Haida decision cracks Liberal land use schemes

Cracks are beginning to widen in the Liberal government’s land use program. Portrayed as an attempt to modernize BC’s moribund logging and mining sectors, the Liberal legislation and policies are actually thinly disguised attempts to further their neo-conservative scheme of privatization, deregulation and corporate self-management. Every time they say word “modernize” or “globally competitive”, think increased corporate control, reduced public oversight, and new, perverse subsidies.

The Liberals’ super majority in the legislature has insulated their policies from debate. An obsequious, conservative provincial media has protected their policies and errors from criticism. But their arrogance and disregard for communities and First Nations may be their undoing.

Last week a significant chink widened in the foundation of their scheme. If their approach to governance was a dam, the resulting leaks would have all those downstream fleeing to higher ground.

The latest setback was the most recent Haida decision from the B.C. Supreme Court. The decision creates significant obstacles for the Liberals’ goal to hand over control of public lands to logging, mining and energy corporations. In fact, it raises real questions about the legality of the recent consolidations, mergers and takeovers in the logging industry.

This is bad news for a government banking its political future on creating “certainty”. (Certainty, that is, for big corporate resource companies to continue exporting resources as cheaply as possible.) It is also bad news for logging executives who have been licking their lips in anticipation of the new subsidies and relaxed rules that allow them to increase profits at the expense of workers, communities, First Nations, and the environment.

Last week’s decision was the latest round in the Haida’s ongoing struggle to force Weyerhaeuser and other tenure holders on their unceded lands to fulfill their obligations to consult and accommodate the Haida.

In 2002, the Haida won its challenge of the transfer and replacement of Tree Farm Licence 39 on Haida Gwaii (Queen Charlotte Islands). The Court of Appeal held that the Crown and Weyerhaeuser have duties to consult and accommodate the Haida with respect to their cultural and economic interests in the forests of Haida Gwaii.

The Province and Weyerhaeuser appealed that decision, and a decision from the Supreme Court of Canada is expected soon. However, much has changed since the 2002 court decision:

  • The Province changed its forestry legislation to increase corporate control over public lands. The Liberals were attempting to divest itself of the obligation to consult First Nations regarding tenure-related decisions like mergers and consolidations;
  • The Haida attempted to reach accommodations with Weyerhaeuser and the Province, but the province refused to budge from its offer of a boilerplate Forest & Range Agreement which would have guaranteed that unsustainable status quo logging approvals would continue;
  • Relying on the freedom from provincial Crown oversight granted by the deregulation, Weyerhaeuser declared it had no need to consult with the Haida regarding any potential transfer of their licence, and refused to provide the Haida with information regarding the location of culturally important cedar.

The court rejected Weyerhaeuser’s arguments that the recent legislative changes removed its duty to consult. Judge Kelleher ruled that Weyerhaeuser must disclose to the Haida the identity of a prospective transferee and the terms of the proposed transfer.

Haida lawyer Louise Mandell, who handled the case along with Cheryl Sharvit, Staff Lawyer at the nonprofit law firm EAGLE, said, “The most important part about it is the duty (to consult) doesn’t go away because the province legislates away its control of the situation.”

The implications of this ruling are enormous. In essence the court read into BC law a duty to consult and accommodate for third-party tenure holders that was absent from the legislation. Given the reasoning of the 2002 Court of Appeals decision, the failure to do so could invalidate the licence.

What does this mean for all the recent mergers, takeovers, privatizations and tenure transfers that have consolidated control of BC forest into a few corporate hands? A flood of problems could result, drowning the Liberal quest for certainty on the land and forests.

The upsurge of consolidations that has resulted from Liberal forestry schemes are all now in jeopardy. CanFor, Western Forest Products, Riverside, West Fraser, and Weyerhaeuser could be sued for failing to engage First Nations before acquiring new tenures.

None of the above tenure holders contacted the affected First Nations to discuss upcoming tenure transfers or changes in control before they occurred. I know this to be so, because I have been in contact with most of these First Nations directly or through the Title & Rights Alliance.

Even more problematic for the corporations is the fact that many of the affected First Nations wrote letters to the companies, putting them “on notice” of their duties, requesting engagement and letting them know that failure to fulfill their duties would have dire legal and financial consequences. These letters were ignored.

In fact, after some of the consolidations were finalized, a number of companies told the affected First Nations they were prohibited from discussing the mergers/acquisitions until after they were completed because of securities laws. These excuses were rejected by the court in the recent Haida decision.

What implications does this decision have for the Crown? The Crown’s scheme to neutralize First Nations is in jeopardy. If the court was prepared to read into the legislation a duty on third-party tenure holders, it is likely to do the same for the provincial Crown. This does not bode well for the Crown’s various land use schemes.

In fact, a number of upcoming lawsuits will test various aspects of the Crown’s plans. For example,

  • The Gitanyow will be in court this fall challenging the recent amendments to the forest legislation as a part of their ongoing skirmish over the transfer of Skeena Cellulose;
  • Rumours abound that the Hupacasath will challenge the privatization of 2/3rds of their territory, when the government removed removed a huge swath of land from Weyerhaeuser’s tree farm licence near Port Alberni;
  • The Huu-ay-aht are challenging the inequity of the provincial Crown Forest and Range Agreements, because the agreements don’t link the accommodation offered to the infringement (the impact) on the territory.

Growing First Nations opposition to the Liberals’ land and water schemes should soon begin to send a shiver through investors.

  • First Nations from the Hat Creek, Telkwa, Kootenay and Peace regions are standing up to oppose coalbed methane;
  • Coastal First Nations have strongly objected to lifting the moratorium on offshore fossil fuel exploration;
  • Five First Nations have joined together to oppose the proposed Kemess North mine northwest of Prince George, which has proposed using a fish-bearing lake as a tailing pond;

All in all, it looks like the Liberal pro-corporate, anti-environmental, anti-native schemes might be unraveled bit by bit, beginning with this recent
Haida decision.Wouldn’t it be easier to just sit down with all the parties and try to negotiate?

Wouldn’t it be easier in the long run-and ultimately better for the BC economy -to honourably address the “and question” in BC rather than doing everything possible to maintain the status quo?

Apparently the Liberals don’t think so. This unwillingness may cost them.

Links to articles about the recent Haida Case:

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