Haida Nation v. British Columbia (Minister of Forests) et al., (2004) 206 B.C.A.C. 52 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 18, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 206 B.C.A.C. 52 (SCC);2004 SCC 73

Haida Nation v. B.C. (2004), 206 B.C.A.C. 52 (SCC);

  338 W.A.C. 52

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2004] B.C.A.C. TBEd. NO.041

Minister of Forests and Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia (appellants) v. Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation (respondents)

Weyerhaeuser Company Limited (appellant) v. Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation (respondents) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General for Saskatchewan, Attorney General of Alberta, Squamish Indian Band and Lax-kw'alaams Indian Band, Haisla Nation, First Nations Summit, Dene Tha' First Nation, Tenimgyet, aka Art Matthews, Gitxsan Hereditary Chief, Business Council of British Columbia, Aggregate Producers Association of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, Council of Forest Industries, Mining Association of British Columbia, British Columbia Cattlemen's Association and Village of Port Clements (intervenors)

(29419; 2004 SCC 73; 2004 CSC 73)

Indexed As: Haida Nation v. British Columbia (Minister of Forests) et al.

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.

November 18, 2004.

Summary:

The Haida Indian Nation claimed aboriginal title to a large area of British Columbia, much of which was subject to tree farm licence no. 39 issued to MacMillan Bloedel. The original licence, issued in 1961, was "replaced" in 1981, 1995 and 2000. The licence was transferred from MacMillan Bloedel to Weyerhaeuser in 1999. The Haida Nation petitioned for a declaration that the licence or parts thereof were invalid. In the alternative, they sought certiorari to set aside the decisions of the Minister of Forests to replace the licence.

The British Columbia Supreme Court, in a judgment reported at 15 B.C.L.R.(3d) 154, ruled on a preliminary issue of law, namely, whether the interest claimed was capable of constituting an "encumbrance" within the meaning of s. 28 of the Forest Act. The court ruled that the interest claimed was not an "encumbrance" within s. 28. The Haida Nation appealed.

The British Columbia Court of Appeal, in a judgment reported at (1997), 98 B.C.A.C. 42; 161 W.A.C. 42, allowed the appeal and answered the question in the affirmative. By consent, an order was made that any issue requiring proof of aboriginal rights or title be referred to the trial list.

The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. 924, dismissed the petition. The court ruled that the Crown had no fiduciary, legal or moral duty to consult with the Haida people before replacing the licence. The Haida Nation appealed.

The British Columbia Court of Appeal, in a judgment reported at (2002), 164 B.C.A.C. 217; 268 W.A.C. 217, allowed the appeal and granted a declaration that the provincial Crown and Weyerhaeuser had a legally enforceable duty to consult with the Haida in good faith and to endeavour to seek workable accommodations between the aboriginal interests and the Crown's and Weyerhaeuser's objectives. Leave was granted to the parties to apply for further orders, including to apply again for a declaration of invalidity of tree farm licence no. 39 or for an order quashing the replacement of tree farm licence 39. Weyerhaeuser requested a rehearing of the appeal so that the court might consider the appropriate remedy. Weyerhaeuser applied for an opportunity to make submissions on whether, if Weyerhaeuser had an obligation to consult and seek accommodation with the Haida people, it breached that obligation.

The British Columbia Court of Appeal, Low, J.A., dissenting, in a judgment reported at (2002), 172 B.C.A.C. 75; 282 W.A.C. 75, affirmed that Weyerhaeuser had a duty to consult and to accommodate when it received a "replacement" licence in 2000. The court modified the wording of the declaration earlier granted. The Crown and Weyerhaeuser appealed.

The Supreme Court of Canada allowed Weyerhaeuser's appeal, but dismissed the Crown's appeal. The court stated that "the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach agreement. The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida people's concerns, although the possibility remains that it could become liable for assumed obligations".

