10. Contested Ground

Our concern is Meares Island and its history. All the same it is necessary to remind ourselves that Indian blockades were being put up in these same critical years in such places as Gustafsen Lake in the BC interior, Oka in Quebec, and also at Lyell Island, in the South Moresby wilderness area of Haida Gwaii. The latter was another forestry matter, bearing on a timber licence in the possession of Rayonier Canada. Lyell Island was where the Haida Nation came forward in 1985 to block logging and make a strong statement about the importance of the forests to Haida life as sacred spaces and for plant use.²⁹¹ Details of this may be found elsewhere, but my point here is that the 1980s signalled the beginning of an epoch in British Columbia and Canadian history about Indigenous rights and uses of forest resources.

It’s also important to remember that other court cases were then proceeding in Canada and British Columbia, backing Native claims for Aboriginal title and Aboriginal use of resources. In Haida Gwaii, the blockade at Lyell Island was upholding Haida law and was coupled with a declaration of Indigenous self-determination.²⁹² At this same time, a matter on the Fraser River was receiving widespread attention as it worked its way through various courts. Those of us working on the Meares Island case watched the proceedings closely. Ultimately, in May 1990, the Supreme Court of Canada rendered a decision in this case—known as Sparrow—recognizing that the Musqueam Indian Band had unextinguished Aboriginal rights to fish for food for ceremonial and societal purposes. This decision modified the relationship of First Nations to the Crown in right of British Columbia, and the provincial Minister of the Environment, Lands and Parks subsequently issued guidelines on Aboriginal use of fish and wildlife. Sparrow built on other cases whose decisions had enlarged the scope of permitted hunting and fishing in tribal areas in and out of season.

All these court cases had a bearing on how our researchers, including me, were tutored in the law by Rosenberg, Rosenberg and Woodward as we proceeded with our inquiries. Guidance was welcome through these minefields of “Indian Law.” In short, the use, possession, harvesting, management and conservation of resources were all rights that the Nuu-chah-nuth peoples were claiming with respect to the forests of Meares Island. The NTC also wanted recognition of Aboriginal title. The Crown had never extinguished the Indian or Aboriginal title to Meares Island, and that was true elsewhere in British Columbia except in Treaty 8 area (northeastern BC) and in the “Douglas Treaties” locations on Vancouver Island.

In the Supreme Court of British Columbia, at Vancouver, on September 30, 1991, in a courtroom with standing room only, David Rosenberg, counsel for Moses Martin and others, opened the arguments. The key points he made were that not only did his clients claim the right to use the living forest with its 1,500-year-old cedar trees; they also claimed that the intricate biodiversity was necessary to sustain their living culture and their Aboriginal practices. In short, the old-growth forest was both a material and spiritual source supporting the First Nations’ existence.

Standing against this, Rosenberg said, was MacMillan Bloedel’s claim that its tree farm licence, issued by the Province, entitled it, and, indeed, instructed it—this is the alarming point, it seems to me—to clear-cut that old-growth forest. He referred to the fact that when MacBlo went to log on Meares Island in November 1984, the plan was to log all the merchantable timber within the tree farm licence over the next 35 years, using clear-cut methods. That meant, as he explained, cutting down what was perhaps the oldest living cedar in the world.

Rosenberg outlined the legal history since 1984. He noted that the issues in Meares Island differed from those of the Delgamuukw, or Gitxsan, decision. In Meares Island, the NTC did not claim sovereignty and jurisdiction. Rather, this case was about rights, much like Sparrow—that is, whether or not rights had been interfered with.

There had been no surrenders to the Crown, said Rosenberg. Neither the Tla-o-qui-aht, the Ahousaht or their ancestors had ever been conquered in a war with any European nation, and they had never entered into a treaty or deed of surrender of any title to any sovereign, including the Crown. In order to establish Aboriginal rights, the First Nations had only to show that their ancestors were on Meares Island prior to the assertion of British sovereignty in 1846, by the Oregon Treaty. They had occupied Opitsat before the traders came there. St Francis Xavier parish documents of Christie Industrial School showed that the Tla-o-qui-aht were descendants of the original Clayoquots. Their chief was still Wickaninnish, and these people still lived in their village at Opitsat on Meares Island. The Kelsemaht had their connection at Cloolthpich, also on Meares Island. The Kelsemaht, he reminded the court, had been amalgamated with the Ahousaht Band by the Department of Indian Affairs, and still had a reserve at Cloolthpich. In short, the First Nations still existed, had not died away.

