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Supreme Court of Canada ruling reactivates B.C. logging case

Jimmy Lulua and Chief Roger William splashe through a river during the first heat of the mountain race at Nemiah Valley Rodeo August 4, 2012.

John Lehmann/The Globe and Mail

A court battle over logging rights in B.C.'s Okanagan region could become one of the first to reflect the impact of a landmark ruling on aboriginal title from the Supreme Court of Canada.

The case, which had been put on hold pending the outcome of a case involving the Tsilhquot'in Nation before the Supreme Court of Canada, is expected to get back under way, with a focus not only on land rights but whose laws and systems should prevail.

The Okanagan case began in 1999 when members of four Indian bands – frustrated by what they saw as a lack of progress by the province in responding to early court decisions that acknowledged government title – issued tribal permits and began logging on Crown land without authorization from the province.

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"In the logging cases, the laws of the Okanagan and Secwepemc were relied upon – and they clash with the laws of the province," Louise Mandell, a lawyer who is representing the bands, said on Friday.

"It's more of a toe-to-toe0 issue about authority and jurisdiction."

Some aspects of the case had been set to go to trial in B.C. last year, but it was put on hold pending the outcome of Tsilhqot'in Nation v. British Columbia.

In that case, the Supreme Court of Canada this week ruled in favour of the Tsilhqot'in and declared the group holds aboriginal title to about 2,000 square kilometres of interior B.C., concluding a legal odyssey that began in 1990 when Roger William, chief of the Xeni Gwet'in, one of six groups in the Tsilhqot'in Nation, filed a court action

Although previous court cases had found aboriginal title exists, the Tsilhqot'in decision is the first to confirm aboriginal title to a specific tract of land – and in doing so, shifted the landscape for First Nations, governments and industry across the country.

Aboriginal groups and academics say the Tsilhquot'in ruling will set a higher bar for industry when it comes to consulting and accommodating First Nations in relation to industrial development, such as the contentious, $7.9-billion Northern Gateway project that would carry Alberta oil to a marine shipping terminal in Kitimat, B.C.

It also rejected the notion of aboriginal title being confirmed to small, contained sites.

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"The Supreme Court of Canada has rejected this idea that aboriginal title just applies to specific sites, or rocks or buffalo jumps or fishing holes – it is territorial," David Rosenberg, one of the lawyers involved in the case, said in Vancouver on Thursday.

"It goes from mountaintop to mountaintop in some places. It covers valleys and vast tracts of land. That is now what aboriginal title is."

The Tsilhqot'in decision is also expected to put pressure on both the federal and B.C. governments to settle treaties in British Columbia, where only a handful of treaties are in place despite a treaty process that began in 1993.

The Okanagan case is now expected to follow. The case began with a logging dispute but soon expanded into a battle over rights and title, with the bands involved saying they had the right to determine how to use the resources on their land.

As the court case has dragged on, the disputed logging continued.

"Despite B.C.'s rights admission and despite ongoing litigation, the Secwepemc and Okanagan have been left without a meaningful say or involvement in decisions that impact their land base," lawyers for the band said in a factum filed as part of the Tsilhqot'in case.

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"B.C. has authorized large areas within the watersheds for clear cutting. Since the Secwepemc Logging case was stayed as a cost-saving measure, B.C. has authorized logging of 56 per cent of the available timber in the Harper Lake Watershed," it said

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