News

Yal et al v. MOF et al
REPORT TO GITXSAN CHIEFS
January 03, 2002
GORDON SEBASTIAN

1. Introduction

The Gitxsan hereditary chiefs filed a Petition in Smithers Supreme Court on May 2, 2002. The Petition sought Judicial Review of the Minister of Forest’s consent to transfer of control of Skeena Cellulose Inc. (NWBC Timber & Pulp Ltd obtained control of the shares in SCI) The Petition was heard on September 23-27, 2002, and Mr. Justice Tysoe read his decision to the Gitxsan hereditary chiefs on December 10, 2002, in Smithers Supreme Court.

The Gitxsan said that in giving his consent to the change of control of Skeena, the Minister failed to fulfill his duty of consultation and accommodation articulated by the Supreme Court of Canada in Delgamuukw and later elaborated upon by the BC Court of Appeal in Halfway River First Nation, Taku River Tlingit First Nation, Haida 1 and Haida 2. (The Minister gave his approval in principle to Skeena’s change of control on April 24, and he gave his final consent on April 30.)

2. Petition

The following were Simgiigyet that offered to be the Petitioners. As well, this includes the Gitxsan that offered direct evidence and oral histories to prove prima facie Gitxsan rights and title. The lax yip and Simgiigyet affected by the Minister’s decision are listed in the following 4. (c).

The Petitioners were representatives of the Gitxsan Houses and are as follows:
FIREWEED CLAN YAL Aubrey Jackson
GEEL Walter Harris

FROG CLAN DJOGASLEE Ted Mowatt
Lelt Lloyd Ryan

WOLF CLAN WII EELAST Jim Angus
TSA BUX Wilmer Johnson
TENIMGYET Art Mathews

EAGLE CLAN SAKXUM HIGOOK Vernon Smith

The evidence in support of the Petition are in affidavits sworn by Gary Patsey (x2), Allen Gottesfeld, Robert Fritzche, Don Ryan, Elmer Derrick, Myrtle Muldoe, Lily Jackson and Beverly Clifton Percival.

The evidence consisted of the ancient structures of the Gitxsan, the adaawx, limx oo’ii, personal recollections of the Gitxsan, Gwalx ye’insxw, maps covering 30,471 square kilometres of Gitxsan territory showing the lax yip, fishing streams and lax yip affected by the license, and issues being debated in the treaty process.

On the date of filing, DENE’, Alvin Weget sang the Limx oo’ii bringing the breath of our ancestors onto the court documents. By the day of argument on September 23, 2002, the Gitxsan were into court with the strongest case possible.

3. Adequacy of Consultation and Accommodation

The Court made note that the duty to consult was created by the Gitxsan in the Delgamuukw decision. The Court sets out the process for the consultation and accommodation.

The duty to consult was first discussed by the Supreme Court of Canada in Delgamuukw and the Court then refers to statements of Lamer, C.J.C. at paragraph 168 in Delgamuukw.

The Court found that “…there was no meaningful consultation by the Crown of the petitioning First Nations with respect to the Minister’s decision and there was no attempt whatsoever to accommodate their concerns.

The Court relied on statements in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage, that consultation must be undertaken with the genuine intention of substantially addressing First Nation concerns (para. 154) and that it is not sufficient for the communication to be the same as the communication with other interested stakeholders (para. 141).

As well, in Halfway River, the BC Court of Appeal said the duty to consult imposes on the crown the obligation to reasonably ensure that the aboriginal peoples are provided with all necessary information in a timely way and to ensure that their representations are seriously considered and, where possible, integrated into the proposed course of action (para. 160).

4. Accommodation

(a.) The Court noted the following types of evidence on which the prima facie rights and title flow.

The affidavit evidence recounted that the Gitxsan consists of four clans known as the frog, wolf, eagle and fireweed clans. Each clan has a number of wilps, which are extended family or house groups. There are a total of 65 Gitxsan Houses.[44]

The affidavits of members of the Gitxsan Houses describe oral histories of the Gitxsan such as the adaawk and family recollections (adaawk are described as ancient oral histories recounting origins and migrations since the ice ages). [45]

Based on the oral histories, the Gitxsan say that since time immemorial they have exercised aboriginal rights and title over approximately 30,471 square kilometres of territories located mainly in the Upper Skeena and Upper Nass watersheds. They say that they have occupied these territories exclusively and according to their laws.[45]

(b.) Prima facie claim

The following sets out how the Court arrived at the finding that the Gitxsan have a good prima facie claim of title and a strong prima facie claim of aboriginal rights.

