What is the significance of this decision?

The Supreme Court of Canada released its unanimous decision in Haida Nation v. British Columbia and Weyerhaeuser on November 18, 2004.  The Court held in favour of the Haida that the Crown has a duty to consult the Haida regarding Tree Farm Licence 39 (TFL 39), including replacement and transfer decisions. 

The decision is an important one.  It finally puts an end to government’s position that it can ignore Aboriginal Title and Rights until proven.  Government must always consult.  The Province may be required to change their actions, policies and laws to accommodate Aboriginal Peoples.  The decision makes it clear that the duty to consult is on government, and that government cannot delegate that duty to companies.  The Court confirmed that the government must consult at the strategic level, and not just the operational level (e.g., on transfers and replacements, and not just cutting permits or forest stewardship plans).  The court held that legislative change is a tool for accommodation, so that existing legislation cannot be relied on by government representatives to limit accommodation.

How does the decision affect other First Nations?

The Court provided guidance on how the Province must fulfill its duty to consult First Nations.  The Court confirmed that Aboriginal Peoples do not have to prove their claims before the government’s duty of consultation arises.  The government cannot act unilaterally in making decisions that may affect First Nations.  The Province may be required to make changes to its proposed action based on information obtained through consultation.   The Crown has an enforceable duty to act honourably, and has had this duty since the assertion of sovereignty.  It will continue to have the duty through the resolution of claims and the implementation of treaties.

The Court acknowledged that the Aboriginal Peoples of Canada were never conquered.  If the Province has knowledge of the potential existence of an Aboriginal Right or Title and contemplates conduct that might adversely affect those rights, the Province must consult, and may have to accommodate. The scope of consultation depends on the strength of the case and potential seriousness of the impact.

The decision confirmed that the government must consult First Nations on strategic level decisions.  The Court instructed that strong Aboriginal Rights and Title claims may require “formal participation in the decision-making process, and provision of written reasons to show that Aboriginal Peoples' concerns were considered and to reveal the impact they had on the decision.”

How does the decision affect treaty negotiations?

With respect to treaty negotiations, the Court held that the honour of the Crown (which is the source of the obligation to consult and accommodate) requires government to negotiate treaties that recognize Aboriginal Rights and Title.  In Delgamuukw, the Court held that the Crown “is under a moral, if not a legal duty to enter into and conduct negotiations in good faith.  The Haida case confirms that this is a legal duty.  The decision acknowledges Aboriginal sovereignty as a principle of treaty negotiation: “Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty.”

Some people have expressed disappointment with the decision.  Did the Haida lose?

No.  The Supreme Court of Canada affirmed that the government has the ultimate responsibility to consult and accommodate Aboriginal Peoples before Aboriginal Title and Rights are proven.  In the Haida decision, the Court agreed with the Haida that the Province had breached its duty to consult when the Ministry of Forests renewed (replaced) and transferred TFL 39 without consulting the Haida.  The Haida did not ask for a duty to be imposed on Weyerhaeuser when they brought the litigation.  The court has confirmed that the province cannot legislate out of its duty by giving companies increased power and decision making roles regarding land and resources.  Rather, the court held that the province's legislative authority is a tool for fulfulling its obligation to Aboriginal Peoples'.

The Court did not put a duty on Weyerhaeuser to consult, because the government has the power and the duty to ensure that Aboriginal Peoples are consulted regarding decisions that could affect Aboriginal Rights and Title.  Weyerhaeuser’s Tree Farm Licence still suffers a legal defect because the Province did not consult.  It is still open to the Haida to seek to overturn (quash) the licence.

The Supreme Court of Canada held that Aboriginal Peoples do not have a veto under the duty of consultation.  The Haida were not seeking a veto, and did not seek to prove their Aboriginal Rights or Title in this case. The Haida were seeking proper consultation and accommodation of their asserted Rights and Title.  The Haida have commenced litigation to prove their Title and Rights.

The Haida want to be involved in decision-making regarding forestry on Haida Gwaii to ensure that Haida concerns are addressed.  The Supreme Court of Canada found that the Haida should be involved in decision-making at the strategic level. 

