SpruceRoots Magazine - July 2004

A Summary of Intervenor Arguments

The following summaries were written by EAGLE, who are legal counsel for the Council of the Haida Nation re:
The Ministry of Forests and Weyerhaeuser Company Ltd
v
Council of the Haida Nation and Guujaaw et al.

Overview of the Haida Case
On March 24 and 25, 2004, the Supreme Court of Canada will be hearing the appeals of the Haida Nation and Taku River Tlingit First Nation cases. This document provides a very brief summary of the positions of parties and interveners in the Haida Nation case, as set out in their facta (written arguments). More detailed summaries are available from our office upon request.

The Haida Nation case is probably the most important case to consider the relationship between the Aboriginal Peoples, the Crown and Canadians since Delgamuukw. When the Supreme Court of Canada handed down its decision in Delgamuukw in December 1997, Aboriginal Peoples expected significant changes in their relationships with the Crown. The decision confirmed the existence of Aboriginal Title in British Columbia and rejected the Province’s arguments of “blanket extinguishment”.

It has been more than 6 years since the Delgamuukw decision, and little has changed. The Province continues to resist the reality of Aboriginal Title, arguing that the Delgamuukw decision laid down a test for proof of Title, and that the Crown need not honour Title until First Nations meet that test in court. The Haida have tried to address their concerns in several processes, without effective results. No treaties have yet been concluded under the BC Treaty Process. The Haida Nation case challenges the Crown’s refusal to recognize Aboriginal Rights and Title. The Supreme Court of Canada will be asked to consider whether the Crown has obligations to consult and accommodate before Aboriginal Peoples prove their rights in litigation, and whether, when the Crown does not meet its obligations, third party licencees should be entitled to rely on licences issued in breach of the Crown’s duty.

This case, therefore, directly addresses the pattern of denial of Aboriginal Rights and Title. Since the B.C. Court of Appeal decisions in 2003, more benefits have resulted from this case than any other court decision. For the Haida, these benefits have included halving the licenced cut level, a joint land-use planning framework agreement, and increased protection of old-growth forests and other important cultural values in Haida Gwaii. Other First Nations in B.C. have been able to build upon our case in subsequent litigation, as well as negotiate interim accommodation agreements which were not otherwise forthcoming from the Province. The Haida are presently negotiating an interim accommodation agreement, which will support access to information to support decision-making, and joint planning and decision-making in the forests of Haida Gwaii.


SUMMARY OF THE PARTIES’ ARGUMENTS
Council of the Haida Nation
The Haida argue that the Crown has a fiduciary and constitutional obligation to consult and seek workable accommodations in relation to reasonably asserted Aboriginal Title and Rights. The Crown’s obligation to consult and accommodate prior to proof of Aboriginal Title and Rights reflects the pre-existing nature of those rights. The duty goes beyond procedure and includes a substantive accommodation component. The purpose of the obligation to consult before Aboriginal Title and Rights are litigated is to prevent unjustifiable infringements (arising from destruction of old-growth forests, cedar, salmon and environmental degradation) before they occur. The obligation also encourages negotiated settlements and requires an intent and effort to conclude an agreement.

With respect to Industry’s duty, the Haida argue that the Court of Appeal did not err, and was justified, in attaching this duty to Weyerhaeuser. This decision regarding Weyerhaeuser was lawful, necessary and appropriate, since the Court of Appeal chose to not quash the replacement of Weyerhaeuser’s licence after concluding that the Crown did not fulfill its obligation to consult before the replacement. The tenure accordingly suffers a legal defect and the Court could have overturned the decision to replace the tenure. Therefore, a declaration of the Crown’s obligation without more in these circumstances would be ineffective because the Court left the tenure in place. Weyerhaeuser, when it accepted the replacement licence, was fully aware of the Haida Nation’s claim and the potential consequences. The Haida also argue that this duty is critical given the recent changes to forestry law in B.C., where the Province is trying to legislate its way out of consultation and accommodation with First Nations.

Weyerhaeuser Company Ltd.
Weyerhaeuser’s position is that any obligations to consult and accommodate Aboriginal Peoples rest with the Crown and not with third parties operating on Crown land. They argue that the relationship between Aboriginal Peoples and third parties is governed by private law and that the appropriate remedy is to grant an injunction because licensees are unable to assess the strength of an Aboriginal claim and determine the appropriate consultation requirement. Injunctions allow for the balancing of competing interests. Weyerhaeuser also argues that it was unnecessary to impose such a duty on the company since the Crown has ample powers to engage in effective consultation without requiring the licensee’s participation, given the government’s authority over provincial natural resources.

