Kwakiutl Court Case Successfully
Challenges Governments’ Denial of Douglas Treaties
June 21, 2013
Tsaxis, Kwakiutl Territory (Port Hardy, BC)—A recent BC Supreme Court decision on June 17, 2013, found that the Province of British Columbia had breached its legal duties by denying the existence of Kwakiutl Aboriginal title and rights to Kwakiutl Territory. The Court granted a declaration, which is a remedy binding on governments, that the Provincial Crown has an ongoing duty to consult in good faith and endeavour to seek accommodations regarding unextinguished Aboriginal rights, title and interests in respect of Kwakiutl Territory.
The judge also found that the Province and Canada had failed to implement and respect Kwakiutl’s 162 year old Douglas Treaties, and “encouraged and challenged” both the federal and provincial governments to begin honourable negotiations with the First Nation “without any further litigation, expense or delay.” This aspect of the judgment is a victory because it puts to bed, once and for all, the Province’s denial of Kwakiutl title based on their position that the Douglas Treaty extinguished Aboriginal title and right.
“After 162 years of neglect,” said Kwakiutl Councillor Ross Hunt, “We need to be able to begin actively rebuilding our Nation, renewing our territory, and regaining our identity. The governments must fulfill the honour of the Crown.”
A disquieting aspect of the judgment held that the Province had fulfilled its duty to consult about two forestry management decisions in 2008, which granted approvals of Western Forest Products (WFP) to remove 14,000 hectares of private forest lands from a Tree Farm License area known as TFL 6; and advance the Company’s strategic forest management plan, known as a forest stewardship plan (FSP).
Kwakiutl met with the Province about these decisions, and tried to negotiate reasonable accommodation for the impacts of these decisions on Kwakiutl title and rights, but the Province refused to negotiate about accommodation, taking the position that Kwakiutl had surrendered its title and rights through the Douglas Treaties.
The Province’s position was a blatant minimization of the Treaty and a denial of Aboriginal title and rights, which forced Kwakiutl into the Court to have these positions overturned. “We wanted to achieve accommodation and to require the governments to respect and fulfill Douglas Treaty obligations, including protecting historical village sites, some of which are located on the land covered by the forestry decisions,” said Kwakiutl Chief Rupert Wilson.
The judge ruled that, even though the Province’s consultation was based on positions about the Douglas Treaty and our Aboriginal title and rights that were arbitrary and illegal, the Province met the duty to consult in the circumstances. The judge was influenced by factors, including what he considered to be a reasonable consultation process; that the KFN should have been more responsive to the Province’s and WFP’s efforts to engage; that so much time had passed since the two decisions were made; that undoing the two decisions would have “wide-ranging negative economic consequences on the forest industry”; that he decided to not “quash” – or set aside – the decisions.
But he stated that he expected the Province and Canada to now begin honourable negotiations with Kwakiutl to address Constitutional rights.
Assembly of First Nations (AFN) National Chief Shawn Atleo shares the same expectation. “On behalf of the Assembly of First Nations national executive, I commend the Kwakiutl Indian Band and all First Nations in Douglas Treaty territory and across the country for asserting their title and rights, for not backing down and for continuing to pursue negotiations to address constitutional rights in ways that they can drive their own futures in their territories,” said AFN National Chief Shawn Atleo.
This is an important decision for Kwakiutl people and for Douglas Treaty First Nations because it repudiates a wall of denial by both the Province and Canada, who have refused to recognize existing and unextinguished Aboriginal title and rights, even in the context of consultation and accommodation, and have refused to implement such rights under the Douglas Treaties.
Further, the Court found as a fact that the obligation of the Crown to survey and protect for Kwakiutl use of Kwakiutl village sites and enclosed fields has not been met, leaving the Kwakiutl people 0.2 acres per person of reserve land, as compared to an average of 33.02 acres per person for First Nations across BC.
Kwakiutl, along with brother and sister First Nations across the Canada, especially those Nations with Douglas and Numbered Treaties, continues to implore the governments to open up new paths for negotiation and accommodation.
As stated by Councillor Coreen Child, former Chief of Kwakiutl Indian Band, “Ours is a spiritual relationship with the land. And we have a responsibility to the environment that nurtures and serves us—we eat from our forest, drink from our rivers, harvest from our oceans, and we want to preserve it for our children. In honoring the land, which has been so disrespected and abused, it is our obligation to compel a major paradigm shift and seek out a new framework for implementation.”
“The Union of BC Indian Chiefs stands in solidarity with the Kwakiutl Indian Band and all Douglas Treaty First Nations in their complete rejection and repudiation of the Province of BC’s deeply offensive legal arguments that the Douglas Treaties represent an extinguishment of their Aboriginal Title and Rights interests,” said Grand Chief Stewart Phillip, President of the UBCIC. “We call on Premier Clark, Minister Rustad and Minister Thomson to immediately meet with the Kwakiutl First Nation to commence negotiations to achieve fair and just accommodation for commercial forestry in Kwakiutl territory, including compensation for accommodation denied to Kwakiutl due to BC’s now illegal position of denial.”
Coreen Child Louise Mandell, Q.C.
250-230-1900/or 604-681-4146 (ext. 202)/or