Landmark Victories on Consultation and Accommodation
Government decisions regarding land and resource management have the potential to infringe aboriginal rights and title. These rights are protected under s.35(1) of the Constitution. If Crown decisions interfere with these rights, the government must justify the infringement. As set out by the Supreme Court of Canada in R. v. Sparrow, in order to justify a limitation on aboriginal rights the government must demonstrate a "compelling and substantial" legislative objective, such as the conservation of natural resources. The government must also show that the decision was consistent with the Crown's "fiduciary" obligation (a duty of loyalty and utmost good faith).
When considering the issue of justification, an important factor is whether the aboriginal group has been consulted with respect to the measures being implemented. In Delgamuukw v. British Columbia, the Supreme Court of Canada held that aboriginal title includes a right to choose to what uses the land can be put. Thus, where aboriginal title is at stake there is always a duty on the government to consult the aboriginal group in a good faith and with the intention of addressing their concerns. Usually the obligation will extend beyond mere consultation and will include accommodation (which may include compensation).
The Province's traditional line of defence was that while aboriginal rights and title may exist, the obligation to consult and accommodate does not arise until an aboriginal right or aboriginal title had been proved in Court. In the decisions discussed below, the Courts rejected British Columbia's position. The new law requires consultation and accommodation to take place prior to litigation.
This important legal development allows aboriginal nations to have a say in government decisions prior to aboriginal rights and title litigation and prior to the negotiation of a Treaty.
The Taku River Tlingit Decision
Redfern Resources Ltd. proposed to re-open the Tulsequah Chief Mine. Redfern's plans included the construction of an access road which would cut through the heart of the traditional territory of the Tlingit. The Tlingit participated in a project Review Committee and asserted their aboriginal rights and concerns. Two provincial Ministers approved the project on March 19, 2000. The First Nation brought a petition to set aside the Ministers' decision to issue the Project Approval Certificate, claiming it would unjustifiably infringe their rights and, that therefore, the Ministers had breached their fiduciary duty.
The trial judge set aside the Project Approval Certificate, and her decision was upheld by the British Columbia Court of Appeal. The Court ruled that the Tlingit were willing to participate in an environmental review process, and the Project Approval Certificate was issued without their concerns being met.
The case is important because it held that the provincial government has a fiduciary duty to consult with First Nations even before the First Nation has established its aboriginal rights in Court. The Court also held that consultation alone will no always necessarily satisfy the Crown's constitutional and fiduciary obligations. Accommodation may also be required. The Court sent the certificate back to the Ministers for reconsideration taking into account the Crown's fiduciary obligation to aboriginal people.
Haida Nation I and II
On September 1, 1999 the Province of British Columbia offered to MacMillan Bloedel a replacement and transfer of a tree farm licence without adequately consulting with the Haida Nation. A month later, the Province approved the change of control of MacMillan Bloedel to Weyerhaeuser without any consultation with the Haida, who objected to the transfer of the licence. The British Columbia Supreme Court dismissed the petition of the First Nation on the basis that Haida rights and title had not yet been established in Court. The judge found the Province had a moral, but no legal duty to consult.
The Haida appealed to the British Columbia Court of Appeal. The issue was whether the Province has a duty to consult with aboriginal nations before their aboriginal rights and title have been determined by the Courts. Following the Taku River Tlingit decision above, the British Columbia Court of Appeal found that both the Province and Weyerhaeuser did have a legal obligation to consult the Haida and to accommodate their aboriginal title and rights when consideration was being given to the renewal and transfer of the tree farm licences. Although the Court did not declare the tree farm licence invalid, it granted a declaration that the Province and Weyerhaeuser have a legally enforceable duty to the Haida people to consult with them in good faith and seek workable accommodations. The Court ordered that if good faith consultation and appropriate accommodation did not happen, the Haida could return to the British Columbia Supreme Court for a declaration that the tree farm licence was invalid.
Weyerhaeuser was granted a rehearing before the British Columbia Court of Appeal on the issue of its duty to consult and accommodate First Nations. In Haida II, the Court provided additional reasons for judgment and confirmed that the duty to consult and seek workable accommodations did extend to third party corporations and, in particular, to Weyerhaeuser.
The Gitxsan Decision
The Gitxsan, Las Kw'alaams, Metlakatla and Gitanyow Nations claim 30,000 square kilometres of north western BC that includes Skeena Cellulose's timber licence area. Skeena, which was rescued by the British Columbia government from bankruptcy, was sole in February 2002 to NWBC Timber. The closing of the share transaction and the implementation of Skeena's restructuring plan were scheduled for April 29, 2002. If it was not completed by April 30, Skeena would be assigned into bankruptcy.
