Kwakiutl court decision mixed

The Kwakiutl First Nation heartened by the recognition that the province breached its duties but no compensation due on 2008 logging issue.

PORT HARDY—The Kwakiutl First Nation was heartened by the recognition that the Province of British Columbia had breached its duties by denying the existence of its aboriginal title and territorial rights, but will not receive compensation for the 2008 provincial sale of a forestry license by the province to Western Forest products on what the band claims as traditional territory.

A B.C. Supreme Court decision announced June 17, granted a binding declaration that Crown has “an ongoing duty to consult in good faith and endeavour to seek accommodations regarding unextinguished Aboriginal rights, title and interest in respect of Kwakiutl Territory,” said a release from the First Nation.

“After 162 years of neglect, we need to be able to begin actively rebuilding our Nation, renewing our territory and regaining our identity,” said Ross Hunt, Kwakiutl councillor. “The government must fulfill the honour of the Crown.”

The court case was prompted by two forest management decisions to approve the removal of 14,000 hectares of private forest land by WFP under its forest stewardship plan nearly five years ago. The Kwakiutl Nation met with the province following the decision, but was told it had surrendered its title and rights under the 162-year-old Douglas Treaties, the release stated.

The Kwakiutl, in turn, claimed the ruling was a blatant minimization of the treaty and a denial of aboriginal title and rights.

“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,” Kwakiutl Chief Rupert Wilson said.

In the summer of 2011, member of the Kwakiutl Nation embarked on a symbolic protest of the provincial government’s move, briefly blockading the BC Ferries dock in Port McNeill and marching from the dock to the offices of the Ministry of Forests, Lands and Natural Resources Operations to continue with dancing and singing.

The judge ruled last week, however, that the province had met its duty to consult with the band, and that the Kwakiutl First Nation should have been more responsive to the province’s and WFP’s efforts to engage.

The decision also noted that so much time had passed since the two forest stewardship decision had been made that undoing them now would have “wide-ranging negative economic consequences on the forest industry.”

The ruling was a disappointment to the Kwakiutl, but the band took some solace from the fact the judge expected the province and Canada to now begin “honourable negotiations” with the Kwakiutl to address constitutional rights.

“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,” said Shawn Atleo, AFN National Chief. “And for continuing to pursue negotiations to address constitutional rights in ways that they can drive their own futures in their territories.”

The Kwakiutl release also noted the obligation of the Crown to survey and protect the band’s village sites and enclosed fields for Kwakiutl use has not been met, “leaving the Kwakiutl people 0.2 acres per person of reserve land, as compared to an average of 33.023 acres per person for First Nations across B.C.”

In the wake of the ruling, the Kwakiutl received prompt support from not only AFN, but First Nations leaders across the province.

“The Union of B.C. 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 B.C.’s deeply offensive legal arguments that the Douglas Treaties represent an extinguishment of their aboriginal title and rights interests,” said Grand Chief Stewart Thompson, the UBCIC president who attended and spoke at the 2011 protest in Port McNeill.

“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 B.C.’s now-illegal position of denial.”