SpruceRoots - Transcript No. 2
November 28, 2002

Questions and Answers
Haida Title and Implications

Moderator, John Farrell: I would like to open the floor to questions and I would like you to ask just one question each and then if there is time at the end, a second question from that person. So I will open it up to questions if you have any.

Question: I understand there is a distinction between Aboriginal Title and Haida Title and I didn't hear that brought out tonight, am I wrong?

Terri-Lynn Williams-Davidson: Aboriginal Title is Canadian law about First Nations' laws, about our traditional relationship with the land. Crown Title is here, Aboriginal Title is layered on top. Crown Title is the root Title underneath Aboriginal Title. Haida Title is: we owned Haida Gwaii and we were managing Haida Gwaii before the Crown came to Canada. Aboriginal Title is recognizing that there are two Titles and we're going to find a way for those two Titles to live together.

Question: I am sort of new to this whole process and I really appreciated both of your presentations. It clarified a lot for me and I am more curious about the time line?

Louise Mandell: Well I can give you an example through the Delgamuukw case. The case was filed in 1986 and we were starting the trial three and a half years later. I do think that there has been a lot of clarification of the law since Delgamuukw, which will probably shorten things a bit here, but I think that is roughly the time line. And then once Delgamuukw went through the trial, it then ended up going the appeal process and we weren't out of the Supreme Court of Canada until 1997, so that is quite a long ways away. But again you don't know how these things will happen because I think there was no motivation on the part of the governments to negotiate in the Delgamuukw case, and in fact it was the province that stopped the negotiations which were started after the Court of Appeal decision and forced the case back into the Supreme Court for a decision from the Supreme Court of Canada because of the positions that were being taken at the treaty table. There is always this complex web of whether or not the litigation provokes negotiation and possibly resolution or whether or not the resolution becomes impossible and the courts end up getting the whole 'how-do-you-do'. So I think the timelines are governed by that description, but it's pretty hard to be accurate.

Question: Just to follow up on the time line now and the second to last page in this [Statement of Claim] you mention interlocutory relief. How is that being played out? I understand John [Broadhead] mentioned that there has been a cutback on the annual allowable cut voluntarily by Weyerhaeuser, but that still doesnÕt really, to me, resolve all the other things that are going on, maybe even that AAC isnÕt sustainable. In your discussion you talk mostly about the land, but you did mention that there was a line going on out in the ocean somewhere. What about the marine resources, how are they being handled? What are the stewardship issues around those things? It seems to me that there is no idea of the impact that sport fishing is having, for example. I mean that has sort of fallen completely off the radar.

Louise Mandell: I'm glad you asked that question. It wasn't meant to be an omission, it was just that I was going too fast over everything to cover all the bases. The ocean and the fishery is as integral a part of the case as the land issue, and so everything which I said about the land is true about the sea as well. The question of the sport fishermen is in the relief, when we say that the complaint is against the governments issuing tenures, permits and licenses which have given the resources away to others to Haida detriment. The fishery is as much a part of that story as the land issues, both of them are being approached the same way in the court case. The sports fishermen and the depletion of the marine resources -- I mean the salmon are a linchpin to the whole ecological ecosystem and so it will be the salmon and how that's sustainable that is, believe it or not, going to be quite a big piece of the sustainability of the forests as well. The ecosystems are all so tied together.

The question about interlocutory relief and how much can you achieve by getting judgments earlier than the trial in order to start reversing some bad trends -- that is something which is really a matter of decision inside the litigation of the case. If for example, the offshore oil development were to begin in earnest there would probably be no doubt that we would use interlocutory relief to stop that because of the big impact that it could have on the fishery. So I think that is an example of where the interlocutory relief is positioned, the remedy is positioned, to go after various aspects of preserving Haida Gwaii between now and the trial. But how we do that is still to be determined and I know that interlocutory relief is, first of all a hard remedy to achieve, but it also takes a lot of time and effort to do it, so it will be strategically used. It won't be a kind of broom where you can sweep everything up between now and the trial. It will be a much longer process than that and it's going to require on-the-ground negotiation, and the people here doing all the things they always do to try to keep political relations in order and moving the way you want it to. This court case isnÕt a silver bullet where inside is all of the remedy.