Section 54 of the Forest Act required the Minister's consent for the change of control of a licence holder. The Ministry of Forests contacted the Nations to inform them of the change of control and held meetings with some of the Nations. The Lax Kw'alaams and Gitanyow First Nations commenced legal proceedings to restrain the Minister from giving his consent to the change of control of Skeena. The British Columbia Supreme Court dismissed the application (sub. nom. Skenna Cellulose Inc. (Re.), 2002 BCSC 597), and the Minister consented to the transaction on April 30.
All four First Nations filed petitions seeking judicial review of the Province's decision. The British Columbia Supreme Court ruled that the petitioning First Nations were not provided with all necessary information in a timely way (or at all) prior to the Minister's decision. In addition, the Crown did not undertake the consultation with a genuine intention of substantially addressing the concerns of the First Nations because the Crown considered the transaction to be neutral with respect to any aboriginal right or title. The Court found that the change in control was not neutral from a practical point of view. It changed the identity of the controlling mind of Skeena, and the philosophy of the persons making the decisions. Further, if the Minister had not consented, Skeena may have gone into bankruptcy and would have not been able to utilize its licences.
The Court, therefore, concluded that the Minister did not satisfy his duty of consultation and accommodation owed to the First Nations. The Court did not quash the Skeena timber licence transfer but it stated that the government had to consult in a way consistent with the BC Court of Appeal's Haida Nation decision. Finally, it stated that it was open for the First Nations to reapply if they believe that the Minister is not fulfilling his duty to consult.
Husby v. BC
On January 21, 2004, the British Columbia Supreme Court rendered a further decision confirming the Crown's duty of consultation. Husby, a logging company and the holder of a replaceable Forest Licence, applied to the Ministry of Sustainable Resource Management for authorization to remove culturally modified trees in Haida Gwaii. The Haida Nation objected to the application on the ground that the proposed areas for harvesting are of high cultural importance to the Nation.
When the Ministry approved the permit, Husby applied to the Ministry of Forests for a Cutting Permit to allow it to harvest timber on the same archaeological sites. The District Forest Manager refused to issue the permit because he believed that there was a "substantial probability' that the Haida would be able to establish an aboriginal right to cedar trees from those sites. Husby applied to the Court of the District Forester's decision to refuse the permit.
The Court ordered the decision-maker to reconsider its refusal to issue the permit to Husby since it failed to meet its constitutional duty to consult with the Haida Nation in order to clearly delineate the nature and scope of the asserted aboriginal right, whether or not the granting of the permit would interfere with that right and whether or not the interference would be justified.
Most significantly, this case highlights the requirement of First Nations to set out clearly the aboriginal right. that would be infringed by the proposed activity. The Court found that the Haida provided only limited and vague responses to the District Forest Manager, and held that it was the responsibility of the Haida to clearly define the nature and scope of the aboriginal right. Further, the Court explained that the delineation of the right must be site-specific and must set out the practices and traditions relied on to establish the right.
The Province's Response
New Policy for Consultation with First Nations
In November 2002, in response to the Taku River Tlingit and Haida decisions discussed above, the Provincial government released its Provincial Policy for Consultation with First Nations regarding consultation in respect to aboriginal rights and/or title. The policy applies to all government ministries, agencies and Crown corporations.
The previous policy established in 1998 put the emphasis on consultation. Officials were required to hold meetings with First Nations, assess the potential strength of their claims, keep First Nations informed, and provide them with opportunities to participate and offer advice. The new policy, as directed by the recent Court decisions discussed above, now requires officials to assess the "soundness" of aboriginal interests, that is, the likelihood the First Nations might win if they went to Court. The extent of which provincial agencies must try to address or accommodate the aboriginal interest is, according to policy, proportional to the soundness of the aboriginal claim. The new policy also requires officials to accommodate First Nations through negotiations or other forms of agreement. The new policy provides Provincial staff with consultation principles and a multi-step(ped) process. It requires Provincial officials not only to consult with First Nations, as previous policy stipulated, but also to "accommodate" First Nation interests either through negotiations or some other form of agreement.
The 2002 policy lays out a multi-step process. Officials must first assess whether the decision on land or resource use will affect aboriginal interests. As the policy states, it is not likely that this assessment would result in a determination that consultation is not required, except in very specific cases. If the answer is "yes", then the affected First Nations should be advised and consulted as early as possible.
