Supreme Court of Canada –  3 S.C.R. 511
Haida is one of the most frequently cited cases regarding aboriginal rights.
Based on the principle of the honour of the Crown, which was elaborated by the Court, this decision affirms that the Crown must consult Aboriginals as soon as it has it has “real or constructive” knowledge “of the potential existence” of an Aboriginal right or title that may be adversely affected by the contemplated conduct.
This process [of consultation] does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. (para. 48)
What are the Crown’s obligations to consult and to accommodate Aboriginals when they are in the process of establishing an Aboriginal title?
Unanimous – In accordance with the honour of the Crown, there is an obligation to consult Aboriginals, even when their aboriginal rights have yet to be proven.
Between: British Columbia
And: Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation
Between: Weyerhaeuser Company Limited
And: Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation
Interveners: Canada, Ontario, Quebec, Nova Scotia, Saskatchewan, 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
The Haida people of British Columbia claim aborignal title to the territory of Haida Gwaii (Queen Charlotte Islands) and the waters adjacent to it, but that title has yet to be acknowledged. The islands are densely covered by trees, including cedars, which play an important role in the Haidas’ religious beliefs. The islands have been the site of forest harvesting since before World War I.
In 1961, British Columbia gave a forestry firm permission to exploit the island resources for the profit of all British Columbians. This licence allowed it to cut down trees in a zone known as Block 6.
In 1981, 1995 and 2000, the licence was renewed. In 1999, it was transferred to Weyerhaeuser Co. Since 1994, the Haida Nation has formally objected to these licences and transfers. The Haida contested these licences since they were granted without any consent on their part.
In 2000, the Haida officially opposed the transferral of the foresting licence to Weyerhaeuser by claiming an Aboriginal title over the Queen Charlotte Islands in B.C. courts.
The Haida Nation: The exploitation of forestry resources has the potential to have harmful effects on the cultural and economic interests of the Nation. The government has the obligation to consult the Nation, in accordance with the principle of the honour of the Crown. It will undoubtedly take many years to prove the aboriginal title and the damages could be irreparable in the interim.
British Columbia: As the holder of the official title, the Province has the right and indeed the duty to exploit natural resources. The obligation to consult or accommodate, if it exists, applies only to the federal government. Finally, the appropriate remedy for the Haida would have been to obtain an interlocutory injunction and not to seek a title to the lands.
British Columbia Supreme Court (2000): The government owed the Nation a moral (but not legal) obligation to negotiate.
British Columbia Court of Appeal (2002): The principle of the honour of the Crown obliged the government to consult with and accommodate the Haida concerns as to the harvesting of timber in Block 6.
McLachlin, Major, Bastarache, Binnie, LeBel, Deschamps and Fish
The Crown of British Columbia has a duty to consult and to accommodate. This obligation is rooted in the principle of the honour of the Crown in its dealings with Aboriginal people. In some cases, this can create a fiduciary duty if the Aboriginal rights are already well-defined.
The obligation to consult begins at the moment “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” (para. 35). The extent to which the government should consult and accommodate depends on the evaluation of the strength of the Aboriginal claim as well as the gravity of the potential adverse effects on the right or title being claimed.
The requirement of good faith in the negotiations does not trigger an obligation of results but it does require that the Crown take into consideration the Aboriginal people’s interests.
Duties of third parties
The principle of the honour of the Crown does not extend to third parties. They cannot be accountable in cases where the government fails to fulfill its duties. A third party is, however, accountable to Aboriginal people in the same way as it is to any other persons in common law.
Type of remedy
The injunction remedy is not the best procedure since it does not take into account the duty to consult and to accommodate, and offers only a temporary solution.
Even after the Haida case, some areas of uncertainty still remain in 2009, with the obvious one being the extent and intensity of this duty.
It is up to the federal government and the provinces to decide upon the alleged validity of First Nation’s claims and to discuss, or not, with them. Since this process involves many departments and governmental agencies, they do not necessarily have the expertise to assess the claim and there is no consensus between parties as to the validity of a given claim (Mulan, 2009: 118).
Also, the Haida decision clearly states that the duty does not extend to third parties, even though they are liable in civil law and at common law. Still, legal experts advise private parties operating on a site that is the object of an Aboriginal right or title claim to consult the First Nation concerned and quickly address its needs in order to maintain a good relationship between the two parties (Avard and Bigué, 2007).
The Taku River decision, rendered shortly thereafter, gave a more detailed definition of the duty to accommodate.
After this decision, the federal and provincial governments alike elaborated procedures to help them fulfill this obligation.
