On November 18, 2004, the Supreme Court of Canada released its long-awaited decision in the Haida Nation case, together with its judgment in the Taku River Tlingit First Nation case. The Court heard the cases on March 24 and 25, 2004. The Court ruled on the Haida Nation’s challenge of the Province’s refusal to recognize Aboriginal Rights and Title when replacing a tree farm licence (“TFL”) and approving its transfer. The Court held that the Crown owed a legally enforceable duty to the Haida to consult and accommodate prior to replacing and transferring Tree Farm Licence 39.

The Haida are the indigenous people of the North Pacific Islands called Haida Gwaii (also known as the “Queen Charlotte Islands”) and the Kaiganee Archipelago in Alaska. The sustaining role of old-growth forests to Haida culture is renowned, through the prolific public nature of Haida art, totem poles and canoes. The Haida have long been voicing concerns about industrial logging in Haida Gwaii and the effect of this logging on the forest ecosystems and old-growth cedar. The Haida share these concerns with local people of Haida Gwaii.

Block 6 of TFL 39 grants an exclusive right to log and manage the forests on one quarter of the land- base of Haida Gwaii. This licence has contributed to the liquidation of large amounts of the old-growth forests of Haida Gwaii, as its licence area is in the “heartland” of Haida Gwaii, containing the richest forests.  These forests sustain not only Haida culture, but a multitude of biodiversity unique to Haida Gwaii. The Haida Nation began this litigation to protect these magnificent forests and ecosystems and to sustain Haida culture for future generations.

Legal Background

Old growth cedar continues to be removed, and targeted, from Haida Gwaii at excessive rates, while the lands and people suffer the harm and others far removed from Haida Gwaii, reap the majority of economic benefits.

• Between 1988 and 2002, about 14 million cubic metres was removed from TFL 39 with an estimated market value of $1.4 billion, and estimated stumpage paid to the Province of $256 million.
• In addition, throughout the rest of Haida Gwaii from 1988 to 2001, about 23 million cubic metres of trees have been logged, with an estimated market value of $2.4 million and $417 million of stumpage paid to the Province.
  

  _{Statistics courtesy of Gowgaia Institute.}
  

Clearly, the history of logging in Haida Gwaii has been one of plunder.

In 1997, the Supreme Court of Canada decision in Delgamuukw confirmed the existence of Aboriginal Title in B.C. and rejected the Province’s “blanket extinguishment” arguments (arguments that there is no longer Aboriginal Title in British Columbia). Aboriginal Peoples and others envisioned big changes in the relationship between Aboriginal Peoples and the Crown. The Province’s response, however, was to emphasize the fact that no First Nations have “proven” the full extent of their Aboriginal Title and Rights in the courts. The Province maintained that it had no legally enforceable obligations to protect rights that have not been litigated or negotiated.

The Court in Delgamuukw strongly encouraged matters to be resolved through negotiations, and urged the Crown to consult with First Nations. However, the Province refused to consult with the Haida when it replaced TFL 39 in 1995 and 2000.  It maintained that it did not have an obligation to consult regarding such decisions.  The Haida raised the replacements of TFL 39 at treaty negotiations, but the Province refused to include this matter in interim treaty negotiations. The Province also refused to consult when it consented to the transfer of TFL 39 from MacMillan Bloedel to Weyerhaeuser in 1999.

Without any other means to address these concerns, the Haida challenged TFL 39 in 1995. In those legal proceedings, the Court of Appeal held that if established, the Haida Nations' Aboriginal Title would constitute an “encumbrance” (a legal interest) on the trees and lands in TFL 39. Under the Forest Act, a TFL can only include lands that are not encumbered.

This Litigation

Despite the direction from the Court, the Province again replaced the TFL in 2000 without consulting. The Haida Nation again requested consultation and pursued interim treaty negotations to address this replacement and the 1999 transfer, but to no avail. The Haida began this litigation in 2000.

B.C. Supreme Court
The B.C. Supreme Court found that the Haida have a strong case of Aboriginal Rights and Title which the Province was, or should have been, aware of. The Court also found that TFL 39 affects the Aboriginal Rights and Title of the Haida people, but held that the Province had a moral and not a legal duty to consult and accommodate prior to proof of Aboriginal Rights. The Court found as a fact that the Province did not consult the Haida.

B.C. Court of Appeal
In 2002, the B.C. Court of Appeal held that both the Province and Weyerhaeuser had breached a legally enforceable duty to consult and to seek accommodation with the Haida before a court determination about the nature and extent of Aboriginal Rights and Title. The Court could have overturned the replacement licence as requested by the Haida, but chose not to because of the claimed potential economic consequences to Weyerhaeuser and others. Because the TFL remains in place while the parties engage in consultation and accommodation efforts, the Court left it open to the parties to go before a judge of the Supreme Court of British Columbia to seek further orders as necessary.  As a result of this decision, the Province changed its consultation policy to acknowledge the need to consult prior to proof of Aboriginal Rights and Title.

The Supreme Court of Canada
The Supreme Court of Canada upheld the Province’s duty of consultation, declaring “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 Court overturned Weyerhaeuser’s duty of consultation however, saying “the ultimate legal responsibility for consultation and accommodation rests with the Crown.”

This means that the Province has a legally enforceable duty to consult Aboriginal Peoples with respect to proposed developments where Aboriginal Rights or Title are asserted, but not yet proven. The extent of the Province’s duty is proportionate to the strength of the Aboriginal claim, and to the seriousness of the impact on the Aboriginal Rights asserted. For further information about this decision, see EAGLE’s Case Summary.

The Supreme Court of Canada confirmed the Province’s duty of consultation, and acknowledged that “If consultation is to be meaningful, it must take place at the stage of granting or renewing Tree Farm Licences.” In our view, meaningful consultation in our case requires that the Haida be involved in decision-making at the strategic planning level, so that TFL 39 is looked after in a way that is respectful of the Haida Nation’s concerns. The Haida are committed to ensuring the long-term sustainability of Haida Gwaii’s forests and economy, and are currently pursuing an Aboriginal Title case to protect the land and surrounding waters of Haida Gwaii.

_{EAGLE was assisted by Mandell Pinder and the Gowgaia Institute in bringing this ligitation.}