Why don’t the Haida have to prove their rights before affecting land and resource use?

Aboriginal Peoples have lived in what is now known as British Columbia since long before Europeans arrived, according to our own laws and governance systems. During colonial times, international and imperial laws (also known as “colonial laws” – laws that evolved from customs followed by the British Crown and Aboriginal Peoples in their dealings with each other in the seventeenth and eighteenth centuries) governed Europeans’ interactions with Aboriginal Peoples. These laws were based on the “doctrine of Aboriginal Rights”, or the “doctrine of continuity”. Under this doctrine, when a European Nation asserted sovereignty over lands that were already under the sovereignty of Aboriginal Peoples, the Europeans did not become the owners of those lands. Aboriginal Peoples were entitled to keep possession of their lands, under their own laws and customs. The European powers could acquire or purchase lands from the Aboriginal Peoples, but the governments of the colonies were forbidden to grant to settlers Aboriginal lands unless they had first been purchased by the Crown.  In British Columbia, governments have claimed title over Aboriginal Peoples' lands and granted interest to third parties, in breach of this doctrine.

The rights protected by s. 35 are a modern expression of rights that pre-existed the arrival of Europeans in B.C. The doctrine of Aboriginal Rights would be turned on its head if section 35 of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal Rights, were read to mean that no rights need be recognized and affirmed until their full nature and extent are proven in the courts.

In the Haida decision, the Supreme Court of Canada acknowledges that the Aboriginal Peoples of Canada were never conquered.  The Court also recognizes that at the time of confederation, the Province of B.C. took its interest in British Columbia subject to other interests in the land, including Aboriginal interests.  So, the Province’s interest in the land is subject to Aboriginal interests in land, and, in this case the court held, that the Province’s interest is subject to the duty to consult and accommodate.

Does the decision create special rights?

No. Section 35(1) of the Constitution states that “[t]he existing Aboriginal and Treaty Rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.” The rights of Aboriginal Peoples are constitutionally entrenched.

Previous decisions of the Supreme Court of Canada have acknowledged the government’s constitutional obligations to Aboriginal Peoples. The decision does not create any special rights or unfair advantages. Instead, it upholds the Constitution and previous decisions of the Supreme Court of Canada and directs the province to stop denying the existence of Aboriginal Rights and to protect them.

Does the decision create uncertainty?

The decision does not increase the level of uncertainty, and in fact should alleviate the uncertainty caused by the Province’s refusal to recognize the existence of Aboriginal Rights and Title. The Province, and other government interveners, argued before the Supreme Court of Canada that they should be allowed to take a “risk management” approach to consultation. A risk management approach allows government to decide whether or not to consult. If government fails to consult and Aboriginal Rights are later proven, then the courts can overturn the government’s decision. A risk management approach will not create certainty for anyone. The Supreme Court of Canada decision creates certainty by clarifying that government must consult and accommodate, and that it must amend legislation and/or change its proposed course of action if necessary to achieve accommodation.

Is the decision detrimental to the economy?

No. The decision helps the economy by providing much needed clarification of the government's duties to Aboriginal Peoples.

The Haida have been working hard with local communities on Haida Gwaii to ensure ecological, economic, social and cultural sustainability over the next five generations, not just the next five years. The Haida filed evidence in court to show that there are better ways to engage in forestry that will provide long term benefits for everyone. The logging community of Port Clements intervened before the Supreme Court of Canada in support of the Haida.

Will consultation be time-consuming and expensive?

Not if consultation is approached in a spirit of cooperation. The Court directed that both parties must engage in consultation in good faith.  Currently, many Aboriginal Peoples become frustrated after they spend a lot of time and money participating in consultations, only to find out that their concerns will have no effect on the end result or decision.  The Supreme Court of Canada encouraged the involvement of Aboriginal Peoples at the early stages of decision-making processes.  The Court provided clarity as to the duties on government and Aboriginal Peoples in the consultation process.  The Court also advocated the creation of consultation tribunals.  The Court’s instructions will help to facilitate consultation.

Is the Province consulting with the Haida or accommodating Haida concerns?

