Haida and Taku are important court decisions as they set out the scope and nature of the duties of consultation and accommodation, as owed by the Crown, and, in limited procedural circumstances, by industry, to Aboriginal peoples whose Aboriginal rights are affected by development on their traditional territories. Our analysis deals primarily with Haida as it deals squarely with the various principles, and application, of industry duties of consultation.

We note the clear and concise approach taken by the SCC in both Haida and Taku. Industry has, on numerous occasions, called for the judiciary to articulate principles of the duties of consultation and accommodation in a clear, concise and unambiguous manner. To a large extent, the SCC has managed to do just that. An introductory statement reflects the SCC’s intention to be clear and concise; in relation to the Haida Nation the SCC states, "The stakes are huge". However the SCC later provides the qualifier that, "Our task is a 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. As this framework is applied, courts, in the age-old tradition of the common law, will be called upon to fill in the details of the duty to consult and accommodate". This means exactly what is says – more case law will be required to flesh out the scope and nature of the duty of consultation and accommodation – both for the Crown and for industry.

Our analysis is provided in two parts: (1) the key findings of SCC, taken mainly from the Haida judgment, and (2) the impact of Haida on British Columbia businesses operating, or contemplating operating on the traditional territories of Aboriginal peoples.

 
1.    Industry Duties of Consultation and Accommodation Rejected:

In a unanimous judgement (7:0) delivered by the Chief Justice, Beverley McLachlin, the SCC found that Crown-held duties of consultation, and accommodation to the Haida Nation, do not extend to Weyerhaeuser. The constitutional and fiduciary arguments that Weyerhaeuser has a duty to consult, and accommodate, the Haida Nation, as advanced by Justice Lambert in the second of the 2002 British Columbia Court of Appeal ("BCCA") judgements in Haida, were rejected.

The notion of characterizing industry as a constructive trustee vis-à-vis Aboriginal peoples based on the trust law doctrine of "knowing receipt" (as set out by Justice Lambert) was rejected by the Court where it stated that, "There is no reason to graft the doctrine of knowing receipt onto the special relationship between the Crown and Aboriginal peoples. It is also questionable whether businesses acting on licence from the Crown can be analogized to persons who knowingly turn trust funds to their own ends."

Likewise, the suggestion by Justice Lambert at the BCCA in Haida that a third party’s liability to consult Aboriginal peoples may arise from the ability of the third party to rely on justification as a defense against infringement was rejected by the SCC. The Crown alone is responsible for the consequences of the Crown’s interactions and those of third parties, that affect Aboriginal interests. The SCC stated that the Crown cannot delegate its duties of consultation and accommodation to third parties, except for procedural aspects of consultation in particular developments (such as with environmental assessments).

The SCC was careful to qualify its statements on the ambit and scope of industry consultation and accommodation. The SCC stated, "The fact that third parties are under no duty to consult or accommodate Aboriginal peoples does not mean that they can never be liable to Aboriginal peoples." Negligent actions, breach of contracts or dishonest dealing with Aboriginal peoples may result in liability as between Aboriginal peoples and industry. Ultimately, however, industry cannot be held liable for failing to discharge duties of the Crown.

Industry consultation duties continue to exist under various statutes and pursuant to administrative law principles of fairness. For example, the Forest Act (BC) requires non-Crown parties to fulfill statutory obligations of consultation in developing forestry management plans. Likewise the Crown, as part of the permitting process under the Heritage Conservation Act (BC), must consult Aboriginal peoples whose heritage sites or heritage objects may be affected by issuance of a Crown permit. Again, by way of example, industry consultation duties also arise in the oil and gas exploration and development sector in the Muskwa-Kechika Management Area of north central British Columbia.

The tone of the judgement dealing with third party obligations to Aboriginal peoples should be noted. The SCC employed some heretofore unseen language in discussing the reasons for judgement of Chief Justice Finch in Haida at the BCCA. Chief Justice Finch suggested that third parties should be held to the duties of consultation and accommodation so as to provide an effective remedy. The SCC stated, "The … difficulty with this suggestion is that remedies cannot dictate liability. Once liability is found, the question of remedy arises. But the remedy tail cannot wag the liability dog. We cannot sue a rich person, simply because the person has deep pockets or can provide the desired result".

2.     Duty of Crown Consultation Clarified:

The SCC concluded on the facts of the case that the Crown does have a duty to consult the Haida Nation. The SCC stated consultation must be meaningful and the content of the duty must be proportionate to the strength of the case supporting the existence of Aboriginal rights or title as well as to the seriousness of the potentially adverse effect upon the right or title claimed. By and large, this formulation of the Crown’s duty to consult is consistent with the case law. What is helpful in the Haida judgement is the grounding of the Crown’s duty to consult and accommodate Aboriginal peoples on a principle described as the "honour of the Crown".

The SCC provides an excellent analysis as to the historical roots and content of the honour of the Crown as applied to discharging Crown duties of consultation and accommodation. While the honour of the Crown gives rise to a fiduciary duty where the Crown has discretionary control over Aboriginal interests (e.g., licences, permits, approvals and fee simple dispositions), the scope of that fiduciary duty, and hence the Crown’s ultimate legal obligation to Aboriginal peoples, can be restricted. In Haida, that Aboriginal rights and title have been asserted but not proven results in the somewhat broad statement of the SCC. Relying on an earlier SCC case, the SCC in Haida stated, "The Aboriginal interest in question is insufficiently specific for the honour of the Crown to mandate that the Crown act in the Aboriginal group’s best interest …".

