Visitors to the Fairy Creek Blockades stand among the "giants," large trees over 250 years old.
On June 5, Pacheedaht, Ditidaht and Huu-ay-aht First Nations urged companies, governments and individuals to respect their traditional laws and constitutionally-protected rights and title. Photo by Julie Chadwick/TheDiscourse
Nanaimo Vancouver Island

Q&A: What do the old-growth logging deferrals mean for Fairy Creek?

A conversation with distinguished Indigenous lawyer Doug White (Kwulasultun).
Julie Chadwick June 11, 2021

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On June 5, the Pacheedaht, Ditidaht and Huu-ay-aht First Nations issued formal notice to the B.C. government of their intention to defer old-growth logging in the Fairy Creek and Central Walbran areas for two years while they develop and continue existing stewardship plans in their territories. The decision was based on a joint declaration of stewardship signed on June 4 titled Hišuk ma c̕awak, “everything is connected.”  

“Our three Nations look forward to building a future based on respectful nation-to-nation relationships with other governments that are informed by Indigenous history, Indigenous knowledge, Indigenous rights, and Indigenous priorities,” said Chief Councillor of the Pacheedaht First Nation Jeff Jones, in a joint statement. “We ask that all peoples both Indigenous and non-Indigenous learn and move forward together and that by working together we can realize a future that is fair, just, and equitable.”

A map shows a broad area on the South West end of Vancouver Island that belongs to Ditidaht, Huu-ay-aht and Pacheedaht people.
A map in the Hišuk ma c̕awak declaration outlines the territory of the three signatories and states: “As Indigenous governments, it is our responsibility to to decide what is best for our lands, our waters, our resources, and the wellbeing of present and future generations of Ditidaht, Huu-ay-aht and Pacheedaht people.” Map from Hišuk ma c̕awak declaration

Earlier this month, RCMP moved in to enforce a court-granted injunction to allow forestry company Teal-Jones to continue logging in the area and to remove blockades aimed at preserving the old-growth forest there. At the time of writing, the RCMP is still required to enforce the injunction, arrests are ongoing and legal observers continue to be denied access, according to blockaders.

In a nod to the increasingly divisive situation on their territory, the Pacheedaht, Ditidaht and Huu-ay-aht First Nations have asked that pre-approved forestry operations be allowed to “continue without disruption” and that “anyone who requests permission to enter our ḥahahuułi is welcome provided they conduct themselves in accordance with our sacred principles.”

Teal-Jones responded on June 7, saying via email that they would honour the declaration, were committed to reconciliation and that they would engage with the nations as they “develop integrated resource forest stewardship plans.”

By the afternoon of June 9, Premier John Horgan confirmed that B.C. would approve the deferrals, saying: “This is critically important for a number of reasons. Most importantly, we have allowed, as a province, the title holders to make decisions on their lands.” 

A map highlights two small areas outlined in blue that will be protected from old-growth logging on the West Coast of Vancouver Island.
The B.C government recently approved the deferral of old growth in the Central Walbran Valley and Fairy Creek watershed areas at the request of the First Nation title holders. Map by the B.C. government

But the new deferrals are unlikely to cool the conflict. The premier’s announcement confirmed that the Fairy Creek watershed and a core area of the Central Walbran won’t see old-growth logging, but areas slated for logging just beyond those borders remain unprotected. Those at the blockades say they will continue to block access to those trees and will consult with Pacheedaht Elder Bill Jones on next steps.

Two maps posted to the Fairy Creek Blockade Facebook page outline the "needed deferrals" in green around existing deferrals in grey
Maps posted to the Fairy Creek Blockade Facebook page outline the “needed deferrals” in the Central Walbran Valley area (left) and Fairy Creek watershed area in green with existing deferrals highlighted in grey. Map by Fairy Creek Blockade

There’s many moving parts to this story, and I find that though news outlets are doing a great job of following up all the developments as they happen, I wanted to dig in and understand more about the significance of this declaration made by the Pacheedaht, Ditidaht and Huu-ay-aht First Nations, and how it is informed by history.

On June 7 I spoke to Doug White (Kwulasultun) to get his take on things. Best known locally for his role as a former chief and councillor of the Snuneymuxw First Nation, Doug is also a practicing lawyer and chairman of the BC First Nations Justice Council. He was honoured with a Queen’s Counsel designation last year and his work as the chief negotiator for Lake Babine Nation’s rights and title agreement with provincial and federal governments has been hailed as “groundbreaking”.

What does the Hišuk ma c̕awak Declaration mean?

“The Pacheedaht are in a similar position that the Tŝilhqot’in Nation were 25 years ago, which is: ‘Look, this is our Aboriginal title land. Provincial tenures and logging permits are inconsistent with our title. We need to figure out our own plans for these lands. So B.C., you need to take a pause on what you’re doing so that we can work out our approach to these forests and to this Aboriginal title landscape,’” says Doug.

He is referencing the landmark decision in 2014 when the Supreme Court of Canada confirmed that the Tŝilhqot’in people had Aboriginal title over a large part of their traditional territory and that the government or other parties seeking to use that land must, in most cases, first obtain consent.

I discussed the Tŝilhqot’in decision with Doug back then in an interview for a story, and at the time it was hailed as a game-changer. The decision was decades in the making, and also partly involved the push to stop a logging company’s operations on Tŝilhqot’in territory.

