1961 the provincial government of British Columbia issued a "Tree Farm Licence" on the Queen Charlotte islands, located off the coast. The Haida Nation had a pending land claim which had not yet been recognized at law. The Haida Nation also claimed an aboriginal right to harvest red cedar in that area. In 1999 the Minister authorized a transfer of the licence to the Weyerhauser Company without consent from or consultation with the Haida Nation. The Haida Nation brought a suit, requesting that the replacement and transfer be set aside. The Crown was successful at trial, but this was overturned on appeal where the court found that both the Crown had a duty to consult with the Haida. Weyerhauser did not.
- How do you know if there is a duty to consult with aboriginal peoples, and what does this duty entail?
Crown appeal dismissed, Weyerhauser appeal allowed.
McLachlin, writing for a unanimous court, states that the source of a duty to consult with aboriginal peoples and accommodate their interest arises out of the honour of the Crown. The duty arises when the Crown has knowledge, real or constructive, of the potential existence of an aboriginal right or title and contemplates conduct that might adversely affect it. The content of the duty to consult varies with the circumstances. When the claim to the right is weak, then the Crown only has to give notice and disclose information to the affected people(s). However, if there is a strong prima facie case for the right the Crown must consult more extensively to find a satisfactory solution. This requires allowing the First Nations to make submissions for consideration, to formally participate in the decision-making, and ensuring that the Crown publishes reasons showing how the aboriginal concerns were factored into their decisions.
However, in all consultations, both sides must act in good faith. This means that the affected peoples cannot reject reasonable suggestions by the Crown, and the Crown cannot ignore aboriginal requests. There is no duty to come to an agreement - there is only a duty to consult. When the consultation suggests an amendment of Crown policy, then the Crown must accommodate. This involves taking steps to avoid irreparable harm and minimizing the effects of infringement. Once again, this does not give the aboriginals a veto – the good faith requirement remains.
McLachlin makes it clear that the legal duty to consult and possibly accommodate only applies to the Crown, and not third parties. This is because the duty arises out of the Crown's honour in the "special relationship" it has with aboriginals, which does not exist with third parties. As a result, the appeal of Weyerhauser is allowed. However, the duty to consult rests with both the federal and provincial Crown, as it was originally the provincial governments that took the power from the aboriginals.
In this case there was a strong prima facie case for the land claim, and thus the Crown had a legal duty to at least consult with the Haida before making decisions that could irreparably harm the land.
- The Crown, and the Crown alone, has a legal duty to consult with aboriginals when making decisions that could infringe upon their rights or lands, including decisions that could affect rights or lands that are currently being sought through legislation.
- The extent of the duty varies with the strength of the claims – if the claim is strong, then the Crown has to accommodate the aboriginals and allow them to participate in the decision-making process, but weak claims require only notification.
- The extent of the duty also depends on how intrusive the proposed government action/ activity is. The more intrusive an activity, the duty will be wider.