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 TFL 39,including replacement and transfer decisions.

In a significant clarification of the law, the Court rejected the government's argument that it does not have a legal duty to consult and accommodate Haida rights prior to final determination of the scope and content of the rights. The Court allowed Weyerhaeuser's appeal - the company does not have a duty to consult the Haida.

We summarize here in plain language the source of the Crown's duty, when the duty is triggered, the nature and content of the duty, the Court's decision regarding Weyerhaeuser, and the implications of this decision.

The Source of the Crown's Duty

The Court grounded the duty to consult in the honour of the Crown, and noted that the duty is a necessary part of an "honourable reconciliation process" demanded by s. 35 of the Constitution Act, 1982. The Crown must act honourably, and so cannot simply use resources "as it chooses," or "run roughshod over Aboriginal interests."

The Court notes that "Canada's Aboriginal peoples were here when Europeans came, and were never conquered." The honour of the Crown requires it to negotiate with Aboriginal Peoples to determine, recognize and respect Aboriginal Rights and Title. The Crown's duty to consult is related to the duty to negotiate treaties or other agreements with Aboriginal Peoples with respect to Aboriginal Rights and Title. The honour of the Crown may require consultation and accommodation to avoid harming Aboriginal interests while negotiations take place.

The Court rejected the Province's argument that the Haida should apply for an injunction if they want to protect their rights before proving them. Part of the reason for their rejection of the Province's argument is that the test for injunctions tends to favour jobs and revenue at the expense of Aboriginal interests.

What triggers the Crown's Duty?

The Crown must consult if it knows about the potential existence of an Aboriginal Right or Aboriginal Title when it is considering making a decision that could harm those rights.

The Court rejected the Province's argument that any duty to consult and accommodate should be confined to "operational" decisions - decisions that have an immediate on-the-ground impact, for example, approving cutting permits. Instead, the Court recognized that strategic level decisions, such as replacing tree farm licences, can have serious impacts on Aboriginal Rights and Title. The Court held that consultation on decisions such as cutting permits does not have enough effect on-the-ground and that consultation can only be meaningful if it takes place when granting or replacing tree farm licences. The Court held that measures and policies at the operational level "do not amount to and cannot substitute for consultation with respect to the decision to replace TFL 39 and the setting of the licence's terms and conditions."

In this case, the Province had a duty to consult. Here, the Province knew about the strength of the case for Aboriginal Title and Rights, when it was contemplating replacing and transferring the TFL. The Court held that continued logging of old growth forests, which are of limited supply, could adversely affect the Title and Rights of the Haida. The Court confirmed that the Haida claim of Aboriginal Title is sound, and the Haida Right to cedar is strong.

The Court rejected the Province's argument that any duty to consult and accommodate must belong to the federal government and not provincial governments. The Court notes that the Provinces' interests in land under Canada's Constitution are subject to Aboriginal Title and to the duty to consult and accommodate.

The Nature and Content of the Duty

While the Court held that the duty to consult and accommodate is not a "fiduciary duty", it held that the Crown must respect potential, unproven rights which are protected by s. 35(1). Government must consult in good faith and consultation must be meaningful.

Like the Court of Appeal, the Supreme Court of Canada held that the scope and content of the duty to consult and accommodate depends on the strength of the claim and the seriousness of the infringement. At a minimum, the Crown must initiate a meaningful process of consultation with good information exchange and the intention of "substantially addressing the concerns of Aboriginal Peoples".

If there is a strong case for Aboriginal Rights or Title and the potential impact is significant, government will have to take stronger steps to avoid harming the rights and to minimize the impact. Where the case is strong, the infringement is serious, and the damage cannot be compensated, the duty to consult can require "formal participation" by Aboriginal Peoples in the decision-making process. The Court also suggests that decision makers should give written reasons for the decisions that show how the final decision was changed to meaningfully address Aboriginal concerns.

Accommodation is part of an ongoing process of "fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution." The Court describes accommodation as "seeking a compromise" in an attempt to move towards reconciliation. Government has to address Aboriginal Peoples' concerns about infringements of their Rights and Title, but it does not have to reach agreement. Aboriginal Peoples do not have a veto prior to final proof of Aboriginal Title or Rights. Accommodation involves balancing interests. The government is subject to a standard of reasonableness in this balancing exercise.

The duty to accommodate can require the Crown to change its policies and legislation. The government's duty cannot be discharged by delegating it to Weyerhaeuser. We believe that this means that the Province must now amend its forestry legislation, so that it can assume back the management responsibilities that it passed over to industry after the B.C. Court of Appeal's decision in this case. It may also mean amending the federal government's Comprehensive Claims policy to align with this decision and other cases.

