The Supreme Court of Canada ruled Thursday that governments must consult and accommodate First Nations over the use of crown land, in a decision which was hailed as “monumental” and a “tremendous victory” by First Nations leaders in BC.
The case was sparked by the Council of the Haida Nation, which complained that the provincial government did not adequately consult it over the renewal and transfer of Tree Farm Licence 39, the largest TFL on the islands.
The Haida Nation has long objected to the scale of industrial logging on the islands, an activity which is regulated and overseen by the provincial government and carried out by logging companies like Weyerhaeuser Co.
Haida Nation lawyer Terri-Lynn Williams Davidson said the Supreme Court decision means more protection for the islands remaining cedar trees, which have sustained the Haida culture for thousands of years.
Despite the objections of the Haida, the provincial government has allowed private companies to log billions of dollars worth of timber from the islands, she said, including 14 million cubic metres just from TFL 39 in the past two decades.
“Clearly, this is logging that is beyond the ability of the land to sustain itself, let alone Haida culture,” she said. Until now, the provincial government has held that it has no duty to address Haida concerns about the rate and location of logging – but Thursday’s ruling found that assumption is wrong, she said.
“The province cannot act roughshod and unilaterally exploit our resources,” she said. The decision marks a new era in Haida history, she continued: “The Haida are ready to take the next step, together with the province, to carve out our collective future.”
CHN president Guujaaw also spoke at the press conference, telling the packed auditorium at the Vancouver Friendship Centre that the ruling will be a hollow victory unless First Nations work hard to pursue it.
He also said it was “troublesome” that the Supreme Court has had to direct the provincial crown to act honourably in its dealings with aboriginal people, as it is supposed to act.
“We can be sure the victory won’t be known unless we go out there and get it,” he said. “It’s in our handsÂ… Our people have got to go out and do the work necessary to make this come to life.”
Asked about support from the Canadian public on this issue, Guujaaw offered the example of Port Clements, the logging town which was an intervener in the case on behalf of the Haida Nation.
“Most important to us in the context of the Canadian public is the people who live with us,” he said.
Leaders of the First Nations Summit congratulated the Haida Nation for pursuing the case. Chief Doug Kelly said one of the results will be wealth-sharing with impoverished aboriginal communities.
“There is no place in Canada or British Columbia for the willful infringement of our aboriginal rights and title,” he said. “It’s time that industry leaders come together with First Nations and understand how the wealth of this land will be shared.”
Dave Porter of the First Nations Summit task group called the decision a “tremendous victory” and “a wake-up call to the province of British Columbia and Canada’s negotiators” at the treaty tables.
The BC government had argued that it does not have a legal duty to consult with the Haida Nation, because its claim to the islands has not yet been proven in court.
But the Supreme Court found that the province does have a duty to consult with the Haida about the timber harvest, and that it may have an obligation to accommodate Haida concerns. It did not outline exactly what accommodation is required, although it did say the accommodation in this case may be significant.
“The strength of the case for both the Haida title and the Haida right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the crown may well require significant accommodation to preserve the Haida interest pending resolution of their claims,” reads the unanimous decision, written by chief justice Beverly McLachlin.
However, the court also ruled that third parties like Weyerhaeuser Co. do not have a similar obligation to consult and accommodate, and that the provincial government cannot pass on this responsibility to third parties.
“The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser,” the decision states. “Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida people’s concerns, although the possibility remains that it could become liable for assumed obligations.”
Weyerhaeuser said the ruling brings clarity to the relationship between government, industry and First Nations.
“By providing greater certainty about the process of balancing aboriginal interests with others, the ruling will encourage reconciliation and economic activity,” said Weyerhaeuser president Sandy McDade. “The decision reflects a reasoned balancing of interests and shows how aboriginal interests can be addressed in a meaningful way.”
Meanwhile, BC Attorney General Geoff Plant said he welcomed the ruling, calling it a positive development which will give the investment community confidence.
“This government will continue with our policy of consultation in our work with First Nations, as we build economic opportunities for all British Columbians,” he said.
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