Gitanyow Hereditary Chiefs

Box 148, Kitwanga, B.C. V0J 2A0

Phone:  (250) 849-5373     Fax:  (250) 849-5375

Gitanyow Claim Victory in BC Supreme Court

Vancouver, B.C. – On December 30, 2004, the B.C. Supreme Court delivered another ruling in Gwasslam v. B.C. Ministry of Forests and Skeena Cellulose and declared that the Crown failed to fulfill its duty to consult the Gitanyow with respect to the transfer of control of Skeena Cellulose Inc. from its previous owners - one of which was the Province of British Columbia - to NWBC Timber & Pulp Ltd.

The challenge is based on the duty of consultation and accommodation as articulated in the decision of the Supreme Court of Canada in Delgamuukw v. British Columbia, the Gitxsan and other First Nations v. British Columbia (Minister of Forests), and the decisions of the B.C. Court of Appeal in Taku River Tlingit First Nation v. Telsequah Mr. Mine Project and Haida Nation v. British Columbia.

Gitanyow Hereditary Chief and Chief Negotiator Malii (Glen Williams) is encouraged by Justice David Tysoe’s ruling. “This confirms what we’ve always been seeking, and that is, to be properly consulted. We’ve attempted to seek a proper consultation process but the Minister has failed to fulfill his duty. We’re unique in British Columbia because we have an outstanding court ruling.”

In December 2002 the Supreme Court ruled that the Gitanyow had a good prima facie claim of Aboriginal title and a strong prima facie claim of Aboriginal rights and held further that the Minister had not satisfied his duty of consultation and accommodation before he consented to the change in control of Skeena. Justice Tysoe however, declined to quash the decision of the Minister at that time, with the view that he should be given further opportunity to fulfil his duty and granted Gitanyow “liberty to re-apply to quash the decision in the event that the Minister failed to fulfill his duty.”

“After almost two years of negotiation we were forced to apply for further relief from the court in November (2004). The Crown has not followed its own policies and the direction from the court, not only on the Skeena transfer, but on all tenure issues in our territory. Now Tysoe is encouraging the parties to resume negotiations,” says Malii.

Each of the parties will continue to have the right to apply to the Court with respect to any question relating to the duty of consultation and accommodation, and the Gitanyow will continue to have the right to re-apply for an order quashing or setting aside the consent of the Minister to the change of control of Skeena.”

Malii says the Gitanyow have met with the Ministry of Forests already and hopes to start “where we left off in June 2003 with the Memorandum of Understanding under negotiation.”
Malii adds, “This ruling definitely gives weight to what we’ve been attempting to address so bidders and purchasers have to be aware that there exists a fundamental legal defect to these outstanding tenures in our territory. There are very serious financial risks for them so until these issues and uncertainties are resolved, buyer beware.”

For more information please call Malii at 250.849.5373 or 250.615.9597

Gitanyow Chiefs return to Supreme Court on Forestry Consultation Order

Tuesday, November 30, 2004

Vancouver, B.C. – The Gitanyow Hereditary Chiefs are back in B.C. Supreme Court again today to seek further clarification on Skeena Cellulose’s timber license transfers and the B.C. Ministry of Forests’ legal and policy changes.

Justice David Tysoe of the Supreme Court in December 2002 ruled that the province must “properly consult and accommodate” First Nations affected by the transfer of SCI’s timber tenures or risk having the transfer quashed. The ruling is viewed as a major victory by the Gitanyow who say it opened the door to their demand for a share in stumpage revenues.
Justice Tysoe also ruled the Gitanyow have established prima facie aboriginal rights and title, which were infringed upon when the minister transferred Skeena’s licenses without consulting First Nations. Accommodations to set up a framework recognizing and reconciling Gitanyow’s concerns – as ordered by Justice Tysoe - were rejected by B.C. earlier this year, forcing the Gitanyow’s return to court yesterday.

