Province’s consultations on tenure reform may not withstand court scrutiny
By Vaughn Palmer, Vancouver Sun columnist
VICTORIA — While last week’s Supreme Court of Canada decision on aboriginal title raised doubts about the plan to pipe Alberta bitumen through B.C., the more immediate impact is likely to be on the management of provincial forests.
The landmark title case originated three decades ago with a challenge by the Tsilhqot’in people to provincially approved commercial logging within their traditional territory in the central Interior.
The high court resolved the case by 1) confirming aboriginal ownership over much of the affected territory and 2) finding that the province breached its duty to consult the Tsilhqot’in and accommodate their interests over the use of their land and resources.
The far-reaching decision by Chief Justice Beverley McLachlin on behalf of a unanimous court had major implications for the continued application of provincial laws to Crown forests that are mostly subject to claims of aboriginal title.
Where clear title has been established — the Tsilhqot’in being the first but certainly not the last case where that has been accomplished — the province would have to amend the Forest Act and other legislation “to explicitly apply to lands over which title has been confirmed.”
Even then, there would be limits: “Provincial laws of general application, including the Forest Act, should apply unless they are unreasonable, impose a hardship or deny the aboriginal title holders their preferred means of exercising their rights.”
The court went on to say that “legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires, will often pass the test,” while “granting rights to third parties to harvest timber is a serious infringement that will not lightly be justified.”
But with much of the province subject to assertions of aboriginal title that have not yet been established, the chief justice offered a phased approach.
“At the claims stage, prior to establishment of aboriginal title, the Crown owes a good-faith duty to consult with the group concerned and, if appropriate, accommodate its interests. As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the aboriginal interest pending final resolution of the claim.”
With most First Nations moving in the wake of the Supreme Court decision to reassert their claims and broaden them as well, it raises the question of whether the government can proceed with any forestry changes in the interim.
Take the controversial proposal to reform tenures by tightening access to timber-cutting rights in hopes of encouraging investment in the industry.
Jim Snetsinger, a former chief forester, was due to report to government this week on the results of consultations on the proposed reforms. Those by-invitation-only consultations included three regional workshops for First Nations, where he was repeatedly reminded of the need to respect aboriginal rights and title.
Once his report is released later this summer, it will be up to the government to decide how to proceed. Still, one has to wonder if those brief consultations were sufficient to survive the scrutiny of the courts.
In the first round of the Tsilhqot’in case back in 2007, B.C. Supreme Court Justice David Vickers noted that the province had provided an almost 200-page chronology of its efforts to engage the First Nation over the two decades following the award of the initial cutting permit.
“The central question is whether all of this effort amounts to genuine consultation,” wrote Vickers in a judgment that was substantially upheld by the high court. “This consultation did not acknowledge Tsilhqot’in aboriginal rights. Therefore, it could not and did not justify the infringements of those rights.”
The consultations on tenure reform might fall short in similar fashion, having been undertaken by a government that rejected the broad definition of rights and title incorporated in the Vickers judgment, only now given authority by the highest court in the land.
Perhaps the Liberals will choose to press on with tenure reform anyway, that having been the practice of successive provincial governments notwithstanding aboriginal assertions of rights and title.
But a reading of the McLachlin ruling suggests that the country should be entering a new era in that regard as well: “Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality, in order to faithfully discharge its duty to the title-holding group going forward.
“For example,” she continued, “if the Crown begins a project without consent prior to aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes aboriginal title.”
Unless I misread the chief justice, she’s warning all governments that with this ruling in hand, they won’t get away with disregarding future aboriginal assertions of rights and title.