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Counsel for the Petitioners: |
Gordon Sebastian, Bertha Joseph and Cynthia Joseph
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Counsel for the Respondent, Minister of Forests:
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Paul J. Pearlman, Q.C. and Paul Yearwood |
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Counsel for the Respondent, Skeena Cellulose Inc.:
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Charles F. Willms |
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Dates and place of hearing: |
September 23-27, 2002 Smithers, B.C.
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- AND –
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Docket: |
L021279 |
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Registry: |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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BETWEEN: |
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THE LAX KW’ALAAMS INDIAN BAND, by Chief Councillor Garry Reece on his own behalf and on behalf of the members of the Lax Kw’alaams Indian Band, and the METLAKATLA INDIAN BAND, by Chief Councillor Harold Leighton, on his own behalf and on behalf of the members of the Metlakatla Indian Band, and the ALLIED TSIMSHIAN TRIBES ASSOCIATION
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PETITIONERS
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AND: |
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THE MINISTER OF FORESTS, and THE ATTORNEY- GENERAL OF BRITISH COLUMBIA on behalf of Her Majesty the Queen in Right of the Province of British Columbia, and SKEENA CELLULOSE INC. and NWBC TIMBER & PULP LTD.
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RESPONDENTS |
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Counsel for the Petitioners: |
Gregory J. McDade, Q.C. and James P. Tate
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Counsel for the Respondents, Minister of Forests and
Attorney General of the
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Paul J. Pearlman, Q.C. and Paul Yearwood
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Counsel for the Respondents, Skeena Cellulose Inc. and NWBC Timber & Pulp Ltd.:
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Charles F. Willms |
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Date and Place of Hearing/Trial: |
September 23-27, 2002 Smithers, B.C |
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- AND –
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Docket: |
L021243 |
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Registry: |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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BETWEEN: |
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GWASSLAM also known as George Phillip Daniels, GWINUU also known as Godfrey Good, GAMLAXYELTXW also known as Edger Good, SINDIHL also known as Robert Good, WIDAXHAYETSXW also known as Agatha Bright, WIILITSQUE also known as Morris Derrick, MALII also known as Gordon Johnson, on behalf of themselves and in their capacity as the GITANYOW HEREDITARY CHIEFS and on behalf of all members of the GITANYOW FIRST NATION having their principal office at P.O. Box 148, Kitwanga, British Columbia, V0J 2A0
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PETITIONERS
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AND: |
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THE MINISTER OF FORESTS FOR THE PROVINCE OF BRITISH COLUMBIA, SKEENA CELLULOSE INC. and NWBC TIMBER & PULP LTD.
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RESPONDENTS
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Counsel for the Petitioners: |
Peter
R.A. Grant
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Counsel for the Respondent, Minister of Forests:
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Paul
J. Pearlman, Q.C. |
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Counsel for the Respondent, Skeena Cellulose Inc.:
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Charles
F. Willms
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Date and Place of Hearing/Trial: |
October
21-23, 2002
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REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE TYSOE |
INDEX
Heading Para. No.
INTRODUCTION 1
FACTS
Recent History of
Communications Between the
Ministry and the Petitioners 12
The Injunction Application 30
Consent of the Minister 32
Aboriginal Claims of the Petitioners 35
Subsequent Events Affecting
the Gitanyow 52
ISSUES 54
DISCUSSION 57
Standard of Review 64
Prima Facie Claims 67
Prima Facie Infringement 77
Adequacy of Consultation/Accommodation 87
Other Proposed Actions 93
Duty to Negotiate in Good Faith 96
Remedies 100
CONCLUSION 115
INTRODUCTION
[1] In each of these three proceedings, the Petitioners challenge the decision of the Minister of Forests (the “Minister”) to consent to the change of control of Skeena Cellulose Inc. (“Skeena”) by which NWBC Timber & Pulp Ltd. (“NWBC”) became the owner of all of the shares in the capital of Skeena. The Gitanyow First Nation also challenges other actions related to Skeena and makes additional requests for relief.
