Supreme Court Decision Builds Business Uncertainty

The facts of today’s Supreme Court ruling on the Haida case contradict the BC government’s view that the ruling creates business certainty.

Despite assertions from Premier Campbell and Attorney General Geoff Plant today, the decision rejects the BC’s current First Nations consultation approach outright.

The Ruling
Today’s ruling leaves no doubt that consultation methods must change, and therefore that recent mergers and new tenures in the logging and other industries are at risk due to a lack of consultation. Challenges to these mergers and tenures are already being prepared and should arrive in the courts soon.

The Supreme Court of Canada affirmed that the government has a duty to consult and, where necessary, accommodate First Nations about legislation, policy, decisions, and tenures governing land use and resource extraction. This duty arises before First Nations prove their rights or title.

The Court provided guidance to the Crown about how it should consult on policy/legislative issues, quoting from the New Zealand Ministry of Justice’s Guide for Consultation with Maori. they say “…genuine consultation means a process that involves…:

  • putting forwrd proposals that are not yet finalized
  • seeking Maori [First Nations’] opinion on these proposals
  • informing Maori [First Nations’] of all relevant information upon which these proposals are based
  • not promoting but listening with an open mind to what the Maori [First Nations’] have to say
  • being prepared to alter the original proposal
  • providing feedback both during the consultation process and after the decision-process

This direction will have enormous impact on the way the Crown develops policies and legislation that affect unceded First Nations’ land.

It raises questions about the BC government’s attempt to offload land and resources decision-making and consultation functions to corporations. Since recent reforms to virtually all resource legislation and regulation occurred with almost no consultation with First Nations, the reforms are now vulnerable to constitutional challenge.

The Spin
The government and industry have, predictably, responded by downplaying the significance of the case. Some of their comments understate the terms of the judgement, and others are incorrect. For example:

  • Certainty: Attorney General Geoff Plant argues that the case will reassure the investment community, indicating that companies do not have a freestanding duty to First Nations. However, the Court rejects current Crown policy, stating: ” If consultation is to be meaningful, it must take place at the stage of granting or renewal [of licences].” This puts most BC logging and oil and gas tenures at risk.
  • Economic compensation: Attorney General Plant, in a media call on 18 November, said the Supreme Court’s Haida judgement includes a paragraph stating the government can satisfy its duties by providing economic compensation (i.e. money) to First Nations. He was unable to find the paragraph, but said he had read it. The judgement contains no such statement. In fact, indirectly the Court says the opposite. The court emphasizes that, “Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations.”

Dogwood Initiative is advising First Nations throughout BC, including the burgeoning Title and Rights Alliance, on legal and financial avenues to ensure that the Crown and resource corporations respect Aboriginal Title and protect the land for future generations.

We’ll keep you posted as the strategies to force implementation of the Crown’s expanded duties hit the ground.

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