In November 2004, the Supreme Court of Canada confirmed, in Haida Nation v. British Columbia (Minister of Forests), that the Crown (but not third parties) has a duty to consult and accommodate Aboriginal communities even before their Aboriginal rights have been formally established, whether by treaty or by court decision.

Although this duty does not give Aboriginal communities a right of veto, it entails taking into account the potential interests of Aboriginal communities in any exploitation of lands that the community claims, even during the period when the parties are attempting to resolve these claims.

The duty to consult arises only when governments have knowledge of the potential existence of an Aboriginal right or title, and when they are contemplating conduct that might adversely affect it. Further, the scope of this duty will vary in each case depending on the strength of the claim and the seriousness of the potential prejudicial effects alleged.

A number of actions relating to this duty have been brought in certain Canadian jurisdictions, in particular British Columbia. Courts in Québec have also examined this question, mostly within the context of actions brought by the Pessamit (formerly Betsiamites) First Nation.1 From the Québec decisions handed down since Haida, it is possible to discern some guiding principles.

  1. The Aboriginal communities must set forth in a detailed manner the facts on which they base their allegation of the Crown’s duty to consult. For example, simply stating an Aboriginal land claim or, in a more general way, claiming a series of Aboriginal rights, is insufficient. Proof must be adduced in a sufficiently precise manner, both from a substantive and a geographic point of view, as to the traditional activities and interests that have been claimed and that would be imperilled by the governmental decisions in question.
  2. The governments and other affected third parties must have the opportunity to present to the court all necessary evidence in support of their actions and decisions.
  3. The Aboriginal communities must participate in good faith in the Crown’s efforts to consult and avoid taking unreasonable positions. That is, they must participate actively in the necessary dialogue with the various levels of government, setting out as clearly and as quickly as possible their concerns and demands.

McCarthy Tétrault Notes:

Although the duty to consult is one imposed on governments, businesses operating on the lands that are subject to Aboriginal claims have an interest in developing good relations with the Aboriginal communities concerned, as well as in ensuring that the Crown acts in an honourable manner. As is now the case with environmental obligations, any business that carries on resource-related activities on lands subject to Aboriginal claims needs to pay particular attention to Aboriginal issues.

McCarthy Tétrault is representing Kruger Inc. and other forestry companies in the Pessamit First Nation matters mentioned above.