https://orcid.org/0000-0002-5128-1362
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Abstract
While the vast majority of forestlands in Canada are considered “Crown land,” there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests. Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and the pre-existing Indigenous legal relations with forestland. This article illustrates how the current model of Canadian natural resource governance, centered on consultation and accommodation of judicially recognized rights, fails to create adequate space for pluralistic human-forest relations and Indigenous environmental jurisdiction.
Acknowledgements
This article benefitted from generous feedback from the participants in the Human-Forest Relations Workshop in May 2019 convened by Dr. Helen Dancer, the editor of this special issue, as well helpful conversations with Dr. Sarah Morales, Robert Morales, Dr. Michael Ekers, Professor Hamar Foster, QC and Kevin Hille. Excellent research assistance was provided by Thadshayini Chandrakumaran and Jesse Abell. All errors are my own.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 I adopt the term “more-than-human” from Sarah Whatmore who describes the effect of the “materialist recuperations” in geography as a “return to the livingness of the world [that] shifts the register of materiality from the indifferent stuff of the world ‘out there’, articulated through notions of ‘land’, ‘nature’, or ‘environment’, to the intimate fabric of corporeality that includes and redistributes the ‘in here’ of human being.” See her article, “Materialist returns: practising cultural geography in and for a more-than-human world” (2006) 13 Cultural Geographies 4 600 at 602. This approach avoids defining other parts of the material world as non- or other-than human and reinscribing the enlightenment dichotomy between humans and nature. ‘More’ is intended to extend the boundaries of relation rather than imply an inverted hierarchical ordering between humans and other beings.
2 Mitchell v MNR 2001 SCC 33.
3 When asked about forest management the majority disagreed economic benefits should be the priority, with only 9% agreeing that they should. This did not result in an overwhelming rejection of logging activity, 44% of respondents stated logging should occur, with 56% disagreeing. However, overwhelmingly (90%) agreed, “Cowichan teachings should be a part of how we manage our forest.” There was a strong (80%) preference for selection harvesting and almost no support for clearcutting (4%).
4 A full examination of the various anthropological models of Coast Salish property relations and the ongoing debates amongst researchers is beyond the scope of this article (Carlson Citation2010; Kennedy Citation2007; Miller 1999). Rather, the discussion below describes the model developed by Brian Thom in his work with Island Hul’qumi’num communities, and more recently elaborated in collaboration with Island Hul’qumi’num scholar Morales. While no model can claim to truly represent the Coast Salish land tenure system itself, examining Thom’s model helpfully situates colonial property relations within the legal pluralism of the territories that now make up Vancouver Island.
5 Others describe this as the hw’nuchalewum or “house group” in which a group of nuclear families would reside in a large cedar house, see Arnett (1999).
6 Hupačasath First Nation v British Columbia 2005 BCSC 1712; Ke-Kin-Is-Uqs v British Columbia 2008 BCSC 1505; Hul’qumi’num Treaty Group v Canada, Inter-Am CHR Report No. 105/09; Chartrand v The District Manager 2013 BCSC 1068.
7 Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development) 2018 SCC 4.
8 Mitchell, 2001 SCC 33.
9 Indian Act RSC 1927, c 98, section 141.
10 Forest Act SBC 1912, c 17.
11 Forest Act Amendment Act SBC 1947, c 38.
12 It is unclear exactly how much of the E&N lands were brought into the Forests Act regime, further research on this is required and is dependent on accessing the early licences. However, initial research indicates that the large forestry companies were incentivized to bring the vast majority of their private lands into the bundled licence areas. Some smaller forestland owners throughout the province maintained their lands outside the public regime.
13 Forest Act RSBC 1996, c 157.
14 Private Managed Forest Land Act SBC 2003, c 80.
15 Hupačasath, 2005 BCSC 1712 at 59.
16 Hupačasath, 2005 BCSC 1712 at 59.
17 Charter of the Forest 1217 “CHARTA de Foresta” Westminster, 11 Febr., 9 Hen. III. [1225]. With great seal. https://www.nationalarchives.gov.uk/education/resources/magna-carta/charter-forest-1225-westminster/.
