Crown's duty to consult established

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Two decisions handed down by the Supreme Court of Canada on Nov. 18 were cheered by First Nation leaders across Canada.

In Haida Nation v. British Columbia and Taku River Tlingit First Nation v. British Columbia, Canada's court of last resort was unanimous in firming up gray areas in Aboriginal law.

In the Haida case the Haida Nation argued that the province and lumber giant Weyerhaeuser should have consulted its members before starting to log on their ancestral homeland, the Queen Charlotte Islands (known as Haida Gwaii). The province said it did not have to consult with First Nations until after an Aboriginal right to land claimed had been proven in court. The company argued that the province should be dealing with such matters.

The court ruled that only the province had a duty to consult before title has been proven if the province can see there is a legitimate claim in place.

First Nation leaders and their lawyers say that was a significant step forward.

"The government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honor of the Crown, which must be understood generously," Chief Justice Beverly McLaughlin wrote in the Haida decision. "[T]he Crown, acting honorably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof," she wrote.

The court ruled the Crown's 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."

The court also decided that third parties, like Weyerhaeuser, "cannot be held liable for failing to discharge the Crown's duty to consult and accommodate. The honor of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown." The decision cautioned, however, that the judgement did not mean that "third parties can never be liable to Aboriginal peoples."

In a bit of legal rarity, the court applied the law established in the Haida case in the Taku River case, even though they were both handed down at the same time.

In the Taku River decision the court dealt harshly with British Columbia's position that it did not have to consult with the Tlingit until their land claim was proven in court.

"The province's submissions present an impoverished vision of the honor of the Crown and all that it implies," the court said.

In Haida, the Supreme Court said "Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by Section 35 of the Constitution Act. The honor of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honorably, to participate in processes of negotiation. While this process continues, the honor of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests," the chief justice wrote.

Grand Chief Edward John, a member of the three-member First Nations Summit task force in British Columbia, predicted that the two cases would be turning points in Aboriginal law. He was asked if the decisions could be seen as a victory.

"I would say there's really no one complete victor. I think the court kind of slapped everybody around and said get these things straightened out and deal with them," he said.

"We have now a Section 35 duty on the Crown to consult and accommodate. And this is before Aboriginal rights or title are proven. That's a significant step for us and also for the government. I think it's clarified that matter. Both governments, and in paticular the B.C. government, have said we really have no duty to consult before Aboriginal rights or title are proven. That argument's been completely thrown out. The court called it impoverished."

Chiefs in British Columbia have complained for more than 10 years that resource companies, with the consent of the province, have been looting the land they're seeking to prove title to at the treaty table or in court. They called for what are known as "interim measures" to ensure that resources will not be depleted by the time they sort out their claims. John said the ruling will pressure B.C. and Canada to be more co-operative in working out interim measures.

"Interim measures become significant in the pre-treaty period. [The justices] didn't say interim measures as such but they did say that if governments proceed as they were, the lands that are subject to negotiation might not be there or the resources in the forest might be denuded," he said. "They understood that so they called on all parties to be more understanding of each other's interests. The court made it clear that what was happening here in the bigger picture was to reconcile the pre-existing sovereignty of Aboriginal peoples with the assumed sovereignty of the Crown."

And the court's repeated admonitions that the Crown must act in good faith could change the way treaty negotiations are conducted, John added.

John met with Premier Gordon Campbell on Nov. 19 and arranged for his Summit colleagues to meet with the premier and his cabinet to discuss the case on Nov. 26 (after publication deadline).

"I think he understands the implications politically regarding this," John said of the premier.

While they lost their case when the court decided they had been properly consulted over the construction of a mine and mining road in their territory, the Taku River Tlingit First Nation received assurances they will be included in all future decisions. The community is made up of fewer than 500 people ad is located in the far northwest corner of B.C.

"The court recognized some important standards for accommodation that we will be holding British Columbia and Canada to," said John Ward, spokesperson for the Taku River Tlingit. "We have always argued that land use planning had to happen before this project goes ahead, and the decision supports that."

Weyerhaeuser also welcomed the Haida decision.

"By providing greater certainty about the process of balancing Aboriginal interests with others, the ruling will encourage reconciliation and economic activity," said Sandy McDade, president of the lumber company. "The decision reflects a reasoned balancing of interests and shows how Aboriginal interests can be addressed in a meaningful way."