In 2008, the federal government published its Interim Guidelines to Fulfill the Legal Duty to Consult to help federal departments and agencies to fulfill their legal duties towards Aboriginal people. The guidelines mainly addressed the instances in which consultations are needed, how to organize them and what constitutes a meaningful consultation that is guided by good faith (Government of Canada, 2008: 7). It also contained detailed instructions on how to conduct a successful and respectful consultation, with a description of the roles and responsibilities of each party, including Aboriginal groups, provinces and territories and third parties (Id.: 15-18). The process includes four different phases: the pre-consultation analysis and planning, the consultation itself, accommodation, if needed, and finally, implementation, monitoring and follow-up (Id.: 37).
An enhanced version of the policy was published in 2011.
In Quebec, similar concerns arose after the Haida decision within government departments and agencies with regards to the conformity of previously established consultation practices (Groupe de travail interministériel sur la consultation des Autochtones, 2006: 3). The Guide intérimaire en matière de consultation des communautés autochtones, released in 2006 by a working group made up of representatives of the agencies and ministries that most frequently deal with Aboriginal people, had the same objectives as its federal counterpart, which were to help Quebec government bodies in their planning activities concerning natural resources and their policies affecting any Aboriginal right or title claimed by an Aboriginal community in the province (Id.: 5). The guide also gives the framework for Crown consultation with Aboriginal people and its different stages: the creation of an adapted consultation process for each case, the consultation itself and the final analysis (Id.: 9-13). When the information collected during the consultation process demonstrates that the concerned Aboriginal community will be affected by a projected governmental action, accommodation measures are necessary. They will be decided by the department involved (Id.: 13). In cases of emergency, the working group advises government bodies to make reasonable efforts to take Aboriginal rights and interests into account and to inform the communities as soon as possible of the reasons why it was necessary to depart from the procedure already in place (Id.: 14).
A remaining blur
Even though the Haida decision is considered a victory by Aboriginal people since it recognized the Crown’s duty to conduct negotiations in good faith with communities claiming a Aboriginal title or a right affected by a government action, Aboriginal people have continued to feel ignored by governments. Certain First Nations have felt that there was a lack of communication on the government’s part concerning the real purpose of the consultations and its intent regarding natural resources. First Nations have also claimed that the process already in place is carried out in a hasty manner: the imposed timetables are inflexible, the material used is developed without any Aboriginal expertise and the analysis of consultations is inadequate and often confusing. After the consultations have been held, some have argued that governments and third parties systematically have excluded the concerned Aboriginal communities from the decision-making processes.
Furthermore, the federal and provincial governments alike have sometimes assumed that First Nations’ silence equals their consent or renunciation of their rights (First Nations of Quebec and Labrador Sustainable Development Institute, 2005: 8). For these reasons, in 2005 the AFNQL’s Sustainable Development Institute established a protocol for First Nations concerning the Crown’s duty to consult and to accommodate to help Aboriginal communities in their relations with the Canadian State and the provinces. It defined the duty and the associated process in a clear and concise manner in order to make it generally accessible to the communities (Id.: 14).
The Haïda decision was rendered as part of a legal trilogy on the duty to consult, with:
It was elaborated and clarified by the following cases:
Avard Alexandre-Philippe and Ann Bigué. 2007. L’arrêt Haïda et l’obligation de consultation et d’accommodement des peuples autochtones. Montréal: McCarthy Tétrault. On-line. http://www.mccarthy.ca/fr/article_detail.aspx?id=3634. Consulted December 8, 2009.
Coyle Michael. 2005. Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and Options for the Future—Part 1, in Queen’s Law Journal 31: 75-120.
First Nations of Quebec and Labrador Sustainable Development Institute. 2005. Consultations Protocol of First Nations of Quebec and Labrador. Assembly of First Nations of Quebec and Labrador: Wendake. http://www.iddpnql.ca/fichiers/protocol2005.pdf. Consulted December 8, 2009.
Government of Canada. 2008. Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult. Ottawa: Government of Canada. On-line. http://www.ainc-inac.gc.ca/ai/mr/is/acp/intgui-eng.pdf. Consulted December 8, 2009.
Groupe de travail interministériel sur la consultation des Autochtones. 2006. Guide intérimaire en matière de consultation des communautés autochtones. Québec: Gouvernement du Québec, Secrétariat aux affaires autochtones. On-line. http://www.autochtones.gouv.qc.ca/ publications_documentation/publications/guide-interimaire.pdf. Consulted December 8, 2009.
Mulan David. 2009. The Duty to Consult Aboriginal Peoples – The Canadian Example, in Canadian Journal of Administrative Law & Practice 22 (July): 107-131.
St-Hilaire Maxime and Sophie Theriault. 2003. Les arrêts Taku River et Haïda Nation devant la Cour suprême : des précisions imminentes concernant la mise en oeuvre du droit qu’ont les autochtones d’être consultés ?, in Revue du Barreau 63 (Printemps): 163-175.