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Sweeping Haida Claims Emboldened by Ruling

Canada's high court backed B.C. First Nations demands for more consultation before government approves developments. The decision may 'kick start' treaty negotiations.

Scott Deveau 18 Nov 2004TheTyee.ca
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The Tyee.ca

The Supreme Court of Canada ruled in two cases today that senior levels of government must first consult with and accommodate First Nations' concerns where there is an asserted land claim in place. With 55 Bands representing more than 70 per cent of B.C. First Nations' population currently in some stage of treaty negotiation, the decisions will no doubt affect the way business is done in the province.

Haida leaders read a tide shift in the news. "The consultation processes that have been shown by the Crown have impoverished land and impoverished the people, and if that's what they think they can continue to do, they have another thing coming," said Haida Chief Guujaw, at a press conference at the Vancouver Aboriginal Friendship Centre this morning.

Way cleared for 'Chief' mine

The Supreme Court upheld a 2002 B.C Court of Appeals decision which ruled the provincial government has a legal duty to consult with and accommodate Haida interests in the timber harvest on the Queen Charlotte Islands, an area the Haida have been in treaty negotiations over since 1993.

Guujaw said the Haida will continue to pursue their title claim, currently before the Supreme Court, which would grant the Haida stewardship of the land and offshore development.

In a similar case, the Supreme Court overturned the Court of Appeals decision regarding the Tulsequah Chief, a mine and road project in northwestern B.C., asserting the provincial government and Redfern Resources Ltd. adequately consulted with the Tlingit during the provincial environmental assessment. The Tulsequah Chief project would carve a 160 km road through the Taku River Watershed to build a multi-metal mine.

The Tlingit remain steadfast their concerns were not addressed, but are optimistic the court's decision is major blows to how the government develops the lumber, mining and resort industry in the province. And both the Haida and the Tlingit agree that the decision will give leverage to First Nations' treaty negotiations and reconciliation processes.

$8 billion in timber taken, say Haida

The Haida First Nations have asserted their rights to the Queen Charlotte Islands, which they refer to as Haida Gwaii, for more than 150 years. The Haida estimate that $8 billion worth of raw lumber has been taken from Haida Gwaii in the past 50 years, for which the Haida have received no compensation.

The Supreme Court ruled today the provincial government must consult with and accommodate the Haida's interests in timber's harvest. Weyerhaeuser currently owns the exclusive license to harvest a quarter of Haida Gwaii, known as Block 6.

Justice Beverley McLachlin, who delivered the court's decision, said the Crown cannot offload negotiations to industry, contrary to amendments made to the Forestry Act in 2003.

"The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interest where claims affecting these interests are being seriously pursued in the process of treaty negotiation," McLachlin said. The level of consultation and accommodation, she said, depends on the strength of the claim and the risk it poses to the land.

'Road map' for negotiations

The Haida demonstrated through affidavits from anthropologists, historians, linguists and archeologists that they have a long history in Haida Gwaii, which gives them a firm title stance.

Anne Giardini, Weyerhaeuser's lawyer, said the company is pleased the court has placed negotiations back in the hands of government and has provided a "road map" for the further negotiations.

"As long as proper process has gone on, then it's up to the government. The court said, 'Ignore first nations at your peril' and that's the right answer," Giardini said.

"Governments are in the driver seats, we're just the passengers."

Throughout the Supreme Court's decision, McLachlin made numerous references to the province acting honourably, which insiders say shows its growing impatience for the way  First Nations' negotiations are being dealt with.

"The First Nations are the ones that have been teaching the Crown about honour," said Louise Mandel, council for the Haida.

Unlike other provinces, B.C. has only settled one treaty in the past 150 years. There was even a 25 year period up until the 1950s when it was illegal for Aboriginals to hire a lawyer to advance their land claims. Many feel the court's decision today will kick-start treaty negotiations in the province.

Attorney General Geoff Plant was unavailable for comment.

Not about 'winning and losing'

"All of these cases, Aboriginal title, Aboriginal cases, to me aren't about winning and losing. They're not about celebration and disappointment.  These decisions are designed to guide good-faith negotiations between Canada and First Nations," said Chief Doug Kelly, an executive on the First Nations Summit.

The Haida's case arose from the 1999 transfer of Tree Farm License 39, which covers a quarter of the land under treaty negotiation, from MacMillan Bloedel Ltd. to Weyerhaeuser, without the consultation of the Haida people. In 2002, the Haida again heard rumours of another transfer and took their case to court.

The Haida argue that because they never relinquished their claim on the land, any degradation to it will compromise the state of the land if it is returned to them.

The Haida want logging to be run in a sustainable manner and to allow processing on Haida Gwaii to provide jobs for their people.

'Magnet for further development'

In the other Supreme Court decision today, the court reached a similar conclusion that the provincial government must consult with and accommodate the Tlingit First Nations' interest in the Tulsequah Chief project. However, the court ruled that proper consultation had occurred.

The Tlingit argue their interests were not adequately addressed in provincial environmental assessment.

"All that came out of the environmental assessment was that if that road goes in it's going to be a magnet for further development and it's going to be there forever. Its going to undermine opportunities to ensure the protection of critical habitat areas, critical wildlife species and the harvesting opportunities for the Tlingit," said the Tlingit's lawyer Arthur Pape.

Not a 'total loss'

Redfern President Terrence Chandler said he was surprised the B.C. government argued it had no obligation to address asserted land claims, because Redfern had been consulting with the Tlingit throughout the process. However, Chandler predicted the outcome of the Tlingit's case last week.

"You couldn't have an operating society if every time you reached a conclusion somebody didn't like, you went ahead and called for another process," Chandler said.

He said, despite Pape's charges, Redfern met with Tlingit throughout the environmental assessment and mitigated their concerns.

John Ward, spokesperson for the Tlingit is optimistic about today's ruling.

The decision stated the federal permitting process the Tulsequah Chief project is currently undergoing will require further information and analysis and that the environmental analysis is not enough to address the concerns of the Tlingit.

"It wasn't a total loss," Ward said.

Scott Deveau is a staff reporter for The Tyee.  [Tyee]

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