Consultation approach starts to come apart

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British Columbia Supreme Court Justice Janice Dillon backed up a challenge by the Huu-ay-aht First Nation and cold-cocked the provincial government's Forest and Range Agreements on May 11. It was the latest in a series of blows to the BC Liberal government's attempts to get around the recent court rulings that require it to engage in meaningful consultation with First Nations.

The court ruled that the process and terms of the Forest and Range Agreements violate the principles set out in the recent Haida decision from the Supreme Court of Canada. Forest and Range Agreements provide about $500 per person and a small amount of wood supply to First Nations in exchange for an agreement that business-as-usual logging can continue in the particular First Nation's territory and an admission by the First Nation that it has been accommodated.

"Once again the courts have said the Crown cannot unilaterally impose terms in negotiations and force First Nations to take it or leave it," said Will Horter, the executive director of the Dogwood Initiative, an environmental law group that assists First Nations in the province. "This ruling jeopardizes the foundation of the Liberals' approach to First Nations, the 93 Forest and Range Agreements the government has signed."

The court granted the Huu-ay-aht a number of declarations that Horter said "effectively eviscerate" the Liberals' strategy for accommodating First Nations. The court said that the Forest and Range program: "...does not constitute good faith consultation and accommodation..." and "...does not fulfill the administrative obligations of the Crown to provide accommodation for the Aboriginal rights and title interests of the Huu-ay-aht."

The environmental lawyer said the courts are sending a very strong message to the province.

"Despite the Liberals' election rhetoric about growing economic certainty, what's really growing is the number of First Nations challenging the government's resource policies," said Horter.

Buoyed by a Supreme Court of Canada ruling that provincial governments must include First Nations in decision-making about resource harvesting on lands under claim, the Haida, Heiltsuk, Tahltan, Blueberry and Tsawataineuk Nations have blockaded what they see as unsustainable logging, fishing and oil and gas extraction in recent months. Over the next few months, the Hupacasath Nation will be in court challenging the privatization of their land, while the Gitanyow and Haida peoples are challenging the constitutionality of the Liberal government's forestry reforms.

"The Liberals' pro-corporate resource policies are unraveling. Running roughshod over First Nations, workers and the environment is causing a backlash that will only increase economic uncertainty," said Horter. "Who will invest money in B.C. when litigation and direct action-rather than discussions and compromise-are required to get the government to deal with First Nations?"

In a related development, the province and the Council of the Haida Nation have hammered out a draft agreement that Haida leaders hope can be finalized within 30 days. If it is finalized, it represents a major departure from traditional provincial government practices.

The government of British Columbia has agreed to put some sensitive land areas under Part 13 of the Forest Act. That places protection orders on the land for four years. The government also committed to interim protection for the lands during the planned 30-day period set aside to finalize the draft agreement.

"It is understood that the lands designated . . . are protected for cultural and ecological purposes," the agreement reads.

Resource harvesting will continue on Haida Gwaii (known also as the Queen Charlotte Islands) but it will go forward under a "consultation protocol" that will be developed jointly by the Haida and the province.

"Options will be explored by the parties related to a new approach for reaching a series of broadeinterim agreements concerning topics such as land, revenue sharing, fishing, economic development, shared decision making and consultation, some of which could involve the treaty process and federal government participation," the agreement states. "As soon as the Part 13 areas are determined, the chief forester will expedite a Timber Supply Review to set an Allowable Annual Cut for Haida Gwaii. The province will work with the Haida to ensure the Timber Supply Review is done in a manner that takes into account Haida interests and is culturally, ecologically and economically sustainable."

Talks will also continue about Haida concerns about provincial bear hunting licenses on the islands. The Haida want the bear hunt stopped completely.

In exchange for a promise to end the blockades of resources operations on Haida Gwaii, the province pledged to share revenue with the Haida people and to continue discussions about developing formal revenue sharing arrangements.

"An initial payment of a $5 million share in resource revenue will be provided by the province to the Haida upon execution of this understanding. The parties intend to develop revenue sharing arrangements that more closely reflect historical and present economic activity on Haida Gwaii.

This work will commence within 30 days, with the intention of concluding within 90 days," the agreement states. "Based on this understanding, and good faith intent by both parties to implement a new approach to sustainable land and resource management on Haida Gwaii, commercial forestry activity will not be impeded on the islands or the surrounding waters."