01 June 2011

The Redtop Case

Here are Madame Justice Dillon's written reasons for decision in Canadian Forest Products Inc. v. Sam, 2011 BCSC 676 (the Redtop case).  The case found its way into the courts when Canfor applied for an interim injunction preventing members of a Wet'suwet'en Chief's family from blocking a road (video) and thus preventing the company from proceeding with its provincially permitted logging operations in a portion of the Chief's House territory, with the design of harvesting trees affected by the mountain pine beetle epidemic while they still have economic value.  In turn, House Chief, Kelah (aka Mabel Crich), and Head Chief, Hagwilneghl (aka Ron Mitchell), sought an interlocutory injunction restraining Canfor from engaging in timber harvesting in the Redtop area, a culturally vital portion of the larger House territory (Ilh K'il Bin) for which Kelah bears the primary stewardship and decision making responsibility by Wet'suwet'en law. 

Justice Dillon described the Wet'suwet'en relationship to the land generally and to the Redtop area in particular as follows:
[14] ... It is the relationship to particular lands that defines the social structure of Wet'suwet'en society, that places the land as the foundation of cultural identity, and that determines the structure of governance.
[19]  The Redtop contains mixed stands of balsam, spruce, pine, poplar and juniper. There are natural salt licks used by big game, particularly moose. Although much of the forest has been affected by the mountain pine beetle epidemic, the forest still functions as an ecosystem for many species. Kelah uses the natural resources for housing, medicine, hunting and trapping, and food. The collection of food, particularly berries and meat, from the lands preserves Kelah's status within the Wet'suwet'en social hierarchy. This relationship to the land defines the way of life for Kelah and the house of Ginehklaiyex.
[20]  Within this context, an important fact is that the Redtop is the last remaining untouched area within Ilh Ki'l Bin. It is accessible only by foot. Other parts of Kelah territory have been logged, given over to grazing leases, or used for other development. These other areas are cut with roads. ... The Redtop is the only productive hunting area left in Kelah territory. It is the only area left where Kelah and the generations that follow her can carry on traditional activities and pass on their knowledge of the land.
Justice Dillon dismissed Canfor's application in favour of the Wet'suwet'en plaintiffs'.

Madame Justice Dillon, it may be recalled, is the BC Supreme Court judge who decided the Huu-Ay-Aht case (2005).  Her decision in that case marked a significant advance in the jurisprudence and law on consultation - not to mention a corresponding change in the Crown's calculations and (sometimes) approach to consultation and, particularly, accommodation. 

Her decision in the Redtop case is both a timely confirmation of the law on interlocutory injunctions flowing out of the groundbreaking BC Court of Appeal decision in the Meares Island case (1985) and a masterful statement of the law, as it now stands, on such injunctions in an Aboriginal rights context.

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