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Judge wants governments to revisit 160-year-old B.C. land treaty

A B.C. Supreme Court decision over land use on Vancouver Island could force the provincial and federal governments to implement a treaty first negotiated by the Crown more than 160 years ago, says a lawyer for a First Nation.

In a decision posted online Tuesday, Justice Gordon Weatherill refused to reverse a decision by the provincial government, allowing Western Forest Products Inc. to remove 14,000 hectares of land from a tree-farm licence on the island's northern tip.

But the judge also encouraged the federal and provincial governments to engage the Kwakiutl First Nations on treaty rights, title and interests and negotiate a deal "without any further litigation, expense or delay."

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Weatherill said the provincial government has an ongoing duty to consult with the band in good faith and seek accommodation over the First Nation's claim of aboriginal rights, titles and interests.

In response to the ruling, Louise Mandell, a lawyer for the band, said the Kwakiutl signed treaties with the Crown in the early 1850s but the agreements were never implemented and fell off the Crown's radar.

"This is a progression of trying to put the Crown's feet to the fire to get them to change policy ... so that the treaties can actually be implemented and the honour of the Crown be put into play," said Mandell.

Neither the provincial government nor the forestry company replied to a request for a comment.

The Kwakiutl First Nation is located on northern Vancouver Island, near the communities of Port McNeill and Port Hardy.

In February, 1851, the band negotiated several treaties with the Hudson's Bay Company, which governed the British colony at the time.

But according to Weatherill's ruling, the company neglected the treaties for many years and never properly surveyed the Kwakiutl village sites or its enclosed fields.

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In fact, until 1886, no lands were reserved for the Kwakiutl. Only after the band was devastated by disease was the Kwakiutl allotted land.

Against this historical backdrop, Western Forest Products Inc. grew to become the largest holder of Crown tenure in coastal B.C., gaining control of about 14,139 hectares of private land within the band's traditional territory.

The company notified the band in August 2005 that it planned to removed its private land from the tree farm licence and evaluate the possibility of its sale.

The provincial government approved the land's removal in January 2007.

The Kwakiutl then launched a judicial review in B.C. Supreme Court, arguing, in part, the provincial government had breached its constitutional duty by denying the band "meaningful consultations" in the matter.

However, Weatherill ruled the provincial government had satisfied its duty to consult with the First Nation, noting it had sought the band's input, provided the band with assistance and expertise and notified it of its decision.

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"The KFN was given full opportunity to provide input regarding the impacts the decision would have on its asserted rights, titles and interests," said Weatherill.

Mandell said it's too early to tell whether the Kwakiutl will launch an appeal over Weatherill's ruling but noted the ruling includes some good news for the band.

"We have cleared away some of the rubble on the road, which prevents the treaty from being implemented, but the governments still needs to step to the plate and get a process for treaty implementation," she said.

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