18 The Charter of Runnymede 1215 came to be called Magna Carta from 1217, when it was re-issued in an amended form, alongside the new Charter of the Forest.
19 Tamaki v Baker [1901] NZPC 1; [1901] UKPC 18.
20 Amondu Tijani v Secretary, Southern Nigeria [1921] 1 AC 401 (PC) at 411.
21 Constitution Act 1867, 30 & 31 Vic, c 3 (UK).
22 St Catherine’s Milling and Lumber Co. v The Queen [1888] UKPC 70, [1888] 14 AC 46.
23 Constitution Act 1867; Delgamuukw v British Columbia [1997] 3 SCR 1010.
24 Calder et al. v Attorney-General of British Columbia [1973] SCR 313; Delgamuukw, [1997] 3 SCR 1010 at 112 and 175; Tsilhqot’in Nation v British Columbia 2014 SCC 4.
25 St Catherine’s Milling, [1888] 14 AC at 58-59.
26 St Catherine’s Milling, [1888] 14 AC at 58-59; Delgamuukw, [1997] 3 SCR 1010 at 175-180.
27 Delgamuukw, [1997] 3 SCR 1010 at 175-180.
28 Calder, [1973] SCR 313 at 346.
29 An Act Respecting the Vancouver Island Railway, the Esquimalt Graving Dock, and certain Railway Lands of the Province of British Columbia, granted to the Dominion CB 1884, c 6.
30 Delgamuukw, [1997] 3 SCR 1010 at 145 and 113.
31 Guerin v The Queen [1984] 2 SCR 335; Mitchell, 2001 SCC 33. But see Wewaykum Indian Band v Canada, 2002 SCC 79, which narrows the scope of the fiduciary relationship to situations where the Crown has assumed discretionary control over cognizable Aboriginal interests.
32 Royal Proclamation 1763 3 Geo. III.
33 Tsilhqot’in Nation, 2014 SCC 4 at 69.
34 Hul’qumi’num Treaty Group, Inter-Am CHR Report No. 105/09.
35 Timberwest v Deputy Administrator (2003) 2002-PES-008(a) Environmental Appeal Board: http://www.eab.gov.bc.ca/pest/2002pes008a.pdf.
36 Constitution Act 1982 (Canada Act 1982 c 11, Schedule B (UK)).
37 Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73 at 16; Taku River Tlingit First Nation v British Columbia (Project Assessment Director) 2004 SCC 74 at 24.
38 Haida Nation, 2004 SCC 73 at 27; Taku River, 2004 SCC 74 at 24.
39 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69 at 67.
40 Haida Nation, 2004 SCC 73 at 35 and 37; Taku River, 2004 SCC 74 at 25.
41 Hupačasath, 2005 BCSC 1712; Ke-Kin-Is-Uqs 2008 BCSC 1505.
42 Hupačasath, 2005 BCSC 1712; Ke-Kin-Is-Uqs 2008 BCSC 1505; Chippewas of Sarnia Band v Canada (Attorney General) [2000] 51 OR (3d) 641 (ON CA).
43 Hupačasath, 2005 BCSC 1712 at 165; R v Badger [1996] SCR 771, 66; R v Alphonse (1993) 80 BCLR (2d) 17 (CA).
44 Hupačasath, 2005 BCSC 1712 at 200.
45 Hupačasath, 2005 BCSC 1712 at 249.
46 Ke-Kin-Is-Uqs, 2008 BCSC 1505 at 120.
47 Hupačasath, 2005 BCSC 1712 at 311.
48 Ke-Kin-Is-Uqs, 2008 BCSC 1505 at 311 and 314.
49 Campbell et al v AG BC/AG Cda and Nisga’a Nation et al 2000 BCSC 1123.
50 Delgamuukw, [1997] 3 SCR 1010 at 186.