Forests and Forest Products - Topic 2439

Forest regulation - Licensing - Effect of aboriginal title claim - The Haida Indian Nation claimed aboriginal title to B.C. lands, much of which were subject to a tree farm licence issued in 1961 and "replaced" in 1981, 1995 and 2000 - The Supreme Court of Canada stated that "the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach agreement. The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida people's concerns, although the possibility remains that it could become liable for assumed obligations." - See paragraphs 10, 64 to 79.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Supreme Court of Canada discussed the source of the Crown's duty to consult and accommodate, which was grounded in the honour of the Crown, and when that duty arose - The court stated that "the duty 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. ... Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of that duty, however, varies with the circumstances ... A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties." - See paragraphs 12 to 37.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Supreme Court of Canada discussed the scope of the Crown's duty to consult and accommodate in circumstances where the Aboriginal group had yet to prove title to the land in question and their Aboriginal rights - Generally, the scope of the duty was proportionate to a preliminary assessment of the strength of the case supporting the right or title, and the seriousness of the potentially adverse effect upon the right or title claimed - The court stated that "the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law. ... Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown's reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached. ... Mere hard bargaining, however, will not offend an Aboriginal people's right to be consulted." - See paragraphs 39 to 42.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Supreme Court of Canada discussed the spectrum of duties to consult and accommodate in circumstances where an Aboriginal group had yet to prove a claim to title or Aboriginal rights - Where the title claim was weak, the Aboriginal right limited or the potential for infringement minor, the only duty on the Crown may be to give notice, disclose information and discuss any issues raised in response to the notice - The court stated that "at the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. ... Between these two extremes ... will lie other situations. ... The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. ... When accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests." - See paragraphs 43 to 51.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Supreme Court of Canada rejected the Province of British Columbia's submission that any duty to consult and accommodate rested solely on the federal Crown - See paragraphs 57 to 59.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See Forests and Forest Products - Topic 2439 ].

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - The Supreme Court of Canada stated that the standard of review in judging the adequacy of the Crown's efforts to consult with Aboriginal groups and accommodate them pending resolution of land title or Aboriginal rights claims could not be determined until there was established a process for that purpose -However, applying general principles of administrative law, the court suggested that "on questions of law, a decision-maker must generally be correct ... On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal ... Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness. The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action "viewed as a whole, accommodates the collective aboriginal right in question" ... What is required is not perfection, but reasonableness. ... Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government's process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation." - See paragraphs 60 to 63.

Indians, Inuit and Métis - Topic 4

General - Duty owed to Indians by third parties - The Supreme Court of Canada held that a third party had no independent duty to consult with Aboriginals or accommodate Aboriginal concerns - The duty to consult and accommodate flowed from the Crown's assumption of sovereignty over lands and resources formerly held by the Aboriginal group and could not be delegated - The court stated that "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 the 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." - See paragraphs 52 to 56.

Indians, Inuit and Métis - Topic 4

General - Duty owed to Indians by third parties - [See Forests and Forest Products - Topic 2439 ].

Injunctions - Topic 1617.5

Interlocutory or interim injunctions - General principles - Aboriginal land claims - The Haida Indian Nation claimed aboriginal title to a large area of British Columbia, much of which was subject to tree farm licence no. 39 issued to MacMillan Bloedel - The original licence, issued in 1961, was "replaced" in 1981, 1995 and 2000 - The licence was transferred from MacMillan Bloedel to Weyerhaeuser in 1999 - The Province and Weyerhaeuser submitted that it was unnecessary to decide whether they had a duty to consult and to accommodate respecting the "replacement" licence in 2000, because the Haida's proper remedy was to seek an interlocutory injunction - The Supreme Court of Canada held that although an interlocutory injunction was available, it did not preclude the Haida's claim - If the Haida could prove a special obligation giving rise to a duty to consult and accommodate, they were free to pursue that claim - An interlocutory injunction might offer imperfect relief, because (1) it may not capture the full obligation on the Crown; (2) injunctive relief represented an all or nothing solution; (3) the balance of convenience test would tip the scale in favour of protecting jobs and government revenues (aboriginal rights would tend to lose outright pending final determination of the issue); and (4) interlocutory injunctions were designed as a stop-gap remedy pending final resolution and aboriginal land claims could take years or decades to resolve - See paragraphs 12 to 15.

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 12].

R.J.R.-MacDonald Inc. v. Canada (Attorney General) - see RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général).

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 14].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 14].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321; 133 D.L.R.(4th) 324, refd to. [para. 16].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 16].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 18].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 20].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 22].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 23].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 28].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 28].

TransCanada Pipelines Ltd. v. Beardmore (Township) et al. (2000), 137 O.A.C. 201; 186 D.L.R.(4th) 403 (C.A.), refd to. [para. 29].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 32].

Halfway River First Nation v. British Columbia (Minister of Forests) et al., [1997] B.C.T.C. Uned. 946; [1997] 4 C.N.L.R. 45 (S.C.), refd to. [para. 35].

Halfway River First Nation v. British Columbia (Minister of Forests) et al., [1999] 4 C.N.L.R. 1; 129 B.C.A.C. 32; 210 W.A.C. 32 (C.A.), refd to. [para. 42].

Heiltsuk Tribal Council et al. v. British Columbia (Minister of Sustainable Resource Management) et al., [2003] B.C.T.C. 1422; 19 B.C.L.R.(4th) 107 (S.C.), refd to. [para. 42].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 47].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 50].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 50].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 51].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 54].

