B.C. moves to recognize First Nations rights The Canadian Press March 5, 2009 at 3:44 PM EST VICTORIA — The B.C. government is ready to introduce and pass legislation this spring that will fundamentally change the legal rights and status of First Nations in British Columbia. Aboriginal Relations Minister Mike de Jong told a gathering of native leaders that they will no longer have to turn to the courts to prove title over their lands. The proposed legislation would recognize aboriginal rights and title and would outline the terms for making decisions over lands and resources. The province's decades-long treaty-making process has resulted in few settlements. Unlike other provinces, B.C. never signed treaties with aboriginal bands and the province is now subject to hundreds of outstanding native land claims, which led to conflict and lawsuits over land use. The B.C. government, which faces a provincial election in May, says it has a strong aboriginal agenda for a third term in office.

(Power-Appeal) B.C. First Nations win two court rulings over consultation and accommodation VANCOUVER _ Some aboriginal groups in British Columbia scored two major victories Wednesday as the B.C. Court of Appeal ruled they must be consulted before projects are undertaken. The first ruling involves an appeal by the Carrier Sekani Tribal Council over a 2007 electricity purchase agreement between B.C. Hydro and Alcan in northwestern B.C. The court ruled that the B.C. Utilities Commission and BC Hydro failed to properly consult the First Nations. The power sales deal from Alcan´s Kemano facility was a condition set out by the company in order to proceed with a $2-billion upgrade. In approving the deal, the commission had ruled that no such consultations with the Carrier Sekani were necessary. The second case involved some First Nations in the southcentral Interior who said they were not properly consulted on a plan by BC Hydro and the BC Transmission Corp., to build a $700 million high-voltage transmission line from the Interior to the Greater Vancouver area. The court ruled in the Alcan case that it was an example of what was "foreseen by the Supreme Court of Canada in Haida Nation versus B.C. where the broad principles of the Crown´s duty to consult and, if necessary, accommodate aboriginal interests are to be applied to a concrete set of circumstances." In the Alcan ruling, the judges ruled that consultation arises in relation to BC Hydro´s decision to buy electricity from Rio Tinto Alcan Inc. that is surplus to its smelter requirements. The Carrier Sekani said the diversion of water for Alcan´s use infringes on its rights and title and that no consultation ever took place. In its unanimous decision, the judges ordered the utilities commission to reconsider the issue. In the second case, the court found that the decision to certify a new transmission line . . . "has the potential to profoundly affect the appellants´ aboriginal interests." "Like the existing line (installed without consent or consultation), the new line will pass over land to which the appellants claim stewardship rights and aboriginal title." The judge, also in a unanimous decision, said "if consultation is to be meaningful, it must take place when the project is being considered and continue until the process is completed." The court ordered the commission to suspend its decision and have a new hearing. http://www.oilweek.com/news.asp?ID=21283

Supreme Court buckles to provincial pressure? BC Am I reading this right? The Supreme Court refuses to hear cases re Aboriginal Title? In all of Canada or just BC? What kind of crap is this? I know the provincial courts buckle to regional politics/politicians, but I am deeply shocked at the Supreme Court's apparent political collusion. So ... how does one go above the Supreme Court of Canada? The International Criminal Courts, I suppose. I wonder if they can use their court-ordered funding for that? A precedent from the ICC re Aboriginal Title in Canada would be helpful. granny Okanagan Nation Alliance & Shuswap Nation Tribal Council

Dec 04, 2008 13:14 ET

SCC Decision Leaves Land Question Unresolved

Attention: Assignment Editor, Business/Financial Editor, Environment Editor, News Editor, Government/Political Affairs Editor VANCOUVER, BC, PRESS RELEASE--(Marketwire - Dec. 4, 2008) - The Okanagan and Secwepemc Nations and their member Bands, Adams Lake, Neskonlith, and Splatsin, are bitterly disappointed with the Supreme Court of Canada's denial of the Okanagan Nation's application for leave to appeal the B.C. Court of Appeal's decision severing the Aboriginal title issues from the case of British Columbia v. Okanagan Indian Band. The Province succeeded in its strategy to delay once more having the land questions answered by the courts, by their application to remove the Aboriginal title issue from a trial, where the Band had been awarded an historic cost order to resolve this very issue.

The decision today is a loss to everyone in this Province. The Province has recently lost a large number of cases because it has not fulfilled its obligations arising from unextinguished Aboriginal rights and title. The Province's illegal conduct places Crown granted tenures increasingly at risk, and adds to economic instability. The decision today delays a Court addressing this problem.

The Province continues to claim 100% ownership and jurisdiction over the lands and the forests in the absence of Treaty. Is that claim legal? What changes to law and policy need to be made by the Province, in order to achieve reconciliation? These are the questions which the Province did not want the Court to answer.

Okanagan Indian Band Chief Fabian Alexis stated: "We are deeply disappointed by this outcome. The Okanagan people are committed to continue to fight for recognition of our Aboriginal title as our ancestors have done for generations. We have tried to address this through the courts, but given the Supreme Court of Canada's decision, we are going to pursue all other options. The problem is not going away."