The court is not in a position to do anything more than make a preliminary, general assessment of the strength of the prima facie claim.[69]

The Court treated “the oral histories at face value for the purpose of determining whether the Petitioners have prima facie claims of aboriginal title and rights.” [70]

“In reaching my conclusions on the existence and strength of the Petitioners’ prima facie claims of aboriginal title and rights, I have relied only on direct evidence and the oral histories contained within the affidavits. It has not been necessary for me to rely on expert opinion evidence in this regard and I express no view on its admissibility.” [71]

“On the basis of the direct evidence and oral histories, I am satisfied that each of the petitioning First Nations has a good prima facie claim of aboriginal title and a strong prima facie claim of aboriginal rights with respect to at least part of the areas claimed by them and that these parts are included within the lands covered by Skeena’s tree farm and forest licenses. The claims for aboriginal rights are stronger than the claims for aboriginal title because they do not require an element of exclusivity, but each claim qualifies for a classification as a good or strong prima facie claim. [72]

(c.) The following areas of the Gitxsan have a good or strong prima facie claim of rights and title. Please refer to paragraph 37 of the Petition for the lax yip affected by the tree farm and forest licenses:

Forest license A-16829 Bulkley TSA SCI
Wii Gaak, Miluulak and Djogaslee.

Forest License A-16831 Kispiox TSA SCI
Basxha’laha, Wiigyet, Luus, Tsabux, Wii Elast, Gwiiyeehl,
Wii’Mugulsxw, Delgamuukw, Gitludahl, Geel, xGwoimtxw
and Nii Kyap.

Forest License A16833 Kispiox TSA Kitwanga Lumber Co.
Gitxsan House territories (SCI)

Forest License A16835 Kalum TSA SCI
Gitxsan House territories at Skeena West, East Kalum and Big Cedar: Wii Hlengwax, Lelt, Sakxum Higookw, and Haakxw

Forest License A-16883 Nass TSA Orenda Logging Ltd.
(SCI)
Delgamuukw, Gyolugyet

Forest License A-16884 Nass TSA Buffalo Head Forest
Products Ltd. (SCI)
Djogaslee, Gyolugyet, Skii k’m lax ha

Tree Farm License 1 Cedar River Watershed, Kiteen River
Watershed, Copper River Watershed
Tenimgyet, Wii Hlengwax, Lelt, Yal.

(d) The Crown attempted to avoid its obligation and duty to consult the Gitxsan because of the internal disputes and external disputes for territory. The Crown attempted to use overlapping claims, internal and external, as a means to prevent Gitxsan claims to rights and title. However at paragraph 74 Tysoe, J. stated:
“ There is no requirement th at a First Nation group establish a good prima facie claim of aboriginal title or rights with respect to all of the area claimed by it. The overlapping claims certainly preclude each competing group from being successful in proving aboriginal title to the areas which are the subject matter of overlapping claims because, as stated at para. 155 of Delgamuukw, it would be absurd for two or more groups to have the right of exclusive use and occupation to the same area.

Tysoe, J. further stated at para. 74:
“…However, as pointed out at para. 156 of Delgamuukw, the common law principle of exclusivity should be imported into the concept of aboriginal title with caution and the presence of other aboriginal groups does not necessarily preclude a finding of exclusivity. One group may be successful over another group in proving exclusivity to establish aboriginal title. In addition, in the event that the overlapping claims result in a finding that aboriginal title to a disputed area has not been established, it is still possible for the Court to conclude that the competing groups have each established aboriginal rights in respect of the area.” [note at para. 72 all groups have strong prima facie aboriginal rights to the areas]

5. Prima facie Infringements by the Government (extends to the Forest Act)

Mr. Justice Tysoe relied on the Haida decisions as binding on him where the BC Court of Appeal held that two actions by the Ministry constituted prima facie infringements of aboriginal rights and title. (1) a s. 36 replacement of a tree farm license in 1999 and (2) the transfer of the tree farm in 2000 from MacMillan Bloedel Limited to Weyerhaeuser Company Limited. (3) It is Mr. Justice Tysoe’s view that the decisions go further than that: “At para. 84 of Haida No. 2, Lambert J.A. stated the potential infringements extended to the passing of the Act and the issuance of the tree farm license.” [79]

“…There is an obligation on the Minister to ensure that the Crown’s continuing duty has been fulfilled before the infringement is perpetuated by a further transaction involving the license. The Minister cannot simply ignore the previous breaches of the duty to consult and give his consent to a transaction under s. 54 without giving the aboriginal people an opportunity to provide their views with respect to the infringement.” [81]

The Court held that the change in control was not neutral: “…First, it changed the identity of the controlling mind of Skeena, and the philosophy of the persons making the decisions associated with the licenses may have changed correspondingly. Second, Skeena was on the brink of bankruptcy and it may have gone into bankruptcy if the Minister had not given his consent by April 30. [82]

Tysoe, J. says at para. 85 “ I agree that the Minister is required to balance competing interests but he is first required to fulfill his duty of consultation and accommodation. It is no answer to say that consultation was not required because the Minister considered competing interests. One of the principal purposes of consultation is to enable the Minister to gain a proper understanding of the aboriginal interests and to seek ways to accommodate those interests.”