[2] The Petitioners in each proceeding are aboriginal people who assert aboriginal title and rights in respect of lands covered by a tree farm licence and several forest licences issued to Skeena and its subsidiaries pursuant to the Forest Act, R.S.B.C. 1996, c. 157 (the “Act”). Section 54 of the Act provides that, among other things, the Minister must consent before a licence issued under the Act is transferred or before there is a change of control of the holder of such a licence. The Petitioners assert that in giving his consent to the change of control of Skeena, the Minister failed to fulfil his duty of consultation and accommodation as articulated by the Supreme Court of Canada in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (“Delgamuukw”) and as elaborated upon by, among others, the B.C. Court of Appeal in Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, Taku River Tlingit First Nation v. Tulsequah Chief Mine Project 2002 BCCA 59, leave to appeal to S.C.C. granted [2002] S.C.C.A. No. 148 (“Taku River”), Haida Nation v. British Columbia (Minister of Forests), 2002 BCCA 147 (“Haida No. 1”) and Haida Nation v. British Columbia (Minister of Forests), 2002 BCCA 462 (“Haida No. 2”) (together “Haida”), leave to appeal to S.C.C. requested.
[3] Despite the fact that there are different facts in each proceeding, I have decided that it is appropriate to issue a single set of Reasons for Judgment in respect of all three proceedings. None of the factual differences or additional challenges affect my reasoning or overall conclusions. It will still be necessary for counsel to draw up separate Orders in each of the proceedings to reflect the declarations and orders flowing from these Reasons. Although I am issuing a single set of Reasons for Judgment, I have only relied on the evidence in each proceeding to reach my conclusions with respect to the issues involved in that proceeding.
FACTS
Recent History of Skeena
[4] Skeena has been involved in the forestry industry in northwestern British Columbia for many years. It has a pulp mill in Prince Rupert and, either directly or indirectly through subsidiaries, it operates several saw mills. Skeena holds several licences issued under the Act in connection with its operations.
[5] The main licence held by Skeena is a tree farm licence which gives it the exclusive right to harvest timber in three areas covered by it to the extent of the annual allowable cut attached to the licence in the approximate amount of 600,000 cubic metres of timber. Parts of the areas covered by the tree farm licence are among the lands claimed by each of the petitioning First Nations. As with all other tree farm licences issued under the Act, Skeena’s tree farm licence has a term of 25 years. Section 36 of the Act sets out a procedure for the replacement of a tree farm licence every five years. Each replacement licence has a term of 25 years, so that the practical effect of a replacement is to extend the term by five years. If a licence is not replaced at the end of the five year period, the licence continues in existence for the remaining 20 years of its term and it then expires with no right of replacement.
[6] Skeena also holds at least six forest licences and a seventh forest licence is held by Buffalo Head Forest Products Ltd. (“Buffalo Head”), a company which was owned by Skeena until the transaction in question. Forest licences give the holder the right to harvest an annual volume of timber within timber supply areas. Unlike a tree farm licence, a forest licence does not give its holder the exclusive right to harvest timber within a timber supply area. The chief forester determines the allowable annual cut for a particular timber supply area and the volume is then apportioned among the holders of licences. A holder of a forest licence harvests timber in particular areas within the timber supply area in accordance with cutting permits issued by the Ministry of Forests. Forest licences held by Skeena (and the forest licence held by Buffalo Head) relate to timber supply areas within the territories claimed by the petitioning First Nations.
[7] Skeena has been encountering financial difficulties for the past decade. It sought the protection of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”) in the mid-1990s and its two principal creditors, the Crown and The Toronto-Dominion Bank, became its shareholders through a numbered holding company (with an agreement to give shares to Skeena’s employees in consideration of a 10% wage cut over 7 years). When there was a change in the provincial government in May 2001, the Ministry holding Skeena’s shares was given the mandate of returning Skeena to private sector ownership.
[8] Skeena’s financial difficulties were continuing and it sought protection under the CCAA for a second time on September 5, 2001. These proceedings were supervised by Brenner C.J.S.C. A stay of proceedings was granted in the CCAA proceedings and it was extended several times while Skeena attempted to reorganize its financial affairs, principally through the mechanism of a sale of its assets or shares.
[9] On February 20, 2002, the Crown executed a purchase agreement with NWBC for the sale of its shares in Skeena to NWBC. Based on the purchase agreement, a restructuring plan was formulated to give a limited recovery to Skeena’s creditors ($6 million for the secured creditors and $2 million, or 10 cents on the dollar, for the unsecured creditors). Skeena’s creditors approved the restructuring plan at creditor meetings on April 2. The plan was sanctioned by Brenner C.J.S.C. on April 4.