Up to now, the Province has not engaged in meaningful consultation with the Haida that leads to accommodation at the strategic level.  Before the decision, consultation was generally confined to the operational level and too often was a mere formality prior to proceeding with “business as usual.”

The Court has sent a clear message that the Province cannot make unilateral decisions about the land.  The Court confirmed the lower court decisions, that consultation at the operational level is insufficient to protect Aboriginal Title and Rights.  The Supreme Court of Canada said that to be meaningful, consultation must occur at the strategic level and early in planning (e.g., in issuing and replacing tenures or setting allowable annual cuts).  The Court acknowledged that consultation is not meaningful at the operational level (e.g., the actual logging or road building stage) and held that the Province did not consult with, or accommodate the concerns of the Haida.

Don’t provincial policies already address “accommodation”?

The Haida do not believe that the current provincial approach is sufficient or that it is in alignment with existing caselaw.  The Province has insisted on formulaic approaches to accommodation that do not adequately address the unique concerns of diverse First Nations.  Thus far, the Province’s accommodation approach has addressed only economic interests and not protection of Aboriginal Rights and Title.  Accommodation requires that the Haida have some real influence on what happens to the lands and resources of Haida Gwaii.

How much consultation is required?

The amount of consultation required is proportionate to the strength of the Aboriginal claim and the potential impact on the Right or Title claimed.  At one end of the consultation spectrum lie cases where the claim to Title is weak, the Aboriginal Right limited, or the potential for infringement minor.  In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues in response to the notice.  At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal Peoples, and the risk of non-compensable damage is high.  In such cases, deep consultation aimed at finding a satisfactory interim solution, may be required.  This may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision.

There is no duty to agree.  Aboriginal claimants do not have a veto, but where Aboriginal Rights or Title is proven, and the impact will be severe, Aboriginal consent may be required.

What duties does the Crown have in consulting?

The Crown has the ultimate legal responsibility for consultation and accommodation.  It cannot delegate this responsibility to companies as it has attempted to do.  The Crown must act honourably in balancing societal and Aboriginal interests prior to making decisions that may affect Aboriginal Rights and Title.  The Crown must be prepared to make changes to its proposed action based on information obtained through consultation.  The Crown cannot cavalierly run roughshod over Aboriginal interests.  The Crown cannot unilaterally exploit a claimed resource during the process of proving or resolving Aboriginal claims to that resource, as that would deprive the Aboriginal claimants of some or all of the benefit of the resource.  Sharp dealing is not permitted.  The Crown may not simply adopt an unstructured discretionary administrative regime that risks infringing Aboriginal Rights in a substantial number of applications in the absence of some explicit guidance.

What duties do Aboriginals have in consulting?

Aboriginal Peoples must engage in consultation in good faith.  Aboriginal Peoples should outline their claims with clarity, focusing on the scope and nature of the Aboriginal Rights asserted and on the alleged infringements.  Aboriginal Peoples must not frustrate the Crown’s reasonable good faith attempts at consultation, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached.

Why did the Haida have to go to court?

The Haida have been trying to address these issues for 200 years – through commissions in the early 1900s, the Comprehensive Claims Process, the BC Treaty Process, and on an ongoing basis in response to specific decisions.

The Province did not believe it had any obligation to consult or accommodate the Haida in any decisions it made.  In the face of this position, the Haida Nation was compelled to seek legal remedies from the courts. 

What is at issue in the Haida case?

For many years, the Haida Nation has made their concerns known to the Province and forest industry operating on Haida Gwaii. The Haida are concerned that industrial logging will be detrimental to the ecological integrity of Haida Gwaii, Haida culture and the forests of Haida Gwaii which contain old growth cedar – an integral material in Haida culture. The Haida and non-Haida communities on Haida Gwaii have all agreed that the rate of cut is too high and that certain areas require permanent protection.

The case arose from the Haida Nation’s challenge of the Minister’s decisions to replace TFL 39 and to allow the TFL to be transferred from MacMillan Bloedel to Weyerhaeuser. TFL 39 grants Weyerhaeuser the exclusive right to log and manage the forests on one quarter of the land-base of Haida Gwaii.  The Haida brought this case because the Province refused to recognize that the Haida have Aboriginal Title and Rights that need to be taken into account before the Province makes decisions that affect the forests of Haida Gwaii.

