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Court and Tribunal Decisions - Canada
Court of Appeal for British Columbia
27 February 2002
Aboriginal title — Crown’s duty to consult and accommodate — licensee’s duty to consult and accommodate — jurisdiction of the courts to issue declarations against non-governmental parties in judicial review proceedings — appropriateness of issuing a declaration against a party where that declaration was not sought by the applicants
The Council of the Haida Nation brought a judicial review application in the Supreme Court of British Columbia, challenging decisions of the Minister of Forests to replace Tree Farm Licence 39 (TFL 39), a portion of which (Block 6) is located in Haida Gwaii. The Haida asked for a declaration that the replacements are invalid, because the Haida Nation asserts Aboriginal title over Haida Gwaii and was not consulted with respect to the replacement of the licence or its transfer to Weyerhaeuser from MacMillan Bloedel.
Tree Farm Licences are area based forest licences, granting an exclusive right to cut all of the trees in the licence area. These licences are replaced every five years. Halfyard J heard the petition in 2000, in Massett, Haida Gwaii.
Halfyard J found that the Provincial Crown did not consult with the Haida regarding the replacements and the transfer and that Weyerhaeuser had knowledge of the risk of the potential consequences of Haida Aboriginal title. He also found that red cedar are integral to the Haida culture; there is a substantial probability that the Haida will be able to establish an Aboriginal right to cedar trees, and a reasonable probability that the Haida will establish Aboriginal title to at least some parts of Haida Gwaii and Block 6. He concluded that the decision to replace TFL 39 has high potential to affect Haida title, if it is established.
Justice Halfyard however dismissed the petition, holding that the Provincial Crown was not required to consult because the existence and scope of the Haida’s title or rights had not been proven in a court of law or by treaty.
The Haida appealed this decision. The BC Court of Appeal unanimously agreed in February 2002 (Haida Nation v Minister of Forests, 2002 BCCA 147) that the Provincial Crown and Weyerhaeuser have a legally enforceable duty to consult and accommodate the Aboriginal interests of the Haida. Weyerhaeuser applied for a reconsideration of the duty imposed on it, posing two questions. First, whether the question of any obligation owed by Weyerhaeuser to consult the Haida people and seek accommodations was in issue before the court and should have formed part of the declaration. Second, if it was properly before the Court, whether the answer should have been that Weyerhaeuser owes no obligations.
A supplemental hearing was held in June 2002. The Court delivered additional reasons (Haida Nation v Minister of Forests, 2002 BCCA 462) on 19 August 2002. Justice Lambert wrote the additional reasons in favour of the Haida Nation; Chief Justice Finch concurred with the result; Justice Low dissented on procedural grounds.
Prior to judgment both parties agreed that any question of a breach by Weyerhaeuser of any obligation to the Haida to consult and accommodate is deferred to the trial of the issue of Aboriginal title and Aboriginal rights, infringement and justification, or to a further interim application in these proceedings supported by an opportunity to lead further evidence. Also that any reference in the original reasons to any breach by Weyerhaeuser of its duty to consult the Haida is expunged from the reasons, by consent of the parties.
The two sets of reasons (cited as Original and Additional) are to be read together as one consolidated set of reasons.
1. Per Lambert JA, Finch CJ and Low JA: The Crown had an obligation to consult the Haida people in good faith in 1999-2000 about accommodating their Aboriginal title and Aboriginal rights, including cultural and economic interests, when consideration was being given to the renewal of TFL 39. The Crown had an obligation to endeavour to seek workable accommodations between the interests of the Haida people and the objectives of the Crown and Weyerhaeuser to manage TFL 39 and Block 6 in accordance with both Aboriginal and non Aboriginal public interest: Original [48], [60]; Additional [104], [129].
2. Per Lambert JA, Finch CJ and Low JA: Establishment of Aboriginal title or rights in court proceedings is not a prerequisite to the Crown’s duty to consult and accommodate. The Crown has an obligation to consult Aboriginal people who claim Aboriginal title and rights, prior to proof of the existence and scope of those rights, particularly where there would be an infringement if title were to be proved. The Court would have reached the same result even without the benefit of the reasons from the Taku decision: Original [27]-[32], [41]; Additional [105], [113]. Taku River Tlingit v Ringstead 2002 BCCA 59 followed.
