Canada: Aboriginal and Treaty Rights

Since the early 1990s, the Gitanyow had watched five companies obtain forest licences, make solemn promises to replant the trees, hack down the timber – and then go broke, doing little or nothing to replant. ...

The Gitanyow, as with most native bands in B.C., have been negotiating for years, beginning talks with the federal government in 1980 and the province in 1994. In the meantime, they and other bands are claiming jurisdiction over huge chunks of B.C., virtually the entire province, sparking legal proceedings in which courts have consistently ruled in their favour. ...

For the moment, all that's at stake is the small matter of the Crown's control of the forestry industry. But the executives of any company looking to build a mine, resort, power project or road should feel a chill from this line in the judgment: “The goal of reconciliation necessarily imports recognition of aboriginal rights to limited resources on claimed territory, and the importance of sustaining those resources while claims are pending. If they are destroyed, there is nothing left to reconcile.”

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Court sends a chill through the woods

PATRICK BRETHOUR

Globe and Mail Update

August 28, 2008 at 6:00 AM EDT

British Columbia's forestry industry is about to find out who is really in charge of deciding what trees can be cut, and where. Hint: It isn't the Ministry of Forests.

The Gitanyow First Nation has won a big legal victory in its six-year quest to exert control over forest licences being granted in what it sees as its territory – 1.7 million hectares in the province's northwest. The decision from the B.C. Supreme Court is very clear that the Gitanyow don't have a veto on forestry on those lands. Yup, no veto, none at all – just the ability to scupper the decisions of the Forestry Ministry if they clash with the positions of the band.

The Gitanyow decision is the latest in a string of legal victories for aboriginal bands seeking to assert their authority over “traditional territory” – generally speaking, a big swath of land only part of which would ever be formally handed over in a treaty negotiation. That day is unlikely to come any time soon: The Gitanyow, as with most native bands in B.C., have been negotiating for years, beginning talks with the federal government in 1980 and the province in 1994. In the meantime, they and other bands are claiming jurisdiction over huge chunks of B.C., virtually the entire province, sparking legal proceedings in which courts have consistently ruled in their favour.

Such is the case with the Gitanyow, who watched with growing frustration over decades as forestry firms clear-cut timber on the bands' traditional territory. Since the early 1990s, the Gitanyow had watched five companies obtain forest licences, make solemn promises to replant the trees, hack down the timber – and then go broke, doing little or nothing to replant. Frustration turned to a lawsuit in 2002, culminating in a new case last year, after a regional director for the Forestry Ministry issued a batch of new licences, despite the Gitanyow's objections.

There had been extensive talks, good-faith negotiations, and even a signed agreement that defined how the province and Gitanyow would work together on forestry issues until such time that a treaty could be negotiated. The court nevertheless ruled that the province fell short in its duty to meaningfully consult the Gitanyow and reasonably accommodate their concerns. Translation: It's not enough to listen to aboriginal objections; they must be acted on.

It's hard to see how the ministry's regional director could have acted otherwise, considering what the Gitanyow were demanding. The band wanted recognition of its title, half of the stumpage fees and other forestry revenue from the area, subordination of the tree-licence process to the forestry management agreement and a requirement that forestry companies pay hefty deposits to pay for replanting. Those are the kinds of demands at the heart of treaty negotiations, and some would require a wholesale rewriting of forestry legislation. All are well beyond the pay grade of a regional director. Addressing those concerns means, in essence, reaching a treaty settlement with the Gitanyow, something the province has tried and failed to do since 1994.

Yet, the court judgment doesn't address this political reality. Instead, the judge seems to say that in the face of a strong claim to aboriginal rights and title, the Crown must make reasonable concessions. No such obligation to make reasonable concessions is placed on aboriginals. No points for guessing how talks will go if one side knows all it has to do is stick to its guns and it will eventually get what it wants in court.

The forestry businesses are mere bystanders, even though the Gitanyow had argued their new licences should be cancelled outright. The court turned down that request, at least for now, and both parties will have to make submissions on what can be done. Perhaps that will mean revenue sharing. Perhaps the court will merely shred tree licences negotiated in good faith.

For the moment, all that's at stake is the small matter of the Crown's control of the forestry industry. But the executives of any company looking to build a mine, resort, power project or road should feel a chill from this line in the judgment: “The goal of reconciliation necessarily imports recognition of aboriginal rights to limited resources on claimed territory, and the importance of sustaining those resources while claims are pending. If they are destroyed, there is nothing left to reconcile.”