Rosenberg then turned to the position of the Crown. From the date of sovereignty, 1846, he reminded the court, the Crown had always been in a position of protector or fiduciary to the Indians. Any extinguishment of Aboriginal rights by the Crown would have had to be clear, plain and explicit. “Anything less would not have satisfied the Crown’s obligations to the Indians,” he reasoned. The extinguishment of Aboriginal rights may have been a hotly debated issue in colonial times. It continues to be hotly debated today. But the Crown did not extinguish the Aboriginal rights; that was the key issue.

As to the validity of MacBlo’s tenure, Rosenberg noted it was based on a lease dated March 15, 1905. That lease lapsed for a time, and since 1926 there was no valid lease or licence for MacBlo or its predecessors to log on Meares Island. He concluded that the evidence showed that it was the Tla-o-qui-aht and Ahousaht who had the right to conserve the forests on Meares Island, and, further, that neither MacBlo nor the Province had the right to clear-cut log the trees. “The aboriginal rights continue, have never been extinguished, and a[re] constitutionally protected.”²⁹³

The Supreme Court of British Columbia dismissed the petition for an injunction, and in a rare action the British Columbia Court of Appeal, which does not usually grant leave to hear such injunction cases, agreed to hear the application. The Court of Appeal decided that the trees of Meares Island would remain standing. In delivering his reasons, Mr. Justice Peter Seaton stated:

"

Meares Island was occupied by Indians when Europeans first arrived. Indians were dependent on the forest for their shelter, their means of transportation and, to a lesser extent, their food and clothing. It has other intangible values for them. Their dependence on the forest in some aspects continues today . . . The material indicates that the natives have used this area over a long period. Many of the bark-stripped trees [that is, culturally modified trees] within the area being examined could be dated. The trees show use in the twentieth century, the nineteenth century, the eighteenth century and in the seventeenth century. A stump was found from which the tree had been felled in 1685 or earlier. Bark had been stripped from another tree in 1642.²⁹⁴

"

Seaton went on to say that the First Nations of Clayoquot Sound have been dependent on the forests as Europeans have never been. Clothes, containers, canoes, regalia, and buildings were fashioned from the trees. And then he concluded that the trees were essential to these uses, “The Indians wish to retain their cultures on Meares Island as well as in urban museums.” Mr. Justice Macfarlane concurred, stating that Meares Island was no ordinary logging site, but an island with special values rising above commercial ones: “In a sense it is like a park. It contains trees of great size and antiquity. It discloses the history and cultures of the Indian Nations. It contains evidence of use by the Indians over many years, and before the colonists arrived.” In the end, it became clear that the justices of the British Columbia Court of Appeal acquiesced to the view put forward by Justice Seaton. This, wryly stated, was that if an injunction prevented MacBlo from logging until a court decided the company had the right to log, the timber would still be there. But if an injunction were not granted and MacBlo went ahead and logged Meares Island, “the subject matter of the trial will have been destroyed before the [Aboriginal] rights are decided.” MacBlo was ordered by the British Columbia Court of Appeal to stop logging pending the outcome of the NTC’s claim to Aboriginal title. And there the matter rests to this day, with roll-over or extended injunctions.²⁹⁵

Meares Island (and the subsequent injunction against MacBlo) is of enormous importance. The result put British Columbia on notice that resource extraction and other activity interfering with Aboriginal title would be subject to new limits. Court rulings gave full value to the management rights of the Natives, recognizing these rights from before the arrival of seafaring explorers and traders. In a way, the courts honoured NTC history, or at least did not dispute it. The historical record was inviolate. However, it was also true that the great trees still standing won the most attention. If they were to be subjected to the sharp and whirling blades of the chainsaw, history would be destroyed and heritage despoiled. Nobody, in the narrowest legal terms, could quarrel with MacBlo’s right to cut those trees: all the paperwork verified that right. But “Native law,” as Jack Woodward reminds us, has Indigenous roots. Therein lay the difference in the issues and in the case. If Moses Martin and his associates, and their backers near and far, had not proclaimed Meares Island a garden and a Tribal Park, some quite different result might have eventuated, and Meares Island would have joined the legion of clear-cut, bald landscapes of Vancouver Island and the British Columbia mainland.

What about civil disobedience, or the activities of protesters, in regards to the Meares Island matter? By and large the Tla-o-qui-aht and Ahousaht were angered by the threat of clear-cutting Meares, but the form of protest they chose was largely legal and peaceful: declaring a Tribal Park, a Native garden. They did not back up their Declaration or demands with guns or threats. Still, an early warning was sent out by the court: the case for an injunction had been put in jeopardy by the unlawful conduct of some individual Native people and other protesters. In other words, civil disobedience as a means of protecting or promoting a claim of Aboriginal title would not pass without legal and judicial notice.²⁹⁶ The Crown had issued a stern warning: authorities wanted peace in the Sound.