Question: I was wondering whether there has been an effort to put the pressure on the continual growth of the sport fishing lodges. Every year there are more and more boats in the water and there is another one springing up here and another one springing up there. I havenÕt heard much about it. There is no TFL-39 in the sport fishing industry, it seems to me there is no Haida presence to try to put an end to it.

Terri-Lynn Williams-Davidson:
I would just like to add one thing to the question about the AAC for Weyerhaeuser. Within the TFL-39 case the BC Court of Appeal appointed a judge to oversee accommodation measures. WeÕve applied to have a judge appointed within the TFL-39 case and we will be enforcing accommodation on the part of Weyerhaeuser and the Province. It will likely be that while the AAC or the harvest rate -- because actually the AAC hasnÕt been lowered yet, itÕs just the rate of harvest temporarily -- is that thatÕs a temporary reduction and that we like to do further studies to asses the impact of TFL-39 on Aboriginal Rights and Title. How much further cedar will be taken? How much cedar is left? All those issues weÕll be looking at in the TFL-39 case. So while that is not part of the Title case we can still get important interim relief before the Title Case is proven.

While there isnÕt a ÔTFL 39Õ case on the fishing, the duty in Weyerhaeuser also applies to other third parties other than just Weyerhaeuser. The court was clear that if third parties have notice of Haida Title they have notice of the CrownÕs breach, then they have a duty to accommodate Haida Title and Rights as well. I think weÕll see a very different relationship from here on in between Haida people and other resource industries, especially if there is a big impact on Haida Title or potential Haida Title and rights.

Question: The Haida withdrew from the treaty process?

Terri-Lynn Williams-Davidson:
No, the province withdrew. The Haida were still in the treaty process. The province withdrew from the treaty negotiations when we pursued litigation because we couldnÕt get that issue [replacing TFL-39] addressed at the treaty table. The province has a policy of not doing negotiation and litigation at the same time.

Question: So the province withdrew, but they arenÕt negotiating with the Haida people right now. Will the Aboriginal Title case open up, perhaps, more negotiations and process going on?

Louise Mandell: Well, could be.

Question: In order to negotiate rather than to go to court?

Louise Mandell: Usually what happens inside litigation is that instead of the negotiations being done through the treaty process where they donÕt negotiate and litigate, the Department of Justice will be advising the ministers as the litigation proceeds, and often negotiations do generate themselves as a result of litigation. You canÕt say for sure but that is very often how things happen.

Statement: [Speaking in Haida] Terri-Lynn and Louise weÕre very proud of you both. We gain strength from what youÕre doing. Everyday when we pray we will pray that our ancestors help you in what youÕre doing. ThatÕs my Haida part but I canÕt help but feel that itÕs so right, [speaks in Haida] that itÕs women that are leading this case. We are matrilineal, everything comes from the women, and I feel that our Haida Gwaii is in good hands with you two.
Howa.

Terri-Lynn Williams-Davidson and Louise Mandell: Thank you.

Applause

Question: My question is to Terri-Lynn. I was impressed with the sincerity in your voice and your words and I think the rest of us were. The difficulty weÕre having signing the [Council of the Haida Nation Community] Protocol is that your case is in legal language, and being treated that way, and unfortunately the non-native people look at the legality as well. If you are going to play with legal words then the accommodation between the two cultures has to be done in a legal manner, and thatÕs the difficulty that we have with the protocol. Would you care to address that?

Terri-Lynn Williams-Davidson: We havenÕt been involved with drafting the protocol and itÕs interesting because itÕs in English which isnÕt our language too, as Haida people. From my reading of the protocol, itÕs setting up a process for us to work together and come up with a solution. ThatÕs the heart of the protocol. If you peel away all the legal language, itÕs creating a path for us to go down to create a solution for the future. ThatÕs all the protocol is.

Response: Well I think we all want what you want, which is sustainability for us and our children.

Question:
My question is related to the protocol as well. The question is for communities, whether itÕs a municipality or a rural area of the regional district, they have a certain place in the hierarchy of provincial municipal law and Crown. So I guess, maybe more specifically, whatÕs the legal implication for a municipality or an institution thatÕs part of a provincial system to sign the protocol with the Haida people? If the basis of the protocol is to start by recognizing Aboriginal Title as the starting point to move forward, do the communities need to be concerned in doing that?

