Good News from Canada’s Supreme Court?

Imagine a world where sustainability is the norm, not the exception; where Aboriginal interests are protected, not marginalized; where healthy people and wildlife, clean air and water are celebrated above corporate profits and government development plans.

That world may have come closer to being reality on March 24 and 25, when the Supreme Court of Canada heard arguments related to government and industry’s duties to First Nations when proposing resource extraction from their territories. Background on the Case.

At stake was the future direction of BC’s resource economy. By appealing the Haida’s and Taku River Tlingit’s victories at the BC Court of Appeal, the BC government and resource industries were attempting to defend the “log/mine/drill now, talk later” approach to resource extraction activities that has been dominant in BC since contact.

The courtroom was packed. Sixty observers, mostly Aboriginal leaders from BC and the rest of Canada, watched as the 30 lawyers made their arguments. Not surprisingly, the Crown lawyers used every argument possible to attack the Court of Appeal rulings that both Crown and third-party tenure holders have constitutional, legally enforceable duties to consult and accommodate First Nations.

The Crown lawyers argued their old-stand-by: that they had to protect the broader public interest and that upholding the Court of Appeal would destroy the BC resource economy and lead to chaos and uncertainty. The Federal Crown’s main point was that First Nations’ consent could not be required before Aboriginal Title has been proved.

Paul Pearlman represented the BC Crown, MacBlo/Weyerhaeuser’s longtime advocate John Hunter represented Weyerhaeuser, and lawyers from most other provinces and the BC Cattleman Association also made submissions. We have heard that the lawyers for Crown and industry faced vigorous, sometimes antagonistic questioning from the bench, particularly related to the duties of third-party tenure holders.

By contrast, reports indicate that the Aboriginal arguments went smoothly, with only one significant interruption from the bench. Art Pape represented the Taku River Tlingit, and the Haida were represented by Terri-Lynn Williams-Davidson, a Haida lawyer from the Raven Clan and Executive Director of EAGLE and Louise Mandell. A number of other prominent BC aboriginal lawyers made submission as intervenors.

The last word from the intervenors came from Stuart Rush, representing the Town of Port Clements on Haida Gwaii. Port Clements, a town populated by many employees of Weyerhaeuser, intervened to support the Haida. Rush reportedly argued that the residents of Port Clements do not perceive the provincial Crown as representing their interests by continuing to promote and defend the industrial logging practices of corporations like Weyerhaeuser. To the contrary: in an unusual twist the town view their future as more aligned with the Haida than with the town’s major employer, Weyerhaeuser.

The only major question the Aboriginal side had from the bench related to the content of the duty to consult and accommodate. This is a good sign. Usually questions like this–asking about the remedy, rather than asking whether there is a duty in the first place–indicate the court is leaning in your direction.

However, while reports from the lawyers for the First Nations indicate they thought the hearing went very well, the Supreme Court is unpredictable. The uncertainty in this case is increased by the fact that two justices, Frank Iacobucci and Louise Arbour, both thought to be supportive of First Nations unexpectedly announced their intent to step down recently. As a result, the arguments were heard by a panel of only seven justices, not the usual nine, and four of those justices are relatively new, with little track record on Aboriginal cases.

While the outcome will remain in doubt until the court’s decision is released–probably this coming fall–those who attended the hearing are confident of an Aboriginal victory. Those of us who want a better future for BC hope they’re right.

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