“It’s imperative for the province to work with First Nations of British Columbia, to work together to determine the kind of shifts and changes that are required because of the reality of Aboriginal title, and the implementation of title, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Indigenous people’s decision-making power,” says Doug. 

“The existing forestry regime is utterly inconsistent with that reality. So there’s an enormous amount of tension. The longer real change to B.C. forestry laws and regime is delayed, the more at-risk the forest economy of the province is.”

Do Fairy Creek forestry agreements respect Aboriginal rights and title?

The Pacheedaht First Nation’s most recent Forest Consultation and Revenue Sharing Agreement (FCRSA) with the province, completed in February, gives them $242,338 for the first year of the three-year term plus a small amount of funds for consultation.

It’s not clear what they will receive in subsequent years, and as part of the written agreement, the nation must also agree to “not support or participate in any acts that frustrate, delay, stop or otherwise physically impede or interfere with provincially authorized forest activities.” They are also required to support the provincial government “in seeking to resolve any action that might be taken by a member of [the] First Nation that is inconsistent with this Agreement.”

“The current FCRSA model presents an unsustainable bargain where British Columbia expects extensive certainty” and streamlined consultation in exchange for a minimal sharing of forestry revenue, Doug wrote in a legal analysis on the topic in 2015. To move forward, this approach will have to change to one where First Nations and the province work together as partners in mutually beneficial ways that acknowledges Aboriginal rights and title.

Undertaking this work with B.C. is just one of the issues that nations like Pacheedaht will have to deal with as they press pause for the next two years and review where they are at in regards to the management of their territory.

Pacheedaht Elder Bill Jones, who supports the blockades, has echoed this sentiment, and said on June 7 in a statement: “We must not stand down, as all First Nations are locked into unfair contracts that tie their hands.” Similarly, Adam Olsen, who is MLA for Saanich North and the Islands and a member of the Tsartlip First Nation, wrote in an op-ed on June 4: “It’s not about self-determination. These agreements compensate Indigenous Nations for activities that the province desires to undertake—not the other way around.”

Doug brings up a discussion that surfaced in Delgamuukw v. British Columbia, a 1997 Supreme Court of Canada case that provided a more detailed description of the content and nature of Aboriginal title. There, the court clarified that Aboriginal Title includes the full beneficial interest in the land, the right to use and manage the land, but it was subject to an important limitation. 

When thinking about how to understand the unique nature of Aboriginal title, he says the court drew an analogy with trust law and the doctrine of equitable waste, wherein persons who hold a life estate in land cannot commit “wanton or extravagant acts of destruction.” The point of this principle is simple: there is an obligation to protect the land for the next generation.

Aboriginal title is also held communally, the court outlined, and this “land has an inherent and unique value in itself, which is enjoyed by the community with Aboriginal title to it. The community cannot put the land to uses which would destroy that value.” 

This raises an important question of whether the decision to destroy an old-growth forest would fall under this category, Doug says, and if it would fundamentally undermine “the relationship that you have as a people to those lands, that gives rise to the Aboriginal title relationship itself,” and therefore be arguably impermissible. 

“In this two-year time period, I would expect that the Pacheedaht would be grappling with these duties that they have, the limitations that they have and the obligations that they have,” he says. “And, in particular, the duty to future generations to ensure the continuity of Aboriginal title for the future.”

How can forestry respect free, prior and informed consent?

When nations take back control of their traditional territories there is also the standard of “free, prior and informed consent” (FPIC) to consider, which is recognised in UNDRIP. The UN has said that the “free” element of FPIC should be understood to mean that “there is no coercion, intimidation or manipulation” in arriving at Indigenous consent. These principles were legally upheld by the province in 2019 and an UNDRIP implementation bill is currently being debated at the federal level. 

From Doug’s perspective, one problem that arises within this is that many First Nations “have been put in a position of desperate and structural poverty by the history of colonialism, dispossession of lands and resources, and are in survival mode, [and] I think it raises concern about whether or not the consent provided through agreements such as the provincial FCRSAs meets the FPIC standard.”

Nevertheless, what the Tŝilhqot’in decision showed was that Indigenous people have a say over the entirety of their traditional territories and not just tiny reserves. What it means is that “there is now more than one decision maker in the world,” says Doug. 

“It isn’t just the Crown, it includes First Nations people. Now, what do we do with that? How do we grapple with that? And what they said very clearly, is that it is probably a very good idea for everybody to move into a framework of consent-based decision-making between the Crown and Indigenous peoples. Because should the Crown proceed to authorize or permit projects without the consent of Indigenous peoples, then those decisions and authorizations are at total risk of cancellation down the road with compensation owing, should a nation then ultimately prove Aboriginal title.”

“This is the big issue. This is the… what do you call it? The ‘rub.’ This issue of Canada and British Columbia recognizing that Aboriginal peoples have a say about anything,” he says. “This is the big switch that has to be turned on in Canada and B.C., once and for all. Stop acting like Aboriginal peoples are just a bunch of schmucks hanging around a reserve with no authority of any kind other than what’s in the Indian Act. These are people with the inherent right of self-determination, with Aboriginal title, that have authority, jurisdiction. They have their own Indigenous legal orders and traditions.”

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