"Haida 3" – what you can expect from government

It has been almost a month since the judgement of the Supreme Court of Canada in the Haida and Taku cases. If you’ve followed Dogwood Initiative’s coverage of the story (see our original bulletin, and our review of the implications), you’re probably wondering how government and industry will respond to the judgements. There is no doubt the rulings are the most powerful lever for changing a land use regime much in need of reform. But if you’re looking for major reforms, you shouldn’t expect them to happen immediately: the law set out in the Haida case creates powerful opportunities, but we’ll still have to seize the opportunity and apply strategic thinking, hard work, and patience if we’re to shift our society towards sustainable, community-based management of land.

It’s too early to say how government is going to react. I do know that, internally, staff are carrying on as if nothing has changed, awaiting new direction telling them that the current Consultation Policy needs reform. And First Nations are already getting frustrated.

As we watch to see what transpires, I thought it would be useful to review a little history.

Since February 2002, when the Court of Appeal ruled against the Province in the Haida case, the government has not changed its approach to land management much. That’s partly because of the culture of government, which resists change, and because government agencies were hoping the Supreme Court would overrule the BC judges who said the Crown has a duty to consult. November’s final judgement in this case doesn’t allow government to continue this wishful thinking. But that won’t stop the “dirt ministries” that manage public lands and resources from continuing to resist change, and trying to squeeze their plans and tenure decisions through the inevitable loopholes that appear in the judgement’s language.

I don’t wish to downplay the power of the new law. In the build-up to the decision, we’ve already seen comments from industry about the significance of Aboriginal Rights and Title. Just before decision day, the mass media began to pick up on the case, publishing a few stories about at the start of November. And there is no doubt industry knows the danger the case poses to the status quo–i.e. heedless, unsustainable development, encouraged by government in the name of royalty revenues and support for its corportate donors. Put most bluntly, the judgement shatters a veil behind which government has been able to continue business as usual, almost completely negating the effect of the famous Delgamuukw judgement.

But don’t expect government and industry to rush to the negotiating table to settle, finally and honourably, the “Land Question,” adopting more sustainable policies in the process.

No, based on past experience, I think we can expect government to hide behind loopholes like the court’s regrettable reference to the BC government’s Consultation Policy of October, 2002.

Why is it a loophole? Simply because of the way agencies think. In paragraph 51 of the Haida judgement, the Supreme Court of Canada doesn’t approve of the provincial policy, which clearly does not satisfy the Crown’s newly established duties. The court just likes the idea of a formal policy all staff must follow. (Earlier in the judgement, in paragraph 46, the court does review New Zealand’s consultation policy, approving of its substance, and quoting from it. The BC policy falls far short of its Kiwi counterpart.)

But if you are desperate to avoid changing your ways, the mere mention of the policy is enough. Government employees I’ve talked with are already starting to latch on to the Court’s reference as if the court said, “as long as the BC government uses this policy, it needn’t change a thing.”

Of course, this is what always happens when a court rules: both sides try to find justification for their point of view. But it’s clear the court is trying to overturn the status quo, and it will be unfortunate if the government again refuses to budge. To see how deeply ingrained the problem is, let’s look at some recent history.

A Quick History of Loopholes: process over substance

I have mentioned loopholes twice above. I use the term loosely, to cover the ways government and industry are adept at using the language of the courts to try to make future decisions judgement-proof. That’s part of the reason that, as complacent ministry officials used to gleefully put it, First Nations in BC were “0 for 10” in injunction applications during the 1990s.

Despite breakthrough victories over logging on Clayoquot Sound’s Meares Island (an injunction from the late 1980s is still in place, pending a negotiated settlement), and on Aboriginal Rights (Sparrow, Van Der Peet) and title (Delgamuukw), First Nations were not very successful in stopping specific development projects and forestry plans in the 1990s.

The reason? Put most simply, the government and industry successfully convinced the courts of two things: (a) they’d followed some sort of process to address First Nations’ interests (even though that process was a sham); and (b) the economic harm to BC would outweigh any potential harm to Aboriginal Rights.

The latter argument relied on the narrow legal test for an injunction, which comes down to a balancing of interests, and tends to give more weight to immediate financial interests than to long-term cultural and economic interests.

The government and industry also exploited alarm among judges over the unintended consequences of the Meares Island decision: an indefinite injunction, which hasn’t seemed to drive the negotiated settlement the court originally intended. Never mind that there were ways around such an outcome; the courts tend to be conservative, afraid of upsetting society too much. So the First Nations lost, the treaty process slowed down even more (with little incentive for government and industry to make concessions), and industry began to believe it could continue, virtually unhindered, on its unsustainable path.

I won’t set out a comprehensive analysis of the loopholes and soft language that allowed government to survive challenges to its decisions. Put in extremely simple terms, things went like this: the court said rights exist (in Sparrow), so government created a checklist of questions to ask about potential rights, interpreting the rights as narrowly as possible. The court said title can still exist, set out a test, and said that where it exists, there must be meaningful consultation, evenup to consent. So government created an artificially simplistic checklist (“land near existing development? >then title unlikely”), started sending a flurry of standard-form referral letters to First Nations with unreasonably short turn-around times, and ignored virtually all responses, saying, each time, that they needed more evidence. In some cases, and with certain First nations, like the Haida, the government would make superficial changes to a proposed use of land. But that was about it.

