Court chooses dollars over Aboriginal rights and title

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In a British Columbia Supreme Court on March 11, Justice Carol J. Ross found that the sale of a 70,000-hectare parcel of land from one forestry company to another adversely affected the rights and title of the Hupacasath First Nation of Vancouver Island.

The justice also found that there was a chance the Hupacasath people could suffer irreparable harm if the decision to remove the lands from the jurisdiction of the Forest Act and move them into the Private Forest Lands Management Act, as proposed by the province's minister of Forests, was allowed.

So why did the justice refuse an injunction against the sale of the land? Citing the "balance of convenience test" the court chose the $1.2 billion land deal over the irreparable harm it would cause to the Hupacasath, effectively choosing business certainty over constitutionally-protected Aboriginal rights.

"It is a shame that the court failed to recognize that our land, our resources and our ability to exercise our rights are priceless and invaluable. Our children's legacy, which is supposed to be protected within Canada's Constitution under s. 35, is at risk of being forever destroyed. When does business certainty have priority over constitutionally-protected rights?" asked Hupacasath Chief Judith Sayers, who filed the injunction to slow the sale of the lands in Hupacasath traditional territory.

The Hupacasath have chosen not to appeal the decision on the injunction because the trial on whether the minister should have consulted and accommodated them prior to removing the lands from the jurisdiction of the Forests Act was scheduled to start on May 2.

But Sayers admits to being confused by Justice Ross' decision.

"The court chose $1.2 billion over our rights," she said.

Environmental lawyer Will Horter is executive director of the Dogwood Initiative, a private foundation funded group that helps communities take on corporations and fight for local control of resource extraction. He said the decision in the Hupacasath case was fairly typical of B.C. Supreme Court decisions.

"If you look at the B.C. Supreme Court politically, most of the judges, and I haven't done the background check on this particular judge, but most of them come from the big Vancouver law firms and most of their clients have been major resource companies. So most of them understand the economics of the industry fairly well," he said.

But few of those judges are as well informed on Aboriginal rights issues, he added.

Applying the balance of convenience test to an Aboriginal rights case is not fair and not good law, he said.

"The unfairness on the balance of convenience test, it's basically comparing apples and oranges," he said. "In essence, the balance of convenience test, there's an issue to be tried and at the end of the day they're supposed to say, 'Is one party irrevocably harmed if we don't stop this action and give this injunction?' But how do you put a dollar value on a constitutional right as opposed to something that's worth $1.2 billion?"

Sayers said Native leaders want to create a process that forces provincial policies to be updated or modified to comply with recent Supreme Court of Canada decisions that support Aboriginal rights and title. Without some concrete action on the part of the provincial government to follow high court rulings, there will be trouble, Sayers said.

"Personally, I say it will happen in the near future," she said. "I'm calling it the showdown in the woods."

She's not the only person in the province unhappy with the government's actions on resource extraction.

The Haida people have brought logging to a halt on their territory by mounting a blockade. And a coalition of more than 30 environmental, labor union and First Nations groups issued an open letter to Premier Gordon Campbell on April 15 accusing the premier and his government of intentionally re-writing policies and regulations to avoid high court decisions on Aboriginaltitle.

"As the Haida Tree Farm License 39 case was making its way to the Supreme Court of Canada, the provincial government was repealing or rewriting virtually every forest and environmental law in B.C. to reduce its role and place increased control in the hands of resource companies," said Jessica Clogg, staff counsel at West Coast Environmental Law. "Because of its offloading to companies, the Crown now claims it has no duty to the Haida. This is not honorable."

Even government employees are criticizing the Campbell government.

"Through cutbacks and sweeping changes to forestry laws, the provincial government has essentially torn up the 'social contract' in our forests, removing the benefits of local resource development from local communities and First Nations," said George Heyman, president of the B.C. Government and Service Employees' Union. "This is a recipe for community dislocation and uncertainty that can only be resolved by dealing honorably with First Nations and fundamentally rethinking recent changes to forestry and environmental laws."

Horter pointed out that a number of First Nations group in a variety of different ways around a variety of different issues are standing up and saying, 'the status quo, business as usual is not acceptable.' "The Hupacasath have used the legal arm. The Haida have gone to the streets. The Heiltsuk have gone and done their protests around fisheries," he said. "The folks up in Kingcome Inlet are blockading. There's lawsuits in the Okanagan. There's an upcoming lawsuit with the Haida and the Gitanyow. Treaty 8 is done both the blockading and litigation. And I suspect there's going be some things coming up in this election cycle as well. So the trend of First Nations using a variety of tools, not just legal tools, to stand up and defend their interests against unsustainable activities is, I think, an untold story about British Columbia."