Member Article

On December 6, 2005 the British Columbia Supreme Court handed down its decision in the case of Hupacasath First Nation v. British Columbia(1). In this decision, the court held that Crown’s duty to consult with first nations, as articulated by the Supreme Court of Canada in Haida Nation(2) and Taku River,(3) extends to government decisions regarding planning, development and use of private land. BACKGROUND This case arose out of a request from Weyerhaeuser to the Minister of Forests in December 2003 to remove private land (the “Private Land”) from two Tree Farm Licences (the “TFL”). The Minister of Forests approved the removal in July 2004, subject to a number of conditions pertaining to forest management, water quality, wildlife habitat, certification, and access for both industrial users and aboriginal groups. The Private Land was subsequently sold to Brascan Corporation (“Brascan”). The Hupacasath First Nation (“HFN”) claimed that most of the Private Land is within their traditional territory which they have used for hunting, gathering food, fishing and harvesting cedar. In addition, they claimed that there are sacred sites located on the Private Land. The HFN has an exclusive claim (not subject to overlapping claims by other aboriginal groups) to approximately 40% of what they define as their traditional territory within the Private Land. The HFN commenced this action in the Supreme Court of British Columbia against the Minister of Forests and Brascan, on the basis that the Provincial Crown breached its duty to consult with them regarding the Crown’s decision to permit removal of the Private Land from the TFL. The HFN sought an order to quash or suspend the decision. The Minister of Forests and Brascan (the “Respondents”) opposed the action on the basis that the land is privately owned and, accordingly, there is no duty on the Crown to consult with the HFN. Weyerhaeuser had advised the HFN that the company was applying for the removal in early 2004; however, there was no evidence of formal consultation or discussions between the Crown and HFN regarding the decision to remove the Private Land. THE SUPREME COURT OF BRITISH COLUMBIA’S DECISION Madame Justice Smith concluded that the Crown had a duty to consult with and accommodate the HFN regarding the consequences of removing the Private Land from the TFL and the potential effects on the remaining Crown lands in the TFL. The Crown was held to have breached this duty. The HFN requested two remedies for the breach: (1) a declaration that the Minister acted inconsistent with the honour of the Crown in right in British Columbia; and (2) to have the Minister’s decision regarding the TFL quashed or suspended. Smith J. granted the declaratory relief. However, she refused to quash or suspend the removal decision due to the significant prejudice this would cause Brascan. It was Smith J.’s opinion that “a meaningful remedy can be granted pending the completion of consultation.” Accordingly, her interim relief essentially mirrored many of the conditions in the Ministerial decision from July 2004 and provided the HFN with legal recourse if the conditions were breached. THE ANALYSIS OF THE DUTY TO CONSULT In summarizing the jurisprudence regarding the Crown’s duty to consult, Smith J. set out the following three step process to apply to the Crown’s decision making process: 1. Did the Crown have knowledge, real or constructive of the potential existence of aboriginal rights? 2. Did the Crown contemplate conduct that might adversely affect the aboriginal rights? This step broken into two sub questions: a. Could there be aboriginal rights in the land in question? b. If there could be rights, did the Crown contemplate conduct that might adversely affect those rights? 3. What is the scope and conduct of the Crown’s duty to consult and accommodate? And has this duty been met?(4) 1. Knowledge of the Potential Aboriginal Rights In the first step, Smith J. held that the question is whether the Crown had “knowledge, real or constructive, of the existence of potential aboriginal rights pertaining to the Private Land and to the surrounding Crown Lands?”(5) Prior knowledge was found in this case on the basis of publicly available information of the HFN claim to the area, prior consultations between the Minister and the HFN and a previous case to which the Crown was a party and HFN aboriginal rights were asserted over land covered by the TFL. 2. Contemplated Conduct Affecting Aboriginal Rights In the second step, there are two questions: the first is whether there could be aboriginal rights on the Private Land; and the second is whether the Crown contemplated conduct that might adversely affect those aboriginal rights. (a) Aboriginal Rights in the land The Crown argued that aboriginal title and fee simple title are incompatible. In addition, the Crown submitted that aboriginal title may have been extinguished when the Federal Crown granted the Private Land to the Esquimalt and Nanaimo Railway in 1887. On the basis of the Badger(6) and Alphonse(7) cases, Smith J. concluded that “existing aboriginal and treaty rights, for example to hunt or fish, may be exercised on unoccupied private land if the activity is permitted by statute or common law and is not prohibited by the private landowner.” Smith J. found that aboriginal rights were not incompatible with fee simple title. Smith J. held that the Crown’s duty to consult articulated in Haida Nation and Taku River, applies outside the context of Crown land. In particular, she stated: “The Crown’s honour can be implicated in this kind of decision–making affecting private land. Here, the Crown’s decision to permit removal of the lands from the TFL 44 is one that could give rise to a duty to consult and accommodate.” (b) Conduct that might adversely affect the aboriginal rights? An interesting part of this analysis is that the adverse effect on aboriginal rights is considered both on the Private Land and the Crown lands which remain in the TFL. In terms of the nature of the adverse effect, Smith J. emphasized that “the contemplated adverse effect need not be obvious”.