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Australian Indigenous Law Reporter |
Supreme Court of British Columbia (Smith J)
6 December 2005
2005 BCSC 1712
Potential aboriginal rights – duty of Crown to consult – duty in relation to Crown land and privately-owned land – nature and scope of Crown duty
The Hupacasath First Nation (‘HFN’) challenged a decision made by the Minister of Forests to remove some traditional lands from Tree Farm Licence 44 (‘TFL 44’). The lands in question (the ‘Removed Lands’) were privately owned, but their inclusion in TFL 44 placed controls on the use of the land. No formal consultation or discussion was conducted between the HFN and the Crown.
The HFN also challenged the Minister’s decision to change the Annual Allowable Cut (‘AAC’) for the Crown owned land that remained under TFL 44. The HFN were aware of, and had received notice of this change.
1. There is a duty to consult with, and possibly accommodate, the rights of aboriginal people which exists prior to the final proof of aboriginal rights in court and before the signing of treaties: [87] Haïda First Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 (‘Haïda’), Taku River Tlingit First Nation v British Columbia (Project Assessment Director) [2004] 3 SCR 550 (‘Taku River’) applied.
2. The duty to consult and possibly accommodate arises from the honour of the Crown, which is always at stake in its dealings with aboriginal people. The duty extends to Crown decision-making about lands, conduct in treaty- making and interpretation, and issues relating to claims to resources: [91]–[94] Haïda, Taku River applied.
3. The content of the duty varies with the strength of the claim. Determining the scope and content of the duty requires the Court to make a preliminary assessment of the strength of the case supporting the existence of the right, and to consider the seriousness of the potentially adverse effect upon the rights claimed: [95], [138] Haïda applied.
4. To determine whether a duty to consult arises, the court must assess whether the Crown has knowledge, real or constructive, of the potential existence of aboriginal rights; and whether the Crown contemplated conduct that might adversely affect those rights. If the Court is satisfied as to these questions, it must assess the scope and content of the duty to consult and accommodate: [138].
5. The Crown was, or should have been, aware when it made the decision to remove the land in question from TFL 44 of the HFN’s claims and the potential existence of aboriginal rights to the Removed Lands and the surrounding Crown lands: [140]–[150].
6. The decision-making power that the Crown held over the privately-owned Removed Land meant that its actions could adversely affect potential aboriginal rights over the land. The duty to consult can apply outside the context of Crown land. The decision to permit the removal of the lands from TFL 44 could give rise to a duty to consult and accommodate: [191]–[192], [199].
7. In its decision to remove land from TFL 44, the Crown relinquished control over activities on the land. This control permitted a degree of protection of potential aboriginal rights, thus its removal meant that the Crown had contemplated conduct that had the potential to adversely affect the HFN’s aboriginal rights: [225], [231], [233].
8. There was a duty to consult with respect to the removal of lands from TFL 44. The duty to consult was at a moderate level with respect to the Crown lands, and at a lower level with respect to the removed lands. The Crown did not fulfil that duty: [254], [274].
9. There was a duty to consult regarding the decision to amend the AAC, but that duty was met by the Crown: [281], [290].
10. The HFN should have declaratory relief. The removal decision will not be quashed or suspended, but terms of use of the removed lands for up to two years (pending the completion of consultation and accommodation) are imposed: [291]–[326].
…
102. In Haïda Nation, the provincial Minister of Forests had made certain decisions regarding TFL 39, which covers Crown land in northern coastal British Columbia ...
103. A summary of the Court’s conclusion is found at para 10 of the reasons for judgment of the Chief Justice:
102. I conclude that the government has a legal duty to consult with the Haïda people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach agreement …
104. Chief Justice McLachlin held that, because the aboriginal interest is insufficiently specific, the duty to consult is not derived from the Crown acting as fiduciary (para 18). Rather, the source of the duty is the honour of the Crown, which is always at stake in its dealings with aboriginal peoples (para 16). This concept must be understood generously ‘in order to reflect the underlying realities from which it stems’ (para 17). The Court held:
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. Nothing less is required if we are to achieve ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown’: Delgamuukw, supra, at para 186, quoting Van der Peet, supra, at para 31 (para 17)
92. The duty relates not only to the Crown’s conduct in decision making about lands but also to the Crown’s conduct in the treaty making and interpretation process (para 19). It includes issues relating to claims to resources ...
93. The source of the duty was summarized at para 25:
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.
94. The duty arises not when aboriginal claims have been proved and resolved, but once claims affecting those interests are being seriously pursued in the process of treaty negotiation and proof ...
98. Emphasizing that the process does not give aboriginal groups a veto over what can be done with land pending final proof of the claim, the Chief Justice said that what is required is ‘a process of balancing interests, of give and take’ (para 48).
99. After holding that third parties do not owe a duty to consult and accommodate, the Court rejected the argument that any duty to consult or accommodate rests solely with the federal government and held that the duty may also rest with provincial governments (paras 52–59) …
105. I pause to comment that although the Haïda Nation case shares a significant aspect of the case before me, in that it arises from a Ministerial decision regarding a TFL, there is also a notable difference: it concerned Crown land, not privately owned land ...
199. Second, I conclude that the principles articulated in Haïda Nation and Taku River can apply outside the context of Crown land. The Crown’s honour does not exist only when the Crown is a land-owner. The Crown’s honour can be implicated in this kind of decision-making affecting private land. Here, the Crown’s decision to permit removal of the lands from TFL 44 is one that could give rise to a duty to consult and accommodate. I refer back to the words of the Supreme Court in Haïda Nation at para 76: the province may have a duty to consult and perhaps accommodate on TFL decisions, which reflect the strategic planning for the utilization of the resource and which may potentially have serious impacts on aboriginal rights.
200. I have concluded that the existence of a duty to consult, in these unique circumstances, is not precluded by the fact that these are private lands.
See also Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) reproduced in this edition at p 43 ; and Haïda Nation v British Columbia (Minister of Forests) and Taku River Tlingit First Nation v British Columbia (Project Assessment Director), reproduced in 9(1) Australian Indigenous Law Reporter 46 and 60.
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URL: http://www.austlii.edu.au/au/journals/AILR/2006/8.html