[10] The closing of the share transaction and the implementation of Skeena’s restructuring plan were scheduled for April 29. The latest extension of the stay in the CCAA proceedings was set to expire on April 30 and, if the restructuring was not completed by April 30, Skeena was to be assigned into bankruptcy. These deadlines were capable of further extension but it is not known whether Brenner C.J.S.C. or NWBC would have been prepared to grant an extension of any significant length.
[11] One of the conditions of the purchase agreement was that the Minister consent to the change of control of Skeena. As the transaction was scheduled to complete by April 29, the Minister was required to make his decision by this date.
Communications Between the Ministry and the Petitioners
[12] By letters dated March 27, 2002, the Ministry of Forests wrote to the First Nations which it considered would be potentially impacted by the transfer of control of Skeena to NWBC. The letters stated that the Ministry would arrange a meeting with each First Nation between April 3 and 12, at which it proposed to outline the transaction, and that it would then look forward to hearing from the First Nation regarding the nature and extent of any aboriginal interests that the First Nation felt may be impacted by the proposed transaction. Representatives of the Ministry subsequently met with some of the First Nations between April 9 and 22. A representative of NWBC also attended these meetings.
[13] I will now outline the events from the perspective of each of the four First Nations which are Petitioners in these proceedings. There was some affidavit evidence regarding the conversations which took place at the meetings but, for the most part, I have relied on minutes of the meetings prepared by a consultant hired by the Ministry of Forests who attended all but one of the meetings, together with minutes prepared by another government representative in respect of the meeting not attended by the consultant.
(a) Gitxsan
[14] Representatives of the Ministry of Forests met with representatives of the Gitxsan (also spelled Gitksan) First Nation on April 12 and 19. The April 12 meeting was public and it was attended by non-Gitxsan persons as well as Gitxsan representatives. It is unclear whether the meeting was expressed as a consultation on aboriginal rights and title. A Gitxsan representative asked to see a copy of the agreement between the Crown and NWBC, and was told that it was confidential. One of the Gitxsan speakers expressed the view that there was nothing upon which the Gitxsan could make a decision to approve or disapprove of the transaction. Another Gitxsan speaker stated that some of the Gitxsan Houses opposed the transfer because they were not consulted on activities occurring within their territories. Employment concerns were also raised by the Gitxsan. At the conclusion of the meeting, the Gitxsan stated that there had to be a thorough consultation process and that “mere consultation” was not sufficient.
[15] On April 15, the Chair of the Gitxsan Treaty Society wrote to the Minister about the April 12 meeting and future meetings. The letter stated that there must be a discussion of the process for consultation and accommodation. The letter listed a number of issues in respect of which the Gitxsan wished to be consulted. It requested seven items of information. The letter concluded by expressing the view that the Gitxsan needed to be fully informed of the implications of the transaction before they could be properly consulted. The Gitxsan First Nation have never received a reply to this letter.
[16] The April 19 meeting lasted approximately 1 ˝ hours. A number of Gitxsan speakers expressed concerns about such matters as unemployment, the lack of any offers of partnership and the removal of resources from their territories. The meeting concluded with a Gitxsan speaker stating that the Gitxsan did not view the meeting as a consultation meeting and that they were prepared to enter into proper consultation when they had full information. One of the Ministry’s representatives responded that the concerns expressed by the Gitxsan at the meeting would be forwarded to the Minister.
(b) Lax Kw’alaams
[17] No meetings occurred between representatives of the Ministry and the Lax Kw’alaams First Nation. A meeting was scheduled for April 16 but it was postponed by the First Nation after a letter dated April 9 was written to the Minister by the Chief Councillor of the Lax Kw’alaams Indian Band and the President of the Allied Tsimshian Tribes Association (the “Association”). The letter requested that the Minister withhold his consent to the transfer of control of the forest tenures until he had completed a full and appropriate consultation process with the Lax Kw’alaams Indian Band. It expressed the view that a proper consultation would (i) involve a distinct and separate process, (ii) involve a full discussion of the proper allocation of forest resources in the aboriginal title lands of the Lax Kw’alaams and (iii) involve discussion of compensation for past and future infringements of their aboriginal rights and title. No response to this correspondence was received until May 8, when the Minister sent a letter in which he stated, among other things, that he had consented to the proposed change of control after reviewing all of the information provided to him.
