Social & Global Studies

Kitkatla Blockade Negotiation COURSE CULMINATING PROJECT

Kitkatla Town Site on Dolphin Island, Northwest Coast of British Columbia, Canada
Kitkatla = Gitxaała (Nation's Spelling) Members of the Tsimshian Peoples.

A. Project Schedule


B. Client List

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 (WebsiteNOT A PARTY However, this organization can inspire a potential path forward in the negotiation (There are more than 200 million hectares of FSC certified forests worldwide. FSC certified forests are managed to strict standards which confirm that the forest is being managed in a way that preserves biological diversity and benefits the lives of local people and workers, and Indigenous Peoples while ensuring the economic viability of the forestry industry)


C. Negotiation Materials


Aboriginal Law Readings (remember that you have already started to complete the ground work on both Delgamuukw and Tsilhqot’in)

Project Evaluation
Topographic Maps of Traditional Kitkatla Territory
MAP a)
MAP b)
MAP c)
MAP d)
Supporting Materials

D. Workshops

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

READ ONLY the following sections →
A. Acts & Regulations p.2
B. Finding Timber pp. 2 to 3
C. The Right to Harvest pp. 3 to 4
E. Right to Harvest → The Forest Stewardship Plan p. 5 / Site Plans p. 6 / Cutting Permits p. 6 / Road Permits p. 6
APPENDIX 1 → Glossary Terms →
                           Allowable Annual Cut p. 34
                           Critical Wildlife Habitat p. 34
                           Cutting Permit p. 35
                           Discretionary Authority p. 35
                           Economically Operable p. 35
                           Forest Licence p. 35
                           Impact Assessment p. 36
                           Stumpage Rate p. 37
                           Timber Supply Area (TSA) p. 37

VIEW     BC Forests MAP

WORKSHOP 3 → Tsimshian Law

Notes from a workshop with Professor Deborah McGregor Osgoode Hall Law School.


Forests for the Future: The View from the Gitkxaala            THIS SOURCE IS EXCELLENT

People of the Seafoam CASE STUDY                                      THIS SOURCE IS EXCELLENT

Tsimshian Gitxaala Backgrounder

(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)

Tsimshian Peoples: An Overview (CAUTION this is a settler academic perspective)
WORKSHOP 4 → Duties Owed by the Federal & Provincial Governments
Sparrow Case (see Aboriginal Law Package under Project Materials)

Kitkatla Band v. British Columbia Minister of SB, T, and C (this is the outcome of the real case as negotiations failed)
CASE ISSUE = Balancing Aboriginal Claims and Economic Interests

→ 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”.


→ 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)

LINK to full case.