3. Per Lambert JA, Finch CJ and Low JA: The imposition of binding legal obligations with respect to consultation and accommodation before title is proven provides an alternative legal framework (to interlocutory injunctions) for dealing with the reconciliation process before a final determination of Aboriginal title and rights by concluded treaty or a judgment of a competent court: Original [13]-[14].
4. Per Lambert JA, Finch CJ and Low JA: The roots of the obligation to consult lie in the trust — like the relationship between the Crown and the Aboriginal peoples of Canada. The Federal and Provincial Crowns owe Aboriginal peoples a fiduciary duty of utmost good faith: Original [33].
5. Per Lambert JA Finch CJ and Low JA: The obligation to consult and seek accommodation arose from these circumstances:
a) The Provincial Crown had fiduciary obligations of utmost good faith to the Haida people with respect to the Haida claims to Aboriginal title and Aboriginal rights;
b) The Provincial Crown and Weyerhaeuser were aware of the Haida claims to Aboriginal title and Aboriginal rights over all or at least some significant part of the area covered by Block 6, through evidence supplied to them by the Haida people and through further evidence available to them on reasonable enquiry, an enquiry which they were obliged to make; and
c) The claims of the Haida people to Aboriginal title and Aboriginal rights were supported by a good prima facie case in relation to all or some significant part of Block 6: Original [49].
6. Per Lambert JA, Finch CJ and Low JA: The scope of the consultation and the strength of the obligation to seek an accommodation will be proportional to the potential soundness of the claim for Aboriginal title and Aboriginal rights: Original [51].
7. Per Lambert JA, Finch CJ and Low JA: The Crown breached its duty to consult and accommodate the Haida before replacing and authorizing the transfer of TFL 39: Original [58].
8. Per Lambert JA, Finch CJ and Low JA: For the time being, the Court exercises its discretion against granting a declaration that TFL 39 or Block 6 is invalid. The question whether the replacement and transfer are invalid or void, and the question of whether Provincial crown title is encumbered, is best determined after the extent of any infringement of Aboriginal rights or title by TFL 39 has been determined. The question of the validity of Block 6 could also be determined as an interim matter in these proceedings on the basis of proper argument and full facts: Original [58]-[59]; Additional [13].
9. Per Lambert JA, Finch CJ and Low JA: The Crown’s duties continue until a treaty or a Court determines Haida Nation rights: Original [58].
10. Per Lambert JA, Finch CJ and Low JA: The aim of the remedy should be to protect the interests of all parties pending the final determination of the nature and scope of Aboriginal title and Aboriginal rights: Original [54].
11. Per Lambert JA: An interim order under s 10 of the Judicial Review Procedure Act can be made against an entity other than the Crown or a person appointed by the Crown to hold an office. Generally an interim declaration will not be granted on the same terms that a declaration is sought on a final basis. However, here the declaration sought on a final basis was that TFL 39 is invalid. The orders made in this case were interim because the points referred to the trial list remain undecided, and points not referred to the trial list involving the validity of TFL 39 and the obligation of consultation still remain open for further applications: Additional [26], [30], [33].
12. Per Lambert JA and Finch CJ: The Court is not confined to the precise remedies sought by the petitioners, but rather can issue any order it considers just: Additional [38], [128].
13. Per Lambert JA: The issue of Weyerhaeuser’s duties were not outside the scope of the litigation. Weyerhaeuser has a statutory duty under the Forest Act to consult others who use the TFL area. Some of the allegations in the pleadings refer to a failure on the part of the Province, and some refer only to a failure generally without specifying the person who failed: Additional [5], [39].
14. Per Lambert JA: The Court made the least disruptive order that could take account of the fact that the Haida people should have been consulted and were not: Additional [40].
