case heads to Canadian Supreme Court
Posted: March 31, 2004 - 1:20pm EST by:
J. Taylor / Correspondent / Indian Country Today
GWAII, B.C. - A precedent-setting case involving third party responsibility
to consult the First Nations on business activities affecting Aboriginal rights
will be heard in the Supreme Court of Canada March 24 - 25.
The case, Haida Nation v. Minister of Forests and Weyerhaeuser Company Ltd., is an appeal by the respondents to a 2002 British Columbia Court of Appeals decision which found Weyerhaueser shared the Crown’s responsibility to consult and accommodate the Haida before licenses were granted by the province to harvest old growth cedar on territory claimed by the Haida. Specifically, British Columbia granted Weyerhaueser, a forestry products company, a tree farm license allowing them to harvest 25 percent of the old growth cedar in the Haida Gwaii, the nation’s traditional homeland in the Queen Charlotte Islands, without adequately consulting the Haida. The permit was not abrogated by the case by the Court of Appeals, but did impose the legal responsibility of consultation for the first time in history on a third party - Weyerhaueser in this instance.
Executive Director Terry-Lynn Williams-Davidson of Environmental-Aboriginal Guardianship through Law and Education, the organization providing legal representation for the Haida, said this case would be the first to impose third party responsibility to an Aboriginal people anywhere in the world. She said the Haida concerns in this case are obvious considering the cultural and religious significance of the old growth cedar in Haida Gwaii. However, the lack of a treaty with the Crown and unresolved land claims in the province has forced the Haida to establish their claims and concerns in court before they are addressed by the Crown or Weyerhaueser.
"The importance of the old growth cedar is everywhere you look," said Williams-Davidson. "It is in the longhouses and in the totem poles and they proceed as if they [the Haida] have no rights."
Weyerhaueser spokeswoman Sarah Goodman told Indian Country Today the Court of Appeals decision has only created uncertainty for everyone concerned. She said the certainty of a Supreme Court decision would clearly establish the scope and nature of third party responsibility to the First Nations. Goodman said the upcoming decision would also provide Aboriginal groups with the knowledge of what they can expect from third parties like Weyerhaueser.
"We believe businesses, Aboriginal groups and all others benefit from legal certainty about the source, scope and nature of any duty third parties have regarding Aboriginal claims," said Goodman.
In a recorded statement on the organization’s Web site, President of the British Columbia Business Council Jerry Lambert said businesses in British Columbia feel they have no clear responsibility to address First Nations concerns and accommodation. Another business council spokeswoman Ann Giardini said private parties have no responsibility to the First Nations and smaller business like ranching have no way of determining the scope consultation and accommodation should take. Giardini said this does not mean third party consultation should not take place.
"The First Nations are important stakeholders," Giardini said.
The Haida Nation is receiving significant morale and legal support from non-Aboriginal communities in Haida Gwaii. The communities of Port Clements and Massett signed a protocol agreement on March 19 in Port Clements with the Haida to ensure the interests and concerns of everyone living in Haida Gwaii are addressed. Port Clements was also the site of a traditional Haida feast to celebrate the protocol agreement reached after two years of discussions to help raise money to pay for representatives of the three communities to go to Ottawa while the case is being heard.
Source: indiancountry.com online Native newspaper
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