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Supreme Court confirms duty to consult with aboriginal peoples: Haida Nation v. British Columbia (Minister of Forests).

Maybe I'll be there to shake your hand Maybe I'll be there to share the land That they'll be givin' away When we all live Together

--The Guess Who

"To the west of the mainland of British Columbia lie the Queen Charlotte Islands, the traditional homeland of the Haida people. Gwaii, as the inhabitants call it, consists of two large islands and a number of smaller islands. For more than 100 years, the Haida people have claimed title to all the lands of the Gwaii and the waters surrounding it. That title is still in the claims process and has not yet been legally recognized.

"The islands of Gwaii are heavily forested. Spruce, hemlock and cedar abound. The most important of these is the cedar which, since time immemorial, has played a central role in the economy and culture of the Haida people. It is from cedar that they made their oceangoing canoes, their clothing, their utensils and the totem poles that guarded their lodges. The cedar forest remains central to their life and their conception of themselves."

These are the words of Justice Beverley McLachlin introducing the unanimous decision of the Supreme Court in the November 18, 2004 case of Minister of Forests and Attorney General of British Columbia v. Council of the Haida Nation. It's certainly not a bad start when the Court describes you in such sympathetic terms.

Later on in the judgment, Justice McLachlin for a unanimous 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 s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests."

I don't often quote extensively from the cases we discuss in this column but this seems important. Our highest court could not have been any clearer in stating its attitude about the duty of governments towards Aboriginal claims. The Supreme Court unanimously recognized and described in the clearest possible terms that Aboriginal rights are founded in our most basic history, are protected by our most basic law (the Constitution), and require the active protection of the governments that serve us all.

This particular case arose because the Haida were in the midst of a land claim concerning their rights in the Queen Charlotte Islands (which I think we should all at least consider now calling "Haida Gwaii"). Meanwhile, the Government of British Columbia was awarding a timber contract to lumber giant Weyerhauser to valuable and sensitive land in the middle of the claim. The Haida started a lawsuit for an injunction to stop the granting of the timber licence, not wanting to eventually negotiate a treaty to a clear-cut.

These were NOT fanciful and imaginative claims. Although the trial judge who first heard the case did not find that the government had a duty to negotiate with the Haida people, and that a final resolution of the Haida claims will require a great deal of further evidence, he made it clear that the Haida claim went far beyond the mere assertion of Aboriginal title and that the Haida people had a substantial probability of establishing at least parts of their claims in the area. The British Columbia Court of Appeal reversed the decision on consultation and imposed a duty of consultation on both the province and the applicant for the licence, in part relying on the original decision that the claim (although not yet fully decided) was still a very good one. The matter then went to the Supreme Court on the issue of consultation (with whom, and how much).

The Supreme Court let Weyerhauser off the consultation hook, as a non-governmental organization, saying that the consultation requirement in this case belonged to the government which was negotiating land claims with one hand and giving out cutting permits to the same land with the other. But it couldn't have been any clearer about the duty of the province. The province knew about the Haida claim, knew about the validity and high chance of success of the claim, and was still undertaking a timber licensing project that could seriously affect the Haida's claim. Because of this, the province had a duty to consult and perhaps accommodate.

It seems pretty straightforward when you put it that way. Do you suppose that if a large industrial concern (or any other citizen for that matter) had an interest in land and the government started negotiating a settlement of an Aboriginal land claim on that land, that the holder of the interest wouldn't be at least consulted? You should see all the people I have to give notice to just to get a permit to build a garage in my backyard. But back to the Haida case.

Now, the Supreme Court was careful not to be too specific about exactly in what circumstances consultation needed to be held and how. It set itself the "modest task of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or rights claims have been decided." Further details about the exact nature of consultation and accommodation will have to be filled in on a case-by-case basis.

However, the Supreme Court did specifically state that "Precisely what is required of the government may vary with the strength of the claim and the circumstances." Therefore we can assume that the Haida case may be just about the strongest case possible for consultation and accommodation. They have been continuously in occupation of the land and have not settled their claims with a treaty. In addition, the land and timber rights in question are central to a very strong factual case. The provincial government will have to listen to them and perhaps even accommodate somehow their concerns (maybe even limiting the clear-cut on the central parts of their claims).

Consultation in other circumstances will be different. Many first Nations have (at least arguably) settled their land claims by way of treaty. Many Aboriginal claims deal with things like hunting rights on unoccupied Crown lands, important rights to be sure, but not the comprehensive sorts of rights that the Haida claim over portions of Haida Gwaii. Consultation on those sorts of claims will be different from the Haida situation and perhaps more constrained. If the claim is weak, the Aboriginal right limited, or the potential infringement minor, the consultation may be limited to notice, information, and discussion.

Neither is consultation another word for veto. This case cannot be considered to be an authorization of roadblocks (either actual or figurative) being put up by either side to a contested Aboriginal claim. "Consent" is required only in cases of established Aboriginal rights, and then not in every case. The courts emphasized the need for the consultation process to involve a balancing of interests, of give and take.

At all stages, and on both sides, good faith is required. The government must act with honour and integrity, avoiding even the appearance of sharp dealing. On the other hand, Aboriginal claimants cannot frustrate the government's reasonable good faith attempts, nor take unreasonable positions to thwart the government from making the decisions it needs to make on behalf of all of its citizens.

In other words, everyone is going to start acting as if we are all in this together and are going to be sharing this land and living as neighbours for as long as we can foresee.

Not an entirely bad result.

Fred R. Fenwick is a lawyer with the firm of Phillips Sevalrud LLP in Calgary, Alberta.
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Title Annotation:Aboriginal law
Author:Fenwick, Fred R.
Geographic Code:1CBRI
Date:Apr 1, 2005
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