would change the way things are done."
Unfortunately, those changes never materialized. When TFL 39 came up for replacement in March of this year, the province again elected to replace the licence over the objections of the CHN. The CHN has consistently maintained the Haida have title to the land in question.
The CHN's petition leans heavily upon a Supreme Court of Canada decision, also from 1997, called Delgamuukw which recognized and defined what aboriginal title is proven and what consequences proof of title has for land-use decisions made by the crown.
Specifically, the CHN will argue that in replacing TFL 39 the province failed to live up to its obligation to consult First Nations in decisions affecting title lands, an obligation the Supreme Court defined this way:
"There is always a duty of consultation and in most cases, the government's duty will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation"
Williams-Davidson said when the province replaced TFL 39, that consultation took the form of a conference call the day before the licence was replaced. Since the licence was renewed without any change to the status quo, the CHN's input was not given any consideration.
"Their consultation was a conference call," she said. "That isn't very strong, it's simply notification, not consultation."
The CHN's case hangs on two points. First, that the lands falling within TFL 39 could in whole or in part be encumbered by aboriginal title as defined in Delgamuukw. And second, that the Ministry of Forests knew of the Haida claim to title, knew it to be legitimate, and did not take any action to extinguish Haida title, address it, or prove TFL 39 was not encumbered by it.
If the judge agrees, Williams-Davidson wants an order quashing the 1995 and 2000 replacements along with any other relief or compensation the court considers just.
Guujaaw said if the judge rules against the petition, the grounds for doing so will most likely be that the Haida haven't proven title to the land, leaving the CHN with only one alternative.
"We can't lose," he said. "If the court requires that we prove title, then we prove title."
If the licence is quashed, Guujaaw said people won't be thrown out on the street, but some negotiations will have to take place before any logging can resume in what had been TFL 39.
"We have cultural and ecological concerns that would have to be addressed right off the top," he said. "Then we'd have to talk about the harvest rate, method, and who would do the logging."
As for the government, Ministry of Forests spokesperson Eric Kristianson said the Ministry will not comment on the petition until the court rules on it. Public affairs staff at Weyer-haeuser did not return calls inquiring about the company's role in the case.
The petition is scheduled to be heard at the Masset courthouse on July 31. ·
SpruceRoots Magazine - September/October 2000