Client Names Involved in the Negotiations
→ The Kitkatla First Nation (the Indigenous group that claims the land in dispute as their traditional territory)
→ Hutchinson Logging Ltd. (the private company that purchased the license to harvest the trees on the land in dispute)
→ British Columbia Ministry of Forests (i.e., the Provincial Crown who hold title over the land)
→ The Government of Canada (i.e., the Federal Crown who are responsible for Indigenous Peoples and lands reserved for Indigenous Peoples)
→ The Forest Stewardship Council (Website). NOT A CLIENT BUT HELPFUL ON THE ENVIRONMENTAL FRONT & CONSULTATION / CONSENT STANDARD IN FOREST SECTOR
WORKSHOP 1 → Timeline & Duty to Consult
BUILDING A BLOCKADE TIMELINE → Create a timeline of the Kitkatla fact pattern as detailed in the Workshop #1 materials on the project page (In building your case timeline, pay particular attention to the suggested DOCUMENTS to focus on in the Negotiation File. Keep in mind the bigger picture timeline we looked at during our in-person class as depicted below. This should serve as a starting template in building your “Kitkatla” specific timeline. Insert the Kitkatla fact pattern (which includes actions for all parties involved in the dispute) into the title timeline template. For example, in the various documents provided on the project page, can you roughly pinpoint the date of first contact (i.e., year) between Kitkatla (who are part of the larger Tsimshian Nation) and Europeans? What evidence is there in the various documents of Kitkatla’s existing rights and title being asserted or extinguished? In the various documents is there evidence of the duty to consult/accommodate being met by the Provincial and/or Federal Crown? Is there evidence of exclusive use and occupation of the land in question pre-contact (as set out in the Delgamuukw test for proving title)? Can the CMTs be dated? Do the age of the CMTs (in DOC 4) span first contact to 1982 (the “extinguishment zone”)? etc. KEEP IN MIND THIS TIMELINE MAY ALSO INCLUDE LEADING CASES AND RATIOS.
Pay particular attention to the following DOCUMENTS in the Negotiation File when building your timeline.
WORKSHOP 2 → Forest Law
Notes from a workshop with Professor Deborah McGregor Osgoode Hall Law School.
(In particular sections 2.1 The Tsimshian and Other Northwest Coast Nations, 2.2 The Tsimshian, 2.3 The Tsimshian and their Territories, 2.4 The Adawx, Northwest Coast Nations and the Tsimshian, 2.5 Adawx in this Context) (In particular section 10 Gitkxaala Territories – Banks Island & 10.4 Banks Island East Side)
→ Provincial law may legitimately strike a balance “between the need and desire to preserve aboriginal heritage with the need and desire to promote the exploitation of B.C.’s natural resources”.
→ ASSERTED ABORIGINAL RIGHTS VS. OTHER SOCIAL & ECONOMIC VALUES
→ Aboriginal groups must establish claims of aboriginal rights or title on a balance of probabilities, by persuasive evidence.
→ Kitkatla Band claimed aboriginal rights in the area and had been engaged in treaty negotiations with the province.
→ Interfor was concerned with the presence of native heritage sites and objects including culturally modified trees (CMTs) in the harvest area.
→ The BC Heritage Conservation Act authorizes the cutting and processing of CMTs during logging operations. The Band asserted a claim of aboriginal rights in the continued existence of the CMTs and applied for a court order to restrain the Minister from granting the site alteration permit (argued unconstitutional).
→ MAIN ISSUE in case = whether a claim of aboriginal rights to a forest resource ousts the jurisdiction of the province over the natural resources of the province.
→ The Kitkatla argument was based in the assertion that provincial law infringed on the federal power to legislate in respect of “Indians”.
→ Kitkatla argued that the importance of the CMTs goes to the core of their values & identity.
→ The Court found that there was little evidence that permitting the destruction of aboriginal heritage objects (CMTs) impairs the status or capacity of Indians (i.e., cuts to the core of Indianness and thus a federal power).
→ “little evidence has been offered by the Kitkatla with respect to the relationship between the CMTs and Kitkatla culture in this area.” (at para. 70)