Louise Mandell: I donÕt think so. I mean I doubt it. Concern legally, thatÕs interesting, you are worried it is all legal language. I mean, concern legally is that someone is going to sue somebody right? That youÕre going to go to court and say such and such happened and such and such broke the protocol. Well that isnÕt the way I read the protocol. ItÕs not the kind of agreement which anybody would go to court and say such and such didnÕt do this according to the protocol. What it really is, itÕs not a legal document in the sense that gives rise to remedies. ItÕs a legal document in the sense that it states a common intention, thatÕs how I see it, legal in that sense, legal in the sense that with witnesses and with the intent commonly to do something together people sign a piece of paper to say we intend something together. ThatÕs really how the protocol is. ItÕs not a contract in the sense that one party is going to sue the other for not doing something about it. I think thatÕs really how I saw it. I can feel what youÕre saying about this language is too legal and maybe thatÕs true, I donÕt know. ItÕs not legal in the sense that there is a reason to fear signing it. ItÕs a matter of: do you want to commonly intend something; and thatÕs what I thought the document was set up to do.

Question: IÕm really encouraged Louise by your statements of looking towards another way of resolving the issue other than the courts. ThatÕs something IÕve advocated for a long time and IÕm happy to go down that course. Obviously the protocol agreement is the opening door to that. You just defined the protocol agreement as a statement of intention. The intentions of all the communities and of all the discussions that went on over the protocol was always the same. It was always clear -- to work together and come up with a resolution. But signing the protocol agreement requires acknowledging the existence of Crown and Aboriginal Title. If itÕs such a simple thing and itÕs only a statement of intention, why are the decisions around it so very complex and why has it taken five years just to take the first step in the settlement of it. There must be more here, the municipalities of the Islands have four separate legal opinions saying that they shouldnÕt sign it and thatÕs ridiculous. If itÕs just an intention, weÕd be merrily rolling down the road right now but we arenÕt. In order to make the intention valid we have to first of all acknowledge the existence of Title, and weÕve been told thatÕs a bad thing to do. Why is that a bad thing to do?

Louise Mandell: Well itÕs part of the legal culture of this Province. We have had one hundred and seventeen years about non-recognition of Aboriginal Title and the courts have said Ôrecognize itÕ. The province still doesnÕt and I think it is just part of the culture of this province to not want to recognize Aboriginal Title, full stop. I mean I really donÕt think there is anything more to it than that.

Question: I just wanted to say thank you as well. IÕve done quite a lot of traveling over the last few years, up in the north and down in the south and I keep saying that Haida Gwaii is going to be an example for a lot of other places to follow and this is a pretty essential process. My question is about marine issues and how unique this whole process is in terms that the line goes out into the ocean, and how something such as salmon is essential to the culture and the Islands. What has happened in the past in terms of legal decisions and how you deal with a migratory species? They come and they go. The salmon going by Haida Gwaii are from Idaho eventually or from other areas. Where as the fresh water systems, say in the NisgaÕa treaty or in other areas in the north or the Yukon, were generally based on specific fishing grounds and specific fish that went through that area. How do you see that unfolding or how do you see from the past how that is going to unfold on Haida Gwaii and in this Title case? I guess itÕs a little more difficult than trees in a specific area.

Terri-Lynn Williams-Davidson: Well Louise was involved in another case with the Saanichan. The Saanich people were looking at a provision of a treaty which guaranteed the nation to fish. What was proposed was the building of a marina in the habitat of the fishery and because they held the Treaty Right to fish, that Treaty Right necessarily entailed protection of the habitat and the species and so the marina did not go forward. So we have an opportunity to protect the habitat of the salmon and other species that are important to Haida culture with the case, but there hasnÕt been any case law in the world establishing Aboriginal Title to the ocean, so it is very new in that regard.

Follow up question: Especially in terms of the Alaska fishery interceptions, we see that as a big issue and how that is going to unfold. Protecting the habitat is great, but how do you deal with the outside?

