Haida TFL 39 Case
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On November 18, 2004, the Supreme Court of Canada released its long-awaited decision in Haida Nation v. British Columbia and Weyerhaeuser (2004 SCC 73). The Haida Nation challenged the Minster of Forests' decision to replace a Tree Farm Licence (TFL 39), an exclusive forestry tenure that covers one quarter of the land base of Haida Gwaii, the homeland of the Haida Nation. Logging in TFL 39 has exceeded sustainable rates for years and old-growth cedar, an integral material in Haida culture, is becoming extremely rare. The streams that support salmon and other fish have also been harmed through these logging activities.
The Supreme Court of Canada affirmed that the Haida have a good case in support of Aboriginal Title and a strong case for the Aboriginal Right to harvest red cedar. Therefore, the Court held that the Province has a legally enforceable duty to consult the Haida with respect to TFL 39 and that the Province failed to fulfill this duty when replacing and approving a transfer of TFL 39. The Haida are not required to prove their Rights or Title in court before the duty of consultation arises: a key clarification of the law. The court also held that the Honour of the Crown requires interim protection of Aboriginal interests pending proof or resolution.
The Court found that Weyerhaeuser does not have a duty to consult the Haida, because "the ultimate responsibility for consultation and accommodation rests with the Crown", but did hold that there are some circumstances where third parties could be liable to Aboriginal Peoples.
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