Province censured for not consulting first nation

Land claimed by Hupacasath was taken out of tree farm licence, ended up in developer's hands

Jonathan Fowlie, Vancouver Sun

Published: Wednesday, November 05, 2008

VICTORIA -- The provincial government has still not adequately consulted a Vancouver Island first nation about a crucial land-use decision it made in 2004, a B.C. Supreme Court judge has found.

Justice Lynn Smith released a ruling Tuesday saying the government has "not yet fulfilled its duty" to consult the Hupacasath First Nation about the removal of 70,000 hectares on Vancouver Island from a tree farm licence.

Smith gave the parties a six-month deadline for mediation.

"I'm feeling much better today. It's been a long struggle," said Hupacasath chief councillor Judith Sayers, adding that the ruling has relevance beyond her first nation.

"This sends a really strong message to government," she said. "The government hasn't got this right. They've got to smarten up.

"They've got to start working under the New Relationship, [by working towards] reconciliation and stop denying we have rights and start looking at what is proper accommodation."

The Hupacasath case began more than three years ago, after then-forest minister Mike de Jong approved the removal of private lands from Tree Farm Licence 44 by Weyerhaeuser. Through sales and takeovers, the land is now controlled by Island Timberlands.

Though the land is privately owned, it comprises about one-third of what the Hupacasath claims as its traditional territory.

"It's such an incredible part of our territory," Sayers said.

The removal has also meant more lenient environmental standards for the land, which is near Port Alberni.

In 2005, Smith ordered a two-year consultation among the parties to address issues such as protection of community watersheds, sacred sites and ungulate winter range.

Those talks failed and in January the Hupacasath went back to court.

"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," Smith wrote in her ruling.

But she added she did not think the government had acted in bad faith.

"Instead, it is based upon the fact that the Crown's misconception about what was required in the circumstances led it to conduct the process in a way that was not reasonable," she said.

Forest Minister Pat Bell said he was hopeful the ruling will help lead to a solution.

"I think what's really helpful about this is, she has established a framework for negotiation for us to sit down with the Hupacasath and try and find meaningful resolution," Bell said. "That is something we are committed to and support.

"I have a lot of respect for Judith Sayers. I think she's a chief with great integrity and someone who cares deeply about her nation. I think now that we have some direction from the courts around the process we should be able to achieve a successful outcome."

Asked what she will be looking for, Sayers said it may have to come down to money: "We can try and protect whatever rights we can, but it is private lands, so we may have to look more towards monetary considerations," she said.

"I think we need to put a price tag on what's happening here. That will all be part of the negotiations."

Sayers said the provincial government was also in a conflict of interest in the case because a fund that manages public pension plans holds a 25-per-cent stake in Island Timberlands.

B.C. Investment Management Corp. invested $166 million in Island Timberlands in 2005 through two numbered companies, Sayers has said.

Smith said in her ruling the government should have disclosed the interest in Island Timberlands, but added that she found the relationship had no bearing on the case.

"The existence of the province's financial stake in the private landowner may add a nuance to the characterization of Island Timberlands as a third party, but does not alter that characterization," Smith wrote.

Also on Tuesday, the government announced it had reached an agreement with four first nations to resolve the last of B.C.'s cut-off claims disputes.

"I think it's huge," said de Jong, now minister of aboriginal relations and reconciliation.

"I think it's a tribute to the perseverance of people and communities who have been negotiating through three decades and have lived with the improper removal of these lands for close to a century."

The agreements announced Tuesday are with the Seton Lake Indian Band, Gitwangak Band Council, Metlakatla Band and Lax Kw'alaams Indian Band.

The lands in question were cut off from the rest of each band's lands without consent after the McKenna-McBride commission of 1912-1916.

jfowlie@vancouversun.com

© The Vancouver Sun 2008 http://www.canada.com/vancouversun/news/westcoastnews/story.html?id=418acc82-43a0-44ad-b903-23f6d1a11101