As to the Aboriginal title of Meares Island, the case demonstrated that an injunction could be used to prevent encroachment. Jack Woodward puts this in different words in Native Law. With regards to the injunction that has defined Meares Island’s recent past, he says, “The Meares Island case established that a claim based on continuing aboriginal title in British Columbia is not so weak as to prevent an injunction from being granted.”²⁹⁷ In other words, the superior right of the Crown existed.

Less than a decade later, the centre of attention in the defence of uncut forests shifted out to the wider region around Meares. In 1993 came what is called the “Clayoquot Summer.” The provincial government failed in the run-up to the crisis. Its scheme for allowing logging in over two-thirds of Clayoquot’s remaining ancient forest did not address the protesters’ fear that the forest would be devastated and biodiversity lost. The Western Canada Wilderness Committee estimated, in 1994, that the government had given the right to cut 600,000 cubic metres of wood—15,000 logging trucks worth—annually.²⁹⁸ These are staggering figures, hard to comprehend.

People gathered from near and far in protest. Blockades were set up at Sulphur Passage, Bulson River and Clayoquot Arm. Protesters of all ages and backgrounds, from all walks of life and all parts of the world, guardians of the forest, stood on a logging road at dawn in the cold morning to block the way of the logging trucks and protect the forest. Some of these otherwise law-abiding citizens—860, according to one source—were arrested and charged with criminal contempt of court because they failed to obey the injunction forbidding the blockade. Their actions were non-violent, but many of the protesters found themselves with police records, stiff fines and jail sentences. “I hold these people to be heroes,” wrote Tofino author and naturalist David Pitt-Brooke in retrospect, “they should have collected awards and citations from a grateful nation. Instead, many received harsh sentences for civil contempt of court; their protest was contrary to court orders obtained by the forest industry. Perhaps someday they’ll get their medals; these things take time.”²⁹⁹ In an age when historical apologies are regular fare for politicians, perhaps they might think of exonerating “the guilty” found in contempt of court for saving the forests. But the law does not work that way. Many of the voices of dissent can be found in Clayoquot Mass Trials: Defending the Rainforest, published in 1994.³⁰⁰

In the years since the Meares Island crisis and its legal resolution in the form of an injunction against logging there, many legal decisions have been made in Canada, and particularly British Columbia, that made clear not only the existence of Aboriginal title and rights in British Columbia but also the enlargement of those rights.

Calder (1973) did not demonstrate the non-existence of Aboriginal title and rights; rather, on a procedural technicality, the possibility of Aboriginal title was kept alive. Twenty-four years later, in Delgamuukw, reference to Indigenous laws and land tenure systems in proving Aboriginal title signalled the expansion within Canada of recognition for Indian legal traditions and control of lands and resources. In Guerin, 1984, the Supreme Court of Canada’s ruling was that the Government of Canada had a fiduciary obligation—a responsibility to protect Native interests—that must be exercised. As these cases accumulated, Native oral traditions obtained sanctification and acceptance as evidence. The Tsilhqot’ín decision (2008), a triumph for David Rosenberg, showed that the Tsilhqot’ín Nation had proven Aboriginal title to lands it claimed in the Chilcotin; all the same, the court did not grant a declaration of Aboriginal title due to technicalities in the pleadings.³⁰¹ That case did not “change everything,” as has widely been proclaimed by students of Indian law. As in Meares Island, Aboriginal title and rights have still to be defined fully. The files are incomplete; new cases are bound to appear.

Meares Island, as a judicial case, ranks at or near the top in all these cases being fought in and out of the courts in British Columbia and Ottawa. British Columbia became the key battleground by virtue of the fact that the Government of British Columbia had so long denied Aboriginal title (whereas Canada, following British policy, had always recognized Aboriginal title and rights). One might say this was a battle of the Crowns in regard to Indian rights and Aboriginal title. BC premiers and their cabinets remained resolved not to back down from their position, denying Aboriginal title in non-treaty areas. But signs of change existed: for instance, by fall 1990, Premier Bill Vander Zalm announced that the British Columbia government would commence negotiations with First Nations, still without acknowledging Aboriginal title. Meares Island remains a case in which the matter of Aboriginal title still has to be demonstrated—and that will mean in a court of law. Meanwhile, the injunction remains in place. And half a victory is better than no victory at all. Half a victory means permanent results.

The work of the expert researchers in interrelated fields had been magnificent, setting new standards under legal guidance, and probing critical questions about the persistence of Aboriginal use and Aboriginal claims to the island. Critical to the case was the undeniable fact that the Tla-o-qui-aht and Ahousaht had not been swept aside by history; rather, they were still in existence, their lineage definable and demonstrable by the facts. They had not lost their language or their places of occupation. They had not been conquered. They still retained Indigenous means of control and polity.

