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by Jackie Hartley
In Haida Nation v British Columbia (Minister of Forests) (‘Haida’)[1] the Supreme Court of Canada (‘the Court’) recognised that the duty of governments to consult with, and to accommodate the interests of, Aboriginal peoples can arise before claims of Aboriginal rights and title are determined. The Court identified that observance of this duty is essential to upholding the ‘honour of the Crown’.
The Haida Nation has claimed title to the lands and surrounding waters of Haida Gwaii (the Queen Charlotte Islands) for more than a century. In 1961, the Province of British Columbia issued a Tree Farm Licence (‘TFL’) to MacMillan Bloedel Limited over an area of Haida Gwaii. The Province approved a transfer of the TFL to Weyerhaeuser Company Limited (‘Weyerhaeuser’) in 1999. The TFL was replaced in 1981, 1995 and 2000. The Haida Nation sought to have the transfer and replacements set aside.
The Supreme Court of British Columbia dismissed the proceeding at first instance.[2] The British Columbia Court of Appeal (‘Court of Appeal’) reversed the decision and declared that both the government and Weyerhaeuser had a duty to consult with and to accommodate the Haida Nation. However, the Court of Appeal deferred the decision on the validity of the TFL to the stage of determining Aboriginal rights and title.[3] Both the Province and Weyerhaeuser appealed the Court of Appeal’s decision.
The Court affirmed the decision of the Court of Appeal that the Province was under a duty to consult and accommodate the interests of the Haida Nation. However, the Court disagreed with the Court of Appeal’s decision that such a duty could also be imposed upon third parties.
Consultation and accommodation by the Crown, in fulfilment of its fiduciary duty towards Aboriginal peoples, are well-established considerations in assessing whether infringements by the Crown upon Aboriginal rights and title are justified.[4] In Haida the Court distinguished between the Crown’s obligations pursuant to its fiduciary duty over specific, established Aboriginal interests and the more general duty to consult and accommodate.
The Court affirmed that the Crown’s fiduciary duty to Aboriginal peoples does not connote a ‘universal trust relationship’.[5] The fiduciary relationship between the Crown and Aboriginal peoples was confined to instances ‘where the Crown has assumed discretionary control of Aboriginal interests’,[6] requiring it to ‘act with reference to the Aboriginal group’s best interest in exercising discretionary control over the specific Aboriginal interest at stake’.[7]
However, the duty to consult and accommodate prior to the determination of Aboriginal title and rights is not fiduciary in nature. At this stage, the Court held that the interests are ‘insufficiently specific’[8] to ground a fiduciary relationship. However, a general duty to consult and accommodate is sourced from the principle that ‘in all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably’.[9]
The notion of ‘honour’ derives from the recognition that while ‘Canada’s Aboriginal peoples were here when Europeans came, and were never conquered’,[10] the Crown asserted sovereignty over the peoples and their land and resources. From this assertion arose ‘an obligation to treat Aboriginal peoples fairly and honourably and to protect them from exploitation’.[11] The recognition and affirmation of Aboriginal rights and title in section 35 of the Constitution Act, 1982 serves as a promise to honour this obligation.[12]
In order to ‘reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty’,[13] the Crown must engage in ‘honourable negotiation’ with Aboriginal peoples.[14] This implies a duty to consult with Aboriginal claimants and, if appropriate, accommodate their interests. Importantly, the Court confirmed that this duty to consult and accommodate extends to provincial governments.[15]
The Court was concerned that restricting the duty to proven rights and title could denude unproven rights of content, particularly if the resources at the centre of the rights are depleted. Such an outcome would not further the process of reconciliation. Therefore, the Court held that the duty to consult is triggered when the Crown possesses actual or constructive knowledge of the potential existence of Aboriginal rights and title, and contemplates potentially adverse conduct.[16] Engaging in good faith consultation may then reveal a duty to accommodate Aboriginal interests.[17]