The timing of the Crown’s duty of consultation "arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it". This determination essentially affirms the BCCA’s findings in Haida and Taku. The BCCA recognized the importance to conduct adequate consultation and accommodation before a project, for example, was undertaken to ensure resolution of any pending claims of Aboriginal interests. The legal test to determine if adequate consultation (and accommodation) has taken place, however, remains vague. The Supreme Court of Canada simply states, "Precisely what is required of the government may vary with the strength of the claim and the circumstances".

3.    Scope and Content of the Duty of Accommodation Clarified:

The twin duty of consultation, the duty of accommodation to Aboriginal peoples, received careful attention by the SCC. The interplay between the duty of consultation, on the one hand, and the duty of accommodation, on the other hand was, until Haida, relatively undeveloped.

The duty to accommodate arises principally during the consultation phase. In Taku, the SCC found that the Taku River Tlingit First Nation was adequately accommodated while the Crown’s consultation process was underway.

In Haida, the SCC provided the Oxford dictionary definition of "accommodate" or "accommodation" as meaning to "adapt, harmonize, reconcile … an adjustment or adaptation to suit a special or different purpose .. a convenient arrangement; a settlement or compromise". The SCC equated accommodation as "seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree" (italics added).

The SCC addressed the loose use of language by the BCCA in Haida employing "accommodation". The BCCA interchangeably used a suite of phrases in discussing and applying the duty of accommodation, thus creating uncertainty. Three forms of expression of the duty to accommodate were witnessed in the lower court Haida decisions: the duty "to seek an accommodation"; the duty to "reach accommodations"; and the duty "to endeavour to seek workable accommodations." This last form of expression occurs in the declaration in the second Haida BCCA judgment.

Interestingly, the SCC in Haida did not discuss the specific legal content of the duty of accommodation. The SCC simply stated that on the facts it was not known "whether consultation would have led to a need for accommodation". However the SCC did state significant accommodation may be required by the Crown to preserve the Haida Nation interest pending resolution of their claims.

4.    Consultation Process not a Veto for Aboriginal Groups

The Supreme Court of Canada provides one, short, but vitally important statement on Aboriginal "consent" involving activities carried on by third parties in traditional territories. The land mark 1997 SCC decision of Delgamuukw established the concept of Aboriginal "consent" in regard to lands subject to Aboriginal title. The Court in Haida stated Aboriginal consent "is appropriate only in cases of established rights, and then by no means in every case, rather what is required is a process of balancing interests, of give and take". The SCC in Haida stated the consultation process does not provide Aboriginal groups a veto over what can be done on land, pending final proof of Aboriginal claims to the land.

Keep in mind, there is still a duty on industry to consult with Aboriginal peoples whose asserted Aboriginal rights are affected by industry activities. For industry, the duty of consultation with Aboriginal peoples is rooted in legislation; that is, statutes or regulations promulgated pursuant to statutes. We expect that in the fullness of time, the government will enact a select suite of statutes and regulations which will invoke a duty of consultation on industry (where it has not done so already) in a variety of sectors.

Whether the Crown will enact legislation on the duty of accommodation remains to be seen. Clearly, it has been an extremely difficult task to erect a structure for carrying out the duty of consultation, which is essentially procedural in nature; to erect a legal, statute-based structure for industry accommodation to Aboriginal peoples, very much a substantive duty, seems almost impossible. Thus the key issue in the future may be determining the scope of the concurrent duty of accommodation in a legislative context.

What is clear is that the law of Canada no longer saddles industry as a surrogate for the purposes of discharging Crown consultation and accommodation duties to Aboriginal peoples.

That said, as a practical matter industry strategies for consultation should continue unchanged. Industry needs to build goodwill with Aboriginal peoples affected by a given project or activity on traditional lands of Aboriginal people. This is absolutely vital. Every month of personal and business relationship building may save one year of effort after the fact. Aboriginal peoples routinely have expressed the view that industry simply does not take the time to foster strong ties and linkages and to attempt to absorb and understand, in a bona fide manner, the culture, history and unique qualities of Aboriginal peoples. The more a company can articulate a desire to want to build ties with an Aboriginal people, and the less it shows it needs to build ties can be critical. This is a subtle point, however it is perhaps the most crucial one we can offer as guidance in conducting activities on the traditional territories of Aboriginal peoples. For example, consider residing in the affected Aboriginal villages or traditional territories to build goodwill, and be prepared before your project or activity begins in earnest to contribute financially or provide in-kind support to the affected Aboriginal community in relation to education, training, cultural awareness and alike.

Send to meetings with Aboriginal peoples your highest ranking officer, or chair or vice-chair of your board of directors. This sends a message that your company is taking the consultation and relationship building process seriously. If the Crown or the Aboriginal peoples concerned do not, at least you have attempted to set a high standard and have attached the requisite importance to your project or activity.
 

We encourage you to contact Clark Wilson LLP regarding legal advice you may need regarding the Haida and Taku judgements and their impact on your industry or line of business. The law of the duty of consultation and accommodation is complex. Employment of legally sound strategies for meeting the requisites of consultation with Aboriginal peoples is a must for any business operating or contemplating operating on the traditional territories of Aboriginal peoples.

Tony Fogarassy
604-643-3130
Co-Chair Energy Law Group