Supreme Court confirms duty to consult with aboriginal peoples: Haida Nation v. British Columbia (Minister of Forests).

• Author: Fenwick, Fred R.
• Position: Aboriginal law

Maybe I'll be there to shake your hand Maybe I'll be there to share the land That they'll be givin' away When we all live Together

--The Guess Who

"To the west of the mainland of British Columbia lie the Queen Charlotte Islands, the traditional homeland of the Haida people. Gwaii, as the inhabitants call it, consists of two large islands and a number of smaller islands. For more than 100 years, the Haida people have claimed title to all the lands of the Gwaii and the waters surrounding it. That title is still in the claims process and has not yet been legally recognized.

"The islands of Gwaii are heavily forested. Spruce, hemlock and cedar abound. The most important of these is the cedar which, since time immemorial, has played a central role in the economy and culture of the Haida people. It is from cedar that they made their oceangoing canoes, their clothing, their utensils and the totem poles that guarded their lodges. The cedar forest remains central to their life and their conception of themselves."

These are the words of Justice Beverley McLachlin introducing the unanimous decision of the Supreme Court in the November 18, 2004 case of Minister of Forests and Attorney General of British Columbia v. Council of the Haida Nation. It's certainly not a bad start when the Court describes you in such sympathetic terms.

Later on in the judgment, Justice McLachlin for a unanimous Court said,

"Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests."

I don't often quote extensively from the cases we discuss in this column but this seems important. Our highest court could not have been any clearer in stating its attitude about the duty of governments towards Aboriginal claims. The Supreme Court unanimously recognized and described in the clearest possible terms that Aboriginal rights are founded in our most basic history, are protected by...