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In the Supreme Court of British Columbia

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In the Supreme Court of British Columbia No. 90 0913 Victoria Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ROGER WILLIAM, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and on behalf of all other members of the Tsilhqot’in Nation PLAINTIFF AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, THE REGIONAL MANAGER OF THE CARIBOO FOREST REGION and THE ATTORNEY GENERAL OF CANADA DEFENDANTS PLAINTIFF’ S REPLY APPENDIX 3 PLAINTIFF’S RESPONSE TO PROVINCE’S SUBMISSIONS IN B.C.’S APPENDIX 4: LAND USE PLANNING FOR THE CLAIM AREA, INCLUDING EFFORTS TO ENGAGE THE TSILHQOT’IN AND THE XENI IN PLANNING PROCESSES WOODWARD & ATTORNEY GENERAL DEPARTMENT OF COMPANY OF BRITISH COLUMBIA JUSTICE, CANADA Barristers and Solicitors Civil Litigation Section Aboriginal Law Section 844 Courtney Street, 2nd Floor 3RD Floor, 1405 Douglas Street 900 – 840 Howe Street Victoria, BC V8W 1C4 Victoria, BC V8W 9J5 Vancouver, B.C. V6Z 2S9 Solicitors for the Plaintiff Solicitor for the Defendants, Her Solicitor for the Defendant, Majesty the Queen in the Right of The Attorney General of Canada the Province of British Columbia and the Manager of the Cariboo Forest Region ROSENBERG & BORDEN LADNER ROSENBERG GERVAIS LLP Barristers & Solicitors Barristers & Solicitors 671D Market Hill Road 1200 Waterfront Centre, 200 Vancouver, BC V5Z 4B5 Burrard Street Solicitors for the Plaintiff Vancouver, BC V7X 1T2 Solicitor for the Defendants, Her Majesty the Queen in the Right of the Province of British Columbia and the Manager of the Cariboo Forest Region Exhibit 43 Photograph 61 Plaintiff’s Reply Appendix 3 Plaintiff’s Response to Province’s Submissions In B.C.’s Appendix 4: Land Use Planning for the Claim Area, Including Efforts to Engage the Tsilhqot’in and the Xeni in Planning Processes Plaintiff’s Response to Province’s Submissions............................................................................. 3 Section A.1.................................................................................................................................. 3 British Columbia’s denial of the existence of Aboriginal title and rights, prior to 1991........ 3 British Columbia’s fiduciary duty policy regarding Aboriginal sustenance and cultural uses - 1991 to 1994 ........................................................................................................... 18 British Columbia’s first Aboriginal Rights policy, 1995...................................................... 20 British Columbia’s first Aboriginal title policy, September 1998........................................ 21 Ministry of Forests’ first consultation policy with respect to Higher-level Strategic Decisions, May 2003 ................................................................................................ 22 No Accommodation or Compensation of Aboriginal Title .................................................. 24 No Delineation of Aboriginal title and rights ....................................................................... 25 Section A.2................................................................................................................................ 26 Treaty Negotiations – British Columbia Treaty Process ...................................................... 26 Section A.3................................................................................................................................ 29 Lack of Tsilhqot’in Nation and Xeni Gwet’in Capacity to Consult ..................................... 29 Negotiations with respect to Consultation protocol or process with the Tsilhqot’in Nation including the Xeni Gwet’in, post-2000..................................................................... 39 Section B.1................................................................................................................................ 43 British Columbia Land Use Planning Processes for the Claim Area.................................... 43 Section B.2................................................................................................................................ 44 Commission on Resources and the Environment (CORE) and Cariboo-Chilcotin Land Use Plan (CCLUP) Planning Processes ........................................................................... 44 Commission on Resources and the Environment (‘CORE’) Process, .................................. 49 Cariboo Chilcotin Land Use Plan (“CCLUP”) ..................................................................... 55 No Alternative Forum or Mechanisms to address Aboriginal interests in the CCLUP........ 60 CCLUP – 90 day Implementation Process, Final Report, February 1995............................ 63 Integration Report and Timber Targets, April 1998 ............................................................. 66 Chilcotin Sub-Regional Planning Process ............................................................................ 68 Section B.3................................................................................................................................ 73 Tsuniah Lake Local Resource Use Plan (‘LRUP’)............................................................... 73 Section B.4................................................................................................................................ 76 Chilko Lake Planning Process .............................................................................................. 76 Section B.5................................................................................................................................ 82 Ts’yl-os Park Management ................................................................................................... 82 Section B.6................................................................................................................................ 84 Ts’yl-os and Nuntsi Parks..................................................................................................... 84 Section B.7................................................................................................................................ 85 Taseko Management Zone (‘TMZ’) Planning Process......................................................... 85 Section B.8................................................................................................................................ 90 Brittany Lake Forest Management Planning Process, 1992 to 1994 .................................... 90 1 Section B.9.............................................................................................................................. 127 Brittany Lake Strategic Operation Plan, 1995 to 1996 ....................................................... 127 Section B.10............................................................................................................................ 139 Forest development in the Brittany Triangle, 1997-1998................................................... 139 Section C.1.............................................................................................................................. 142 Memorandum of Understanding with the Tsilhqot’in Nation did not address Aboriginal title and rights or Shared Management of the Forest ..................................................... 142 Section C.2.............................................................................................................................. 143 No Interim Measures or Co-management/Shared Management of the Forests.................. 143 Aboriginal Title................................................................................................................... 155 Section C.3.............................................................................................................................. 156 Forest and Range Initiatives with First Nations.................................................................. 156 2 PLAINTIFF’S RESPONSE TO PROVINCE’S SUBMISSIONS Appendix 4: Land Use Planning for the Claim Area, Including Efforts to Engage the Tsilhqot’in and the Xeni in Planning Processes 1. Contrary to the Province’s assertions in Appendix 4, the Plaintiff submits that British Columbia has not met its burden of showing that it has consulted with the Tsilhqot’in and/or Xeni in its planning processes for forestry in the Claim Area. 2. The Plaintiff submits that British Columbia has never addressed Aboriginal title in its land use planning processes for the Claim Area; instead British Columbia asserted that Aboriginal title and rights must be dealt with in treaty negotiations. 3. British Columbia denied the very existence of Aboriginal title and rights until 1991. 4. The Plaintiff further submits that post 1991, British Columbia’s consultation policies set out by British Columbia in Appendix 4, at paragraphs 229 to 288, illustrate that British Columbia has maintained an impoverished view of its consultation obligation. It is important to note that these policies did not recognize or address Aboriginal title in forestry operational decisions until at the earliest 1999 (after this litigation was underway) and in strategic higher-level decisions for either Aboriginal title or rights until at the earliest 2002. Even after 1999 and 2002, although the Province has purported to respect aboriginal title, the actions of British Columbia have continued to make no allowance for accommodation of aboriginal title. SECTION A.1 British Columbia’s denial of the existence of Aboriginal
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