The Grand Council of the Crees

Haida Nation v. British Columbia (Minister of Forests)

A SUMMARY

Posted: 2004-11-18

On November 18, 2004, the Supreme Court of Canada rendered its decision in the case of Haida Nation v. British Columbia (Minister of Forests), [2004] S.C.J. No. 70, 2004 SCC 73, online: QL (S.C.C.). The following is a brief summary of the Court's decision.

FACTS:

For over 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the surrounding waters. The islands of Haida Gwaii are heavily forested. Since time immemorial, cedar has played a central role in the economy and culture of the Haida people. However, this title of the Haida is still being considered in the claims process and has not yet been legally recognized. The Province of British Columbia issued a Tree Farm License (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an area of Haida Gwaii designated as Block 6.

In 1981, 1995, and 2000 the Minister of Forests replaced T.F.L. 39, and in 1999, the Minister approved a transfer of T.F.L. 39 to the forestry firm, Weyerhaeuser Co. The Haida challenged in court these replacements and the transfer, which were made without their consent and, since at least 1994, over their objections. They asked that the replacements and transfer be set aside.

The stakes are huge. The Haida argue that absent consultation and accommodation, they will win their title but find themselves deprived of forests that are vital to their economy and their culture.

The government, in turn, argues that it has the right and responsibility to manage the forest resource for the good of all British Columbians, and that until the Haida people formally prove their claim, they have no legal right to be consulted or have their needs and interests accommodated.

The chambers judge dismissed the petition, but found that the government had a moral, not a legal, duty to negotiate with the Haida. The Court of Appeal reversed the decision, declaring that both the government and Weyerhaeuser Co. have a duty to consult with and accommodate the Haida with respect to harvesting timber from Block 6.

 

DECISION OF SUPREME COURT OF CANADA:

The Court held that the appeal of the Crown (Province of British Columbia) should be dismissed. The appeal of the forestry firm, Weyerhaeuser Co., should be allowed.

Freedom to pursue available remedies

While it is open to the Haida to seek an interlocutory injunction, they are not confined to that remedy. This type of injunction, which would apply as a "stop-gap remedy" during the actual court case, may fail to adequately take account of the interests of the Haida prior to a final ruling by the court. If the Haida can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies.

Government duty to "consult" and "accommodate"

The B.C. government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples. This principle must be understood generously. Aboriginal rights and title - that are asserted but not proven - are not sufficiently specific for the honour of the Crown to require that the Crown act as a fiduciary. [As a "fiduciary", the government would have an obligation to act in the best interests of the Haida people.] At the same time, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.

The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of "sharp dealing". Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982.

The duty to "consult" and "accommodate" is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty by the Crown and continues beyond the resolution of formal claims. The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Consultation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to [or natural consequence of] the honourable process of reconciliation that s. 35 of the Constitution Act, 1982 demands.

The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. The Crown is not under a duty to reach an agreement. Rather, the commitment is to a meaningful process of consultation in good faith. The content of the duty varies with the circumstances and each case must be approached individually and flexibly.

The effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government's proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement. This should take place pending final resolution of the underlying claim. Accommodation may best be achieved through consultation and negotiation.

Duty to consult may require Aboriginal consent on "very serious" issues (but only if rights are established)

The Court's seminal decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 168, in the context of a claim for title to land and resources, confirmed and expanded on the duty to consult, suggesting the content of the duty varied with the circumstances: from a minimum "duty to discuss important decisions" where the "breach is less serious or relatively minor"; through the "significantly deeper than mere consultation" that is required in "most cases"; to "full consent of [the] aboriginal nation ... " on very serious issues. These words apply as much to unresolved claims as to intrusions on settled claims.

The process of consultation and possible accommodation does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal "consent" spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.

Must determine what is required to maintain honour of the Crown

The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake. The effect of good faith consultation may be to reveal a duty to accommodate. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

Obligation of third parties (forestry company)

Third parties cannot be held liable for failing to discharge the Crown's duty to consult and accommodate. The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown.

This does not mean, however, that third parties can never be liable to Aboriginal peoples. If they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they may be held legally liable.

Duty to consult and accommodate applies to Provincial, as well as Federal, government

Finally, the duty to consult and accommodate applies to the Provincial government (British Columbia), as well as to the Federal government. At the time of the Union, the Provinces took their interest in land subject to any interest other than that of the Province in the same. Since the duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty that pre-dated the Union, the Province took the lands subject to this duty.

The Crown's obligation to consult the Haida on the replacement of Tree Farm License (T.F.L.) 39 was engaged in this case. The Haida's claims to title and Aboriginal right to harvest red cedar were supported by a good prima facie case. The Province knew that the potential Aboriginal rights and title applied to Block 6 and could be affected by the decision to replace T.F.L 39. T.F.L. decisions reflect strategic planning for utilization of the resource and may have potentially serious impacts on Aboriginal rights and titles. If consultation is to be meaningful, it must take place at the stage of granting or renewing T.F.L.s.

Was a duty to accommodate owed by the Province in this particular case?

Did the Crown's duty go beyond consultation on T.F.L. decisions, to accommodation? The Court concluded that it cannot know, on the facts here, whether consultation would have led to a need for accommodation. However, the strength of the case for both the Haida title and the Haida right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may well require significant accommodation to preserve the Haida interest pending resolution of their claims.