For this case comment, I will explore the issue of duty to consult and accommodate in the case of Haida Nation , an important case which dealt with Aboriginal consultation and accommodation obligations related to resource development. It is significant because this case (as well as Taku River ) represented the first time the Supreme Court of Canada (SCC) considered the governments duty to consult and accommodate when making decisions about land and resource use that could affect Aboriginal rights and title (cite Olynyk). I chose to use Haida Nation for this case comment as I thought the judgment in the case was done well. When we went over the case in class, I had many thoughts surrounding the case and had opinions about the duty to consult and accommodate as well as its hand-in-hand relationship with the honour of the Crown as well as Aboriginal right and title. There were a couple of opinions regarding these concepts that I would have done differently. In this case comment, I will explore the duty to consult and accommodate, as well as its relationship with the honour of the Crown, tying that together with the ultimate goal of reconciliation between Aboriginal people and the government through Aboriginal right and title.
The CaseThe Province of British Columbia issued a number of Tree Farm Licences (including to Weyerhaeuser, the private company that held the license in question) to cut trees on Haida Gwaii without the consent of the Haida people asserted that they had Aboriginal rights and title to the lands and resources for more than 100 years, though the claim had not been legally recognized. The Haida claim was based upon unproven Aboriginal rights to title and to harvest cedar. The Province of British Columbia who held legal title to the land, issued a number of Tree Farm Licences to cut trees on Haida Gwaii without the consent of the Haida people who have claimed ownership of the land for more than 100 years, though the claim had not been legally recognized. The Haida claim was based upon unproven Aboriginal rights to title and to harvest cedar. The SCC decided that the Province had a legal duty to consult with the Haida and suggested that significant accommodation would be required to preserve the Haida interest pending resolution of their claims. This case (as well as Taku River ) represented the first time the Supreme Court considered governments’ duty to consult and accommodate when making land and resource use decisions that could affect Aboriginal rights and title. The IssueThe government’s duty to consult with Aboriginal peoples and accommodate their interests is rooted within the honour of the Crown.
The honour of the Crown is always at stake in its dealings with Aboriginal peoples, as seen in R. v. Badger. In Badger it is stated that “it is always assumed that the Crown intends to fulfil its promises”. Meaning that treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s.
35 of the Constitution Act, 1982. Section 35 of the Act represents a promise of rights recognition as mentioned in Badger. This issue is important because the duty to consult and accommodate is too vague, and has the potential to restrict future reconciliation, though it aims to do the contrary. As mentioned in Delgamuukw , the nature and scope of the duty to consult will vary with the circumstances. Meaning that while the consultations must be in “good faith” consultation can still vary as it is on a spectrum.
There is no agreement to agree, the duty is in proportion to an assessment of strength of the case to right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. This issue is significant because the Haida FINISH OFF THIS THOUGHT. The DecisionOn November 18, 2004, the SCC bestowed its decision. McLachlin C.J.C.
, held that the Crown does have legal duty to consult with Aboriginal peoples, and that such consultation may, in appropriate circumstances, lead to a duty to accommodate. Any consultation conducted by the Crown must be “meaningful” , this consultation cannot be discharged by delegation to third parties and does not require that an agreement be concluded between the Crown and the Aboriginal peoples, as mentioned there is no agreement to agree. The court held that the Crown’s duty to consult with Aboriginal peoples and accommodate their interests is rooted in the concept of the honour of the Crown. With respect to the issue of industry’s duty to consult, the SCC held that Weyerhaeuser and, more generally, all third parties, do not owe an independent duty to consult with or accommodate Aboriginal peoples.
The Crown may delegate certain procedural aspects of consultation to industry, as in environmental assessment processes; however, the ultimate legal responsibility to consult with and accommodate Aboriginal peoples rests solely with the Crown (CITE BIRD)AnalysisI agree with the decision in this case. I believe that the duty to consult and accommodate is important; the Crown did not fulfill its duty, and could have done so. At a strategic level, there could have been annual cut limits discussed and implemented as the Haida Gwaii had already been heavily logged. More meaningful consultation would have been a beneficial step toward reconciliation with First Nations. The Crown ultimately must maintain the honour of the Crown, but is also bound to balance broader societal interests with those of Aboriginal peoples, which could result, in some cases; with the Crown making decisions that may not meet the Aboriginal peoples’ expectations (CITE BIRD, Haida para 46).