The recent Haida decision in the Supreme Court of Canada bolsters the Chief’s argument as the court confirmed that the Crown has a duty to consult which arises out of the honor of the Crown prior to proof of Aboriginal rights and title.

“It is very important to note that the Supreme Court of Canada has endorsed the proposition that, once there is a prima facie case of Aboriginal rights or Aboriginal title (and the acceptance in the treaty negotiation process is evidence of such a prima facie case), there is a duty to consult and, depending on the nature of and strength of the right, that duty may be “deep consultation,” say the Gitanyow.

The duty to consult is separate and distinct from the fiduciary duty and is premised on the honor of the Crown, not a mere “incantation”, but must be applied to concrete practices. Notwithstanding that there is no longer a duty to consult on third parties; this case is a very powerful tool for Aboriginal nations across Canada. “It is going to mean that the Crown is going to have to engage in a very serious way with respect to consultation obligations throughout British Columbia where there is Aboriginal title claims.”

The hearings are expected to last 4 days but may be cut short due to Gitanyow’s request for an adjournment on Monday of their constitutional argument, in order to partner with the Haida this Spring on their constitutional challenge - which in part is based on the failure of the Crown to consult with First Nations with respect to forestry decisions which the Gitanyow say, “constitutes a breach of the Crown’s constitutional duties.”

For more info please call: Malii at 250.615.9597 or Brent Scout at 604.339.7593

Gitanyow Chiefs Applaud Haida Ruling as they head back to Court

November 18, 2004

Vancouver, B.C. – The Gitanyow Hereditary Chiefs say they are “very happy” with today’s Supreme Court of Canada ruling in the Haida Nation’s resource-use battle with forestry giant Weyerhaeuser on Haida Gwaii (Queen Charlotte Islands). The court ruled that the B.C. government did not properly consult with the Haida when it gave the company permission to log 25 per cent of the islands.

The Gitanyow are involved in a similar court case in British Columbia Supreme Court (B.C.S.C)later this month in Gwasslam v. B.C. Minister of Forests and Skeena Cellulose Inc., and say that this ruling will bolster their arguments. Justice David Tysoe ruled in December 2002 that B.C. must properly consult and accommodate Northwest First Nations affected by the transfer of Skeena Cellulose’s timber tenures, or risk having the transfer quashed.

In Gwasslam, Justice Tysoe ruled the Gitanyow established a “prima faciecasefor aboriginal rights and title,” which were infringed upon when the minister transferred Skeena’s licenses without adequately consulting them. B.C. appealed that decision so the Gitanyow are forced to head back to the court on November 29th - to seek further clarification on Skeena Cellulose’s timber license transfers and the B.C. Ministry of Forests’ legal and policy changes.

In today’s Supreme Court ruling, Chief Justice Beverley McLachlin wrote that ‘the amount of consultation depends on the strength and seriousness of the land claim and the effect on the land in use.’

Gitanyow Hereditary Chief and Chief Negotiator Malii (Glen Williams) says, “This ruling makes our case stronger as we have already established prima facie aboriginal rights and title, so it looks very good for us.” He says affidavits were filed yesterday in B.C. Supreme Court and that, “the onus is on government to conduct meaningful consultations and accommodations with First Nations and on how governments and industry deal with us before making land-use decisions.”

Negotiations on a Forest and Range Agreement - as ordered by Tysoe - broke down earlier this year between B.C. and Gitanyow, prompting the return to court. Malii says the Gitanyow are heading back to court to get some direction on co-management issues and disprove the province’s claim that they don’t have the duty to consult and accommodate Gitanyow’s interests.

“We want an agreement with true revenue sharing based on the value of timber extracted from our territory. It’s very disappointing that a process to create certainty and economic stability in the northwest hasn’t happened. We’ve put a lot of time, effort and money into this process while the theft of our resources continues. We want to help the economy by being a part of it.”

The court hearing begins on November 29, 2004 is expected to last 4 days.

For more info call Glen Williams @ 250.849.5373 or stoneboy media @ 604.339.2680

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