15. Per Lambert JA: Any prejudice that might be said to have been suffered by Weyerhaeuser was dissipated by the opportunity to file further factums and make arguments at a further hearing: Additional [43].
16. Per Low JA, dissenting: Judicial review remedies are not available against private citizens exercising contractual rights only. Further, even if such an order could be made in law, the appellant in its pleadings in Supreme Court did not plead any failure on the part of Weyerhaeuser or claim relief against Weyerhaeuser and it is not appropriate for us to entertain a claim against the company in this appeal. The issue of any duty owed by Weyerhaeuser was not properly before the court and therefore the order should be confined to a declaration against the Crown: Additional [134], [135], [131], [138].
17. Per Lambert JA and Finch CJ: Weyerhaeuser has legally enforceable duties to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the Aboriginal interests of the Haida people, on the one hand, and the short term and long term objectives of the Crown to manage TFL 39 and Block 6 in accordance with the public interest, both Aboriginal and non Aboriginal, on the other hand: Additional [104], [129].
18. Per Lambert JA: Weyerhaeuser’s duty to consult has three sources: (1) the terms of the Forest Act and the licence; (2) the doctrine of ‘knowing receipt’; and (3) the framework for justifying infringements of Aboriginal rights.
19. Per Lambert JA: The Forest Act requires TFL holders to submit management plans that address protection and conservation of cultural heritage resources and specify measures to identify and consult with persons using the TFL area for purposes other than timber production. Where the licence incorporates these provisions, it specifies Aboriginal people and requires Weyerhaeuser to propose management objectives regarding integration of its harvesting activities with use of the licence area by Aboriginal people claiming an Aboriginal interest in the area, and to specify measures for identifying and consulting with Aboriginal people claiming an Aboriginal interest. Every obligation of consultation must carry with it an obligation to seek accommodation. These obligations are at least as broad in scope as the harvesting rights under the Tree Farm Licence to which they are inextricably linked: Additional [48], [53], [60].
20. Per Lambert JA: The fiduciary duty of the Crown is a duty of utmost good faith, and requires the federal and provincial Crown to put the interests of Aboriginal Peoples under the protection of the Crown so that, in cases of conflicting rights, the Crown must not subordinate the interests of the Aboriginal Peoples, to whom the fiduciary duty is owed, to competing interests of other persons to whom the Crown does not owe a fiduciary duty. In this case, the Provincial Crown owed the Haida Nation a fiduciary duty to consult with them before replacing and transferring TFL 39 in 1999 and 2000. The Crown did not comply with this fiduciary duty though it was well aware of the claims of the Haida people to Aboriginal title and Aboriginal rights and was well aware of the strong grounds supporting those claims: Additional [62], [63].
21. Per Lambert JA: The Court has, for the time being, exercised its discretion not to declare TFL 39 invalid. However, the Crown’s fiduciary duty continues and is ever present: Additional [64].
22. Per Lambert JA: The Crown’s breach of its fiduciary duty, which was known, or should have been known, to MacMillan Bloedel and Weyerhaeuser, places this case within the category of ‘knowing receipt’ cases where the title, if any, that is passed to the third party, in breach of the fiduciary duty, is clogged by the fiduciary’s breach of duty, so that the third party is a constructive trustee and, in that capacity, owes a fiduciary duty to the original beneficiary of the original fiduciary obligation: Additional [65].
23. Per Lambert JA: MacMillan Bloedel and Weyerhaeuser must have been aware of the Provincial Crown’s fiduciary duty to the Haida, including a duty to consult before replacing or transferring TFL 39, and must have been aware of the strong prima facie case of the Haida to Aboriginal title and rights in at least a significant part of Block 6, and must have been aware, or could have become aware on reasonable and necessary inquiry, of the Crown’s failure to consult and seek accommodations in the replacement and transfer. Weyerhaeuser, in these circumstances, must be regarded as a constructive trustee, owing a third party fiduciary duty to the Haida. The duty continues throughout the period that Weyerhaeuser holds TFL 39, and it applies to Weyerhaeuser’s management, administration and operation of TFL 39. The licensee’s fiduciary obligations are similar to those of the original fiduciary, including the obligations of consultation and accommodation in dealing with TFL 39: Additional [71]-[73].