In this case, the Court held that consultation may lead to an obligation to accommodate the Haida. The Court suggests that significant accommodation would be necessary:

"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." [para. 77]

No Duty on Weyerhaeuser

The Court held that the duty to consult and accommodate is the Crown's alone, and that companies cannot be held responsible for failing to discharge the Crown's obligations. The duty can only fall to the Crown because it "flows from the Crown's assertion of sovereignty over lands and resources formerly held by Aboriginal Peoples". While the Crown can delegate procedural aspects of consultation to companies, it cannot delegate the honour of the Crown and so the Crown always has the legal responsibility to consult and accommodate.

The Court also held that it was not necessary to impose a duty on Weyerhaeuser as a remedy because the government has power to impose conditions on the company and to act honourably through the exercise of its legislative authority over provincial natural resources. Companies can, however still be liable to Aboriginal Peoples in some circumstances.

We need to recall that we did not seek this third party duty in our litigation, it was something that the Court of Appeal crafted in an attempt to balance the interests of all the parties prior to proof. However, without this industry duty, it remains to be determined whether strong claims of Title and Rights can be accommodated in the face of large, unsustainable developments which have wreaked havoc with Aboriginal Rights and Title for long periods of time.  Tenures granted without meaningful consultation and accommodation may be challenged in court.

Implications of the Decision

The decision is an important one since this case, and the Taku case, are the first cases to confirm that there is a duty to accommodate prior to proof of rights. It has implications for interim consultation and accommodation, and also for treaty negotiations.

Government cannot ignore Rights and Title prior to proof
The Supreme Court of Canada has finally put an end to the government's position that it can ignore Aboriginal Title and Rights until proven. Government must always consult, and will have to consider and make changes to its actions, policies and laws to accommodate strong cases of Aboriginal Title.

The decision also puts an end to the Province's arguments that only the federal government owes obligations to Aboriginal Peoples. The Court admonished the Province for assuming that it could "run roughshod" over Aboriginal Peoples' rights. The Province will now have no excuse for not taking Aboriginal Title and Rights seriously.

Legislation may have to be amended
The decision also makes clear that the duty is on government, and that government cannot avoid that duty by delegating its duty to industry. The duty to consult and accommodate may require government to amend legislation. "The government's legislative authority over provincial natural resources gives it a powerful tool with which to respond to its legal obligations." (para. 55). Clearly, government's legal obligations are not limited by its legislation, as is often their position in consultation and accommodation discussions. This means that the changes the Province has made to its forestry legislation, and possibly other laws, may be challenged if the Province relies on those laws to refuse to consult and accommodate.

Treaties should recognize Aboriginal Sovereignty
The judgment acknowledges Aboriginal sovereignty as a principle of treaty negotiation. "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." (Para. 20)

The decision acknowledges that the Provinces took their interest in land subject to "any Interest other than that of the Province in the same" (para. 59). In other words, the Province took its interest in the land subject to Aboriginal Title and the duty to consult arises prior to proof.

The Court notes that "Canada's Aboriginal Peoples were here when Europeans came, and were never conquered." (para. 25) Government must negotiate treaties that recognize (and not deny or extinguish) Aboriginal Rights and Title. "Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants' inherent rights." (para. 26)

Consultation is required at the strategic level
Government must consult on strategic level decisions, and not only at the operational level which to date has barred effective consultation. "Decisions made during strategic planning may have potentially serious impacts on Aboriginal rights and title…. Consultation at the operation level thus has little effect…" (para. 76). A strong prima facie claim of Aboriginal Rights or Title "may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision." (para 44).

The Province's policies and measures taken to date are not meaningful consultation
In addition to consultation at the operational stage being inadequate, the Supreme Court held that the various policies and measures that the Province (and Weyerhaeuser) took were not sufficient consultation (para. 78). The Supreme Court does not elaborate what these measures were, which we set out here: protection of CMTs, supplying limited amounts of cedar under the Province's free use permit system (in the Haida case this was less than 0.5% of the total AAC), protecting cedar seedlings from deer browsing, voluntarily deferring logging in areas of key cultural and environmental areas, and the introduction of new logging methods ("variable retention").

Rather, interim Consultation and Accommodation is about protecting Aboriginal Title and Rights
Consultation and accommodation should lead to protection of lands and resources pending proof. Consultation and accommodation "preserves the Aboriginal interest pending claims resolution." (para. 38)

The Crown must come to the table without having predetermined anything
The Crown has to change its proposed course of action in at least some circumstances: "Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations." (para. 46). The Crown cannot present final proposals without first consulting.

The Crown's formula-driven, one-size-fits-all consultation process must change
The Crown's accommodation efforts since the B.C. Court of Appeal decisions in 2002, which are rigid and formula-driven, need to be accommodate the specific concerns of each First Nation. The Supreme Court has confirmed that consultation and accommodation must be approached flexibly in an individual case-by-case basis. In some cases, this will mean accommodation of cultural, environmental and economic interests.