Canadian Supreme Court Decision Expected

Wednesday, November 17, 2004
British Columbia, Canada

PORT CLEMENTS -- The western red cedars of the rain-nourished Queen
Charlotte Islands might seem a long way from the saguaro cactus of Mexico's
parched Sonoran desert.

But if you believe officials with the U.S.-based timber giant Weyerhaeuser, the
Charlottes could very well be the staging ground for Canada's big slide from a
prosperous western economy to that of a depressed, under-developed nation.

They say it may all hinge on a Supreme Court of Canada decision expected
Thursday.

That's when the court will provide details on the extent to which government
and industry must consult and accommodate aboriginal people before
proceeding with logging, mining and other developments on Crown lands that
are subject to aboriginal land claims.

Giving too much power to aboriginal people could represent a fatal blow to
investment, argues Jack Lavis, manager of Weyerhaeuser's operations on the
Queen Charlottes.

"We'd be out of business, fold our tent and leave," he said. "It's a shaky
situation. Investors will pull the pin, everything will collapse. By God, we'll be
another Mexico."

Then, with an eye to the rainforest outside, he jokingly adds: "Without the
good weather."

Mention Lavis's comments to Guujaaw, president of the Council of the Haida
Nation, and he looks a little perplexed.

"What's wrong with Mexico?" he asks from his modest second-floor office on
the Skidegate reserve, almost an hour's drive to the south.

Then he turns the tables further, asserting that the cultural and environmental
impact of industrial logging on the temperate rainforests of Haida Gwaii -- as
the islands are known to natives -- are no different than what big business has
done, say, in the tropical rainforests.

"It's the same pattern all over the world," argues Guujaaw, whose English
name is Gary Edenshaw. "They leave the land and its people impoverished.
They don't have to live with the consequences of their actions."

Guujaaw has his own wish for the forthcoming Supreme Court decision,
saying: "Ideally, the court would kick these guys the hell out of here. That's
what I'd like to see."

The pending decision flows from two aboriginal cases: One is the Haida
challenge to the B.C. government's transfer and extension of Tree Farm
Licence 39 (known as Block6) to Weyerhaeuser; the second is Atlin's Taku
River Tlingit challenge to construction of a 160-kilometre road through
wilderness to the Tulsequah Chief mine in northwest B.C.

The legal history is largely rooted in the Delgamuukw case of 1997, in which
the Supreme Court of Canada ruled that aboriginal title exists in B.C. and that
aboriginal people with pending land claims must be consulted prior to
development on Crown land.

The B.C. Court of Appeal took it one step further in 2002, saying government
and industry must also try to accommodate aboriginal concerns.

These decisions have had a ripple effect on the B.C. economy. Last month,
the B.C. Supreme Court put the brakes on a planned ski resort on Crown land
on Mount Garibaldi pending further consultation with Squamish natives.

The question is: Exactly what constitutes consultation and accommodation?

"We need to know the source, scope and nature of the obligation to consult
and accommodate," reads Weyerhaeuser's official position. "Individuals and
businesses with interests on claimed lands need to clearly understand what is
required in terms of their day-to-day operations and long-term planning."

Thursday's court ruling is expected to provide that clarity, with the results
having repercussions well beyond Haida and Tlingit territory.

"There is keen interest," Weyerhaeuser lawyer Anne Giardini confirmed.
"These issues have a considerable spillover effect outside our boundaries."

B.C. historically signed treaties with aboriginal people only on southern
Vancouver Island and in the northeast sector of the province. But even
provinces covered by treaties are not exempt from the effects of Thursday's
ruling.

Natives elsewhere have begun to argue that treaties don't extinguish
"residual or underlying rights," Giardini said. "Those assertions are being
made. This is not just a B.C. issue."

Louise Mandell, lawyer for the Haida, argued that while the B.C. government
has remained largely intransigent on the whole issue, first nations and
industry in the province are increasingly finding ways to work together.

"Industry seems to have much more at stake in getting certainty than the
Crown does," she said. "The Crown is still assessing the risks every time they
do something. Industry doesn't want that. They have come to the table. They
say, 'Let's work this out.' "

B.C. Attorney-General Geoff Plant, minister for treaty negotiations, refused to
be interviewed about the Haida case prior to the Supreme Court ruling. The
province has argued there is no constitutional obligation to consult with
aboriginal people.

B.C. Chamber of Commerce president John Winter said industry believes that
government should bear the burden of consultation and compensation, which
is only dumping more costs on industry.