Louise Mandell: Well there is also law that we can borrow from dealing with other migratory species, like animals that go in and out of peoplesÕ territory and water that flows in and out of territory and migratory fish that go in and out of territory. If we establish Title which weÕre going for and fishing rights which weÕve already got, inside their legal principles there is some capacity to reach outside of territorial waters of Haida Gwaii to protect fish. In the case of water, you can protect against downstream pollution coming into your area; in the case of fish, you can protect against interception which prevents the exercise of the Rights. ThatÕs happened in the case of Alaska with the Alaska fisheries case up there, and in the case of animals you can reach beyond the territory if there is going to be some impact to the animals that migrate into your territory from an event outside of the territory. So although all of this needs to be determined, there are principals in the law which allow for extra territorial jurisdictional arrangements to protect the integrity of the territorial resources.

Question: Could you explain please the connection between the establishment of Aboriginal Title and the establishment of a form of self-government?

Louise Mandell: Well as a matter of law, Aboriginal Title embodies a form of self-government because the court has said that with Aboriginal Title is the right to make decisions about how the land is used. So thatÕs an element of self-government, which is inherent in the Aboriginal Title itself. If you prove Title, that is a piece of it. There are other elements of self-government over people and not over land, like education and health, and those elements of self-government the courts have not, we are not, in this case going for proof of all of that. This isnÕt the case about self-government over people. This case is about the land and the self-government rights that rise from land management issues. So another case probably, maybe not on Haida Gwaii, maybe yes, it depends on where people want to go politically. That may be resolved, I donÕt know, but this case is really about the decisions involving the land.

Question: Earlier you talked to the work that had been done in the past and you mentioned Godfrey Kelly and Alfred AdamÕs. Is there anywhere a concise record of who it is that has put forward the Haida case for a hundred or so years. Because it seems to me that there is, I mean the Crown is the Crown, you can always point to the Crown, but how has the Title case evolved? Is that down in the record anywhere?

Terri-Lynn Williams-Davidson:
ItÕs everywhere in the record. The TFL-39 case was establishing notice of Title, and establishing notice that the Crown knew that we say this is Haida Gwaii and we have lived here since forever. So even within that case we filed a whole record of Haida assertions of Title throughout history. We have just started to look even further than that, and we have found a lot more from our preliminary looking into the evidence. The case is very strong.

Question: Who were these people speaking on behalf of the Haida people? Were they like the Council of the Haida Nation? It hasnÕt been around forever as far as a political body goes, was there a preliminary Council of the Haida Nation? Who was Godfrey Kelly and Alfred Adams speaking on behalf of? Were they like the president of the Haida Nation, were they Hereditary Chiefs?

Terri-Lynn Williams-Davidson: They were speaking on behalf of the Haida people. I think Godfrey Kelly was initially involved in the formation of the Council of the Haida Nation and may have been speaking on behalf of the Council. Going back further, the people were speaking on behalf of the Haida people or with respect to Skidegate or Massett on behalf of the people in Skidegate or Massett.

Question: I have a question about the decisions and how they are arrived at by the judges in regards to some of the arguments that we experienced in our discussions in Sandspit around the Protocol Agreement, and the ability to recognize the co-existence of Aboriginal and Crown Title. The main one was that three out of five judges in the Delgamuukw case, I believe it was, actually agreed with the decision and same with the TFL-39 case: there was two out of the three agreed where as one didnÕt agree. How does that work in the standing of the decision? Is it weighted in the number who agree more to it, or how does that work?

Louise Mandell: Well the Supreme Court of Canada decided Delgamuukw. So first of all it wasnÕt three out of five, it was a bench of judges and the decision was of the court and that is the decision of the highest court of the country. You canÕt do better than that. Three out of five was the Court of Appeal. Then it was appealed and the Supreme Court of CanadaÕs decision was what you see.

In the TFL case, the question is whether there is a duty on the Crown to consult and accommodate, and whether that should have been done before the TFL was issued. That was a decision of the whole bench, three out of three with the Chief Justice presiding. Pretty strong. And then on the re-hearing where Weyerhaeuser said: ÔYou couldnÕt have meant me. I know Aboriginal people and the Crown but not me, you couldnÕt have meant us.Õ And they brought in COFI (Council of Forest Industries), the CattlemanÕs Association, and the Chamber of Commerce. All of those guys stood up and said:ÕÔYou couldnÕt have meant them!Õ Anyway, in that case it was two out of the three judges, which is a majority, with the Chief Justice with the majority. The decision is a decision of the court, so it is fully supported. This is the law as it presently stands in both cases so thereÕs really no -- we call it Ôworm powerÕ -- that the other side might try to take from the judgment, try to figure out whoÕs on their team and whoÕs on ours. These are good solid decisions of the court.