(8) Therefore, an adverse effect was found with respect to the Private Land despite the fact that the HFN had not experienced any specific infringements or curtailing of their aboriginal rights since the removal decision was made. A particularly important consideration was that the sale could lead to the Private Land being developed for a use entirely inconsistent with aboriginal rights. In addition, Smith noted that aside from development, the removal of the lands from the TFL would result in less government control which could equate to less secure access and reduced environmental stewardship of the Private Land. In terms of the impact on the Crown lands, Smith J. noted that the possible development of the Private Land could put increased pressure on the Crown lands in the TFL and that increased logging on the Private Land could also have adverse environmental impacts on the Crown lands in the TFL. Accordingly, there was an adverse effect on both the Private Land and the Crown land with the effect being more severe on the Private Land. 3. The Crown’s Duty to Consult and Accommodate (a) Scope and Nature of the Duty Similar to her analysis with respect to adverse effects, Smith J. separately analyzed the duty to consult with respect to the Private Land and the Crown lands. In regard to the Private Land, Smith J. found a prima facie case for both aboriginal rights and title for the portion of the Private Land not subject to overlapping claims from other aboriginal groups. However, based on existing jurisprudence, Smith J. held that the HFN’s aboriginal rights were “at best highly attenuated.” In regard to the aboriginal title, Smith J. held that in light of the existing jurisprudence, a legal right to aboriginal title, if it has not been extinguished, was unlikely since the land was privately owned. However, the replacement of the existing logging regime with a more forgiving logging regime, combined with the potential for future redevelopment, led to Smith J. finding that the potential effect of the removal decision on the Private Land was serious. Therefore, while the potential effect was serious and a prima facie factual case for aboriginal rights and title was established, the limited legal entitlement to aboriginal rights or title resulted in Smith J. holding that the duty to consult was relatively low. In respect to the Crown land, Smith J. held that HFN had established a prima facie case for aboriginal rights, including aboriginal title with respect to the portion of the Crown land which the HFN had an exclusive claim. With respect to the portion of the Crown land subject to overlapping claims, Smith J. found a good prima facie case for aboriginal rights and a weaker claim to aboriginal title. The effect of the removal decision on the Crown lands was found to be moderate on the basis that changes to the use of the Private Land might impact hunting and fishing outside the Private Land. The duty to consult with respect to the Crown lands was therefore moderate. (b) Fulfilling the Duty to Consult and Accommodate The most significant factor relied on by in Smith J. in finding that the Crown did not fulfill its duty to consult was that there was no evidence that the Minister requested or took the opportunity to hear the HFN’s views about Weyerhaeuser’s proposal to remove the lands. The fact that the HFN knew about the application by Weyerhaeuser and did not make representations to the Crown did not limit the Crown’s duty to consult. Rather, the duty to consult places a positive obligation on the Crown to contact the aboriginal group and engage in consultation and accommodation. The level of consultation required for the Private Land is an “informed discussion between the Crown and the HFN”(9) which provides an opportunity for the HFN to express their opinions and the Crown to consider their opinions in deciding whether to approve the removal of the Private Land from the TFL. Smith J. found that there is a higher level of consultation requiring “something closer to deep consultation” with respect to the Crown land. REMEDY A key factor in concluding that the removal decision should not be quashed or set aside was that Brascan relied on the Ministerial approval of Weyerhaeuser’s privately owned lands being removed from the TFL in making their decision to purchase the assets. The Judge was also satisfied that there would be significant prejudice to Brascan if the removal decision was set aside. In addition, based on the facts, Smith J. found that a meaningful remedy could be achieved through the completion of a consultation and the providing legal recourse to the HFN should the conditions attached to the Ministerial approval be breached. IMPLICATION The Hupacasath decision stands for the proposition that the Crown’s duty to consult can apply to private land where a decision by the Crown might adversely affect aboriginal rights and title. However, the extent of the duty to consult may be considerably narrower with respect to private land as opposed to Crown land because an aboriginal groups’ rights may be “highly attenuated” on private land. In our view, this case also reflects a recent trend in aboriginal consultation cases to refrain from quashing a decision where that would adversely affect complicated business arrangements, communities, and workers. For more information on the Hupacasath decision, or on other aboriginal consultation matters, please contact any member of Lawson Lundell’s Aboriginal Law Group.

 

Footnotes: (1) 2005 BCSC 1712. (2) [2004] 3 S.C.R. 511. (3) [2004] 3 S.C.R. 550. (4) At para. 137-138. (5) At para 139. (6) [1996] 1 S.C.R. 771. (7) (1993), 80 B.C.L.R. (2d) 17 (C.A.). (8) At para. 229. (9) At para. 273.