VANCOUVER - The December 6th decision of Madam Justice Lynn Smith of the BC Supreme Court in Hupacasath First Nation v. British Columbia (Minister of Forests) is the latest addition to the litany of cases in which the courts have had to instruct the Crown on the meaning of its constitutional obligation to advance the reconciliation of Aboriginal and non-Aboriginal peoples within British Columbia.
The most important element of Justice Smith’s decision is that she found that the Province had a duty to meaningfully consult the Hupacasath about their claimed rights and concerns in regard to 70,000 hectares of private timberlands within their ancestral territory before deciding whether, at the request of then-owner Weyerhaeuser, to remove those lands from Tree Forest Licence 44 (TFL 44) and place them under "a different and much more forgiving regime."
The lands in question have a unique history. They were among those originally granted to the Esquimalt and Nanaimo Railway Company in 1887. They were owned by MacMillan Bloedel until 1999, when they were sold to Weyerhaeuser. In May 2005, roughly 10 months after their removal from TFL 44, they were sold to Island Timberlands. Island Timberlands is controlled by Brascan, a Respondent in the case. Brascan recently changed its name to Brookfield Asset Management.
The Province and Brascan argued that the Crown’s duty to consult First Nations and accommodate their Aboriginal rights and title claims is limited to Crown lands and that fee simple ownership excludes Aboriginal title and leaves the exercise of any remaining Aboriginal rights entirely at the sufferance of the owner. Thus, they urged, the Crown’s honour was not at stake in the decision to remove the private timberlands from TFL 44.
Justice Smith found that the principles already articulated by the Supreme Court of Canada showed that the Respondents were wrong. Recalling, as the Supreme Court of Canada had first made explicit in Haida Nation, that "[t]he duty to consult exists because of the need to reconcile the pre-existence of aboriginal societies with the sovereignty of the Crown," she wrote:
Although Crown sovereignty extends to all land, Crown decision-making power about the land does not. Here, the Minister [of Forests] had specific and significant control over activities on the land, could prevent it from being used for non-forestry purposes, and could even prevent it from being alienated. These are unique and unusual circumstances [para. 192].
And so, she concluded:
. . . The Crown’s honour does not exist only when the Crown is a land-owner. The Crown’s honour can be implicated in this kind of decision-making affecting private land. Here, the Crown’s decision to permit removal of the lands from TFL 44 is one that could give rise to a duty to consult and accommodate. I refer back to the words of the Supreme Court in Haida Nation at para. 76: the province may have a duty to consult and perhaps accommodate on TFL decisions, which reflect the strategic planning for the utilization of the resource and which may potentially have serious impacts on aboriginal rights [para. 199].
Justice Smith held not only that the Crown had a duty to meaningfully consult the Hupacasath about their Aboriginal rights claims and concerns in regard to the private timberlands (and to the collaterally affected Crown lands) before deciding whether to remove them from TFL 44 but also that it had failed to meet its duty. She held that "the Crown did not attempt consultation at all."
Although the Hupacasath had asked as a remedy that the Minister of Forests’ decision to remove the private timberlands from TFL 44 be quashed, set aside, or suspended in its effects, Justice Smith found that the resulting "significant prejudice" to Island Timberlands and Brascan weighed heavily against granting such relief. Nonetheless, she did think that the Hupacasath could be granted "a meaningful remedy . . . pending the completion of the consultation."
Building upon conditions that the Minister of Forests had unilaterally placed on the removed lands, she crafted an order to be in effect for two years or until the Province has completed its consultations with the Hupacasath, whichever is sooner. The terms of her order included the requirements that Brascan, Island Timberlands, and their successors "will maintain all current wildlife areas on the Removed Lands," "will maintain current access for aboriginal groups to the Removed Lands," and will provide the Hupacasath "seven days notice of any intention to conduct activities on the land which may interfere with the exercise of aboriginal rights asserted by the HFN."
The second condition is noteworthy because it means first that Brascan must maintain the access of the Hupacasath and other Aboriginal persons to the Removed Lands and second that Brascan must maintain current access.
The Court-ordered condition may significantly restrict Island Timberlands’ plans for the over 10,000 hectares of so-called Higher and Better Use lands (mostly residential development lands) located within its private timberlands. For 2006 alone, Island Timberlands’ targeted sales are $11.7 million (U.S.).
Justice Smith’s decision contained one further innovation. To assist the consultation process, she ordered the Crown and the Hupacasath to "attempt to agree on a consultation process," to "exchange positions as to what kinds of activities might interfere with the exercise of aboriginal rights," and to "provide each other such information as is reasonably necessary for the consultation to be completed." Her innovation was the accompanying order that should the parties fail to find agreement on any of these matters that it would go to mediation. This is a novel approach to addressing problems that have arisen in previous Court-directed consultation processes.
The First Nations Summit, AFN and the Union of B.C. Indian Chiefs ["Leadership Council"] have just negotiated a new interim agreement with the Premier’s office on forest management with First Nations. Justice Smith’s decision ensures that the Minister of Forests must address Aboriginal interests when making decisions about forest lands, whether those lands are Crown or private lands. This decision may further strengthen the new Forestry Agreement between the Province and First Nations.
Brascan and other companies operating into B.C. should now recognize that they cannot ignore the Crown’s actual consultation with Aboriginal nations when they are dealing with land and resources in this province.
For further information, contact:
Hupacasath First Nation
(250) 720-9328 or 724-4041 ext. 1
Hutchins Grant & Associates