Aboriginal Rights, Resource Development, and the Source of the Provincial Duty to Consult in Haida Nation and Taku River
The main issues dealt with by the Supreme Court of Canada in its decisions in Haida Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) were the nature and scope of the provincial Crown’s duty to consult with First Nations and accommodate their interests before authorizing resource development on lands subject to unestablished Aboriginal title claims. The focus of this paper, however, is to discuss a major preliminary issue lying largely hidden in both cases, namely the source and extent of provincial jurisdiction to infringe Aboriginal title for the purposes of resource development. In Haida Nation and Taku River, the Court assumed that British Columbia has authority to infringe Aboriginal title. The paper theorizes that the reason British Columbia is able to rely on the Forest Act to grant Tree Farm Licences (TFL) on Haida Gwaii is that the Aboriginal title of the Haida has not yet been established, and so for the time being the province is able to claim that the lands in question are Crown lands within the statutory definition. But if Aboriginal title to those lands is established, they will fall outside the statutory definition and so the provincial authority will disappear. This will mean that the original grant of the TFL and its transfer to Weyerhaeuser Company Limited would have lacked statutory authority and therefore would have been unlawful from the outset. This could render both the province and Weyerhaeuser liable for wrongful intrusion onto the Haida Nation’s lands. Thus, the paper argues, it would be wise for the province to proceed on the assumption that the title will be established, rather than risk the embarrassment and cost of being found in court to have given Weyerhaeuser the unlawful go-ahead to trespass on Haida lands.