"You can't realistically say we [B.C.] are open for business as long as this
hangs over our heads," he said. "Hopefully, we'll have some resolution.
Whether it's good or bad, depending on your perspective, doesn't matter. At
least it's resolution and we understand the rules of the game."

At Weyerhaeuser's Juskatla logging camp in Port Clements, on the east side
of Graham Island, company officials sit around a table and discuss the issue
with Percy Crosby, a Haida liaison officer whose job is to walk the difficult line
between Haida and timber officials.

"I'm the go-between," confirms Crosby, who prefers to leave comments to the
Council of the Haida Nation. "There are lots of challenges -- getting industry to
understand Haida values, and getting the Haida to understand the logging
industry, which can be even worse."

Haida forest values can include groves of cedar necessary for carving,
weaving and other traditional activities; culturally modified trees (which exhibit
the historic scars of cultural activities); medicinal plants; and areas important
for fish, wildlife, and stream conservation.

The Haida have declared 10 protected areas totalling 244,443 hectares, of
which only 148,000-hectare Duu Guusd has been recognized by the B.C.
government.

When you tack on 1,470-square-kilometre Gwaii Haanas National Park
Reserve and stream-side set-asides, Weyerhaeuser claims 40 per cent of the
Queen Charlottes are now tied up, and wonders how much more is possible
before logging ceases to be profitable.

Weyerhaeuser gives the impression its goodwill towards the Haida is not
being recognized. The company says about 25 per cent of its 200 contractor
employees are Haida. And despite having seen its annual allowable cut
clawed back 20 per cent to 802,924 cubic metres under a B.C. program to
redistribute timber to various stakeholders, the company has agreed to
reduce the harvest rate to 600,000 cubic metres toappease Haida concerns.

But even that figure has proved unattainable. Officials argue the cut will more
closely approach 430,000 cubic metres this year because of delays in dealing
with the Haida, prompting a change in company tactics. Weyerhaeuser spent
$700,000 on a consultation program that included the hiring of 10 Haida to
work with the company to develop logging plans following the court of appeal
decision in 2002. After one year, the company has cancelled the experiment,
arguing it just wasn't worth the cost.

Officials are now working with Crosby to produce what the company believes
is a logging plan that accommodates native concerns, then drops it in the
provincial forests ministry's lap. "We try to wrestle with it, try to figure out what
to do every day, while the two governments go through this charade in the
Parliament Buildings," Lavis says.

Guujaaw views the consultation process as just an interim step in the ultimate
goal of wrestling control of the island's economy away from foreign hands. To
that end, the Haida have signed protocols with the villages of Port Clements
and Masset to work together on a sustainable islands economy. (The Haida
also have a second case outstanding in B.C. Supreme Court, in which they
claim title to Haida Gwaii.)

In response to the Court of Appeal decision two years ago, the province is
urging aboriginals to sign forest and range agreements, which provide for
timber and revenue-sharing with first nations. According to the province's
aboriginal affairs website, B.C. has signed 29 such agreements with first
nations, including one agreement for 210,000 cubic metres and $1.7 million
over five years to the Metlakata First Nation in Prince Rupert.

"They're saying, we'll give you a little money and some timber if you stand
aside and let us manage it as we see fit," said Guujaaw, arguing the program
seeks to take advantage of aboriginals' economic conditions.

"Everybody could use the money," he said, confirming the Haida are receiving
financial assistance from philanthropic institutions, including the U.S.-based
Hewlett Foundation, in its legal fight. "But we haven't signed one of those."

Now that the province has turned over management of the forests to timber
companies under a new "results-based" policy, Guujaaw fears the companies
will cut corners when it comes to environmental matters, log scaling,
inventory, and stumpage.

"They've given them basically full authority to manage themselves," he said.

A big part of the war of the woods involves western red cedar, highly sought
by the timber industry, but equally valued by aboriginals for everything from
weaving to carvings to totems and longhouses. The Haida have long
complained that timber companies target the cedar rather than cut the forest
based on its full profile of tree species.

As the Haida continue to assert their cultural identity, the demand for cedar
only grows. Case in point: Gladys Vandal, who, a decade ago, single-
handedly revitalized the tradition of cedar hat weaving on the Skidegate
reserve.

She learned the art from native women on the Masset reserve, at the top end
of Graham Island, gained experience, then passed on her skills through
classes to more than 100 other Haida, from children to elders, in Skidegate.
Today, her cedar-bark weavings can be found throughout North America.


CREDIT: Bill Keay, Vancouver Sun

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