Supreme Court Rules on Land Use Tug-of-War

In a landmark ruling on November 18, the Supreme Court of Canada made it clear that government, not industry, is obligated to negotiate with Aboriginals about land use - even when ownership of that land remains in question. As well, Aboriginals are entitled to provide input but they have no veto power. The Court emphasized that the consultation process requires the practice of good faith and reasonableness by all parties.

The challenge arose from a resource-use dispute between industry, government and two First Nations in northwestern British Columbia: the Haida of the Queen Charlotte Islands (Haida Gwaii), and the Taku River Tlingit First Nation (TRTFN).

The Haida Decision

The Haida decision left responsibility for consultation and accommodation squarely in the hands of the Province. However, the judgment stated, "The fact that third parties are under no duty to consult or accommodate Aboriginal concerns does not mean that they can never be liable to Aboriginal peoples. If they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they may be held legally liable. But they cannot be held liable for failing to discharge the Crown's duty to consult and accommodate."

For the Haida people, the high court decision is a bittersweet victory. Title to the land remains in dispute. The Haida people have claimed title to all the lands of Haida Gwaii and all the waters surrounding it for more than 100 years, but title has not yet been legally recognized. Essentially, that leaves the Crown in the position of trustee.

The Haida have long been concerned about the damage to the land and logging of its prized cedar stands needed for carving, weaving, and other traditional uses.

As the Chief Justice indicated, "The stakes are huge. The Haida argue that absent consultation and accommodation, they will win their title but find themselves deprived of forests that are vital to their economy and their culture."

Although efforts have been made to protect the forests, President of the Haida Nation, Guujaaw says reforestration efforts alone are insufficient because centuries-old growth cannot be replaced. "The trees might be 800 or a1000 years old, and you also have everything in between from seedlings to the giants and the second growth," he said.

With reforestration, he said, "What you have is a plantation of all the same age trees and quite a different scenario. And while the trees might be that old, the actual forest itself is about 14,000 years old and since the last Ice Age, there’s been really no event that had changed things except a portion of that where a big fire went through. So the effect of the logging is like a big Ice Age."

This is not to say that the Haida people oppose logging. "We have a designated protected area and where there would be logging[, it] would have to be done in a more responsible manner," said Guujaaw. "You know there [are] bills to be paid - hospitals and schools and highways. It’ll have to come from somewhere."

But the Haida want to log on their own terms. Guujaaw says his people have "put together a Land Use Vision that should determine how the landscape would look in 50 years. So we’ve set aside certain parts of the land, probably approaching half of the [land] – and where there will be logging, it will be done in a more responsible manner."

So the Supreme Court ruled that the Crown had a duty to consult with the Haida in order to preserve the Haida interest. "Consultation must be meaningful. There is no duty to reach agreement," said the judgment. Since the Crown cannot delegate its duty to a developer, the Crown, not the developer, remains ultimately responsible for any consultation and accommodation.

The Crown cannot run roughshod over the land and, while treaty processes are going on, the land should not be spoiled. Guujaaw says, "This provides an interesting dilemma to the BC Government [which has] in the past few years delegated tremendous authority to the forest industry. How do they expect to deliver on these obligations when the forest industry practically holds more authority than the Crown?"

The BC Government had transferred and extended Tree Farm Licence 39 (T.F.L. 39) to logging giant Weyerhaeuser. In the Court of Appeal, the Province claimed that the transfer made the developer responsible to consult and accommodate the Haida. The Supreme Court disagreed. It determined that the Province had "failed to meet its duty to engage in something significantly deeper than mere consultation." The developers must only act reasonably.

It is that "reasonableness" that concerns Guujaaw. "Forestry . . . has up to now, just been full scale stripping of the land, without any planning other than who got to do the plunder," he said. "This ruling now puts in place some principles which should provide the opportunity for a more balanced approach to land use and sustainability."

"It is worth noting that this was a case taken to determine if Aboriginal rights and title could be ignored while treaty talks and court cases were pending," said Guujaaw. "In that manner, we won."

Base of pole carved by Guujaaw 2001
Photo by Shirley Collingridge

The Taku River Tlingit First Nation Decision

In the case of Taku River Tlingit First Nation and the Tulsequah Chief Mine, the Supreme Court ruled that the Province had in fact fulfilled its duty. "The Crown’s duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown," stated the judgment. Nevertheless, "the Province was not under a duty to reach agreement with the TRTFN," only to ensure that "Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns."

One of the Aboriginal concerns was a road proposal which has a potential effect on wildlife and traditional land use. The decision revealed, "It is apparent that the TRTFN was entitled to something significantly deeper than minimum consultation under the circumstances."

Did the Crown fulfill its duty to consult and accommodate the TRTFN? The Supreme Court found that the "Province had thoroughly fulfilled its duty to consult" and that "TRTFN concerns were adequately accommodated."

Redfern Resources Ltd. CEO and President Terence Chandler is relieved that his company’s Tulsequah mine project can now proceed more quickly. Progress had been significantly slowed by the ongoing litigation. Chandler sees the court decision as a win-win for Aboriginals and developers.

"I understand that First Nations have a strong desire to have their interests considered very seriously," said Chandler. "I think that the mining community in general understands that and is sympathetic . . . and would like to work with the First Nations . . .. There has to be a balancing of those interests, and through balancing those interests we can all benefit."

Chandler is also pleased that the Court decision was unequivocal. "It was fairly clear," he said. "Murky decisions or murky judgments have led to an awful lot of additional complications."

Still, said TRTFN spokesperson John Ward, the Tlingit are not yet ready to return to the bargaining table with Redfern. "There is an order of business," he said "As we see the principle of duty set out in the Supreme Court case - we’ve got unfinished business with the government first."

The Tlingit are not fully happy with the decision but, says Ward, "I think it’s a good start - the fact that we don’t have to struggle with proving our existence and struggle with the BC government’s statement that we’re nothing and we’ve got nothing - which is very condescending. I feel like the Supreme Court has at least pulled us out from under that. I wasn’t happy that Canada stood by and just [bore] witness to all of it."

The Tlingit are "looking forward to contributing," said Ward. "I think we are in a new era now. We are in an era of building a whole new future for everyone. Everybody’s going to have to accept that we are an intricate part of these building blocks."

The TRTFN judgment concluded that obligations continue throughout the mine’s development. "It is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy," it read, "the Crown will continue to fulfill its honourable duty to consult and, if indicated, accommodate the TRTFN."

The Haida judgment reminded us that Canadian legal decisions often undergo amendment. "This case is the first of its kind to reach this Court. Our task is the modest one of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or rights claims have been decided," it read. "As this framework is applied, courts, in the age-old tradition of the common law, will be called on to fill in the details of the duty to consult and accommodate."

Created by: Shirley Collingridge, Wordsmith