[18] On April 23, legal counsel for the Lax Kw’alaams and the Association wrote to the lawyer with the Ministry of Attorney General who was involved in the meetings with the other First Nations. The lack of response to the April 9 letter was noted and a request was made for a consultation meeting with the Minister or his representative. No meeting took place. The Lax Kw’alaams band manager was told by a Ministry official on April 24 that there was no point in holding a meeting and that nothing could be done in view of the timetable for the transaction.
(c) Metlakatla
[19] One meeting was held on April 15 between representatives of the Metlakatla Indian Band and Ministry officials. The meeting lasted for approximately one hour.
[20] At the outset of the meeting, a Metlakatla representative stated that it was a highly flawed consultation process with inadequate time frames and that the Metlakatla could not support the transaction or the process without proper and meaningful consultation. The representative stated that he considered the meeting to be an information sharing meeting.
[21] When one of the Metlakatla asked if the meeting was a result of the Haida case consultation ruling (Haida No. 1 had been issued less than two months earlier), the lawyer from the Ministry of Attorney General responded that it was and she concurred that the process was less than adequate as far as consultation was concerned. She also stated that the government officials were not at the meeting to request approval of either the transaction or the process.
[22] Concerns were expressed by the Metlakatla at the meeting about such matters as the management of their own resources, the environment and unemployment. A request was made for more specific accommodation of the Metlakatla concerns. The Attorney General lawyer said that the concerns, including the concerns about the short time frame and lack of information, would be presented to the Minister.
(d) Gitanyow
[23] Although the communications between the Ministry of Forests and the other First Nations commenced with the Ministry’s March 27 letter, the Gitanyow’s legal counsel had written an earlier letter to the Minister. By letter dated March 19, the Gitanyow’s counsel wrote to the Minister making reference to media reports of a sale of Skeena to NWBC and requesting confirmation that the forest tenures held by Skeena would not be transferred until the completion of “legally required consultation with a view of accommodating the Aboriginal rights and title of the Gitanyow”. As with the April 9 letter written to the Minister by the Lax Kw’alaams, there was no response to this letter until May 8, when the Minister wrote a letter stating that he had consented to the change of control of Skeena.
[24] On April 5, the chief treaty negotiator for the Gitanyow wrote to the Attorney General enclosing a copy of the March 19 letter and requesting that he arrange a timely response from the government with respect to its constitutional obligation to consult with the Gitanyow. The Attorney General responded by letter dated April 8. He acknowledged the concern around adequate consultation and stated that he appreciated the significance of the recent decisions of the B.C. Court of Appeal (which were presumably the Taku River and Haida No. 1 decisions). The Attorney General recorded his understanding that a meeting between representatives of the Gitanyow and the Ministry of Forests was scheduled for April 12 and stated that he looked forward to the results of the meeting.
[25] On April 9, the Gitanyow tabled a draft of a framework agreement for consultation and accommodation with the B.C. treaty negotiators (a copy was also given to NWBC). The purpose of this draft agreement was to set out a process for consultation and accommodation with respect to forestry operations and the granting or transferring of forest tenures affecting the territory claimed by the Gitanyow. No comments on the form of the agreement have been made by the Crown (although a letter written by the Deputy Minister of Forests on the business day immediately preceding the hearing of the Gitanyow’s Petition on October 21 has indicated a willingness to hold a workshop to discuss the draft agreement).
[26] The April 12 meeting lasted approximately 2 ˝ hours. The meeting began with a statement on behalf of the Gitanyow that they did not view the meeting as a consultation. It is alleged in an affidavit filed in these proceedings that the President of NWBC, who was in attendance at the meeting, agreed that the meeting was not a consultation, although the minutes of the meeting taken by the consultant hired by the Ministry do not reflect a statement to this effect.
[27] There were further discussions throughout the meeting about the topic of consultation. A Gitanyow representative made reference to the decisions in Taku River and Haida No. 1, and stated that the Ministry had an obligation to consider their cultural and economic interest. A Ministry representative responded that the Ministry of Attorney General was working on an analysis of those decisions and would be developing guidelines for consulting, which would then be incorporated into the Ministry’s own policies. The Ministry representative acknowledged that the Crown was still looking into how it would approach consultation. He subsequently stated that the Ministry needed to ensure that it had a meaningful consultative process and time would be required to work on it as a result of cutbacks having the effect of reducing capacity within the Ministry.