There is no duty to agree, the duty is to consult and accommodate where possible??On the other hand, I do agree with the case that in the process while there is no duty to agree, as noted above, there is a duty to engage in good faith discussions to understand each party’s concerns and to balance interests (Cite bird). It is a process of “seeking compromise in an attempt to harmonize conflicting interest” (cite para Haida 49) and this process involve an Aboriginal veto power over what the Crown can do.(CITE BIRD, Haida 48) though this can be a common misconception in society. The Haida Nation case is the first of its kind to reach the SCC and it has established a framework for the duty to consult and accommodate (Haida para 11). Standard of judicial review process most often reviewed on reasonableness standard: question is “whether the regulatory scheme or government action „viewed as a whole, accommodates the collective Aboriginal right in question?.
(Haida Nation, para. 62) (CBA PP). The question in each case will therefore be to determine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult. Haida and Taku River set a low threshold.
The flexibility lies not in the trigger “might adversely affect it” (cite para 35) but in the variable content of the duty once it arises (Mikisew Cree para 34). At the low end, “the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice” (Haida Nation, at para. 43). (reword) One section the decision that could be revisited is duty owed by a third party. Despite the fact that Haida certainly clarifies the issue of whether third parties have a legal duty to consult, the practical implications of the decision on industry may prove minimal.
Before Haida, industry faced regulatory consultation requirements. This will no doubt continue and the importance of preserving amicable relations between industry and First Nations have not changed. While Haida has clarified the law in this area as it pertains to third parties, it may actually do very little to change and structure the interactions between Aboriginal groups and industry. Industry will still need to aspire to harmonious dealings with Aboriginal peoples in order to facilitate its efficient development (CITE BIRD, reword).A part of the decision that I strongly agree with is the settling of the question of whether or not the Crown had an obligation to consult and accommodate Aboriginal title if the First Nation had not yet proven Aboriginal title in court. In Haida it is held that proof of Aboriginal title is not required before the Crown will be held to addressing the Aboriginal right that is being asserted (para 37). In other words, the Crown has a duty to consult and accommodate Aboriginal concerns that exists even if Aboriginal title has not been proven in court.
The court in Haida were rightfully mindful that proving an Aboriginal right may take a lengthy amount of time (cite para 26). The answer to what happens in the meantime is answered by stating that “To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable” (para 27).
The honour of the Crown may require that there be consultation and reasonable accommodation of Aboriginal interesting pending resolution of the claim (para 27). I believe this to be incredibly fair because of how long the process can take. Aboriginal claim can come in many different forms and requires a lengthy process (as noted by the court). It would not be just to be able to do with the land what the government wants while claims to the land are in process.The issue with the honour of the Crown is that the concept is so broad. With duty to consult and accommodate and other issue raised in this case such as a claim to Aboriginal title, I searched for an example of a decision with a clear definition. I found the Delgamuukw case was clear in its definition of Aboriginal title stating “that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures” (Delg para 117). Sharing this view, Kent McNeil describes the clear definition given in Delgamuukw allows others to regard this title as encompassing rights to natural resources.
Although access to these resource may be limited from being using in ways that are irreconcilable with the Aboriginal attached to the land, this would give rise to the title (cite Kent McNeil). Contrary to the example above is the vagueness of the Crowns duty to consult and accommodate. The Crown’s duty to consult flows from the honour of the Crown and is closely related to the recognition of Aboriginal rights through s. 35(1) of the Constitution Act, 1982. In order to fulfill the guarantee under s.
3 5 (1) that existing Aboriginal rights will be recognized and affirmed, the Crown should be obliged to engage in meaningful consultation and potential accommodation with Aboriginal peoples, pending final resolution of asserted Aboriginal rights (Bird article). Where there is vagueness, a better test should be sought out. In my view, the law should be more concrete. There should be an extent to which action should have to be shown on both side (The First Nation and the Crown), this would be a proper step towards reconciliation as both parties would have more involvement rather than the Crown having a spectrum of consultation.(cite Haida 43) The current spectrum allows potential for the voice of First Nations to be lost.