Shayne Morrow, Canwest News Service
A B.C. Supreme Court judge has ruled the province fell critically 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 Licence 44.
In a December 2005 court decision, Justice Lynn Smith gave the Ministry of Forests two years to negotiate a settlement that 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.
That was a straightforward ruling, but there was still no meaningful consultation, said Hupacasath chief councillor Judith Sayers.
“During the whole 28 months that we were working on it, they did not understand their obligations.”
Smith wrote in her decision: “I find that the Crown did not correctly understand what was required, and misapprehended its duty to consult and accommodate in the circumstances.”
Smith ordered that a mediator be appointed, at the expense of the province, and that the province pay all court costs.
That is a relief, Sayers said.
“In the original decision, we only got about 15 per cent of court costs back,” she said. “This round has been pretty costly, with a lot of extra days in court.”
Last May, Sayers revealed that the province, through its Crown corporation, B.C. Investment Management Corporation, is a 25 per cent 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 the Crown did not wilfully withhold information, but said the financial interest “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.”
Although the province will not reverse the decision to remove the property from TFL 44, 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 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, many of which are important recreational areas, from unchecked development, she said.
The case started in 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 to Island Timberlands.