A bit more paperwork, a few new jobs for “Aboriginal Liaison” officers in government and larger resource companies, and the beat goes on. When First Nations pointed to Delgamuukw and said “you must consult meaningfully,” government said, “not ’til you prove title,” knowing it takes years and millions of dollars to do so, through the courts. They boxed First Nations into a [il]logical loop worthy of C.S. Lewis.

Taku and Haida 2
Then came the decision of the BC Court of Appeal in Taku, in January 2002. The court rejected the
government’s argument that it did not have a duty to consult until rights or title are proved, therefore except in areas where title has been proved, the courts couldn’t review the adequacy of consultation and override a land use decision for which there was inadequate consultation. A week after that decision, the Haida went to the same court, and argued that they had not been consulted adequately about Weyerhaeuser’s takeover of MacBlo’s tenures on Haida Gwaii.

When the court issued a judgement only 19 days later (“Haida 2)”, stating positively that the government, as well as industry, have a duty to consult First Nations, and that this duty includes a requirement to accommodate the First Nation’s interests, government went into shock.

The Haida decision came down just as an internal committee of dirt ministries had completed a formal consultation policy to replace the guidelines that government had managed to approve almost in 1998. The committee, co-ordinated by the Ministry of Sustainable Resource Management and advised by lawyers from the Attorney General, had just been working out the details for formal approval of the policy, and releasing it to the public. Haida froze this process, imbuing the committee’s meetings with that deer-in-the-headlights look. Or, to use a more fitting analogy from the wild kingdom, the bureaucrats were like a flock of birds in a marsh, amongst whom a large object lands, sending them to the skies in a confusion of shrieks and feathers.

Within a few weeks, however, the birds had landed again, and almost seemed to have forgotten anything had happened. I was still in government at the time, and remember thinking that meetings of the consultation policy committee and the similarly composed aboriginal litigation committee were taking on an almost comical air:

  • A general duty to consult? No, all the heads said soberly, nodding in agreement, it’s just a duty to the Haida; after all, that’s all the judgement says, “Haida,” not “all First Nations”
  • Application of the duty to other logging companies? No, it’s just Weyerhaeuser, because of the particular relationship between the Haida and MacBlo (more nodding; eyes untroubled).
  • Application of the duty to other types of land use or other types of company, on Haida Gwaii or elsewhere? C’mon, that’s almost silly. The judgement clearly talks about logging, and trees, and TFL 39.
  • Relevance of the judgement to, say, lakeshore sales in the Okanagan? What an absurd notion!

Lawyers call this process “reading down” the judgement: hemming it in to the corner of the room, giving it only minute significance. In this case, it was like stuffing the proverbial 800 pound gorilla no one wants to acknowledge into a mouse hole.

And the policy? Government took another eight or nine months to release it to the public. There were lots of extra meetings of the committee. But changes? Few, and none of substance. At first the Attorney General tried to remove some of the artificial checklists that agencies use to avoid consulting entirely, checklists based on extreme interpretations of Delgamuukw and other cases. These checklists were like the lie that’s big enough to become truth in the minds of most.

Back to the good news
The Supreme Court’s judgement, along with recent BC court judgements, suggest the courts have had enough of the government’s fear-mongering, and refusal to change. It is apparent that the government isn’t going to be able to get away with business as usual anymore.

A separate Haida ruling by BC’s Supreme Court, this past September, suggests that the bad old days of failed injunction applications are over. The Court of Appeal said, in 2002, that the Haida could come to court at any time, for review of consultation and the negotiation of accommodations. The September ruling was the first under this newish process of judicial review.

That means we may see a series of challenges to tenure decisions, mergers, legislation, and land use plans that can move quickly through the courts and, this time, favour First Nations.

As we have been writing in bulletins for the past few months, several First Nations are already going into court with such challenges. These challenges are the most powerful tool we’ve got to change the unsustainable road our province is on. And, who knows, perhaps the challenges will convince gonverment agencies that the times they have-a changed. Let’s hope they have the sense to change, too. If not, they risk being pushed right off the road.

Reference

From the Supreme Court’s Haida judgement: comments on BC’s consultation policy, and then on New Zealand’s (return to the discussion of these paragraphs, above):

[Paragraph 51 of Haida 3]
51 It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts. As noted in R. v. Adams, [1996] 3 S.C.R. 101, at para. 54, the government “may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance”. It should be observed that, since October 2002, British Columbia has had a Provincial Policy for Consultation with First Nations to direct the terms of provincial ministries’ and agencies’ operational guidelines. Such a policy, while falling short of a regulatory scheme, may guard against unstructured discretion and provide a guide for decision makers.

[Paragraph 46 of Haida 3
46 Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justice’s Guide for Consultation with Mori (1998) provides insight: Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed . . . (at s. 2.0 of Executive Summary) . . . genuine consultation means a process that involves . . . :

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