March 24, 2004 will go down as a momentous day in the history of British Columbia. Fundamental issues about who controls the land, the obligations of corporations and who is included in decision making about resource allocation are being argued at the Supreme Court of Canada in the Haida and Taku River Tlingit cases.
At stake is whether the log and mine-now, talk later approach to resource extraction activities is permissible in areas where First Nation have good evidence of title or rights. The BC Court of Appeals said no, and imposed duties on both the Crown and tenure holders to consult and accommodate First Nation interests.
The BC government and resource corporations disagreed and have appealed to the nation’s highest court. The Haida case involved the transfer (and replacement) of a Tree Farm Licence on Haida Gwaii to U.S. logging giant Weyerhaeuser which took ownership with full knowledge that unresolved aboriginal claims existed in the area. The Tlingit case involves a mining approval in the beautiful Taku watershed.
The BC Court of Appeal decisions created real problems for business-as-usual resource extraction in BC. In both the Taku River and Haida cases the Appeals court affirmed that the duty to consult and accommodate does not require First Nations to first prove the existence of Aboriginal title in the courtroom.
Indeed, the Taku and Haida cases affirm the existence of the Crown’s obligation to consult and accommodate before Aboriginal title is infringed.
The decisions also confirm that courts have the discretion to nullify or void Crown decisions granting permits, approvals or licenses, if such consultation or accommodation does not occur. In other words, without adequate consultation with First Nations, a company’s tenure or right to operate may be invalid.
After years of hiding behind government approvals, resource companies may now be legally obliged to meaningfully consult and accommodate Aboriginal rights, particularly if the Crown fails to do so. This aspect of the Haida ruling sent shock waves through all logging, mining, fossil fuel, and recreation corporations operating on unceded aboriginal land.
The day after the Court of Appeals ruling, dirt ministry phones in Victoria started ringing off the hook with tenure holders asking: “You mean the courts say I have to deal with First Nation interests?” “You mean the approval you gave me may not be valid?”
Instead of responding honorably by finally addressing First nation interests in allocation decisions, the BC government responded by doing everything possible to undermine the ruling.
- First, it interpreted the decision as applying only to the Haida and to Weyerhaeuser. Thus the government ignored its obligations in subsequent tenure related decisions such as the Skeena sale where six First Nations succeeded in challenging in challenging the sale because of lack of consultation;
- Second, the government amended the Forest Act to remove the requirement for government approval of numerous tenure related decisions. This made it more difficult for First Nations to challenge such decisions through judicial review.
- Finally, they strong armed First Nations with financial difficulties into signing Interim Forestry Agreements, many of which dramatically reduce the First Nations’ ability to contest future allocation decisions
The Tlingit and Haida are facing a formidable arsenal of legal opposition. 72 lawyers will be involved in arguing the case. In addition to the Attorney General of BC and lawyers from Weyerhaeuser and Redfern, they are facing the AGs of most of Canada’s provincial governments, the Cattleman’s Association, and lawyers for many other resource industries. While justice is of little interest to these groups, profit is.
The Crown and industry are arguing that:
- there is no constitutional obligation to consult with aboriginal people who claim title – but who have not proven title through courts or treaties – to land about to be logged, mined or developed;
- the Crown owes no special duty to First Nations. The only duty that exists is the administrative law duty of fair dealing; and
- the remedies available to First Nations are limited. The clock started ticking with Delgamuukw and all claims filed after the 6 year limitation are barred by law.
Despite the wave of deregulation throughout BC that has turned all important decisions about where, when and how to log, mine etc over to corporate tenure holders, the industry lawyers will argue that aboriginal negotiations are the government’s job – not the job of business.
Given the importance of the case, and the disparity of resources available to First Nations fighting to protect their constitutional interests, the highest court has ordered Weyerhaeuser and the B.C. government to pay for the appeal, including all the costs of the Haida Nation.
The Haida and Tlingit have put together a Dream team of lawyers to represent them. Let’s hope they get a fair hearing. Let’s hope that justice for First Nations prevails. The future of BC hangs in the balance