[28] During the meeting, the Gitanyow expressed concerns about the environment, unemployment of their people, a dwindling of resources and the effect of logging on fishing and game. A Gitanyow speaker raised the topic of NWBC’s business plan and was told that NWBC was not prepared to discuss its business plan in detail until the transaction closed. An issue was also raised about the fact that the Buffalo Head tenure was being excluded from the transaction and NWBC’s President replied that it was expedient to exclude it.
[29] On April 21, the chief treaty negotiator for the Gitanyow wrote to the Minister requesting certain information with respect to the proposed change of control of Skeena. The letter stated that the April 12 meeting did not constitute even a beginning of consultation and that the requested information was needed to start the consultation process. The only response to this letter was the Minister’s May 8 letter stating that he had consented to the change of control of Skeena.
The Injunction Application
[30] As mentioned above, the closing of the sale and the implementation of Skeena’s restructuring plan were scheduled for April 29. On April 23, the Gitanyow proceeding was commenced, and the Lax Kw’alaams proceeding was initiated on April 25. An application was then brought by the Gitanyow and Lax Kw’alaams First Nations in their proceedings and Skeena’s CCAA proceedings for an interlocutory injunction to restrain the Minister from giving his consent to the change of control of Skeena. The application was heard by Brenner C.J.S.C., who dismissed it on April 30 (cited as In the Matter of CCAA and Skeena Cellulose, et al 2002 BCSC 597, leave to appeal granted but stayed until the determination of these proceedings, Lax Kw’alaams Indian Band v. British Columbia (Minister of Forests) 2002 BCCA 403). I gather that the closing of the sale and implementation of the restructuring plan were postponed for one day in order to give Brenner C.J.S.C. an opportunity to give a considered decision.
[31] In dismissing the injunction application, Brenner C.J.S.C. applied the well known three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (“RJR – MacDonald”) for the granting of interim relief. It was conceded by opposing counsel that the first part of the test was satisfied in view of the serious question to be tried. In dealing with the second part of the test, Brenner CJ.S.C. held that the applicants had failed to demonstrate any significant prejudice or irreparable harm but, as there was some prejudice, he went on to consider the final leg of the test. In considering the balance of convenience, Brenner C.J.S.C. said the following:
The potential prejudice to [Skeena], to NWBC, to the creditors, employees and contractors dependent upon [Skeena], and indeed to many members of the public of British Columbia should the sale not close, in my view, considerably outweighs any prejudice that the petitioners might suffer as a consequence of the Minister giving his final consent to the change in control. (para. 23)
Brenner C.J.S.C. concluded that the balance of convenience did not favour the granting of the injunction, and that the Minister should not be restrained from giving his consent to the change in control.
Consent of the Minister
[32] The Minister’s consent to the change of control of Skeena was required pursuant to s. 54 of the Act. In addition to stipulating that the Minister must consent to a disposition of a licence issued pursuant to the Act, s. 54 requires his prior consent to be obtained for an amalgamation of a licence holder with another company and for a change of control of a licence holder.
[33] As previously mentioned, a consultant retained by the Ministry of Forests attended all of the meetings with the First Nation groups (with the exception of the meeting with the Metlakatla Band, which was attended by another government representative who took notes of the meeting). The consultant prepared a report to the Minister for his consideration in deciding whether to consent to the change in control. The body of the report was 10 pages long and the minutes of the various meetings were attached as an appendix to the report. It summarized the concerns expressed by the First Nation groups at the meetings (including the concern about the lack of proper consultation).
[34] The Minister gave his approval in principle to Skeena’s change of control on April 24 and he gave his final consent on April 30. The Minister’s consent was given subject to three conditions, the terms of which were contained in the Minister’s April 24 letter, as amended by responding correspondence from Skeena/NWBC. The conditions, as amended, were as follows:
[Skeena] and NWBC must:
1. acknowledge that [Skeena’s] licences issued under the Forest Act and their ancillary permits may be affected by land use planning decisions, aboriginal interests, and treaty negotiations with First Nations;
2. acknowledge that the change of control of [Skeena] will be without prejudice to any aboriginal rights or title that may exist in or over the land supporting the licences. For the purposes of clarity, this is not an acknowledgement that there are aboriginal rights or title in or over any of the affected land. Rather, this is an acknowledgement that the proposed change of control is neutral with respect to any aboriginal right or title; and
3. agree in writing to provide, within 60 days of the change in control of [Skeena] becoming effective, copies of a business plan for [Skeena] to the Regional Manager, Prince Rupert Forest Region, and to a representative of each First Nation asserting aboriginal or treaty rights within the operating area of [Skeena].
