Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511


Minister of Forests and Attorney General of British Columbia

on behalf of Her Majesty The Queen in Right of the Province

of British Columbia                                                                                         Appellants




Council of the Haida Nation and Guujaaw, on their own behalf

and on behalf of all members of the Haida Nation                               Respondents


and between

Weyerhaeuser Company Limited                                                                    Appellant




Council of the Haida Nation and Guujaaw, on their own behalf

and on behalf of all members of the Haida Nation                                     Respondents




Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of Nova Scotia,

Attorney General for Saskatchewan, Attorney General of Alberta,

Squamish Indian Band and Lax-kw’alaams Indian Band,

Haisla Nation, First Nations Summit, Dene Tha’ First Nation,

Tenimgyet, aka Art Matthews, Gitxsan Hereditary Chief, Business

Council of British Columbia, Aggregate Producers Association

of British Columbia, British Columbia and Yukon Chamber of Mines,

British Columbia Chamber of Commerce, Council of Forest

Industries, Mining Association of British Columbia,

British Columbia Cattlemen’s Association and

Village of Port Clements                                                                               Interveners

Indexed as:  Haida Nation v. British Columbia (Minister of Forests)

Neutral citation:  2004 SCC 73.

File No.:  29419.

2004:  March 24; 2004:  November 18.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for british columbia

Crown — Honour of Crown — Duty to consult and accommodate Aboriginal peoples — Whether Crown has duty to consult and accommodate Aboriginal peoples prior to making decisions that might adversely affect their as yet unproven Aboriginal rights and title claims — Whether duty extends to third party.

For more than 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the waters surrounding it, but that title has not yet been legally recognized.  The Province of British Columbia issued a “Tree Farm License” (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an area of Haida Gwaii designated as Block 6.  In 1981, 1995 and 2000, the Minister replaced T.F.L. 39, and in 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Co.  The Haida challenged in court these replacements and the transfer, which were made without their consent and, since at least 1994, over their objections.  They asked that the replacements and transfer be set aside.  The chambers judge dismissed the petition, but found that the government had a moral, not a legal, duty to negotiate with the Haida.  The Court of Appeal reversed the decision, declaring that both the government and Weyerhaeuser Co. have a duty to consult with and accommodate the Haida with respect to harvesting timber from Block 6.

Held:  The Crown’s appeal should be dismissed.  Weyerhaeuser Co.’s appeal should be allowed.

While it is open to the Haida to seek an interlocutory injunction, they are not confined to that remedy, which may fail to adequately take account of their interests prior to final determination thereof.  If they can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies.

The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously.  While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.  The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution.  The foundation of the duty in the Crown’s honour and the goal of  reconciliation suggest that the duty 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.  Consultation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to the honourable process of reconciliation that s. 35  of the Constitution Act, 1982 , demands.

The scope of the duty 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 the potentially adverse effect upon the right or title claimed.  The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith.  The content of the duty varies with the circumstances and each case must be approached individually and flexibly.  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 the Aboriginal people with respect to the interests at stake.  The effect of good faith consultation may be to reveal a duty to accommodate.  Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, 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.

Third parties cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate.  The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown.  This does not mean, however, that third parties can never be liable to Aboriginal peoples.

Finally, the duty to consult and accommodate applies to the provincial government.  At the time of the Union, the Provinces took their interest in land subject to any interest other than that of the Province in the same.  Since the duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union, the Province took the lands subject to this duty.

The Crown’s obligation to consult the Haida on the replacement of T.F.L. 39 was engaged in this case.  The Haida’s claims to title and Aboriginal right to harvest red cedar were supported by a good prima facie case, and the Province knew that the potential Aboriginal rights and title applied to Block 6, and could be affected by the decision to replace T.F.L. 39.  T.F.L. decisions reflect strategic planning for utilization of the resource and may have potentially serious impacts on Aboriginal rights and titles.  If consultation is to be meaningful, it must take place at the stage of granting or renewing T.F.L.’s.  Furthermore, the strength of the case for both the Haida’s title and their right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may also require significant accommodation to preserve the Haida’s interest pending resolution of their claims.

Cases Cited

Applied:  Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; referred to:  RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Badger, [1996] 1 S.C.R. 771; R. v. Marshall, [1999] 3 S.C.R. 456; Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Gladstone, [1996] 2 S.C.R. 723; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403; Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33; Halfway River First Nation v. British Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45, aff’d [1999] 4 C.N.L.R. 1; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107; R. v. Marshall, [1999] 3 S.C.R. 533; R. v. Sioui, [1990] 1 S.C.R. 1025; R. v. Côté, [1996] 3 S.C.R. 139; R. v. Adams, [1996] 3 S.C.R. 101; Guerin v. The Queen, [1984] 2 S.C.R. 335; St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.

Statutes and Regulations Cited

Constitution Act, 1867 , s. 109 .

Constitution Act, 1982 , s. 35 .

Forest Act, R.S.B.C. 1996, c. 157.

Forestry Revitalization Act, S.B.C. 2003, c. 17.

Authors Cited

Concise Oxford Dictionary of Current English, 9th ed.  Oxford:  Clarendon Press, 1995, “accommodate”, “accommodation”.

Hunter, John J. L.  “Advancing Aboriginal Title Claims after Delgamuukw:  The Role of the Injunction”.  Continuing Legal Education Conference on Litigating Aboriginal Title, June 2000.

Isaac, Thomas, and Anthony Knox.  “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49.

Lawrence, Sonia, and Patrick Macklem.  “From Consultation to Reconciliation:  Aboriginal Rights and the Crown’s Duty to Consult” (2000), 79 Can. Bar Rev. 252.

New Zealand.  Ministry of Justice.  A Guide for Consultation with Mäori. Wellington:  The Ministry, 1997.

APPEALS from a judgment of the British Columbia Court of Appeal, [2002] 6 W.W.R. 243, 164 B.C.A.C. 217, 268 W.A.C. 217, 99 B.C.L.R. (3d) 209, 44 C.E.L.R. (N.S.) 1, [2002] 2 C.N.L.R. 121, [2002] B.C.J. No. 378 (QL), 2002 BCCA 147, with supplementary reasons (2002), 216 D.L.R. (4th) 1, [2002] 10 W.W.R. 587, 172 B.C.A.C. 75, 282 W.A.C. 75, 5 B.C.L.R. (4th) 33, [2002] 4 C.N.L.R. 117, [2002] B.C.J. No. 1882 (QL), 2002 BCCA 462, reversing a decision of the British Columbia Supreme Court (2000), 36 C.E.L.R. (N.S.) 155, [2001] 2 C.N.L.R. 83, [2000] B.C.J. No. 2427 (QL), 2000 BCSC 1280.  Appeal by the Crown dismissed. Appeal by Weyerhaeuser Co. allowed.


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