Indigenous Law Bulletin
 BCCA 147 (Chief Justice Finch, Mr Justice Lambert and Mr Justice Low, 27 February 2002) and
 BCCA 462 (Chief Justice Finch, Mr Justice Lambert and Mr Justice Low, 19 August 2002)
by Louise Mandell QC
On 13 January 2002, the Council of the Haida Nation brought a judicial review application challenging the decisions of the Minister of Forests to allow the renewal and transfer of a tree farm licence (‘TFL’) in northern British Columbia. TFLs are area based forest licences, which grant an exclusive right to the licence holder to cut all of the trees in the licence areas. A portion of the area over which the TFL was granted, Block 6, is located in Haida Gwaii, the traditional country of the Haida Nation. Block 6 represents half of the operable land base of Haida Gwaii, including old growth forests. The Minister for Forests had renewed this particular licence in 1981, 1995 and 2000. The TFL had been held by MacMillan Bloedel Limited from 1961 and was transferred to Weyerhaeuser Company Limited (‘the company’) in 1999. The Haida Nation was challenging the Minister’s decisions to renew the TFL and to allow the transfer to the company.
The Province of British Columbia (‘the Province’) has refused to give effect to the decision of Delgamuukw v British Columbia, by taking the position that until a First Nation proves its Aboriginal title in court or has it recognised by a treaty, the Province is not obligated to justify infringements of Aboriginal rights and title when granting third party tenures. The TFL was issued without any consultation with the Haida Nation. Evidence before the judge at first instance, Mr Justice Halfyard in the Supreme Court of British Columbia, established that both the Province and the company knew that the Haida had a strong case of Aboriginal title and that the logging would interfere with their rights.
Mr Justice Halfyard dismissed the Haida Nation’s petition, holding that the Provincial Crown was not legally required to consult before title or rights had been proven in a court of law or confirmed by treaty. On appeal, the British Columbia Court of Appeal (‘the Court’) overturned the lower court decision and unanimously rejected the arguments of the Province. The Court, based on their interpretation of Delgamuukw v British Columbia, found that the Provincial Crown had a duty to consult and accommodate the Aboriginal interests of the Haida, prior to the issuance of the TFL. As there was no such accommodation or consultation, both the Province and the company have a duty to accommodate the Haida regarding the TFL. The decision whether to quash the TFL was deferred to a trial, where Aboriginal title would be proved. The Province and the company’s conduct in accommodating Haida interests will be relevant factors when a court finally addresses the issue of whether the TFL should be quashed.
The company applied for a reconsideration of the duty imposed on it and a supplementary hearing was held in June 2002. The Court delivered supplementary reasons, with the majority affirming the company’s duty to accommodate the Aboriginal interests of the Haida.
The Court held that where the Crown knows of a strong prima facie case for the existence of Aboriginal rights or title, the Crown is under a constitutional obligation to consult with Aboriginal peoples when granting tenures which could infringe their rights. The Court decided that the obligation to consult is about accommodation of ‘both the cultural interests and the economic interests of the Haida people’.
This accommodation requires a balancing of (a) the Aboriginal interests; and (b) the short-term and long-term objectives of the Crown and the company to manage the TFL in accordance with the public interest, both Aboriginal and non-Aboriginal. In the supplementary reasons, Mr Justice Lambert said that ‘in cases of conflicting rights, the interests of Indian people, to whom the fiduciary duty is owed, must not be subordinated by the Crown to competing interests of other persons to whom the Crown owes no fiduciary duty’.
The Court concluded that, while there is always an enforceable legal duty to consult and to seek an accommodation, the strength of the obligation to seek an accommodation is proportional to the strength or potential soundness of the evidence of Aboriginal title and rights. Where the case for Aboriginal title and rights is strong and the infringement likely, as in this case, the obligation to reach an agreement is at its highest.
The source of the Crown’s duty to consult and accommodate arose from the following circumstances:
(a) the Provincial Crown had fiduciary obligations of utmost good faith to the Haida people with respect to the Haida assertions of Aboriginal title and Aboriginal rights;
(b) the Provincial Crown was aware of the Haida assertions of Aboriginal title and Aboriginal rights over all or at least some significant part of the area covered by the TFL, through evidence supplied to them by the Haida and through further evidence available to them on reasonable inquiry, an inquiry which they were obliged to make; and
(c) the assertions of the Haida people of Aboriginal title and Aboriginal rights were supported by strong evidence in relation to all or some significant part of the area covered by the TFL.
The Court found that, short of declaring the TFL invalid, a duty on the company was necessary to provide an effective remedy to the Haida. The Court also indicated that this type of proceeding, that is a judicial review based on the Crown’s obligations to consult and accommodate, could serve as an alternative framework to seeking interlocutory injunctions prior to a final determination of Aboriginal title and rights by a court, or confirmation of those rights in a treaty.
To ensure good faith negotiations, the Court created a supervisory role for a judge of the British Columbia Supreme Court, giving the judge power to make orders during the negotiation period. It is interesting to note that Mr Justice Lambert stated that ‘compensation for damage to Haida title or rights should become a subject of negotiation’. This is currently not a subject matter for negotiation under the British Columbia Treaty Process.
Third parties now have to be involved in consultation and accommodation. They must make inquiries to ensure that the Crown has met its fiduciary duty to Aboriginal people. This duty on the company, together with the duty placed on the Province, will undoubtedly assist in forcing the Province into meaningful negotiations. As the following quotation from Mr Justice Lambert indicates, the present situation is desperately in need of change:
The issue is an important one. If the Crown can ignore or override aboriginal title or aboriginal rights until such time as the title or rights are confirmed by treaty or by judgment of a competent court, then by placing impediments on the treaty process the Crown can force every claimant of aboriginal title or rights into court and on to judgment before conceding that any effective recognition should be given to the claimed aboriginal title or rights, even on an interim basis.
Louise Mandell QC is a lawyer practising with the firm Mandell Pinder. She has been involved in a large number of court cases asserting Aboriginal and treaty rights, including Delgamuukw v The Queen and the recent cases of the Council of the Haida Nation v British Columbia and Weyerhaeuser Company.
  3 SCR 1010.
 Council of the Haida Nation v Minister of Forests and Weyerhaeuser Company  BCSC 1280.
 Council of the Haida Nation v British Columbia and Weyerhaeuser Company  BCCA 147.
 Council of the Haida Nation v British Columbia and Weyerhaeuser Company  BCCA 462.
  BCCA 147, .
  BCCA 462, .
 Ibid .
  BCCA 147, .