The consent letter, as amended, also contained the following paragraph immediately following the three conditions:
The rights and responsibilities described in this letter are for the sole benefit of, and binding on [Skeena], NWBC and the Ministry of Forests, and are subject to enforcement by them solely and may not be used or relied upon by third parties for any purpose, except aboriginals in respect of their existing aboriginal rights or title.
After the Minister gave his consent, the sale transaction completed and all of the shares in the capital of Skeena were acquired by NWBC. The business plan described in the third condition was not delivered within the 60 day time limit but it was subsequently provided within a 30 day extension granted by the Minister.
Aboriginal Claims of the Petitioners
[35] Each of the Petitioners assert aboriginal title and aboriginal rights in the areas covered by Skeena’s tree farm licence and forest licences. Before summarizing each of their claims, I will deal briefly with the status of their treaty negotiations.
[36] In 1992, Canada, British Columbia and representatives of the First Nations Summit entered into the British Columbia Treaty Commission Agreement. This Agreement incorporated the following six-stage treaty process:
Stage 1: Submission of Statement of Intent to negotiate a treaty
Stage 2: Preparation for negotiations
Stage 3: Negotiation of Framework Agreement
Stage 4: Negotiation of Agreement in Principle
Stage 5: Negotiation to finalize a treaty
Stage 6: Implementation of the treaty
Each of the petitioning First Nations is currently at Stage 4 of the treaty process.
[37] The chief treaty negotiator of the Gitanyow had deposed that the Crown’s chief negotiator has stated that the Gitanyow treaty negotiations are one of the most advanced treaty negotiations in British Columbia. One of the claims made by the Gitanyow in the present proceedings is for a declaration that the Crown has breached its duty to conduct treaty negotiations in good faith. None of the other petitioning First Nation groups seek this form of relief, although it was evident from the materials and submissions of counsel that at least the Gitxsan First Nation is quite frustrated with the negotiations.
[38] In the Taku River decision, the chambers judge pointed out that the federal government had agreed to negotiate land claims with the Tlingit First Nation in 1984 on the basis of a preliminary determination that it had aboriginal rights in the territory claimed by it. The chief treaty negotiator under the B.C. treaty process has deposed that any information submitted by a First Nation in which they assert the existence of aboriginal rights and title is used by the Province for the purpose of identifying the interests or areas which the First Nation wishes to negotiate, and is not for the purpose of evaluating or assessing whether the information is sufficient to meet the legal criteria for the proof of aboriginal rights and title.
[39] The Gitanyow say that they are in the same position as the Tlingit First Nation. The Gitanyow submitted a claim to the federal government in 1977 with respect to their rights in and to the territory claimed by them. The claim was accepted for negotiation by the federal government in 1981. The policy of the federal government at the time was that comprehensive claims would be denied or accepted for settlement after they were analyzed in terms of both their historical accuracy and legal merit by the Office of Native Claims and the Department of Justice.
[40] I will now summarize the evidence in support of aboriginal title and rights as proffered by each of the petitioning First Nations.
(a) Gitxsan Claims
[41] The Gitxsan Houses were one set of the plaintiffs in Delgamuukw, where the duty of consultation and accommodation was discussed by the Supreme Court of Canada. Hence, it is instructive to briefly review the decisions in that case at each of the three levels of court. At trial, the Hereditary Chiefs of 71 Gitxsan and Wet’suwet’en Houses claimed separate portions of 58,000 square kilometres of British Columbia. The trial judge did not accept the evidence of oral histories of the plaintiffs showing attachment to the claimed lands. He dismissed the claims for ownership, jurisdiction and aboriginal rights on the basis that the Crown had extinguished aboriginal rights to all lands in the colony.
[42] On appeal, the individual claims by each of the Houses were amalgamated into two claims, one by the Gitxsan and one by the Wet’suwet’en. In addition, the claims for ownership and jurisdiction were replaced with claims for aboriginal title and self-government. The appeal to the B.C. Court of Appeal was dismissed by a majority of the Court.
