The Duty to Consult and Accommodate: The Supreme Court of Canada’s decision in Haida Nation v. British Columbia (Minister of Forests)

History of the Case

In 1961, the Minister of Forests in British Columbia (the “Minister”) granted a replaceable tree farm licence (“TFL 39”) to MacMillan Bloedel Limited (“MB”) for a term of 21 years. The licence reserved to MB a wide area of Crown and private land on the Coast for its sole use for timber harvesting. The TFL 39 area included Crown land on Queen Charlotte Islands (referred to as Block 6) some part of which was historically used by the Haida Nation. The Haida Nation have never entered into a treaty with Canada and have a land claim outstanding for large portions of land in parts of the TFL 39 area. TFL 39 was renewed for 25-year terms in 1981, 1995 and 2000. In November, 1999, TFL 39 was transferred to Weyerhaeuser Company Limited (“Weyerhaeuser”).

In 2000, the Council of the Haida Nation (the “Council”) petitioned the Supreme Court of British Columbia (Haida Nation v. British Columbia (Minister of Forests), 2000 BCSC 1290) seeking judicial review of the Minister’s decisions renewing TFL 39 in 1981, 1995 and 2000, and transferring TFL 39 from MB to Weyerhaeuser in 1999. The Council sought several declarations and orders setting aside the renewals of TFL 39 or that part of TFL relating to Block 6. 

The Supreme Court of British Columbia dismissed the petition and held that until the nature and extent of the Haida Nation’s asserted title to the land and right to harvest timber had been established, the issues of the duty to consult and infringement could not be decided with any certainty. It also held that, with respect to the 2000 decision, the government had a moral, but not a legal, duty to consult with the Haida Nation. With respect to the 1981 and 1995 decisions, it held that, in any event, there had been an excessive delay in bringing these applications.

In Haida Nation v. British Columbia (Minister of Forests), 2002 BCCA 147, the Court of Appeal reversed this decision, holding that both the Crown and Weyerhaeuser had a legal duty to consult with and accommodate the Haida Nation. In the Court’s view, the holding in Taku River Tlingit First National v. Ringstad, 2002 BCCA 59 that there was an obligation on the Crown to consult aboriginals who had an asserted but unproven claim of aboriginal title and right, was binding on the court and determinative of the outcome of the case. In addition to that determination, Mr. Justice Lambert went on to make what he phrased “some observations of my own.”  In his observations, he concluded that both the Crown and Weyerhaeuser had a legal obligation to consult and seek an accommodation with the Haida Nation in 1999 and 2000 when TFL 39 was being renewed. That obligation, he observed, extended to the cultural and economic interests of the Haida Nation and pre-dated the 1999 decision to renew TFL 39. The Court of Appeal granted a declaration to the effect that in 1999 and 2000, the Crown and Weyerhaeuser had a duty to consult with the Haida Nation in good faith and to endeavour to seek workable accommodations.

Weyerhaeuser requested a re-hearing on the ground that the question of whether Weyerhaeuser had an obligation to consult and seek accommodation with the Haida Nation in relation to TFL 39 had not been in issue before the lower courts, and should not, therefore, have formed part of the declaration by the Court of Appeal. A re-hearing was granted and a subsequent decision by the Court of Appeal was released (Haida Nation v. British Columbia (Minister of Forests), 2002 BCCA 462). In this re-hearing decision, the Court of Appeal held that Weyerhaeuser had a fiduciary obligation to the Haida Nation which carried with it a duty to consult the Haida Nation contemporaneously with taking on the licence and a duty to seek accommodation with them about the management of the harvesting operation.

The SCC Decision

The Minister and Weyerhaeuser appealed the Court of Appeal decisions to the SCC. The issue centred around the question of whether the Crown or industry have a duty to consult with aboriginals and accommodate their concerns before aboriginals title to land or rights have been proven. The Haida Decision addressed four main things:  (1) the source of the Crown’s duty to consult and accommodate; (2) when the Crown’s duty to consult and accommodate arises; (3) the scope of the Crown’s duty to consult and accommodate; and (4) the duty of Weyerhaeuser to consult and accommodate.

