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Duty of Consultation with Aboriginal Peoples:
Recent Developments

By the Commercial Real Estate Group at Clark Wilson LLP
November 3, 2004

November 18th Update: Haida Nation v. BC and Weyerhaeuser - Notice of Supreme Court of Canada Judgement

The BC Supreme Court case of Squamish Nation v. the Minister of Sustainable Resource Development sets out a number of important principles that apply to the Crown and, very likely, developers of Crown owned land. If the principles (known as duties) are not fully applied, developers of Crown-owned land are very likely to be negatively impacted with projects being delayed or cancelled.

The facts of the Squamish Nation case involve a multi-facetted ski development (comprising a golf course, equestrian centre, housing and hotel units as well as ski lifts) planned for Mount Garbaldi in the traditional territory of the Squamish Nation. As found by the Court, Mount Garabaldi is an area of cultural and sacred significance for the peoples of the Squamish Nation. The planned ski development was subject to a variety of Crown approval processes over a period of seven years.

During this period of time, only cursory consultation with the affected Aboriginal people, the Squamish Nation, was carried out by the Crown in the course of its development approvals. The lack of "meaningful consultation" by the Crown resulted in the finding by the BC Supreme Court that the government breached its fiduciary duty of consultation to the Squamish Nation. The Court ordered a remedy for the breach of the duty of consultation which required the Crown, in relation to all of its decisions made without consultation with the Squamish Nation, to consult with the Squamish Nation as if those decisions had not already been made. As a practical matter, this Court remedy essentially moves the project development approval timelines back, arguably, seven years.

The key advice to be taken from the Squamish Nation case is that developers should ensure that government ministries, offices and agencies fully discharge the Crown’s legal duty of consultation with affected Aboriginal peoples. And of course, developers should ensure, in writing, that the Crown will discharge its duties on a timely basis. If not, every development project on traditional territories of Aboriginal peoples in BC (which is essentially all Crown lands, and possibly privately held lands) may be subject to the very order issued in the Squamish Nation case – that is the requirement of retro-active consultation. And until such duty of consultation has been adequately discharged, any on-the-ground development will be held in abeyance.

While the Squamish Nation case applies current law to Crown development approvals in a ski hill project, the consultation principles and legal duties in the case may be equally applicable to developers and industry generally. On November 18th, The Supreme Court of Canada will release reasons for judgment in the case of Haida Nation v. BC and Weyerhaeuser which canvasses this very topic – whether industry itself must consult with affected Aboriginal peoples in the course of planning and carrying out of project developments. If the Supreme Court of Canada rules such an industry duty exists, the nature and scope of that duty will be of critical importance to any business operating or developing Crown-owned land.

We refer our readers to two Clark Wilson LLP publications on the emerging legal duty of industry consultation with Aboriginal peoples (and the apparent twin duty of accommodation). These papers are located on the Clark Wilson LLP website. The first publication reviews the law of Crown and energy industry consultation and accommodation duties with Aboriginal peoples, while the second publication is a "checklist" for the carrying out of such duties by industry. It can also be found in the Due Diligence Checklists area of Make a Deal portion of BCRELinks.

The March, 2003 BCRELinks Featue Article on the duty of consultation (and accommodation) canvassed the British Columbia Court of Appeal decisions in Haida Nation.

Readers are encouraged to check BCRELinks.com for an updated version of this article once the Supreme Court of Canada releases its upcoming decison in Haida Nation v. BC and Weyerhaeuser.

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BCRELinks.com is a reference service developed by the Commercial Real Estate group at Clark Wilson LLP. The information and links posted to this website should not be treated by readers as legal advice and ought not be relied upon without further, detailed legal counsel being sought.

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