------- Forwarded Message Follows ------- Date: Thu, 13 Nov 1997 21:27:19 -0800 (PST) From: MichaelP <papadop@peak.org> Subject: canadian ruling on indigenous rights and forests
The text of the Reasons for Judgment in this case can be viewed at: http://www.courts.gov.bc.ca/jdb-txt/ca/97/06/c97-0669.txt ]
CANADIAN COURT RULES ON FORESTS
Associated Press, Tues, Nov. 11, 1997
VANCOUVER, British Columbia (AP) - British Columbia does not have exclusive control over its forests as long as its aboriginal land claims remain unresolved, a provincial court has ruled.
Monday's ruling by the provincial appeals court was the second this month to strengthen claims of Canada's natives to forest resources. A New Brunswick court ruled last week that natives have a right to cut trees on public land with no restrictions.
Forestry is the largest industry in New Brunswick and British Columbia. Both provincial governments have assumed sole ownership of public lands and parceled out large forest tracts for logging to multinational companies.
Monday's ruling overturned a lower court decision that had allowed the British Columbia government to give MacMillan Bloedel Ltd. exclusive rights over forests on the Queen Charlotte Islands and part of Vancouver Island, despite outstanding land claims from the Haida Indians.
Bill Macpherson, a spokesman for British Columbia's Ministry of Forests, said the decision will enable the Haida to proceed to trial and argue for the establishment of their title to the land.
But he said the court decision does not specifically quash the province's system of logging permits.
The decision, if applicable to all licenses given out by the government, would affect about 25 percent of the province's forests.
"To us, this puts things back to the way it is supposed to be," said Ron Brown, president of the Haida Nation Council, which represents the 6,000 Haida in British Columbia.
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HAIDA RULING THREATENS TREE LICENCES
Vancouver Sun, Wed. Nov. 12, 1997, by Gordon Hamilton
The B.C. Court of Appeal's ruling that the Haida Indians may have a legal right to trees on a MacMillan Bloedel tree farm licence threatens the value of all tree farm licences in the province, some analysts said Monday. The court ruling, overturning a lower court decision, could put the aboriginal claim to trees on a par with their rights to salmon, where their claims come before everything but conservation, said forest economist Peter Pearse.
"The effect on the forest industry will be to add a further element of uncertainty about the security of timber rights," Pearse said. "It qualifies the rights of the licensees to all of the timber."
But Forests Minister David Zirnhelt said that since the court didn't quash the contract between the government and MacMillan Bloedel renewing the tree farm licence on the Queen Charlotte Islands, there's been no actual change. "We say there is no change in the status and operation of tree farm licences, so it will be business as usual until a further court decision is made on the Haida claim for aboriginal rights," he said. "The important thing is my phone is not ringing off the hook with people in the industry panicking."
One quarter of all timber harvested from Crown land comes from tree farm licences.
In a unanimous decision, three appeal court judges said that where First Nations can prove they have aboriginal rights they also hold valid legal interest in not only the land but the forests on the land. The decision opens the door to the Haida to take their claims for aboriginal title to court.
Tree farm licences -- contracts giving forest companies exclusive rights to harvest timber within the area of the licence -- could, the judges said, be "otherwise encumbered" by aboriginal title.
In his reasons for judgment, Justice William Esson, said that if the aboriginal title claimed by the Haida exists, it constitutes an encumbrance on the Crown's title to the timber. "While it is true that the Forest Act deals with the disposition of timber by the Crown, and authorizes the minister to enter into tree farm licences, the object of the act is clearly not to authorize the minister to do so without regard to third party interests."
Ron Brown, president of the Council of the Haida Nation, said the decision came as a surprise for the Haida. "We are probably going to pursue this a little further. We didn't expect such a unanimous decision."
The Haida haven't decided on a course of action yet, whether to proceed to court or negotiate with the province. However, Brown said, the Haida will be taking a copy of the decision into meetings later this month with forests ministry staff and forest licensees operating in the Queen Charlotte Islands. The ruling gives the Haida a stronger bargaining position, he said.
Industry people were also taken by surprise, and representatives of MacMillan Bloedel and the Council of Forest Industries said they wouldn't be prepared to comment on the case until today. Industry analyst Charles Widman said despite the government position that nothing has changed, the court ruling has serious implications for all 36 tree farm licences in British Columbia. He said the court has opened the door for First Nations to lay claims for timber in tree farm licences.
"The long-term implications are very serious in terms of management of a very big chunk of our forests," he said. "The tree farm licence holders feel they have a contract with the government that gives them in effect title to those forests provided they perform under the agreement. "To have a third party coming in and claiming jurisdiction is serious and would certainly reduce the value of those tree farm licences substantially."
Sierra Legal Defence Fund executive director David Boyd also said the ruling has broader implications for the forest industry. "This affects every tree farm licence in B.C. How do you reconcile the exclusive rights granted in tree farm licences with aboriginal rights?"
Pearse said security of tenure is already a major problem in the B.C. forest industry, where government policies have added a variety of regulatory measures, led to increased stumpage payments and set aside timber for wilderness, sometimes at the expense of licensees.
The provincial government and MacMillan Bloedel have 60 days to appeal the decision to the Supreme Court of Canada.
:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-:-: S.I.S.I.S. Settlers In Support of Indigenous Sovereignty P.O. Box 8673, Victoria, "B.C." "Canada" V8X 3S2
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