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Supreme Court Rejects BC Forestry Program as Unconstitutional PDF Print E-mail
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Sunday, 12 June 2005 16:43
 Supreme Court Rejects BC Forestry Program as Unconstitutional

May 12, 2005                 Huu-ay-aht First Nation Press Release

PORT ALBERNI, BRITISH COLUMBIA – In another major court victory for First Nations, the Huu-ay-aht First Nation (HFN) have received a decision from the Supreme Court of British Columbia which holds that the BC Ministry of Forests program designed to address aboriginal interests on forestry matters fails to meet the Province’s constitutional duty to First Nations.

The Province had established a program of resource and revenue sharing based upon First Nations’ population. The program, called the “Forest and Range Agreement Program”, did not consider a First Nation’s claim to territory or the extent of forestry operations within that territory.

The Court, in its decision released May 10, 2005, rejected the “quick and easy” population based formula contained in the policy, and directed the Province to consider the individual interests of an affected First Nation.


The decision sends the Ministry of Forests back to the drawing board. In its decision the Court states:

“To fail to consider at all the strength of the claim or degree of infringement represents a complete failure of consultation based on the criteria that are constitutionally required for meaningful consultation. While a population-based approach may be a quick and easy response to the duty to accommodate, it fails to take into account the individual nature of the HFN claim…The government acted incorrectly and must begin anew a proper consultation process based upon consideration of appropriate criteria.”

The decision is the result of a challenge to provincial policy brought by the Huu-ay-aht First Nation, whose traditional territory is located on the western coast of Vancouver Island. The Huu-ay-aht territory includes some of the richest veins of timber in the country, and from 1940 until present, over 40 million cubic metres of timber has been logged from the area. The logging has claimed a majority of the old growth forest in the territory. The main logging company operating in the territory is Weyerhaeuser (previously MacMillan Bloedel). The Huu-ay-aht have been in negotiations with the Province seeking an agreement that will assist the Huu-ay-aht to participate in the forest economy within its own territory.

“This ruling is an important victory for our people. For decades we have watched the timber and revenue flow out of our territory, while our people received few benefits and our land has been decimated.” said Chief Robert Dennis of the Huu-ay-aht First Nation, following the Court’s seminal decision. “The Court has now told the Provincial government that it must share resources in proportion to what we are losing from our territory. The Province and the logging operators can no longer pretend we don’t exist. They can no longer carry on business as usual.”

The Court characterized the Province’s conduct towards the Huu-ay-aht as “intransigent” and found that the government failed to accord the Huu-ay-aht the honourable treatment that the Crown is constitutionally obligated to provide to aboriginal people.

------ End of Huu-ay-aht First Nation Press Release --------

BC Court Torpedoes Liberals’ First Nations Accommodation Agreements 

May 12, 2005 

Dogwood Initiative ( http://www.dogwoodinitiative.org/index.php ) Press Release

Victoria – The BC Supreme Court has rejected the Liberal Government’s approach to consulting and accommodating First Nations. Madam Justice Dillon ruled in favor of the Huu-ay-aht First Nations, rejecting the take-it-or-leave-it negotiating tactics and boilerplate terms the Liberal Government has been using to accommodate First Nations.

The Court ruled that the process and terms of the Forest and Range Agreements violate the principles set out in the recent Haida decision from the Supreme Court of Canada. Forest and Range Agreements provide approximately $500 per person and a small amount of wood supply to First Nations in exchange for (1) agreement that business-as-usual logging can continue in the particular First Nation's territory, and (2) the First Nation has been accommodated.

“Once again the courts have said the Crown cannot unilaterally impose terms in negotiations and force First Nations to take it or leave it” says Will Horter, Executive Director of the Dogwood Initiative. “This ruling jeopardizes the foundation of the Liberals’ approach to First Nations, the 93 Forest and Range Agreements the government has signed.

The court granted the Huu-ay-aht a number of declarations that effectively eviscerate the Liberals’ strategy for accommodating First Nations. The court said that the Forest and Range program:

1. “…does not constitute good faith consultation and accommodation… “ 2. “…does not fulfill the administrative obligations of the Crown to provide accommodation for the aboriginal rights and title interests of the Huu-ay-aht.” and that 3. “a population-based formula…has no rational connection with the legislative objectives of the FRA program.”

“Despite the Liberals’ election rhetoric about growing economic certainty, what’s really growing is the number of First Nations challenging the government’s resource policies,” said Horter.

Recently, the Haida, Heiltsuk, Tahltan, Blueberry and Tsawataineuk Nations blockaded unsustainable logging, fishing and oil and gas extraction. In the coming months, the Hupacasath are in court challenging the privatization of their land, and the Gitanyow and Haida are challenging the constitutionality of the Liberal government’s forestry reforms.

“The Liberals’ pro-corporate resource policies are unraveling. Running roughshod over First Nations, workers and the environment is causing a backlash that will only increase economic uncertainty,” said Horter. “Who will invest money in BC when litigation and direct action—rather than discussions and compromise—are required to get the government to deal with First Nations?”

The Dogwood Initiative is a non-profit group that helps people change the balance of power to create healthy, prosperous communities.



Last Updated on Sunday, 12 June 2005 16:43

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