Haida Nation must be consulted about land: court

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A court case to determine whether government and third parties must consult First Nations about Crown land-use prior to Aboriginal title being decided by a court or affirmed in a treaty resulted in a two-to-one decision in favor of First Nations by the British Columbia Court of Appeal last month.

The court held Weyerhaeuser Co. must consult with the Haida Nation about its logging practices on the Queen Charlotte Islands.

The Haida had claimed the provincial government had no authority to renew Weyerhaeuser's timber farm licence, covering a large part of the Queen Charlottes, as the company had not properly consulted with them.

The defendants argued they were under no obligation to consult, unless the Haida could prove Aboriginal title.

A unanimous lower court decision in February stated there was a duty on government and third parties to "consult and accommodate" Aboriginal people even without such proved title.

According to Justice John Lambert, "If the Crown can ignore or override Aboriginal title or rights until such time title or rights are confirmed by a treaty or a court . . . the Crown can force every claimant into court before conceding any effective recognition be given to the claimed Aboriginal rights."

Weyerhaeuser pursued clarification of the ruling, which they argued did not apply to them, as they said the case dealt only with a Crown obligation to consult.

At a second hearing in June, submissions were heard from five more intervenors: the Business Council of British Columbia; the British Columbia Chamber of Commerce; the British Columbia Council of Forest Industries; the Squamish Nation and the British Columbia Cattlemen's Association.

Justice Lambert affirmed that not only did the government and Weyerhaeuser both have to consult the Haida, but they had been bound to do that in 1999 and 2000 when the tree farm licence was renewed.

While the Haida view the Aug. 19 appeal court decision as significant, Weyerhaeuser's assistant general counsel, Anne Giardini, downplayed it, saying, "We think we've been operating in the spirit of this ruling already."

Haida Nation lawyer Terry-Lynn William-Davidson said the Haida want a 50 per cent reduction in logging of old-growth cedar forests and no logging at all in some watershed areas.

The Haida have another action pending, wherein they assert Aboriginal title to all the Queen Charlottes. Filed last March, the case could reach the British Columbia Supreme Court in two years.