Aboriginals

Aboriginals have been occupying the domain of Canada for many centuries. For how many years exactly; is still a number that is immeasurable and incalculable. It is for this very reason of first derivation why Aboriginals feel a need to fight for land and for treaties after they had lost their power to the Europeans. Many of these disputes over lands have lead up to the courts and eventually many also into the Supreme Court of Canada. Such cases include the St. Catherine's Milling and Lumber Co. v. The Queen, Calder v. British Columbia, and Delgamuukw v. British Columbia. Despite the overwhelming change those particular cases have had in future cases in this particular paper the focus will be on the Haida Nation v. British Columbia (Minister of Forests) Supreme Court case. This case, concerning land that is claimed by the Haida people, brings up several important questions that are answered by the Supreme Court of Canada. Such questions include whether the government has a duty to consult when land has not yet been legally established? Furthermore does the government have a duty to accommodate the people in such cases where land is still being disputed upon? This paper will discuss the answer to the above questions along with the Court's reasoning for their decision. Moreover the rights of Aboriginals will be more specifically looked at as long with treaties and the fiduciary duty the crown owes to the people. As a final point the effects of this case will be discussed, this will include government procedures to be used concerning land that is legally or simply claimed to be belonging to Aboriginals, and the effects of the Haida Nation case on future and similar cases.

This case concerns an area of land termed Block 6. In 1999 the government had approved harvesting to be done by Weyerhaeuser Co. This order, Tree Farm License 39 (T.F.L. 39) was strongly objected by the Haida people who have been claiming ownership to this land for some time. However the land in question was not legally recognized at that time as belonging to the Haida people as it was attempted to be proven. Consequently disputes concerning Block 6 had lead up to courts and ultimately to the Supreme Court of Canada. The lower courts had concluded that the government had a "moral" duty to consult with the Haida people concerning the land but that the duty was not "legal". Conversely the Court of Appeal had declared the lower courts incorrect by stating that not only should the government have the requirement to consult with the Aboriginals but Weyerhaeuser Co. as well has a duty to consult. The judgment from the Appeal Court was taken to the Supreme Court of Canada. This Court discusses the question of consultation and accommodation and the application of those issues to this case in six different points, these points include the basis of the duty to consult, at which point the duty should come active, the substance of the consultation, whether the duty shall extend to third party individuals or groups, and whether this duty to consult further extends to the province. It is crucial to first comprehend the Supreme Court's answer to the above questions and the reasoning for their decisions and to see how they applied their above decisions to the existing case.

The duty to consult, as described by the Court, is derived from the "honour of the Crown". This principle establishes the act of negotiating fairly and without duplicity by the government towards the Aboriginal people. The principle of the "honour of the Crown" does not only limit itself to negotiations but also extends to fiduciary duties. This type of duty is exceptional in that it promises Aboriginal groups a distinctive "guarantee" by the Crown in which case they must act with its utmost devotion and must negotiate towards the benefit of the Aboriginal people. A fiduciary duty is applicable to the Aboriginals by the Crown in cases where the negotiating matter is particular to Aboriginal concerns. Consequently, as stated by the Supreme Court, a fiduciary duty was not required by the government in this case to the Haida people due to the fact that the land in question was not legally recognized as belonging to them and therefore it was lacking specificity as required for a fiduciary duty to exist.

Where the matter in question concerns treaties the Court has stated that all negotiations must result in a fair resolution benefiting the Aboriginal people. Section 35 under the Constitution Act was also applied by the Courts in which guarantees the Aboriginals not only the acknowledgement of rights, as stated by the Court, but also imposes upon the Crown the duty to act respectably when settling treaties with the Aboriginals. The Court therefore concludes that when negotiating with the Aboriginals the Crown have a fundamental duty to consult and accommodate.

The duty to consult however will be diverse in every case. This differentiation will dependent on the strength of the claim of ownership by the Aboriginal group and the degree of the infringement by the Crown. As further stated by the Court, agreement is not required between the Aboriginal and non-Aboriginal group, more accurately only an attempt to faithful consultation would be the Crown's obligated duty. Where the case does not have strength the Crown's obligation towards the Aboriginals is only to give notification of their planning. On the other hand, where their case is strong and the effects of the Crown's action are great than consultation is fully required as long with accommodation of the need should arise.

It is essential to make note that the Supreme Court further states that the consultation and accommodation method does not give power to the Aboriginals over what is to be done over land. The Court makes only the act of consulting and accommodating when the need arises a requirement, and only to the extent that is necessary. As summarized by the Supreme Court the key behind consultation and accommodation is not to come to an agreement but to maintain the "honour of the Crown" and the relationship between Aboriginals and non-Aboriginal groups.

On the matter of third parties the Supreme of Canada had concluded that they do not have the responsibility to consult nor accommodate with Aboriginal groups. As clearly elaborated by the Court, the "honour of the Crown" remains with the government exclusively and only "procedural" concerns" may be handed down to third parties.

To relate the above findings to the Haida Nation case, the Court asks whether the province had known of the possibility of Aboriginal ownership to the land in which case the license would result in an infringement. To this question the Court concludes that the province did so have knowledge. As explained in the case, the Haida people have expressly

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