MARK HUME
From Wednesday's Globe and Mail
November 5, 2008 at 5:00 AM EST
VANCOUVER — The Supreme Court of British Columbia has ordered that a mediator be appointed to resolve a dispute among a Vancouver Island band, the government and a resource company concerning traditional aboriginal rights on 70,000 hectares of forest land.
The court says the mediator is necessary because the government has failed to engage in meaningful consultation with the Hupacasath First Nation (HFN), despite a 2005 court order requiring the B.C. Ministry of Forests to do so.
At issue is the aboriginal use of a vast tract of privately owned forest land around Port Alberni that the government removed from Tree Farm Licence 44 in 2004.
Madam Justice Lynn Smith said the removal decision opened the possibility for Island Timberlands to sell the property for development, raising Hupacasath fears that their traditional territory could become "cottage country," destroying traditional access to sacred places and hunting and fishing grounds.
In the 2005 decision, the court ruled the government breached its constitutional duty to consult reasonably with the Hupacasath over the removal decision.
The court stated there was "a duty to consult [in good faith] and attempt accommodation," and it set a two-year period for the parties to make progress in discussions.
But in a decision released yesterday, Judge Smith said the government had failed to make a reasonable effort at accommodation.
"I find that the Crown did not correctly understand what was required, and misapprehended its duty to consult and accommodate in the circumstances," Judge Smith said.
The judge said government officials did meet with the Hupacasath on numerous occasions, but failed to focus on the possible impacts the decision to remove land would have on the band.
"The Crown's position essentially was that the removal decision did not significantly change the Hupacasath's position, and that the Crown was not required to consider steps which would accommodate for what the HFN stood possibly to lose as a result of the removal decision."The judge listed examples of what the Crown could have considered: "Could the Crown find a way to assist the HFN in retaining access to at least the most important of their sacred sites? Was it possible for the Crown to provide improved access to resources on the Crown lands in replacement of the former access to such resources on the removed lands? Could wildlife corridors be protected so that the animals hunted by the HFN would still be available on the Crown lands?
"Those are not the questions upon which the parties focused," Judge Smith said.
She continued: "Reasonableness, not perfection, is required of the Crown in its efforts to consult with and accommodate aboriginal peoples when it makes decisions potentially affecting their claimed aboriginal rights. Here, I find that the Crown's efforts did not fall within a range of reasonably defensible approaches in the context of the 2005 decision and the history and relationship between the parties."
The judge ordered the parties to appoint a mediator by mutual agreement, or said the court would appoint one if necessary.
Judge Smith said the mediation will specifically consider including the Hupacasath in discussions with Island Timberlands regarding environmental, watershed and wildlife protection measures, among other things.
Meanwhile, in other developments yesterday concerning aboriginal rights, the provincial and federal governments reached deals with the last of 22 bands who lost land after a royal commission set boundaries for reserves in 1912. Under the agreements, B.C. will return more than 50 square kilometres of land to four native bands, along with a cash settlement of more than $1-million. The agreements cover the Seton Lake band near Lillooet, the Gitwangak in the northern interior, and two bands near Prince Rupert - the Metlakatla and the Lax Kw'alaams
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