What can I say about my own modest contribution to this progression of Meares Island’s history? To my satisfaction, I later learned from opposition lawyers, defending the government’s position during the trial, that my report had been influential, even conclusive, in changing Victoria’s hard position—the old policy and the old battle cry that all the lands of British Columbia belong to all the people. I had laid bare the history in my 156-page factum The Documentary History of the Ahousaht, Clayoquot and Kelsemat Interests in Meares Island (filed, Vancouver Court. 1991).

Here is my concluding paragraph, and I am glad to include it here, for it never was publicized at the time:

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The historical facts as presented in this report do not lend credence to the correctness of the Province’s position. Rather they suggest usurpation of aboriginal rights in land and resources by the Province and the latter’s complete denial of the same. The Crown’s granting a lease of land for timber use and extraction without consent of aboriginal possessors of such resources or rights thereunto, by treaty or otherwise, is historically in contravention to the pronounced policies of the British government during the colonial period, to the actions and intention of Governor James Douglas during the period, and to the successive policies and principles of Canadian Indian administration, which is rooted in the policies of the British Imperial Government.

"

What is clear, in repetition, is that in preparation for trial in the Meares Island case, the legal and scholarly research done by our team had been thorough and impeccable, and the documentary presentations certain. Further, the arguments had been made articulately, with precision and without acrimony. Moreover, it had opened the way for the Native claims of other big cases, notably Delgamuukw and Tsilhqot’ín. Nonetheless, courts have made clear that claims to Aboriginal title and rights still have to be defined by court action. That is the process and the way forward. Justices Seaton and Macfarlane called for treaty-making discussions in such cases as Meares Island. This, too, was a change. The judges were calling for wawa—the necessity to talk issues through and come to accommodations. Blockades and fire bombings had no future, and strong police action, like what had happened at the Clayoquot barricades in 1993, could be expected for the future.

Meares Island had the advantage of being island-specific—in other words, the seas were its borders—whereas other cases deal with larger territories and sometimes competing Native neighbours.

Legal interpretations and textbooks talk about the current state of affairs with regards to Aboriginal title recognition and other rights as a matter for “reconciliation,” the current Canadian term. In fact, what is at work is “accommodation” to cultural differences and partnerships on account of the recognition of differences. “Reconciliation” is an old term of colonization and decolonization, but equality and accommodation demonstrate that the parties involved recognize what they have in common and what they can do to solve problems. The public expects that Aboriginal groups and governments and corporations will talk matters out—and come to a resolution on seemingly intractable matters of difference. It took a court case and an injunction to resolve what should have been settled out of court, without threat of violence and fear of incarceration.

But court cases there will be, in spite of the extraordinary expense involved. In a very definite and unique way, Meares Island was the great example of this, and it marked the path for future solutions in Indigenous matters. It is hazardous to exaggerate its importance, but it would be an error to omit its significance in the history of the Province of British Columbia. In its own special and unique way, Meares Island as a case in law has a symmetry and a dignity, a cause and effect, and a suitable resolution: that is enough to make it a complete story with a sensible and happy resolution. All that remains now, in this recounting, is to draw the loose ends together, to gather some details about what transpired next, and to examine the matter as a chapter in the history of British Columbia and of the west coast of Vancouver Island.

Struggles for the Clayoquot rainforest are intrinsically linked to the Meares Island case. In fact, it drew the world’s attention to the struggle for Aboriginal rights and control. “Clayoquot Sound,” Robert F. Kennedy Jr. wrote at the time of the 1993 roadblock and mass trial, “has become the flashpoint in one of the defining environmental battles of our time. In Clayoquot, the fight to save one thousand-year-old cedars and hemlocks intertwines with the aboriginal peoples’ struggle to control traditional lands and their economic destiny.” As environmentalists and Indigenous nations were working to reconcile their respective visions, logging on a large-scale industrial basis continued. “Meanwhile,” noted Kennedy, “a provincial government charged with protecting the public interest stands paralyzed between its idealism and its own giant stake in the promise of instant profits.” It was the Nuu-chah-nulth, and particularly Moses Martin and the Tla-o-qui-aht, backed by environmentalists, who, in Kennedy’s words, “won the first beachhead a decade ago on Meares Island by repelling MacMillan Bloedel’s menacing flotilla of loggers, grapplers, and chainsaws. The ensuing legal battle produced a historic court injunction prohibiting logging on Meares until the rightful ownership of the island is established. This was the first combined victory against the logging industry’s political and industrial juggernaut.”³⁰²