24. Per Lambert JA: Weyerhaeuser, as constructive trustee, had a fiduciary obligation that carried with it a duty to consult with the Haida contemporaneously with taking on the licence and to seek accommodation with the Haida about the management of its harvesting operation. The obligation to consult continues through the preparation of management plans and applications for cutting permits: Additional [92].
25. Per Lambert JA: In this case, the Crown has granted to Weyerhaeuser an exclusive licence to harvest a large area of Haida Gwaii. Weyerhaeuser, in its actions taken pursuant to the licence, may well have violated the Haida Nation’s Aboriginal rights and title. If the violation is proven, then Weyerhaeuser, and perhaps also the Crown, would be liable to pay damages to the Haida, subject to any defence provided by the principles of justification: Additional [83].
26. Per Lambert JA: Infringements of Aboriginal title may be expected to lie in passing the Forest Act, issuing an exclusive timber harvesting right to Weyerhaeuser in TFL 39, replacing TFL 39, transferring the licence, approving management plans, granting cutting permits, and overseeing Weyerhaeuser’s compliance with legislative and licence provisions. Weyerhaeuser is a party to all of these infringements except the passing of the Forest Act. In relation to those infringements, Weyerhaeuser had to satisfy itself by reasonable inquiry that the infringements in which it was participating with the Crown, were justified. Weyerhaeuser was obliged to ensure that any required consultation and/or compensation took place. With respect to activities and operations in which Weyerhaeuser takes initiative within its management discretion, Weyerhaeuser must meet the justification tests of necessity, minimal impairment and consultation. In other words, at the level of activities and operations, where the Crown does not have the day to day control of activities, the justification action falls on Weyerhaeuser alone. Weyerhaeuser has an obligation of consultation when decisions are being made and when alternatives are being chosen which impact on the Haida’s Aboriginal title or Aboriginal rights. Where the combination of issuing the cutting permit and the actual cutting itself causes the infringement, the Crown and licensee would each have to meet the justification standards appropriate to their share of the activity: Additional [84], [87], [89], [93].
27. Per Lambert JA: The burden for a defence of justification falls on the Crown. But Weyerhaeuser cannot obtain the protection of justification unless it co-operates with both the Crown and the Haida in ensuring that the justification standards are met. The burden of carrying out consultations or seeing that consultations are carried out never leaves the Crown. But Weyerhaeuser has an obligation to make all appropriate inquiries of the Crown to satisfy itself that the Crown’s obligations of consultation are being discharged. In addition, there are some areas, such as employing Haida people in its operations, or the sharing of economic opportunities, where no consultation with the Haida people could be effective without the participation of Weyerhaeuser: Additional [101].
28. Per Finch CJ: Because the Crown did not fulfil its duty to consult with the Haida, Weyerhaeuser received a licence that suffered a fundamental legal defect. As a result, it was within the Court’s power to declare the licence invalid and void. Such a remedy would have had serious economic consequences, and so the court exercised its discretion and chose not to order such a remedy: Additional [115]-[116].
29. Per Finch CJ: A declaration of the Crown’s duty, without more, would be a hollow remedy. If Weyerhaeuser chose not to co-operate, the Crown would be unable to make any effective accommodation. Within the broad range of issues on which the Haida might reasonably seek consultation and accommodation, there are some issues with respect to which the Crown has no capacity to accommodate the Haida without Weyerhaeuser’s consent or co-operation. No effective remedy could be granted in this case, short of a declaration of invalidity, that did not impose an obligation on Weyerhaeuser to participate in the consultation and accommodation owed the Haida: Additional [118], [119], [121].
30. Per Lambert JA, and Finch CJ, Low JA concurring with respect to the Crown: The Crown and Weyerhaeuser’s duties continue until Haida title and rights are determined by treaty or a Court of competent jurisdiction: Original [58]. ?
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2002/46.html