"The Supreme Court of Canada's decision totally frustrates its earlier order that the Province pay the Bands' legal costs so that we could access justice regarding the unresolved land question", said Splatsin First Nation Chief and Shuswap Nation Tribal Co- Chair, Wayne Christian. "It is a total waste of public money because nothing has been resolved. Our communities continue to live in poverty, and what caused this litigation in the first place will only occur again. In spite of the New Relationship and the many Court victories of First Nations, the Province remains committed to the status quo. The Courts are needed if systemic change from denial to recognition is to occur."

Adams Lake Indian Band Chief Nelson Leon observed: "In denying the Band leave to appeal, the Court has bought into the Province's procedural manoeuvres to avoid addressing the land question, something the Province has done since B.C. joined Confederation in 1871. For years it was illegal for First Nations to go to Court to advance recognition of our title and rights. Our ancestors, the Chiefs of the Shuswap, Okanagan and other Tribes of the Interior of British Columbia, in a 1911 Petition to the federal government to settle the land question, described the Province's intransigence:

"Premier McBride, speaking for the B.C. government, said "We Indians had no right or title to the unsurrendered lands of the province." …. This means that the B.C. government asserts that we have no claim or title to the lands of this country. Our tribal territories which we have held from time immemorial, often at cost of blood, are ours no longer if Premier McBride is correct. We are all beggars, and landless in our own country. We told him through one of our chiefs we were of the opposite opinion from him, and claimed our countries as hitherto. We asked that the question between us be submitted for settlement to the highest courts, for how otherwise can it now be settled? His answer was: "There was no question to settle or submit to the courts."

Chief Leon added: "The decision which was under appeal was the Province's third attempt in this case to avoid a trial about Aboriginal title. Today's decision means that the Province has sidelined the issue for now but, sadly, nothing has been resolved."

Neskonlith Indian Band Chief Judy Wilson stated: "By leaving the land question unresolved, the Court's decision continues the economic climate of uncertainty about tenures issued by the Province and growing frustration in First Nation communities."

Okanagan Nation Alliance Chair Grand Chief Stewart Phillip added: "The Province has offered no process for negotiation of the unresolved land question outside of the fundamentally flawed Treaty process which, after 16 years and at a cost of over a billion dollars, has been a disaster. The Province simply has demonstrated no real commitment to achieving recognition and reconciliation with First Nations in B.C. Today's decision from the Supreme Court of Canada means that there will be no guidance in this case on Aboriginal title from the courts either. It is just completely unacceptable that the people of B.C., Aboriginal and non-Aboriginal, should have to continue to endure the growing economic uncertainty and the related debilitating economic consequences in Aboriginal communities, caused by the Province's denial of Aboriginal title - a denial which remains entrenched in policy and law.

For more information, please contact Grand Chief Stewart Phillip, Chair, Okanagan Nation Alliance Primary Phone: 250-490-5314

Chief Wayne Christian, Co-Chair, Shuswap Nation Tribal Council Primary Phone: 250-828-9789

Chief Fabian Alexis, Okanagan Indian Band Primary Phone: 250-542-4328

Louise Mandell, Q.C., Mandell Pinder Primary Phone: 604-681-4146

=============================== Background

Two Interior First Nations, the Okanagan and Secwepemc, represented by their Tribal Councils, issued permits to their member Bands - the Okanagan, Adams Lake, Neskonlith, and Splatsin Bands - to log in accordance with their laws within their traditional territories, to provide housing for their membership, and to challenge the Province's authority over their lands and forests. The logging which started these proceedings occurred in 1999, following the Supreme Court of Canada's decision in Delgamuukw where the Court resolved a thirty year legal battle and held that Aboriginal title had not been extinguished in B.C., and that it had a jurisdictional and economic component. When the Province refused to put that decision into effect, logging commenced with the Okanagan Indian Band logging in the Browns Creek area near the head of Okanagan Lake and the Secwepemc Bands logging in the Harper Lake area.

Shortly after the logging activities took place, the Ministry of Forests issued a stop work order, and then went to Court seeking a compliance order, and obtained an injunction preventing members of the Bands from doing any more logging. The Okanagan and Secwepemc Nations challenged the constitutionality of the provincial legislation, based on their Aboriginal title and rights. They also successfully challenged the Province, who started these proceedings, to assume the onus to first prove its claim of 100% ownership and jurisdiction over the land and timber in the Province - an assertion which the Province has enshrined in the forestry legislation.

In 2003, the Supreme Court of Canada, recognizing the public importance of the Aboriginal title issues engaged in these proceedings, ordered the Province to pay the Bands' legal costs. In an effort to avoid this order, the Province unsuccessfully brought a motion to discontinue. In 2005, the Province brought a second motion, also unsuccessfully, to remove the Aboriginal title issues from the litigation by severing and proceeding with the rights issues. The Court rejected this motion too, but stayed the Secwepemc case, allowing only the Okanagan case to go forward.