And at para. 86, he says “It is a continuing duty which must be observed each time the Crown has a dealing with the license. Similarly, the consultation on operating issues in the past did not fulfill the Minister’s duty of consultation in connection with the change in control.” (This suggests the inadequacy of the Provincial Policy for Consultation with First Nations October 2002, which consults at the operational level and was not discussed with the Gitxsan before it was implemented)

6. Adequacy of Consultation and Accommodation

In the Court’s view, there was no meaningful consultation by the Crown of the Petitioning First Nations with respect to the Minister’s decision and there was no attempt whatsoever to accommodate their concerns. [87]

It was stated in Mikisew Cree First Nation that consultation must be undertaken with the genuine intention of substantially addressing First Nation concerns (para. 54) and that it is not sufficient for the communication to be the same as the communication with other interested stakeholders (para. 141). [88]

In Halfway River, the BC Court of Appeal said that the duty to consult imposes on the Crown the obligation to reasonably ensure that the aboriginal peoples are provided with all necessary information in a timely way and to ensure that their representations are seriously considered and, where possible, integrated into the proposed course of action (para. 160) [88]

On a legal basis, the shortness of time and economic interests are not sufficient to obviate the duty of consultation: see R. v. Noel, [1995] 4 C.N.L.R. 78 (N.T.T.C.) at p. 95, Mikisew at para. 132 and Haida no. 1 at para. 55.

7. Remedies

The principal remedy sought by the Gitxsan was the setting aside or quashing of the decision of the Minister to consent to the change in control. This was adjourned by the Court to allow the development of a consultation process. Once discussions begin on the process, the type of information to be disclosed should become apparent. If the government is reluctant or does not adequately consult, the Gitxsan can re-apply to set aside the Minister’s consent.

“I have concluded that I should exercise my discretion in the same fashion as occurred in Haida No. 1. In my opinion, the setting aside of the Minister’s decision to give his consent to the change in control would be too potentially drastic at this stage. I do not accept that Skeena would necessarily be thrust into bankruptcy if I did set aside the Minister’s decision but the consequences could be far reaching and the public interest could be detrimentally affected” [104]

In light of the uncertainty of the consequences flowing from the setting aside the Minister’s decision to give his consent to the transaction, it is my view that it is preferable to first make a declaration with respect to the duty of consultation on an interim basis and to then allow the parties to undertake a proper process of consultation and accommodation. If the process does not succeed, the matter can be brought back before the Court for further directions or further declarations. For example, if the Minister fails to properly consult with the Petitioners following the issuance of the Reasons for Judgment, it will be open to the Petitioners to renew their request that the Minister’s decision to be set aside.” [106]….the remedy which I am granting will allow the parties to engage in the consultation/ accommodation process within a more adequate time frame without first causing potentially drastic consequences.” [107]

In Halfway River the duty to consult included an obligation on the Crown to reasonably ensure that the aboriginal peoples are provided with necessary information. However, it is my view that the exact type and extent of information to be provided by the Crown to the First Nations should be discussed between them before the Court makes determinations as to whether specific documents should be provided….In their letter dated April 15, 2002 to the Minister, the Gitxsan stated that there must be a discussion of the process of consultation and accommodation. I agree that the first step of the consultation process is to discuss the process itself, and the discussion in that regard would logically include the provision of relevant information. If an impasse is reached on whether specific documents should be provided, there will be liberty to re-apply for a determination of the issue.

8. Acknowledgements

We especially thank lawyers, Bertha Joseph and Cynthia Joseph, who came in on the last three weeks to assist in developing the legal arguments and make adjustments on the facts relied upon.

Without the clear instructions from Elmer Derrick, we woul d not have gotten the remedy provided by the Court. Elmer showed a clear vision as to what would work within the government bureaucracy and what would be acceptable by the Court. (A good reflection of the knowledge within his treaty negotiation team.)

Cathy Blackstock showed real leadership in making sure that the Court understood what Gitxsan interests are being sought. She was pleased with the type of direct evidence and oral histories the Gitxsan provided in the affidavits. (from April to December)

The Gitxsan Litigation Team, very tough on the type of evidence to be provided, made sure the court documents were ready. They are a volunteer group and are as follows: Margaret Heit, Earl Muldon, Martha Wright, Andrew Derrick, Joan Ryan, Rennie Wright, Yvonne Lattie and Peter Turley. They are representative of all the clans of the Gitxsan and met many times in the evenings. They must be thanked in the Gitxsan way.

Although Yal was the lead plaintiff, Barbara Clifton took leadership with Simgiigyet, the Gitxsan Treaty Board and Gitxsan Litigation Team, to ensure that Gitxsan rights and interests were properly presented to the Court. She is a very special person. Leadership is a quality the Gitxsan build upon within each of the Gitxsan houses.

I, Gordon Sebastian, am very proud of the Gitxsan. You will note by all the people involved, from the Petitioners to the Gitxsan that sat in the courtroom every day, our rights and title could not be ignored. It is the Gitxsan nature to work together. We are here to stay.

Finally, I want to thank Mr. Alvin Weget. For years he publicly expressed that Gitxsan legal concerns must be advocated by local Gitxsan lawyers. He never lost an opportunity to say it and as well, is a very knowledgeable teacher on Gitxsan rights and title.