Canada Must Consult Natives in Land Disputes -Court
CANADA: November 19, 2004


OTTAWA - Canada's federal and provincial governments must consult native Indian groups on plans for using disputed land even before native land claims are settled, the Supreme Court ruled in two cases on Thursday.

 


But in its two unanimous decisions, the court said that while governments are obliged to try to reach an accommodation with natives when there are disputes, natives do not have a veto over land-use plans, and forestry and mining companies have no obligation to consult with natives.

Resource companies have said they need more certainty over native land claims to be able to invest in big projects. But a leader of the Indians in British Columbia, on Canada's West Coast, where the cases are centered, said litigation would now only be increased.

"These court decisions invite more negotiations and more litigation at the end of the day," Grand Chief Edward John said in the Supreme Court lobby.

"Every square inch of British Columbia is subject to aboriginal rights and aboriginal title."

However, the federal minister of Indian and Northern Affairs, Andy Scott, declared that there was now more clarity for all sides. "I think it's good that that certainty is provided," he said.

One of the cases involved US forestry giant Weyerhaeuser Co. and its provincial license to log on the Queen Charlotte Islands off the British Columbia coast.

The court said the provincial government did not consult the Haida people there adequately before granting the license but that its decision also did not invalidate the Weyerhaeuser license.

The other case involves small Canadian company, Redcorp, which is seeking to reopen a zinc/copper/lead/silver/gold mine in the British Columbia wilderness. The court ruled that the provincial government had consulted adequately in approving the project.

The British Columbia government had argued it has no legal duty to consult or obtain consent until native land claims are proven, for example through a treaty.

But Chief Justice Beverley McLachlin said this risked unfortunate consequences.

"When the distant goal of proof is finally reached, the aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honorable," she declared.

But she added: "This process does not give aboriginal groups a veto over what can be done with land pending final proof of the claim."

British Columbia was the only Canadian province to have ignored an order by the British Crown to reach land treaties with natives. Talks finally began in the 1990s under court pressure, but there has been only one final treaty reached in modern times.

Indian groups pointed out that the British Columbia government is now obliged to try to accommodate their concerns, which in some cases might mean less logging or changes to mining plans.

"The province cannot treat the province's resources...as if Indian interests didn't exist," Michael Jackson, a lawyer for the Haida, told reporters.

"It does put a notice on government to roll up their sleeves and be an active participant in moving ahead," said Daniel Jepsen, head of the British Columbia and Yukon Chamber of Mines. He said the miners' best option was to work closely with the Indians even if there was no legal responsibility.

(Additional reporting by Nicole Mordant in Vancouver)

 


Story by Randall Palmer

 


REUTERS NEWS SERVICE