Since first contact, the Haida have asserted Title over the entirety of Haida Gwaii, including TFL 39. Their Aboriginal Title claim is currently in the court system.

Why were the Haida and Taku cases heard together?

The Haida and Taku cases were heard together because they both address the issue whether the Crown has obligations to consult with Aboriginal Peoples when it makes decisions that could affect Aboriginal Rights and Title that have not been adjudicated by the courts.

Who supported the Haida and the Taku River Tlingit at the Supreme Court of Canada?

The First Nations Summit, the Union of BC Indian Chiefs, as well as the Dena Tha, Haisla, Squamish, Lax Kw’alaams, and Doig River Peoples.   The Village of Port Clements, a logging community on Haida Gwaii also intervened in support of the Haida.

Who opposed the Haida and the Taku River Tlingit?

British Columbia, Weyerhaeuser, and Redfern were directly opposing the Haida and Taku River Tlingit in the cases.

There were also a number of interveners including the governments of Canada, Quebec, Ontario, Nova Scotia, Saskatchewan and Alberta, the BC Cattleman’s Association, the Business Council of BC, the Aggregate Producers Association of British Columbia, BC Chamber of Commerce, the BC-Yukon Chamber of Mines, the Mining Association of BC, and the Council of Forest Industries among others.

What impact will the decision have on TFL 39?

The Supreme Court of Canada upheld the decision of the Court of Appeal, which held that TFL 39 suffers a legal defect due to the Province’s failure to consult prior to allowing the replacement and transfer.  The government must consult the Haida on TFL 39.  The Haida may have to pursue further litigation if the Province refuses to consult and accommodate the Haida.  The TFL itself could still be overturned if the Province does not rectify its failure to consult and accommodate.

The Province has passed legislation that seems to be inconsistent with its duties.  For example, the Province has changed its forestry legislation so that companies are no longer required to obtain the consent of the Minister of Forests when transferring an interest in a tree farm licence.  The Supreme Court of Canada made it clear that the Province had breached its duty of consultation by transferring TFL 39 without first consulting the Haida.  The decision may require changes to the TFL, and/or changes to the legislation that governs TFL 39 and other provincial forestry tenures.

There seem to be a number of other cases in the court system involving the Haida and the Province and Weyerhaeuser. Why?

Part of the remedy from the BC Court of Appeal was that the Parties could bring any issues that arise during subsequent accommodation and negotiations to the BC Supreme Court for determination or clarification.  Since the BC Court of Appeal decision, a number of issues have arisen between the Haida, the Province and Weyerhaeuser.  The Parties have brought these issues to be resolved by the BC Supreme Court.

Does the decision affect the title case?

It does not directly affect the title case.  It suggests that the title case is essential to give ultimate effect to Haida Title.  It encourages consultation and accommodation to preserve the integrity of Haida Gwaii until the Haida prove Title.

What does the decision mean for treaty rights?

The Court did not address treaty rights directly.  The Court will be hearing the Mikisew case in March 2005, and that case should resolve issues regarding consultation and accommodation of treaty rights.

However, the decision does suggest that the principles of the Haida decision should apply to treaty rights.  The court states that the Crown must act honourably in all its dealings with Aboriginal Peoples, including the implementation and interpretation of treaties.  The Court restated what it has held in the past – the Crown must act with honour and integrity, and must avoid any appearance of “sharp dealing”.

The court refers to Halfway (a decision of the BC Court of Appeal regarding Treaty 8), and suggests that the Crown has a duty to consult when it has knowledge of the potential existence of a treaty right and contemplates conduct that might adversely affect it.  The Court of Appeal in Mikisew held that the lands are "taken up" within the meaning of the treaty, and therefore there is no obligation to consult as there are no rights anymore on those lands.  The decision in Haida suggests that Mikisew should be overturned, as this is not an honourable interpretation of the treaty rights.