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Thursday, August 28, 2008

Duty to Consult: BC Logging All court rulings in Canada that relate to "duty to consult" with Aboriginal Peoples, like the one reported below, are equally relevant to mining and logging in the north, urban development in the south (e.g., Brantford, Caledonia, Deseronto), or any other new uses of traditional Indigenous land.

Natives gain more influence over logging

Province failed to adequately accommodate Gitanyow when issuing licences, court rules


From Thursday's Globe and Mail

August 28, 2008 at 5:48 AM EDT

VANCOUVER — Natives will have significantly more clout over forestry in British Columbia after a court ruling that found the provincial government renewed licences granting the right to log in public forests in northern B.C. without meaningful consultation or adequate accommodation of aboriginal interests.

The B.C. Forestry Ministry failed to acknowledge the distinctive political features of the Gitanyow First Nation's aboriginal society when issuing the licences, Madam Justice Kathryn Neilson stated in one of her final rulings as a B.C. Supreme Court judge. (Judge Neilson was appointed to the B.C. Court of Appeal earlier this year.)

The Forestry Ministry also failed to recognize the aboriginal right to expect the forest would not disappear while disputes over their claim to ownership of the land continue, Judge Nielson stated in a 43-page ruling distributed this week.

Consultation did take place between the government and the native band, she stated. "The issue is whether that consultation process was reasonable and whether any resulting accommodation was adequate," Judge Neilson wrote. "The Crown's obligation to reasonably consult is not fulfilled simply by providing a process within which to exchange and discuss information."

The ruling is the most recent in a series of court decisions over the past decade that require the federal and provincial governments to consult with natives and accommodate their interests.

Vivian Thomas, a Forest Ministry spokeswoman, said yesterday the government was reviewing the implications of the court decision and could not make any further comments. Glen Williams of the Gitanyow First Nation was not available yesterday for comment. The judge has asked for further submissions before ruling on the consequences of her decision.

Natives in B.C. have unresolved land claims to almost the entire province. The current court ruling dealt with six 15-year licences issued in February, 2007, that granted the right to log in the Kispiox and Nass regions of the northwestern part of the province in exchange for complying with government forest-management objectives and paying stumpage fees.

Judge Neilson stated that issuing the licences was the first step in permitting the removal of a claimed resource in limited supply. The annual allowable cut in the area would be about one million cubic metres of timber, the equivalent of about one million telephone poles. The licences covered almost half of the 16,800 square kilometres of territory claimed by the Gitanyow as their traditional lands.The Gitanyow, with a population of about 700 people, have been in treaty negotiations since 1980, but the process stalled in 1996, Judge Neilson stated. "Nevertheless, there is no question that substantial logging and road building have occurred on those lands and that these activities have had a significant impact on the sustainability of timber resources and on other aspects of Gitanyow tradition and culture."

Land was clear-cut and the mature old-growth forests were replanted. But the Gitanyow were denied for many decades the use of large areas of habitat required to support plants, birds, fish and animals that they traditionally had for sustenance and for cultural purposes, the court heard. Unable to draw on the resources to maintain their culture and traditional activities, the native band suffered financial hardship, pain and shame, the Gitanyow told the court.

The Gitanyow is organized into eight matrilineal wilps (clans), each with their own territory. Each wilp has a hereditary chief who has authority over the group's land. Judge Neilson found that the government did not accommodate the concern that the wilp system be recognized in the licences. Logging timber in the traditional territory without reference to the wilp boundaries "could result in the effective destruction of individual wilps."

Judge Neilson also said that each of the companies that held forestry licences in the area in the previous 15 years had financial difficulties leading to receivership or a government bailout. As a result, some of the companies exceeded logging allowances and failed to fulfill obligations to replant the forest, she said.

She also said the government did not adequately address silviculture - issues regarding the maintenance of a healthy forest - adding that the government's position on silviculture liabilities amounted to no more than "trust us."

"The honour of the Crown and the importance of the sustainability of the resource to Gitanyow clearly required more."

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My Canada includes rights of Indigenous Peoples.

Two Row Wampum Treaty

Two Row Wampum Treaty
"It is said that, each nation shall stay in their own vessels, and travel the river side by side. Further, it is said, that neither nation will try to steer the vessel of the other." This is a treaty among Indigenous Nations, and with Canada. This is the true nature of our relationships with Indigenous Nations of 'Kanata'.