St. Catherine's Milling Co. v. R. (1888), 14 A.C. 46 (P.C.), refd to. [para. 59].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1; 2003 SCC 55, refd to. [para. 61].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 61].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 61].

Authors and Works Noticed:

Hunter, John J.L., Advancing Aboriginal Title Claims after Delgamuukw: The Role of the Injunction (2000), generally [para. 14].

Isaac, Thomas, and Knox, Anthony, The Crown's Duty to Consult Aboriginal People (2003), 41 Alta. L. Rev. 49, p. 61 [para. 43].

Lawrence, Sonia, and Macklem, Patrick, From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult (2000), 79 Can. Bar Rev. 252, p. 262 [para. 38].

New Zealand, Ministry of Justice, Guide for Consultation with Mäori (1998), generally [para. 46].

Counsel:

Paul J. Pearlman, Q.C., and Kathryn L. Kickbush, for the appellants, the Minister of Forests and the Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia;

John J.L. Hunter, Q.C., and K. Michael Stephens, for the appellant, Weyerhaeuser Co.;

Louise Mandell, Q.C., Michael Jackson, Q.C., Terri-Lynn Williams-Davidson, Gidfahl Gudsllaay and Cheryl Y. Sharvit, for the respondents;

Mitchell R. Taylor and Brian McLaughlin, for the intervenor, the Attorney General of Canada;

E. Ria Tzimas and Mark Crow, for the intervenor, the Attorney General of Ontario;

Pierre-Christian Labeau, for the intervenor, the Attorney General of Quebec;

Written submissions only by Alexander MacBain Cameron, for the intervenor, the Attorney General of Nova Scotia;

Graeme G. Mitchell, Q.C., and P. Mitch McAdam, for the intervenor, the Attorney General for Saskatchewan;

Stanley H. Rutwind and Kurt Sandstrom, for the intervenor, the Attorney General of Alberta;

Gregory J. McDade, Q.C., and John R. Rich, for the intervenors, the Squamish Indian Band and the Lax-kw'alaams Indian Band;

Allan Donovan, for the intervenor, the Haisla Nation;

Hugh M.G. Braker, Q.C., Anja Brown, Arthur C. Pape and Jean Teillet, for the intervenor, the First Nations Summit;

Robert C. Freedman, for the intervenor, the Dene Tha' First Nation;

Robert J.M. Janes and Dominique Nouvet, for the intervenor, Tenimgyet, aka Art Matthews, Gitxsan Hereditary Chief;

Charles F. Willms and Kevin G. O'Callaghan, for the intervenors, the Business Council of British Columbia, the Aggregate Producers Association of British Columbia, the British Columbia and Yukon Chamber of Mines, the British Columbia Chamber of Commerce, the Council of Forest Industries and the Mining Association of British Columbia;

Thomas F. Isaac, for the intervenor, the British Columbia Cattlemen's Association;

Stuart A. Rush, Q.C., for the intervenor, the Village of Port Clements.

Solicitors of Record:

Fuller, Pearlman McNeil, Victoria, B.C., for the appellant, the Minister of Forests;

Attorney General of British Columbia, Victoria, B.C., for the appellant, the Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia;

Hunter Voith, Vancouver, B.C., for the appellant, Weyerhaeuser Co.;

EAGLE, Surrey, Ontario, for the respondents;

Department of Justice, Vancouver, B.C., for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the Attorney General of Ontario;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Department of Justice, Halifax, N.S., for the intervenor, the Attorney General of Nova Scotia;

Deputy Attorney General for Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Alberta Department of Justice, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Ratcliff & Company, North Vancouver, B.C., for the intervenors, the Squamish Indian Band and the Lax-kw'alaams Indian Band;

Donovan & Company, Vancouver, B.C., for the intervenor, the Haisla Nation;

Braker & Company, West Vancouver, B.C., for the intervenor, the First Nations Summit;

Cook Roberts, Victoria, B.C., for the intervenor, the Dene Tha' First Nation;

Cook Roberts, Victoria, B.C., for the intervenor, Tenimgyet, aka Art Matthews, Gitxsan Hereditary Chief;

Fasken Martineau DuMoulin, Vancouver, B.C., for the intervenors, the Business Council of British Columbia, the Aggregate Producers Association of British Columbia, the British Columbia and Yukon Chamber of Mines, the British Columbia Chamber of Commerce, the Council of Forest Industries and the Mining Association of British Columbia;

McCarthy Tétrault, Vancouver, B.C., for the intervenor, the British Columbia Cattlemen's Association;

Rush Crane Guenther, Vancouver, B.C., for the intervenor, the Village of Port Clements.

These appeals were heard on March 24, 2004, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada.

On November 18, 2004, McLachlin, C.J.C., delivered the following judgment in both official languages for the Supreme Court of Canada.