The Source of the Crown’s Duty

The government’s duty to consult with aboriginals and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown gives rise to different duties in different circumstances. Where the Crown has assumed discretionary control over specific aboriginal interests, the honour of the Crown gives rise to a fiduciary duty. The content of the duty may vary but its fulfilment requires that the Crown act with reference to the aboriginal’s best interest in exercising discretionary control over the specific aboriginal interest at stake. The duty does not encompass all aspects of the relationship between the Crown and aboriginal peoples. In the case of TFL 39, the honour of the Crown did not engage a fiduciary duty.

In general, the SCC held that, in British Columbia, potential rights embedded in non-treaty aboriginal claims are protected by the Constitution Act, 1982. The honour of the Crown in these situations requires that these rights be determined, recognized and respected. This requires the Crown to participate in negotiation and while this process continues, the Crown may be required to consult and, where indicated, accommodate aboriginal interests.

When the Crown’s Duty to Consult and Accommodate Arises

The duty arises when the Crown has knowledge, real or constructive, of the potential existence of the aboriginals right or title and contemplates conduct that might adversely affect it. Before claims are resolved, the Crown cannot know that the rights exist, and hence can have no duty to consult or accommodate. This difficulty should not be denied or minimized. It will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and where indicated accommodate, short of final judicial determination or settlement. Claimants should outline their claims with clarity, focussing on the scope and nature of the aboriginals rights asserted and on alleged infringements. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and where indicated accommodate.

The Crown must respect potential, unproven interests but is not rendered impotent, and it may continue to manage the resource pending resolution of claims.

The Scope of the Crown’s Duty

The Crown’s duty to consult and accommodate is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of a potentially adverse effect upon the right or title claimed.

Consultation

The scope of the duty of consultation will vary with the circumstances. The extent of the Crown’s duty lies along a spectrum. At one end of the spectrum lie cases where the claim to title is weak, the aboriginals right limited, or the potential for infringement minor. The only duty on the Crown in these cases may be to give notice, disclose information, and discuss any issues raised in response to the notice.

At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the aboriginal peoples, and the risk of non-compensable damage is high. In such cases consultation aimed at finding a satisfactory interim solution may be required and may entail, inter alia, the opportunity for aboriginals to make submissions for consideration; formal participation in the decision-making process; and written reasons to show that aboriginal concerns were considered. This list is neither mandatory nor exhaustive.

Accommodation

When the consultation process suggests amendment of Crown policy, accommodation may be required. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect aboriginals in a significant way, addressing aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim.

This process does not give aboriginal groups a veto over what can be done with land pending final proof of the claim and nor is there a duty to agree    rather the commitment is to a meaningful process. As for aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached.

The accommodation that may result in cases of unproven land claims is simply seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. It requires good faith efforts to understand each other’s concerns and move to address them. Where accommodation is required, the Crown must balance aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests. The aboriginal consent is appropriate only in cases of established rights, and then by no means in every case.

The Duty of Weyerhaeuser

The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties that affect aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development, however, the ultimate legal responsibility for consultation and accommodation rests with the Crown and cannot be delegated. Third parties are under no duty to consult or accommodate aboriginal concerns and they cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate.

TFL 39

With respect to TFL 39, the SCC found that the Crown had knowledge of the potential existence of aboriginal title or right to Block 6 and was aware that the potential title or right could be affected by a decision to replace TFL 39. There was a prima facie case in support of the Haida Nation’s title claim and a strong prima facie case for the Haida Nation’s right to harvest. As a result, consultation by the Crown was required before any decision to grant, renew or replace TFL 39 was made that might adversely affect the claimed aboriginal right or title.   With respect to the issue of accommodation, the SCC made no determination.

Christine Mingie is an associate in Vancouver where her practice focuses on forestry, environmental, real estate and arbitration law. Contact her directly at 604-691-7472 or cmingie@lmls.com