Victory at the Supreme Court of Canada

The Haida Nation and Taku River Tlingit Decisions

I.          Introduction

In November the Supreme Court of Canada issued its long awaited judgments in Haida Nation v. British Columbia (Minister of Forests) [2004] SCC 73, and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) [2004] SCC 74.

Haida outlines the principles of the duty to consult and accommodate First Nations who have asserted, but not proven, Aboriginal rights and/or title to Crown land. Taku River Tlingit applies the principles from Haida to the specific facts of that case.

II.         Executive Summary

The Court overrules the Court of Appeal's judgment in respect to a duty owed by third parties. The appeal by Weyerhaeuser Company was allowed in the Haida judgment.

In the Taku River Tlingit decision, the Court applied the principles from Haida and found that there was a duty to consult and accommodate the Taku River Tlingit First Nation. The Court went on to find that there had been adequate consultation and accommodation in the circumstances and thus allowed the Provincial Crown's appeal in this case.

III.       Key Points from Haida Nation

a)   First Principles

• The Provincial and Federal Crown owe a duty to consult with Aboriginal peoples and accommodate their rights even before these rights have been established in Court.
• This duty is grounded in the principle of the honour of the Crown now enshrined in section 35(1) of the Constitution Act.
• This principle is to be applied in all of the Crown's dealings with Aboriginal peoples "from the assertion of sovereignty to the resolution of claims and the implementation of treaties" (p. 17).
• "The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution" (p. 32).
• The obligation to consult and accommodate does not flow from the fiduciary duty doctrine but rather from the honour of the Crown as enshrined in section 35(1) of the Constitution Act.
• The honour of the Crown applies to the processes of treaty making and treaty interpretation.

b)   Interlocutory Injunctions

• Although seeking an interlocutory injunction is one remedy that plaintiffs may pursue, by no means are they confined to this remedy.
• Interlocutory injunctions may not be an adequate remedy in situations such as these
• "Negotiation is a preferable way of reconciling state and Aboriginal interests" (p. 14), and the remedy of injunction – founded as it is on ongoing litigation – may not be the most appropriate remedy for the circumstances.

c)   When the Duty to Consult and Accommodate Arises

• "To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable" (p. 27).
• The Court, in affirming the decision of the BC Supreme Court in Halfway River First Nation v. British Columbia (Minister of Forests), [1997] 4 C.N.L.R. 45 (BCSC) held that the duty to consult arises "when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it" (p. 35).
• It is possible to obtain a good understanding of the asserted rights even if these rights have not been proven in court. First Nations should clearly outline, and provide evidence to support, their asserted rights.
• First Nations should outline their claimed rights clearly focusing on the nature and scope of their claimed rights and any potential infringements.
• Although challenging, the consultation and accommodation is the only way to protect the rights affirmed by section 35(1) of the Constitution.

d)   Scope and Content of the Duty to Consult and Accommodate

• The scope and content of the duty to consult and accommodate varies with the individual circumstances.
• The scope of the duty is proportionate to the assessed strength of the claim, and to the seriousness of the adverse effects upon the interest claimed.
• Good faith is required on both sides during all stages of the consultation process.
• There is no duty to come to an agreement.
• First Nations cannot frustrate the Crown's reasonable good faith attempts to consult and accommodate, but this does not mean that First Nations are not permitted to bargain hard.
• The duty to consult and accommodate varies from case to case:
  • At one end of the spectrum are cases where the Aboriginal right is limited, the claim to title is weak, and/or the potential infringement is minor. In these circumstances, the Crown may only have a duty to "give notice, disclose information, and discuss any issues raised in response to the notice" (p. 43).
  • At the other end of the spectrum are cases where a strong prima facie case for the claim has been established, the right and potential infringement is of high importance to the First Nation, and the potential for non-compensable damage is high. In these circumstances, consultations aimed at finding a workable interim solution may be required and "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" (p. 44).
• The duty of accommodation may require taking steps to minimize the effects of infringement or to avoid irreparable harm until the claim is resolved.
• The purpose of accommodation is to reconcile differences between the Crown and First Nation through balance and compromise.

e)   Third Parties

• The ultimate legal responsibility for consultation and accommodation rests with the Crown and this responsibility cannot be delegated to third parties.
• Even though there is no duty on third parties to consult and accommodate, this does not mean that third parties cannot be found liable to First Nations in other circumstances such as breach of contract, negligence, or dealing with First Nations in a dishonest manner.

f)   Application of the Principles to the Facts in Haida

• Haida had a very strong case for Aboriginal title to Haida Gwaii.
• The implementation of Tree Farm Licence 39 would have a serious potential impact on the Haida people.
• The Province had a duty to consult and perhaps accommodate on Tree Farm Licence (TFL) decisions.
• "The Province failed to meet its duty to engage in something significantly deeper than mere consultation" (p.78) and "failed to engage in any meaningful consultation at all" (p. 79).

IV.       Key Points from Taku River Tlingit

• The Court found that there was a strong prima facie case for the Taku River Tlingit's claim to the area in question and that a duty to consult and accommodate existed in this case.
• The process under the Environmental Assessment Act that the Province, and the Taku River Tlingit engaged in fulfilled the requirements of the Crown's duty to consult and accommodate.
• The Taku River Tlingit were part of a Project Committee and participated fully in the environmental review process where its views were put before the decision makers and the final result contained measures that addressed their concerns.
• The Province argued that before the determination of rights through litigation or conclusion of a treaty, it owes only a common law "duty of fair dealing" to Aboriginal peoples whose claim may be affected by government decisions.
• "The Province's submissions present an impoverished vision of the honour of the Crown and all that it implies" (p. 24).
• "Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary" (p. 42).

V.       Commentary

These cases are a victory for First Nations in British Columbia. Given their implications for Treaty interpretation, these decisions will have possible implications for First Nations across Canada. While it is disappointing that the Taku River Tlingit lost their case due to the facts of their particular situation, the Taku River Tlingit were an integral part of establishing the important legal principles flowing from both decisions.

The Haida judgement, written by Chief Justice Beverly McLachlin for a unanimous court, is a clear and concise statement of the law. While affirming the BC Court of Appeal's decision recognizing a duty to consult and accommodate on behalf of both the Provincial and Federal Crown, the Court clearly overturns Lambert J.'s extension of this duty to third parties.

Further, the decisions underline a number of other important points:

• The concept of the honour of the Crown is the basis for the Court's entire decision. For the first time, the Court has given this concept a legally enforceable meaning.
• Haida establishes that the Crown is obliged to act honourably in the negotiation and interpretation of treaties: "[t]he honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of ‘sharp dealing'" (p.19).
• The Supreme Court of Canada affirmed the decision in Halfway River First Nation v. British Columbia (Minister of Forests), [1997] 4 CNLR 45 (BCSC), at p. 71, that the duty to consult arises when the Crown has knowledge, real or constructive, and of the potential existence of the Aboriginal rights or title and contemplates conduct that might adversely affect these interests.
• It is clear that the stronger the claim to Aboriginal rights and title are, the more onerous the obligation on the Crown to consult and eventually accommodate. Thus, First Nations should assert their claims fully at the earliest possible stage in the decision-making process in order to be ensure that they have as strong a prima facie case as possible.