The policy would appear to demand that provincial officials conduct a mini land claims trial in some circumstances. To assess the "soundness" of a particular aboriginal interest, they are required to consider evidence presented by First Nations, as well as that which is available from archaeological research, historical evidence and local knowledge.
The policy fails to correct certain deficiencies apparent in the old policy. For example, the new policy lists "Indicators of the Possibility that Aboriginal Interests May be Subsequently Proved to be Existing Aboriginal Rights and/or Title". Two of these indicators suggest that aboriginal title is more likely to be prove if the land in question is "underdeveloped" and "near or adjacent to a reserve or former settlement or village sites". The policy fails to recognize that aboriginal title depends on aboriginal history and laws, not on where the Crown set aside reserves and certainly not upon whether or not the land is underdeveloped.
Similarly, the policy lists "Indicators Against the Possibility that Aboriginal Interests May be Subsequently Proved to be Existing Aboriginal Rights and/or Title". For example, the Province states that land is less likely to be subject to aboriginal title if it has been sold or leased to third parties, if it is within an urban area or surrounded by developed lands. This understanding of where aboriginal title may exist suggests that the Province can extinguish title by putting up cities, towns and industries on aboriginal lands. By this logic, the bigger the Province's infringement, the more successful it is in extinguishing aboriginal title. At law, however, the Province has no jurisdiction to extinguish aboriginal title.
Therefore, the policy, while an improvement over the earlier version, requires further revision to bring it into line with legal requirements.
The Forestry Revitalization Plan
The Province has recently announced its Forestry Revitalization Plan. Under this plan, the Ministry of Forests has taken back some of the timber it had previously allotted to logging companies. The Ministry will provide access to some of this take back to First Nations and develop a framework for revenue sharing. The Ministry will, as a condition for this tenure opportunity and revenue sharing seek Accommodation Agreements with First Nations.
As a result of the Taku River Tlingit, Haida Nation and Gitxsan decisions, the Ministry has an increased obligation to consult with First Nations. By entering these agreements, the Ministry intends the First Nation to agree that consultation and accommodation have been adequate in relation to certain types of administrative decisions. First Nations must weigh the benefits that may be achieved through these Agreements against the concessions sought by British Columbia.
An opportunity for First Nations
The Taku River Tlingit, Haida Nation and Gitxsan decisions affirm the duty on the government and third party corporations to consult with First Nations before their rights are infringed and proved in Court. Something less than a full-blown proof of rights and title will trigger and obligation to consult with aboriginal groups and seek workable accommodations.
On March 24 and 25 the Supreme Court of Canada heard the appeals by British Columbia in the Taku River Tlingit and Haida Nation. The Crown argues that the imposition of a duty to consult and accommodate aboriginal rights and title before they are proved in Court may result in uncertainty regarding the law and will cause the entire decision making process in British Columbia to "grind to a halt". Further, British Columbia contended that requiring the government to accommodate unproven claims is inconsistent with the Sparrow decision. Weyerhaeuser argued that imposing a duty of consultation and accommodation on private parties is inappropriate because companies lack the resources and skill needed to consider aboriginal rights and title issues.
Various Provinces (such as Ontario, Alberta, Nova Scotia, Saskatchewan and Quebec) and the Federal government have filed arguments with the Supreme Court of Canada in support of British Columbia's position. They argue that they already look out for the best interests of aboriginal peoples, and suggest that it is not necessary to impose a constitutional duty to consult before rights or title are proved. In particular, Canada argued that the Courts should always presume that the Crown will act in good faith.
In addition, business groups such as the British Columbia Cattlemen's Association and the Business Council of British Columbia intervened to argue that a duty to consult should not be imposed on private corporations. Their submissions emphasize that private parties lack the resources and expertise to assess the strength of the aboriginal rights and title claims.
Finally, the position of the Taku River Tlingit and Haida Nations has been supported by the First Nations Summit, the Village of Port Clements as well as the Gitxsan, the Haisla Nation (represented by our firm), Dene Tha', Squamish Lax Kw'alaams, and Doig River. These interveners submitted that consultation and accommodation concerning rights and title is workable and will even fuel the treaty negotiation process. Further, if the federal and provincial government are allowed to authorize economic developments without consulting aboriginal peoples until their rights are proven in Court, by the time treaties are concluded significant lands and resources will no longer be available.
In our view the Supreme Court of Canada will be likely to dismiss the Province's appeals - to do otherwise would have the effect of driving First Nations away from the negotiating table and into the Courts. Regardless of the ultimate outcome of these appeals, First Nations today have an unprecedented opportunity to kickstart the process of achieving a share and a say in the management decisions concerning their own lands.