[43] The Supreme Court of Canada ordered a new trial on two bases. The first basis was the fact that there had been no amendment to the pleadings to reflect the changed claims being pursued on appeal. The second basis was that the trial judge had incorrectly refused to give any independent weight to the oral histories recited by the plaintiffs. In the course of its decision, the Court held that aboriginal rights had not been extinguished by the Crown.
[44] In this proceeding, the affidavit evidence recounted that the Gitxsan First Nation consists of four clans which are known as the frog, wolf, eagle and fireweed clans or phraties. Each clan has a number of wilps, which are extended family or house groups. There are a total of 65 Gitxsan Houses (53 of which participated in the Delgamuukw litigation).
[45] Affidavits of members of the Gitxsan Houses were filed in support of the claims for aboriginal title and rights. The affidavits describe oral histories of the Gitxsan such as the adaawk and family recollections (adaawk are described as ancient oral histories recounting origins and migrations since the ice ages). Based on the oral histories, the Gitxsan say that since time immemorial they have exercised aboriginal rights and title over approximately 30,471 square kilometres of territories located mainly in the Upper Skeena and Upper Nass watersheds. They say that they have occupied these territories exclusively and according to their laws. Attached to one of the affidavits were excerpts from the transcript of the Delgamuukw trial where the aboriginal rights of hunting and fishing were discussed. Attached to another of the affidavits was an affidavit filed in the Delgamuukw trial setting out the territory claimed by one of the Gitxsan Houses on the basis of instructions given to the deponent by persons who are now deceased. One of the deponents prepared a map showing the relationship between the territories claimed by the Gitxsan Houses and Skeena’s tree farm and forest licences.
(b) Lax Kw’alaams and Metlakatla Claims
[46] The affidavit evidence describes the relationship between the Lax Kw’alaams band and the Metlakatla band. They are two modern Indian Act bands which substantially represent the membership of nine Tsimshian tribes. The nine Tsimshian tribes formed the Association, one of the Petitioners in these proceedings, to be their representative. The Association is governed by the current Hereditary Chiefs of the original nine tribes.
[47] The affidavits allege that the nine tribes have used and occupied certain territories shown on a map attached to the affidavits. The affidavits state that the deponents were told about their territories and rights at feasts and meetings or by their grandparents. The deponents say that before contact with the European people, the tribes occupied their territories and possessed the natural resources located in the territories to the exclusion of other people unless permission was granted to allow others to use the territories.
[48] One of the affidavits was sworn by a professor who specializes in Tsimshian culture and language. Attached to her affidavit was a report dealing with the use and occupation of the lands covered by Skeena’s tree farm licence by the Lax Kw’alaams and Metlakatla Indian Bands. Based on research done by the professor, the report concludes that some areas covered by Skeena’s tree farm licence fall within the territory claimed to be owned by Tsimshian tribes and the territory claimed to be the hunting and berry grounds of one or more Tsimshian tribes.
(c) Gitanyow Claims
[49] Several affidavits were sworn by Gitanyow persons. Similar to the Gitxsan, the Gitanyow have two clans comprised of eight Houses. They also have oral histories called adaawks.
[50] The chief treaty negotiator for the Gitanyow (who is a Hereditary Chief of one of the Houses) swore an affidavit to which he has attached three publications, (i) Totem Poles of the Gitksan, Upper Skeena, British Columbia, (ii) Histories, Territories and Laws of the Kitwancool and (iii) Tribal Boundaries in the Nass Watershed. The first of these works was prepared in 1929 by Marius Barbeau and published as Bulletin No. 61 of the National Museum of Canada. The second work was published in 1959 by Wilson Duff under the auspices of the Department of Education of the B.C. Provincial Museum. The third work was a report issued in 1995 for the Gitanyow Treaty Office. It was prepared by five persons (including counsel for the Gitanyow in these proceedings). The co-ordinator, researcher and principal writer of the report is a Gitxsan person who swore two affidavits describing the process by which the report was prepared. In the affidavit of the chief treaty negotiator, it is deposed that these three works, the adaawk taught to him and the testimony in Delgamuukw all uphold that the Gitanyow have occupied the territory claimed by them prior to the arrival of the first white man and that the Gitanyow have continued to occupy the territory since 1846 (the year in which it was determined in Delgamuukw that British sovereignty over British Columbia was conclusively established).
[51]