Weyerhaeuser argues that the Forest Act does not require licensees to consult with First Nations. Further, they argue that Justice Lambert erred in applying the doctrine of “knowing receipt” because it presupposes that the licence and the rights conferred under the licence belonged to the Haida in the first place, which cannot be proven without proving Aboriginal Title. Weyerhaeuser argues that third parties should be entitled to rely on the validity of tenures granted to them by the Crown.

The Minister of Forests and the Attorney General of BC
The Province’s position is that the Crown does not owe a constitutional or fiduciary duty to consult and to seek accommodation, especially in the context of unproven Aboriginal Rights. They argue that the Crown merely owes a procedural duty of fairness, measured against a standard of reasonableness, where aboriginal rights are being asserted.
According to the Province, a fiduciary duty to consult and accommodate unproven rights is inconsistent with the Province’s powers and duties to manage and dispose of natural resources. The Province argues that s. 35 of Canda’s Constitution Act requires First Nations to prove the existence of a right and infringement under the Sparrow test and that requiring the Provincial Crown to accommodate unproven Aboriginal claims amounts to reversing the onus of proof.
The Province also argues that the law does not support the imposition of a duty on Weyerhaeuser and to do so would only create uncertainty and discourage economic development. Moreover, foresters and other resource managers lack the training, education, and experience to assess the strength of the claim in determining the appropriate consultation requirements.


SUMMARY OF THE CANADA’S ARGUMENT
Canada argues that imposing a duty to consult Aboriginal groups prior to proving a right and infringement is not justifiable. If the claimed right is subsequently found not to exist, there can be no infringement and no duty to consult. They argue that the Crown has a duty to consult regarding asserted rights only if legislation allows for consultation. If the legislation precludes consultation, then Aboriginal peoples must prove their rights and a reasonable likelihood of infringement before the duty to consult is considered. The consultation requirement would fall along a spectrum. If the Aboriginal rights claim is weak or the potential infringement minor, there would be limited consultation obligations, which may include providing notice and disseminating relevant information. Where the potential infringement is imminent and severe, the duty to consult would require the Crown to seriously consider the concerns of the aboriginal group. Canada also argues that not all obligations of a fiduciary towards a beneficiary are fiduciary in nature and that when the fiduciary acts in a public law capacity, it does not owe a fiduciary duty. As to the appropriate remedy, Canada submits that injunctions are sufficient.

SUMMARY OF THE PROVINCES’ ARGUMENTS
Alberta

Alberta submits that the duty to consult is a component of the analysis for justification of government infringement of Aboriginal Rights (i.e., the Sparrow test). Alberta argues that the duty to consult is a public law duty that arises when development proposals contemplate activities that infringe Aboriginal Rights and that the Crown and courts can assess consultation and accommodation only after proving the right and an infringement. Alberta raises concerns as to the economic uncertainties that will result from imposing a duty to consult. They also argue that the duty to consult should not be on third parties since the third-parties cannot legislate or regulate. In Alberta’s view, the role of third parties should be regulated by the Crown.

Saskatchewan
Saskatchewan submits that any duty to consult is triggered by the Sparrow justification test and is engaged only if there is a reasonable likelihood of infringement of an existing Aboriginal Right. The Province argues that consultation is simply one of the factors that may be taken into account in the Sparrow justification test and so may not be required in all cases. Saskatchewan submits that not all aspects of the relationship between the Crown and Aboriginal Peoples are fiduciary in nature, and that there are two types of fiduciary duties. The first is in the nature of a private law duty and applies when the Crown is in a position to exercise discretionary control over property that is subject to a “cognizable Indian interest.” The second is a public law duty, in which Aboriginal Rights can be subordinated to the public interest. Saskatchewan also urges the court not to extend the application of its decision to cases where Treaty Rights are involved because the duty to consult in that context should depend on the terms of the treaty. The Province also argues that injunctions are more appropriate than imposing a duty to consult and accommodate because injunctions allow for a balancing of interests.

