Judgment presents serious challenge to B.C. forestry regime

Vaughn Palmer
Vancouver Sun


Thursday, November 22, 2007
http://www.canada.com/vancouversun/news/story.html?id=8c4cf00a-a261-42c9-9726-6b\
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VICTORIA - One didn't need to read far into Wednesday's mammoth B.C. Supreme
Court ruling on aboriginal title before finding the paragraph that almost
derailed the entire case.

The plaintiff first nation, one of the Tsilhqot'in (Chilcotin) bands, had filed
an "all or nothing claim" over a territory of almost 4,400 square kilometres.

However, as Justice David Vickers noted on page 33 of almost 500, "the plaintiff
is now attempting to reframe his claim to include title over smaller portions of
territory."

That move -- revising the land claim four years into the proceedings -- is
expressly forbidden by the highest court in the land.

"I am bound by the conclusions reached by the Supreme Court of Canada," Vickers
wrote. To allow the plaintiff to reframe, "would be prejudicial to the
defendants."

Therefore Vickers could not grant the sought-after declaration of aboriginal
title. He also dismissed the native claim for damages against the province.

An ordinary proceeding might have ended there, with the claim sent back to
square one or on to the B.C. Court of Appeal.

Not this case. Not after 339 days of courtroom time and the expenditure of $30
million in public money on legal bills.

"I do not intend, after this lengthy trial, to shy away from expressing an
opinion in areas that might assist in the ultimate resolution of matters between
Canada, British Columbia and the Tsilhqot'in people," Vickers wrote.

Besides, he was a man with a mission.

"The present Canadian community is now faced with the challenge of acknowledging
past wrongs and of building a consensual and lasting reconciliation with
aboriginal people," he continued.

"My hope is that this judgment will shine new light on the path of
reconciliation that lies ahead."

As for the signposts on that shining path, Vickers supplied two of them.

The first was a non-binding but still potentially influential comment on
aboriginal title.

"What is clear to me is that the impoverished view of aboriginal title advanced
by Canada and B.C. -- characterized by the plaintiff as a 'postage stamp'
approach -- cannot be allowed to pervade and inhibit genuine negotiations.

"The recognition of the longstanding presence of the Tsilhqot'in people in the
claim area is a simple, straightforward acknowledgment of a historical fact."

He went on to suggest that if the band had gone with something less than an "all
or nothing claim" in the first place, it would have succeeded in establishing
title over about 2,000 square kilometres.

The area, as the judge conceded, lacked the precision of an actual declaration
of title: "I acknowlege in expressing this opinion I am doing precisely what I
was uncomfortable with in the course of the trial, namely setting boundaries
that are still ill-defined and not contained within usual metes and bounds."

Still, it was the closest a Canadian court has come to recognizing title over a
specific territory and native leaders proclaimed a great victory.

Yet the second part of the decision may have greater impact on provincial
affairs.

For this case began as a native challenge to provincial forestry legislation and
the judge came down against the province on that score.

He ruled against the entire provincial forestry regime -- tenure, harvesting
rules, land use planning, timber supply and sustainability -- as it infringes on
aboriginal title.

"Constitutionally inapplicable." First because of the "central role" of the
national government in matters aboriginal.

Second because provincial timber-cutting rules, with their emphasis on economic
considerations, give short shrift to the aboriginal interest in preservation of
wildlife habitat for hunting, fishing and trapping.

"I am aware of the serious implications this conclusion will have on B.C.," the
judge adds.

But he went on to quote approvingly, the view of a Toronto-based academic, that
B.C. "has been violating aboriginal title in an unconstitutional and therefore
illegal fashion" since it joined Confederation.

"What is truly disturbing is not that the province can no longer do so," wrote
law professor Kent McNeil, "but that it has been able to get away with it for so
many years."

All this by way of what the judge characterized as "obiter dicta" -- the Latin
legalism for statements made in passing, that are not legally binding on the
parties.

Nearing the end of his lengthy expression of opinion, Vickers expressed the hope
that it would bring some sort of legal closure to the proceedings.

"After a trial of this scope and duration, it would be tragic if reconciliation
were postponed through seemingly endless appeals."

Credit him as an optimist for believing this will lead to negotiations, not more
litigation.

But I expect the natives will rush to court to try to overturn the part that
went against them and translate the findings into a full-blown declaration of
aboriginal title.

And it is difficult to imagine Victoria will let pass such a sweeping challenge
to the provincial authority over lands and forests.

vpalmer@...


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