Governments must consult First Nations, says top court

The Supreme Court of Canada has handed down a landmark ruling that governments have a legal duty to consult Aboriginal communities about the use of disputed Crown land even if their land claims are unproven.

In its 7-0 decision, the high court also says government must, when appropriate, accommodate First Nations prior to the settlement of their claims.

The court has also ruled that third parties the companies involved do not have to be involved in the consultation process.

The amount of government consultation depends on the strength of the land claim and the degree of potential resource infringement by the Crown, the court ruled.

But Chief Justice Beverley McLachlin, who wrote the decision for the court, says aboriginal claimants, must not "frustrate the Crown's reasonable good faith attempts" at consultation.

"Nor should they take unreasonable positions to thwart governments from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached."

• LINK: Full text of the Supreme Court's Haida decision

The ruling ruling stems from the Haida Nation's battle with the B.C. government and Weyerhaeuser over a timber licence on the Queen Charlotte Islands land claimed by the Haida.

The Haida wanted consultation by both the government and Weyerhaeuser over the licence. So for the Haida, it's a partial victory.

• FROM NOV. 17, 2004: Major test of First Nations' rights

The second case involved the Tlingit First Nation also of northwestern B.C. who have been fighting to stop construction of a mining road by Redfern Resources Ltd.

The Tlingit argued the road would harm the fish and wildlife of the Taku River watershed.

• LINK: Full text of the Supreme Court's Tlingit decision

The case has been going on for some time. And the Supreme Court ruled there had been adequate consultation with the Tlingit through the environmental approval process so Thursday's decision is a loss for the Tlingit.

• INDEPTH: Aboriginal Canadians

Chief Doug Kelly of the First Nations Summit is pleased with the Haida ruling, saying the provincial government will now have to change its ways.

"Premier Campbell and Minister Geoff Plant now have a duty to re-visit their policies regarding consultation and accommodation. They begin, and have since Delgamuukw, denied the existence of aboriginal title. That stops today with this important decision."

The Supreme Court of Canada ruled in the Delgamuukw case in 1997 that aboriginal people with pending land claims must be consulted before development on Crown land.

• LINK: B.C. Treaty Commission backgrounder on Delgamuukw (pdf)

Attorney General Geoff Plant says the Supreme Court has validated what the B.C.government is doing now consulting with First Nations, but not giving them a veto over all development on Crown lands.

The court says the government has an obligation to engage in meaningful consultation, but it doesn't define that. The attorney general says that doesn't worry him that it could merely mean notifying First Nations about a plan, or it could mean engaging in hard negotiations.

He also says while the government has an obligation to consult, the First Nations also have an obligation to be at the table. And he says this does not give the Haida the right to simply stop logging and other activities on Crown land in Haida Gwaii.

• LINK: Government release

Meanwhile, the B.C. forest industry is pleased with the ruling in the Haida case, that governments not businesseses must consult with First Nations about resource development.

Council of Forest Industries vice president Peter Affleck says the decision means there will be less burden on forest companies.

However, Affleck also says the ruling will change the way the province issues tree-cutting licences.

• INTERVIEW: B.C. Almanac's Mark Forsythe speaks with Dave Porter of the First Nations Summit and John Winter, the president of the B.C. Chamber of Commerce.