Manitoba
Manitoba has withdrawn its intervention. We summarize their factum for your information. Manitoba’s position is that the Province’s duty to protect Aboriginal interests is a public law duty. This public law duty would be inconsistent with imposing fiduciary responsibility on the Province because a public law duty requires taking into account all affected interests, not only those of Aboriginal Peoples. The Province argues that it should be permitted to decide, based on a risk/benefit analysis, whether and to what extent consultation and accommodation should occur. They further argue that a legal remedy can be granted only after proving the Aboriginal Right in court, and that for any unproven rights, the court should only grant interim remedies where the test for injunctions can be met.

Ontario
Ontario’s position is that fiduciary law is inappropriate for reconciling the prior occupation of Canada by Aboriginal Peoples with the assertion of European sovereignty. Ontario submits that a province has fiduciary obligations when its actions infringe or are likely to infringe proven Aboriginal Rights. For unproven Aboriginal Rights, provinces only have fiduciary obligations when they “take specific steps that create a fiduciary duty.” They argue that this fiduciary duty is triggered where there is: 1) A fiduciary relationship; and 2) Control by the fiduciary over a “cognizable interest” of the beneficiary. A “cognizable interest” is one that is capable of being known or recognized. Ontario argues that in this case there is neither a fiduciary relationship nor control over a cognizable interest of the Haida. With respect to the appropriate remedy, Ontario submits that injunctions should be the only interim remedy available.

Quebec
Quebec submits that the Court should not assume that the Crown will refuse to recognize claims or engage in negotiations unless forced to do so. Quebec argues that the Crown is entitled to consider claims and determine whether it has any obligation to consult or seek accommodations. The Crown bears the risk of not being able to justify the infringement should it choose not to consult. Quebec further argues that if the Court of Appeal decision is upheld, the courts will be engaged in determining whether developments affect Aboriginal Rights. They further argue that an analysis of the strength of a claim and whether there is infringement should occur only within the Sparrow analysis.

Nova Scotia
Nova Scotia’s position is that there can be no constitutional or fiduciary duty of consultation and accommodation with respect to unproven rights but does not set out any arguments to support this position. Instead, they focus on an alternative argument that if there is a duty to consult, it only applies to parts of Block 6 (of TFL 39) where there is a “substantial probability of native success at trial.” Nova Scotia argues that a duty to consult would only encumber the government and that a duty on private actors is unworkable.


SUMMARY OF THE INTERVENORS’ ARGUMENTS
British Columbia Cattlemen’s Association

The Association is concerned with potentially being imposed with a duty to consult and argue that the Court of Appeal erred in holding that Weyerhaeuser owes fiduciary duties. The Cattlemen submit that it is impractical for private parties to owe a duty to consult for reasons such as lack of financial resources and lack of knowledge and skills to analyze Aboriginal Rights issues. Private parties also lack the ability to balance different interests and assess the appropriate level of consultation and accommodation. They further argue that a duty to accommodate must be based on proven Aboriginal Rights and not merely asserted ones.

Business Council of BC and Others ("Business Interveners")
The Business Interveners submit that the Court of Appeal’s decision has imposed an onerous and unworkable burden on private parties. These interveners argue that the Crown does not have a fiduciary or constitutional duty to consult and accommodate with respect to asserted rights and that there is no basis to impose such a duty on private parties. They argue that such a duty cannot exist since “it is impossible for the alleged fiduciary to know the extent of its obligations” prior to proof in court of the Aboriginal Rights. It is also inappropriate to place fiduciary obligations on companies that are competing with Aboriginal Peoples for the use of the same land since private parties cannot be required to subordinate their own interests. They further argue that the nature and scope of a right must be defined before a remedy can be crafted and that an injunction would be the appropriate remedy in this circumstance.

Dene Tha’
Dene Tha’ is a signatory to Treaty 8, which confirms rights to hunt, fish, and trap. They argue that a duty to consult exists even where an Aboriginal Right is unproven in court and that the Crown owes this duty to consult and accommodate when there is the potential of infringement. Dene Tha’ cites Halfway River as holding that First Nations are only required to provide sufficient information to the decision-maker about the right and its potential infringement, and that they are not required to prove the right in court. They suggest that the Court may want to provide guidelines for consultation and accommodation. The Dene Tha’ argue that if the Crown is allowed to wait until rights are proven in court, there may be nothing left to protect and the promise of s.35 would be hollow. Dene Tha’ also submits that injunctions are unsuitable because injunctions are difficult to achieve, are inadequate for achieving reconciliation, and do not balance different interests.

