Start dealing with Aboriginal rights, courts say

Page 6

Two recent court decisions have sent a very strong message to the provincial government of British Columbia to change the way it deals with economic development projects that affect First Nations.

In a unanimous decision on Feb. 27, the British Columbia Court of Appeal ruled that the provincial government and forest company Weyerhauser have had "a legally enforceable duty to the Haida people to consult with them in good faith and to endeavor to seek workable accommodations" of their Aboriginal title and Aboriginal rights. Importantly, the judges said, "that obligation extended to both the cultural interests and the economic interests of the Haida people."

This decision, which looked at the transfer of a tree farm license from McMillan Bloedel to Weyerhauser, follows on the heels of a separate appeal court ruling that examined the provincial government's policy of approving whatever industrial developments it likes-including mining, forestry and ski resorts-after "consulting" First Nations.

Until now, industry and government assumed they weren't legally bound to address threats to Aboriginal rights until First Nations proved them in court. Not so, we learned in late January.

The case in question involved the government's approval of a mine proposed on the Taku River, south of Atlin. Redfern Resources sought government approval to build a 160-kilometre industrial highway through pristine wilderness-the very heartland of the traditional territory of the Taku River Tlingit.

In challenging the government's approval of the project, the Taku River Tlingit pointed to the considerable evidence that the government's own environmental assessment committee received showing that the road threatened the sustainability of their economic, social and cultural system on which they rely as an Aboriginal people. Not only would their traditional way of life be harmed, but land-use planning and treaty negotiations would also be compromised, they argued.

In June 2000, the B.C. Supreme Court quashed the project approval. It concluded that the government breached its fiduciary and constitutional obligation to meaningfully address the Tlingit's concerns. The government and the company appealed, but the Taku River Tlingit's position prevailed.

On Jan. 30, a majority decision said the B.C. government owes the Tlingit a fiduciary duty even before there is a court declaration of Aboriginal rights, and that this duty is not just to "consult." Importantly, it requires steps to deal with threats to their way of life and their rights.

The Haida and Taku River Tlingit cases have profound implications for the future of all British Columbians. It is clear that the provincial policies on Aboriginal rights and title are out of step with Canada's constitutional recognition of Aboriginal rights. So what will the B.C. government do?

The government of British Columbia should see these two decisions as a unique opportunity. If it is serious about rebuilding the economy of our province and putting people to work, it needs to understand that Aboriginal rights and title continue to exist, and First Nations must be involved in resource development decisions in their respective territories.

It is not good enough for the Attorney General to suggest that "Aboriginal rights exist, but we don't know where or who holds it." Aboriginal rights are not recognized in the Constitution only to be ignored by governments. Current provincial policies on Aboriginal rights continue to put resource investment and development at serious risk by pitting industry against First Nations. This high level of uncertainty will continue until resolved, either through the courts or through negotiations.

The following are our suggestions for the provincial government:

? Recognize the legal reality that Aboriginal rights and title, including the inherent right to self-government, continue to exist;

? Recognize that First Nations need to be fully involved in and benefit from all reource development in their respective territories, as has been shown in Quebec with the recent agreement with the Cree; and

? Provide the government negotiators with strong mandates, sufficient enough to reach viable, workable and fair agreements with First Nations.

If the government refuses to act on the clear message from the B.C. Court of Appeal, it should urge the Supreme Court of Canada to hear the appeals. It is time for all of us to strive to achieve certainty through agreements negotiated in good faith.