Okanagan chief calls majority decision of Court of Appeal ‘dead wrong’

By Lloyd Dolha

A group of First Nations chiefs from the Okanagan Nation Alliance expressed bitter disappointment with a BC Court of Appeal ruling which severed the issue of aboriginal title in an ongoing nine-year legal battle over forest resources in their traditional territory.

The decision in the action, British Columbia v.Okanagan Indian Band (a.k.a. Minister of Forests v.Wilson), prevents the Okanagan from raising their aboriginal title to advance its recognition and leaves undecided the central issue of how the provincial Crown got its title, which was placed squarely before the court for the first time, said the First Nation in a March 17th release.

“The majority of the Court of Appeal has it dead wrong,” said Chief Fabian Alexis, of the Okanagan Indian Band. “Two of the judges bought the province’s argument that there is a sufficient degree of consultation and that the issue is only about an aboriginal right to harvest timber for domestic purposes.”

“The fact is that the fundamental issue is authority and jurisdiction over the forested land, which has now been sidelined,” said the Chief Alexis.

Neskolith Indian Band Judy Wilson noted: “The province argued in court that ignoring aboriginal title issues saves money. In fact, vast amounts of money and resources are devoted to the tremendous efforts of the province to avoid addressing real on-the-ground respect, recognition and reconciliation of our aboriginal title.”

In the decision released Friday, March 14th, the appeal court rejected the First Nation’s bid to overturn a lower court’s ruling severing aboriginal title from the landmark action.

In writing the 2-1 judgement, Justice Kenneth Mackenzie noted that the history of the litigation was “lengthy and convoluted.”

“The rare and exceptional circumstances that prompted the order (for the province to pay costs in two actions called Jules and Wilson) in 2001 and 2003 have been modified by subsequent jurisdiction and the province’s response [to aboriginal title and rights claims],” wrote Justice Mackenzie.

In other words, recent developments in aboriginal rights and title case law and provincial policy have rendered their claims of lesser import.

“When you compare the court decisions of Haida and Tsilhqot’in, Judges Mackenzie and Lowry’s decision demonstrates the huge gap of differing views of the judges of this province on aboriginal title,” said Adams Lake Indian Band Chief Nelson Leon.

The decision includes the sharply dissenting opinion of Mr. Justice Ian Donald who said the granting of the severance order reduces the broadly-based claim for aboriginal title and rights to a defence to the stop work order on the cutblock.

The order, said Justice Donald, prevents the Okanagan from making a case for the full aboriginal right to harvest timber in their traditional territory and sidelines the central issue of aboriginal title.

Justice Donald further stated that Justice Mackenzie, “ … exceeded his jurisdiction by making an order that amounts to a radical amendment of the advance costs order made by this court and affirmed by the Supreme Court of Canada.”

The judge went on to note that the central issue of Okanagan aboriginal title will remain outstanding no matter how the aboriginal right issue to harvest timber is resolved.

“… the province has persuaded the judge to take title off the agenda and to embark upon a kind of stated case, with the province setting the terms, … but the big constitutional point, the extraordinary feature of the case that underlies the advance cost order will not be heard,” said Justice Donald. “Is this prudent case management or radical surgery? I think it is the latter.” Chief Alexis said the case must now go to the Supreme Court of Canada for a decision.

The Jules and Wilson litigation arose when five First Nations of the Shuswap Nation Tribal Council started logging in their traditional territories in an effort to provide housing for their membership. The tribal council had authorized the logging in September 1999 according to their assertion of aboriginal title to the area.

Shortly after the logging activities took place, the Ministry of Forests ordered the bands to stop because they didn’t have a permit and obtained an injunction through two actions (Jules and Wilson) preventing them from doing anymore logging. In their defence, the bands challenged the constitutionality of the province’s forestry legislation based on their aboriginal title and rights to harvest timber in their traditional territories of the Browns Creek watershed and the Chase Creek/Harper Lake watershed.

In 2003, after the court ordered the province to pay the band’s legal costs in the two actions, the province tried to discontinue the both cases. The court rejected that, but ordered that only one case at a time would proceed. The Shuswap Nation litigation in Jules was stayed and the Okanagan Nation case in Wilson was allowed to go forward.

In July 2007, in responding to the province’s request, the BC Supreme Court ordered that the issue of aboriginal title be severed from the Okanagan action on the basis it would be cheaper to decide the case without addressing the aboriginal title issue. Then in reasons given on September 12, 2007, the BC Court of Appeal granted the First Nation leave to appeal which prompted the court’s latest decision.

When Chief Roger Williams of the Xeni Gwet’in First Nation in the Chilcotin won his case which established aboriginal title to a large portion of their traditional territory in the remote Nemiah Valley in Tsilhqotin V. British Columbia, in November 2007, the Okanagan hailed the ruling as providing strong support for their claim of an aboriginal title and rights defence to enforcement proceedings under the Forest Act.

The court in Tsilhqot’in found that provincial laws, including the Forest Act, do not apply to aboriginal title lands and recognized that “the Province has skated on thin constitutional ice for over a century … [and] has been violating Aboriginal title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871.”

“This case supports the Okanagan Indian Band’s position that the laws of the Okanagan Nation, not the province’s forestry legislation, applies to our lands,” said Chief Alexis at the time.

The Okanagan said the Supreme Court’s decision in Tsilhqot’in is also a thorough rejection of the positions the province relies on in litigation to deny aboriginal title and rights.

In that case, the court dismissed the province’s argument that aboriginal title could only be proven for small, “postage stamp” sized sites and instead found that Tsilhqot’in aboriginal title exists over approximately 200,000 hectares.

“As the province well knows, the evidence of Okanagan aboriginal title in our case is even stronger,” said Chief Alexis.

Alexis said the court’s decision in Tsilhoqot’in v. British Columbia makes it clear that the province should now get on with making systemic changes to recognize their aboriginal title rather than delaying and wasting money disputing its existence and trying to enforce invalid legislation through the Jules and Wilson litigation.

In the final somewhat humorous remark of his dissent, Justice Donald notes that it has often been said by the courts that that reconciliation between the Crown and First Nations will ultimately be resolved by negotiation –comparing negotiations as a game of cards.

“However, they [the Okanagan] want to bring to the negotiation table the strongest hand that the law will recognize. If they have title, the bargain struck will likely be much more favourable than if they hold only the cards the province has dealt.”

Splatsin First Nation Chief and Shuswap Nation Tribal co-chair Wayne Christian said First Nations in the province cannot share in any joy in the 150 anniversary of the founding of a province that is based on the denial of First Nations aboriginal rights and title.

“The mounting frustration and outrage is at the point where all that is needed is a match to the fuse leading to a long hot summer of discontent across this province.”