Native Trees: Court Decisions Recognize Aboriginal Title to Canadian Forests

Article excerpt

It's not business as usual in the forestry industry anymore, following some precedent-setting court decisions last year. And if the first half of 1998 is any indication, the four cases will have widespread and charged consequences.

In June, the BC Supreme Court ruled on the case of Chief Bernie Metecheah v. the Ministry of Forests and Canadian Forests Products, Ltd. In October, a decision came down from the New Brunswick Queen's Bench concerning R. v. Paul. A week later, the BC Court of Appeal ruled on the Council of the Haida Nation v. the Ministry of Forests. Then in December, the Supreme Court of Canada made its decision on Delgamuukw v. British Columbia. All cases involved the right to forests and land use. They resulted in some pivotal rulings on the meaning of aboriginal title and aboriginal rights.

The four cases give aboriginal peoples greater rights to the forests. They could alter the way the forestry industry operates in this country, could affect the treaty process and could change the way the government deals with first nations.

"I think that first nation principles of respect for the land have started to filtrate up through the rest of society and I think that more people are aware of the injustices to first nations," says Terri-Lynn Williams-Davidson, a Vancouver lawyer who worked on the Haida case and also wrote a paper looking at the effect of these four cases for a forestry conference earlier this year.

In the Metecheah case, the Halfway River First Nation in British Columbia, opposed plans by Canadian Forest Products Ltd. to log an area adjacent to the Halfway reserve where they hunt, trap and gather. But the provincial Ministry of Forests issued a cutting permit to the company. The Halfway Nation put up a roadblock to stop the logging and took both parties to court. On June 24, 1997 the BC Supreme Court ruled in favour of the Halfway. The Ministry and Canfor have filed an appeal.

Another BC decision came as the result of a challenge to a provincial tree licence covering the Queen Charlotte Islands (Haida Gwaii), an archipelago home to some of the largest trees on earth including Sitka spruce, western hemlock, giant red cedar and yellow cypress. Although the Haida nation claims title to the islands, forestry giant MacMillan Bloedel has a tree farm licence covering the majority of the forests on the islands (excluding the South Moresby Gwaii Haanas National Park Reserve) and extensively logs the area.

When MacMillan Bloedel applied to renew its tree farm licence in 1995, the Haida wrote a letter to the Ministry of Forests asking that the licence not be renewed and the Haida be consulted. But the government renewed the licence. In response, the Sierra Legal Defence Fund filed a lawsuit against the government and MacMillan Bloedel on behalf of the Haida.

Under the provincial Forest Act, a tree farm licence cannot be issued if the area is "encumbered" - that is, if it has a lien on it. The Sierra Legal Defence Fund argued that because the Haida own some or all of the trees, the land is encumbered and the licence therefore invalid.

The government and MacMillan Bloedel asked the court to answer a preliminary question of law before the lawsuit went ahead: assuming the Haida have aboriginal title, would such title constitute an encumbrance? In 1995, the BC Supreme Court ruled that encumbrance could not be interpreted to include aboriginal title. But that ruling was appealed, and on November 10, 1997, the provincial Court of Appeal overturned the decision. The province is appealing the decision.

Only a week before the Haida decision, on the other side of the country, forest companies lost similar exclusive control over the trees. In an appeal of R. vs. Paul, the New Brunswick Court of Queen's Bench ruled that natives have a right to cut trees on Crown land without restrictions. The court upheld a decision that Micmac Thomas Paul not be charged for cutting bird's eye maple trees on Crown land, even though the land was licensed to a pulp and paper company. …