Terri-Lynn Williams-Davidson:
Also in the second TFL decision from the Court of Appeal, the third judge dissented on a procedural ground, so he wasnÕt looking at whether Weyerhaeuser had a duty or not. But even further, the findings of our Haida Title and Rights and the importance of cedar and our relationship to the land was agreed to unanimously by the courts. So they held the findings of Justice Halfyard, with respect to Haida Title to the land.

Response: Yes. It just concerned me that some people suggest that just because two people didnÕt totally agree that it watered down the decision -- that it wasnÕt completely valid. I didnÕt think that was the case, but thanks.

Question: I had a question about part of the claim that talks about quashing various licenses and things unless there has been some kind of accommodation. I wanted to ask a little more about accommodation. I know with the case on TFL-39 you asked the court to quash the transfer of TFL-39 and basically that wasnÕt upheld in the final decision. I wondered in this case where we are going to prove Aboriginal Title, who decides when there is enough accommodation? And is that something that could be brought forward in the case? For instance, if the province says, Ôwe did this and this, and that should be enoughÕ, how is that likely to unfold over this trial?

Terri-Lynn Williams-Davidson: Well I think the question about finding accommodation is up to us to find. But ultimately if accommodation doesnÕt occur then the court will decide that. Within the TFL-39 case, while they didnÕt quash the license, if it turns out that Weyerhaeuser doesnÕt accommodate our interest then we can go back in court in the interim -- even before we prove Title to Haida Gwaii -- and ask for that tenure to be quashed. So itÕs always an option for us, and again we have this opportunity now to try and reach accommodation together and take important steps down that road before we actually get a decision from the court.

Louise Mandell: I just wanted to add that we know so little about what the court is going to say about what is, or is not accommodation. We have very little guidance from the court. In answer to your question: Will the efforts that the parties have done to try to reach an accommodation be part of any court process? The answer is yes. The court has already said to Weyerhaeuser and the Province that if the Haida bring back the question to quash the tenure, what ever efforts you have or have not made on accommodation is going to weigh into the mix. That much we do know. Then, where is the court going to go on: is this accommodation or isnÕt it? -- we donÕt know that yet.

John Farrell: IÕll entertain the last two questions.

Question: IÕm somebody who respects Haida Title. I respect the experience and the history that itÕs based on and much of the work that I do is in support of us coming to reconciliation of Haida Title with Crown Title. I think itÕs something weÕll all be better off for as a community, as a society when we go down that road together. Sometimes late at night though I wonder: what does this mean for me? Is there an implication for me in my household, in my home, in my community? You havenÕt touched on that tonight. Could you speak to that?

Louise Mandell: Well I think that IÕve heard it said by the Haida -- I donÕt know how many times now -- this case is not about displacing you at all. YouÕre very secure in your home and IÕve heard that said over and over again. If it needs to be said yet again tonight IÕll say it again.

Question: I was wondering if the eventual goal is some kind of co-management, assuming if the Title case is successful. I was wondering if there are any examples or models that have been set up nationally or internationally where indigenous people and colonizing governments, or what ever you want to call them, establish some kind of co-management and if those are being looked at as possible avenues to pursue.

Terri-Lynn Williams-Davidson:
There could be some parts of Haida Gwaii that Haida people have sole jurisdiction over managing, there could be other areas where there could be co-management. Louise may know of other models, but the best model that I know for co-management looking around the world is the Gwaii Haanas example. It is the best co-management model IÕve encountered.

Louise Mandell: I just wanted to say that the federal government and the provincial government have been co-managing jurisdictions for a long time and neither of them have had to extinguish one square inch of land to do that. So I think throwing another circle into the mix is not going to bring down the house.

John Broadhead: Thank you very much Terri-Lynn and Louise for coming this evening. Friends and neighbours, thank you for coming out tonight and having what I hope was an enlightening conversation. I hope weÕve moved a little bit in understanding what the Haida Title issue is about, and what it isnÕt about, and I look forward to what comes further down the path.

Lawyers for the Council of the Haida Nation clarifying points during the question and answer portion of Haida Title and Implications -- Gowgaia Institute Speakers' Series.

Top - Terri-Lynn Williams-Davidson and Louise Mandell, QC