First Nations Summit
The First Nations Summit makes their argument in the context of the treaty process and centre on the concept of cultural sustainability, which is in turn dependent on ecological sustainability. The Summit argues that the Court of Appeal’s order imposing fiduciary obligations on the Crown strengthens the treaty process. It submits that s.35 gives rise to the duty to consult because it was intended to protect Aboriginal Peoples’ cultures and relationships to land. The Summit grounds the fiduciary duty in the historical relationship and recognition that Aboriginal Peoples were in possession of and had jurisdiction over lands and resources. The duty arises when the Crown makes decisions that put vulnerable Aboriginal interests at risk, such as in the present case where the decision to replace TFL 39 threatened Haida sustainability and rights. As to remedies, the Summit submits that injunctions will not promote reconciliation because injunctions are inflexible and would only result in win-lose situations. Injunctions assume that specific Aboriginal Rights will need to be adjudicated whenever a First Nation seeks protection for vulnerable Aboriginal interests.

Haisla Nation
The Haisla raise arguments in relation to their experience in the British Columbia Treaty Commission (“BCTC”) process. They point out that the most significant challenges facing Aboriginal Peoples in the BCTC process is how to protect their rights in the interim, while negotiations proceed. The Haisla argue that there is a “protective” aspect to s.35, which serves to minimize the likelihood that Aboriginal Rights will be unjustifiably infringed. Further, the Court of Appeal’s order provides an incentive for progress in treaty negotiations and is consistent with the Supreme Court of Canada’s repeated direction that negotiated settlements are the best way to achieve reconciliation. The Haisla note improvements in the treaty negotiation process since the Court of Appeal decision.

Squamish and Lax Kw’alaams
The Squamish and Lax Kw’alaams submit that the Court of Appeal’s decision has led to an increase in negotiations to achieve reconciliation because the decision provides an incentive for government and industry to consult and/or negotiate. They support the imposition of a duty on Weyerhaeuser to achieve effective consultation and accommodation. This duty is derived from the Crown’s duty and the fact that Weyerhaeuser knowingly received the Tree Farm Licence subject to the Crown’s fiduciary obligations. They argue that to allow Weyerhaeuser to keep the benefit of the licence without the duty to consult would result in unjust enrichment to Weyerhaeuser. The Squamish and Lax Kw’alaams also submit that injunctions are inadequate since injunctions are not conducive to reconciliation and force First Nations to commence Aboriginal Title litigation. Such litigation is lengthy, requiring injunctions to be in place for a long time. Courts may be reluctant to grant injunctions for such a long period of time, especially if the injunction covers most of the province.

Tenimgyet (Gitxsan)
The Gitxsan submit that the Court should adopt the Haida model of consultation, which is a broader, purposive model to decision-making, because this model most accurately reflects the nation-to-nation quality of the relationship between Aboriginal Peoples and the Crown. The Crown/Industry model reflects a narrow and legalistic view of the Crown’s powers and duties. The Gitxsan further argue that the recognition of Aboriginal Rights should not be contingent upon court recognition because the principle of constitutionalism requires first that all Crown actions be based on constitutional legitimacy, which means having regard to rights regardless of whether the Crown may unjustifiably infringe s.35 rights. Second this principle requires respect for minorities, including Aboriginals. The Gitxsan argue that s.35 is intended to remedy the historic failure of the Crown and Canadian society to respect Aboriginal and Treaty Rights, and that consultation is necessary to achieve this purpose. The Gitxsan also submit that consultation and accommodation prior to proof is workable and will fuel the treaty negotiation process.

Village of Port Clements
Port Clements is a Village in Haida Gwaii. Most of the residents of Port Clements are non-Aboriginal and are employed by Weyerhaeuser. Their arguments center primarily around concerns that the current allowable annual cut (AAC) on Haida Gwaii is unsustainable. Port Clement’s position is that the Court of Appeal’s decision is the correct approach since the decision provides for the balancing of Haida rights and title, the public interest, and the interests of industry. The Village submits that they share the same concerns as the Haida related to the unsustainable rate at which logging has occurred and that these concerns are best addressed through consultation and accommodation. Port Clements argues that a meaningful balancing of interests would not occur if the obligation to consult is deferred until after the right is proven in court. Port Clements grounds the existence of the duty to consult on the historical relationship between the Crown and Aboriginal Peoples. The Village also submits that any real accommodation would require Weyerhaeuser’s participation in the consultation process.