The Court instructs Aboriginal people to assist in the process of determining whether a duty to consult and accommodate exists by outlining their claims with clarity.[18] As the Haida Nation had asserted their rights for over a century, this test was easily satisfied.[19]
While the content of the duty is to be determined case-by-case, the Court stated that the ‘controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and Aboriginal peoples with respect to the interest at stake’.[20] This will depend upon the strength of the claim and the seriousness of the potential impact of the Crown’s proposed action upon the interest asserted.[21]
While the Crown must consult in good faith, the Court also imposed responsibilities of good faith upon Aboriginal claimants.[22] In all cases, there is no duty to agree, nor do the Aboriginal claimants possess a veto. Instead, the process is one of ‘balancing interests, of give and take’.[23]
When accommodation is required, the Crown is obliged to reasonably balance Aboriginal concerns with the potential impact of the decision on the asserted right or title and with other societal interests.[24]
The evidence in support of the Haida Nation’s potential claim and the serious potential impact of the Province’s decisions regarding the TFL was strong. The Court found that the Province had a duty to consult with the Haida Nation. The evidence suggested that the honour of the Crown may require significant accommodation of the Haida Nation’s interests. The Province had failed to engage in meaningful consultation.[25]
The Court of Appeal had sought to extend to Weyerhaeuser the obligation to consult and accommodate. However, the Court’s conceptualisation of the source of the duty to consult and accommodate – the Crown’s assumption of sovereignty – meant that there was no scope for such duties to be imposed on third parties. The honour of the Crown is non-delegable.[26]
Lambert JA in the Court of Appeal held that the equitable doctrine of ‘knowing receipt’ operated to extend the fiduciary obligation to consult and accommodate to Weyerhaeuser.[27] However, as the Court determined that the duty to consult and accommodate regarding asserted but unproven interests is not fiduciary in nature, the application of ‘knowing receipt’ was inappropriate.[28]
The extension of the duty to consult and accommodate is important for Aboriginal peoples awaiting judicial recognition of their claims to rights and title, and may potentially lead to the greater involvement of Aboriginal peoples in resource management. However, whether the Haida decision succeeds in furthering reconciliation may ultimately depend upon what courts believe is required to uphold ‘the honour of the Crown’.
Jackie Hartley is a practising solicitor. She studied First Nations Law at the University of British Columbia in 2003.
[1] [2004] SCR 511, 2004 SCC 73 (Supreme Court of Canada, McLachlin CJ, Major, Bastaraches, Binnie, LeBel, Deschamps and Fish JJ, 19 November 2004).
[2] Haida Nation v British Columbia (Minister of Forests) (2000) 36 CELR (NS) 155.
[3] Haida Nation v British Columbia (Minister of Forests) [2002] WWR 243, with supplementary reasons (2002) 216 DLR (4th) 1.
[4] See, eg, R v Sparrow [1990] 1 SCR 1075, 1119; Delgamuukw v British Columbia [1997] 3 SCR 1010, [168].
[5] Haida, above n 1, [18]; Wewaykum Indian Band v Canada [2002] 4 SCR 245, [79].
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid [17].
[10] Ibid [25].
[11] Ibid [32; Mitchell v MNR [2001] 1 SCR 911, [9].
[12] Ibid [20].
[13] Ibid [26].
[14] Ibid [20].
[15] Ibid [57]-[59].
[16] Ibid [35].
[17] Ibid [47].
[18] Ibid [36].
[19] Ibid [71].
[20] Ibid [45].
[21] Ibid [39].
[22] Ibid [42].
[23] Ibid [48].
[24] Ibid [50].
[25] Ibid [78]-[79].
[26] Ibid [53].
[27] Lambert JA held that as Weyerhaeuser either knew or should have known of the Province’s breach of its fiduciary duty to consult, the title passing to Weyerhaeuser became ‘clogged by the fiduciary’s breach of duty, so that the third party is itself a constructive trustee and, in that capacity, owes a trust or fiduciary duty to the original beneficiary of the original fiduciary obligation’: Haida Nation v British Columbia (Minister of Forests) (2002) 216 DLR (4th) 1, 26.
[28] The Court suggests that it is reluctant to attach such doctrines to the Crown’s fiduciary obligations regarding specific, established Aboriginal interests. While these relationships between the Crown and Aboriginal peoples are ‘trust-like’ they are not true ‘trusts’: Haida, above n 1, [54]; Guerin v The Queen [1984] 2 SCR 335, 386.
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