But, in, 2007, the Province tried again, and this time they were successful in severing the title issues out of the trial. Just prior to bringing the severance application, which is the subject of this leave application, the Supreme Court of Canada, in Gray and Sappier, found that the Mi'kmaq and Maliseet had established an Aboriginal right to harvest wood for shelter, transportation, tools and fuel. Following Gray and Sappier, the Province advised that it was making an admission that the Okanagan Indian Band has an Aboriginal right to harvest timber for domestic purposes, within the traditional territory of the OKIB, including on the cut block site where the logging took place in 1999. Based on the admission, and the impending close of the Tsilhqot'in trial, the Province brought a severance motion to sever the title issues and try the rights issues first.

The lower Court ruled that Aboriginal title issues should be severed from the Okanagan's case on the basis that it could be cheaper to the public purse to decide the case without addressing the Aboriginal title issues, and because the issues would be decided by the Court of Appeal in the Tsilhqot'in case - a second case which had achieved a costs order. This decision was upheld by the majority of the Court of Appeal. In a sharply worded dissent, Mr. Justice Donald pointed out that the Okanagan have been assigned a different cause by the Province:

Ordinarily, it is assumed that the parties to litigation will fight for their respective causes. But here, the appellants have been assigned a cause which does not satisfy their goal of establishing authority over the forest lands; and they have to lose the justification issue to move on to the title determination under the umbrella of the costs order.

The Okanagan have waited a long time for their day in Court, and now they must wait longer. /For further information: Grand Chief Stewart Phillip, Chair, Okanagan Nation Alliance Primary Phone: 250-490-5314; Chief Wayne Christian, Co-Chair, Shuswap Nation Tribal Council Primary Phone: 250-828-9789; Chief Fabian Alexis, Okanagan Indian Band Primary Phone: 250-542-4328; Louise Mandell, Q.C., Mandell Pinder Primary Phone: 604-681-4146/ IN: ECONOMY, FORESTRY, JUSTICE, POLITICS

For more information, please contact

Stewart Phillip, Grand Chief Primary Phone: 250-490-5314

More native kids in B.C. living away from parents

Lives of aboriginals appear to be getting worse, children's rep warns

Lindsay Kines, Times Colonist

Published: Thursday, November 27, 2008

The lives of B.C.'s aboriginal children may be getting worse instead of better, the province's child advocate said yesterday.

Mary Ellen Turpel-Lafond warned that seven of every 10 children living in care or outside the parental home in B.C. will soon be aboriginal if nothing is done to halt current trends.

"We are very concerned about the situation for aboriginal children in British Columbia," she said. "And we are very concerned that there may in fact be a decline in the well-being of aboriginal children in the last number of years and not an improvement in their circumstances."

Speaking to a standing committee on children and youth, Turpel-Lafond noted that when she took office in 2007 about 51 per cent of children in care were aboriginal despite the fact they made up just eight per cent of the population.

She estimates that aboriginal children now account for nearly 60 per cent of children living in care or away from their parents under programs that place them with a relative.

"With the demographic trends, with the vulnerabilities in that community, I would be very sad to see, at the end of my term as representative, if that was closer to 65 to 70 per cent," she said. "But if the trends are unabated, and we do not work more effectively in this area, this will happen."

Turpel-Lafond said in an interview that other factors have influenced her view, such as the health and education outcomes of aboriginal children and their poverty levels.

Her office also recently tracked the lives of all children born in B.C. in 1986 for an upcoming report on youth justice. Disturbingly, the study found one in five aboriginal children ended up in care or living outside the parental home at some point in their childhood.

Children's Minister Tom Christensen questioned some of Turpel-Lafond's statistics, but acknowledged that one of every two children in government care is aboriginal.

"That is far too high, but quite frankly it's much less than in neighbouring provinces," he said. "If we look across Western Canada you get 70 to 80 per cent of the children in care being aboriginal."

Christensen insisted that government is working hard to reverse the trend by meeting with First Nations leaders, shifting more responsibilities to aboriginal agencies, and pressing the federal government to invest in prevention programs on reserves.

"But we are fooling ourselves if we think you're going to wake up one day and all of sudden everything's going to be reversed," he said. "This is going to be incremental."

Former judge Ted Hughes, whose 2006 review of B.C.'s child welfare system led to Turpel-Lafond's appointment, laid much of the blame for over-representation of aboriginal children on the "devastating effects" of the Indian residential school system.

He also cited other reports noting the impact of poverty, isolation, unemployment and inadequate housing, as well as lack of support from governments.

Turpel-Lafond said if the situation is to improve, everyone needs to remain focused on the children. "What are the conditions for the children? How are we going to make progress year to year on the situation like poverty, poor housing opportunities, the need for parental support, over-crowding issues -- things that really pose significant health and safety risks to children," she said.

lkines@tc.canwest.com

© Times Colonist (Victoria) 2008

Court orders mediator for B.C. land dispute: Province has failed to hold meaningful consultations with natives over 70,000-hectare tract, judge rules

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

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

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.”

***

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.”