Hupacasath celebrate Supreme court victory

Court says province failed to properly consult First Nation on TFL 44

Shayne Morrow / Alberni Valley Times
November 5, 2008 02:00 AM

A B.C. Supreme Court judge has ruled that the province has fallen short in its obligation to consult and accommodate Hupacasath First Nation in the removal of 70,000 hectares of privately-owned timberland from Tree Farm License 44.

In a December 2005 court decision, Mme Justice Lynn Smith gave the Ministry of Forests two years to negotiate a settlement which would address the Alberni Valley nation’s right to exercise its aboriginal rights within the property, including access to sacred sites, harvesting of cedar and traditional medicines, and hunting. Hupacasath chief councillor Judith Sayers said Smith’s ruling was straightforward.

“The court said that the province did not consult with us properly,” Sayers told the Times. “That, during the whole 28 months that we were working on it, they did not understand their obligations.”

As Smith wrote in her decision (Ke-Kin-Is-Uqs v. British Columbia (Ministry of Forests), paragraph 239/240:

“I find that the position taken by the Crown is inconsistent with a balancing process aimed at eventual reconciliation, and is inconsistent with the context of this dispute (in particular, with the conclusions reached in the 2005 Decision). I find that the Crown did not correctly understand what was required, and misapprehended its duty to consult and accommodate in the circumstances.”

The court decision also includes an impact statement, to outline specifically where Hupacasath interests have been infringed.

“This time, a mediator has been appointed. They will be paid for by the province, and will be able to set deadlines,” Sayers said. Equally welcome, Smith ordered the province to pay all court costs for the case. “In the original decision, we only got about 15% of court costs back,” Sayers said. “This round has been pretty costly, with a lot of extra days in court.”

At a press conference held in Vancouver last May, Sayers revealed that the province, through its Crown corporation, B.C. Investment Management Corporation (BCMIC), is a 25% owner of Island Timberlands. Sayers charged that the deletion of the timberlands from TFL 44 was a calculated decision to increase the value of the property in advance of the subsequent acquisition by Brascan (now Brookfield Management).

In her decision, Smith concluded (para 175):

“While there was no suggestion, and I do not find, that the Crown wilfully withheld information from the court, the financial interest of the Province and provincial employees through BCIMC in Island Timberlands, and thus in the Removed Lands, and in Western Forest Products Inc. through Brookfield Asset Management, are matters that should have been disclosed to the petitioners and to the court, along with the other information as to the structure of BCIMC and its arms-length investment decision-making.”

However, Smith concluded that there was no evidence of direct involvement by the province in BCIMC.

Alberni Qualicum MLA Scott Fraser said the forest ministry “dishonoured the Crown” in the first instance, by failing to accommodate, then actively deflected the idea of appointing a mediator, as requested by then-Hupacasath CEO Trevor Jones.

“It seems like the Crown turned away attempts by Hupacasath to reconcile the situation with Island Timberlands. Then, as it turned out, they were 25% owners of Island Timberlands,” Fraser said.

“The court couldn’t reverse the removal, because the property had already been spun off, so they ordered them to negotiate and compensate.”

Sayers said the ruling means that Island Timberlands will have to go beyond a vague promise to be “good neighbours” with Hupacasath.

“What she has told the Crown and Island Timberlands is that they have to find a way to work with us,” she said. “We’ve never heard it so clearly said before. It gives us a good position for future discussions with the province.”

Sayers said the court ruling can be seen as a victory for small communities in general, as multinational corporations move away from forestry and into real estate development on their private timber holdings. Aboriginal title may prove to be a powerful tool to protect private forest lands, any of which are important recreational areas, from unchecked development.

“What the ruling says is that B.C. isn’t doing consultation properly. And that creates further investor insecurity,” she said. It’s also in direct conflict with the Vision of Recognition and Reconciliation set out in the New Relationship between the province and First Nations, she noted.

Fraser suggested that, in light of the recent removal of land from TFL 23 (Castlegar), which involved compensation to the community, the province is now obliged to compensate Hupacasath for infringement.

The case had remained before the courts since July 2004, when then-forest minister Mike de Jong deleted the private forest land — which represents one-third of Hupacasath traditional territory — from the TFL, immediately prior to the sale of the land by Weyerhaeuser.

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