Canada's First Nations Win in Court

Every victory is a Blessing from the Creator...

--ryan


Natives win key land dispute victory
Governments must consult in good faith, but needn't comply, court rules


OTTAWA (CP) — Federal and provincial governments have a legal but limited duty to consult First Nations about use of land ensnared in unproven aboriginal claims, says Canada's top court.

The Supreme Court of Canada ruled 7-0 today that governments must seek native input and consider concerns about projects that could infringe even unproven aboriginal claims.

But that requirement does not extend to developers, said the court.

And it does not force governments to obtain the consent of affected bands.

The landmark ruling is the high court's first attempt to define what's expected in such cases.

Governments must consult First Nations in good faith, the court ruled in a logging dispute between the Haida of B.C. and forestry giant Weyerhaeuser.

That obligation increases with the seriousness of the claim and the threat to native rights.

"However, there is no duty to agree," wrote Chief Justice Beverley McLachlin for the court.

"Rather, the commitment is to a meaningful process of consultation."

In a related case, the high court ruled 7-0 today that another B.C. first nation was adequately consulted.

The Taku River Tlingit have been fighting a proposed mining project.

But the Supreme Court ruled the band was included in a $10-million environmental assessment that satisfied the Crown’s duty to consult.

“As for aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts,” McLachlin wrote.

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

The court decision will affect future resource development across Canada and could spawn more delays and legal wrangling.

Much of the country and almost all of British Columbia is under some form of aboriginal land claim.

Governments and companies had argued that they already consult native groups on a voluntary basis. All manner of resource projects would be hamstrung if native consultation requirements were made too onerous, they said.

At issue were two cases argued before the high court in March — the result of two B.C. Court of Appeal rulings.

Lawyers for the federal government and every province except Quebec and Manitoba argued that there’s no constitutional duty to consult Aboriginal Peoples who claim, but have not yet proven, title to land about to be logged, mined or developed.

That argument failed two years ago when three justices of the B.C. Court of Appeal unanimously ruled against the B.C. government.

One case involved the Tlingit First Nation and a project proposed by Redfern Resources Ltd. that also required government approval.

The Appeal Court said the B.C. government failed to properly consult the Taku River Tlingit on the mining project on a tributary of the river.

In the second case, the Appeal Court said government and private companies must consult First Nations about how they develop Crown lands, even if native bands haven’t proven title to the land.

That case involved a challenge by the Haida against a B.C. Forests Ministry decision to renew forestry giant Weyerhaeuser’s tree-farm licence to a large section of the Queen Charlotte Islands.

In the Haida and Tlingit cases, the B.C. Court of Appeal noted the Supreme Court’s 1997 Delgamuukw decision. The watershed ruling found that the government must consult First Nations about use of Crown lands when aboriginal title could be infringed.

After Delgamuukw, the B.C. government took the position that such a duty doesn’t apply until aboriginal title is proven in court.