Duty to Consult Now Legal Duty For Provincial Crown and Third Parties

Two recent decisions of the BC Court of Appeal have extended the duty to consult BC First Nations to a legal duty for the province and third parties and recognized the existence of aboriginal title as an encumbrance on third party development activities on Crown lands without forcing BC First Nations to go to court to prove the existance of aboriginal title.

In Taku River Tlingit First Nation v. Ringstad, the highest court in the province refused to allow the Tulsequah Chief mine project in northern BC to go ahead. The Court of Appeal said the province of BC did not take into account how much the proposed mining project woulf effect the aboriginal people of the area.

“This is a great victory for the Tlingits,” said John Ward, spokesperson for the Taku River Tlingit First Nation. “The Court of Appeal has confirmed our place in the fabric of British Columbia. Finally, the government must recognize that ‘business as usual’ means doing business with us in a way that sustains our way of life, not without us in a way that destroys us. First Nations are here to stay. We now expect that the government of BC will do the honourable thing and respect our rights and act accordingly,” said Ward.

In 1998, the provincial NDP government approved the Tulsequah Chief project, a multi-metals mine on the Taku River in northwestern BC. The project was subsequently the subject of a three and a half year environmental assessment. The project called for the creation of a 160 km road from the mine site to Atlin that would run right through the heart of the Taku River Tlingit’s traditional territory.

Evidence from the environmental assessment and in court showed that the road would ruin the Tlingit way of life, affect their aboriginal title and rights and threaten their very existance as a people.

The Tlingits successfully challenged the mine approval in the BC Supreme Court arguing that the province did not adequately consult with the Tlingit concerning the project’s impact on their aboriginal title and rights. The province subsequently appealed the decision, arguing that they did not have a legal or fiduciary duty to consult with the Tlingits until those rights or title are proven in court.

A majority of the Court of Appeal rejected this argument, noting that the Crown’s position, of ignoring the existance of aboriginal title and rights has “the effect of robbing s. 35 (1) of much of its constitutional significance” and would “effectively end any prospect of meaningful negotiation or settlement of aboriginal land claims.”

In its judgement, the court of Appeal clearly stated that the provincial government has a legal duty to consult with BC First Nations about their traditional lands and resources with the aim of addressing those concerns and that it is not necessary for BC First Nations to prove the existance of their rights.

The court further noted that for the provincial government to proceed with land and resource approvals without taking into account assertions of aboriginal title would be a constitutional violation of aboriginal rights that would lead to a “serious injustice.”

Three weeks later the same court ruled that both the province and Weyerhaeuser had breached a legal and enforceable duty to consult with the Haida Nation regarding the replacement and transfer of Tree Farm Licence 39 on the Queen Charlotte Islands.

In Haida Nation v BC and Weyerhaeuser, the province issued a tree farm licence (TFL) to MacMillan Bloedel, who subsequently transferred the TFL to Weyerhaeuser. In finding the obligation to consult the Haida Nation, the court went on to suggest that the Haida would probably win in an aboriginal title claim to most of their claimed territory.

The court ruled that:

The strength of the Haida case [to succeed in an aboriginal title claim] gives content to the obligation to consult and the obligation to seek an accomodation … the aim of the remedy [in this case] should be to protect the interests of all parties pending the final determination of the nature and scope of aboriginal title and aboriginal rights.

Commenting on the success of the Haida Nation, Union of BC Indian Chiefs president, Chief Phillip Stewart stated, ” As in the Taku River Tlingit decision, the court has recognized that the province of British Columbia’s approach to consultation is fundamentally flawed … What we find compelling in the Haida decision is the Court of Appeal ruled that there is an ‘enforceable, legal and equitable duty to consult’ to both the provincial Crown and to third parties. This will certaily open the door to some frantic rethinking of strategy by the Attorney General’s office and the big corporations.”

Indeed the finding of a legal duty to consult for third parties has prompted the BC Business Council to seek a legal determination as to the implications for resource development projects on Crown lands which comprises 95 per cent of the land base in the province.