Kathryn L. Kickbush

The Haida Nation claimed title to Haida Gwaii and objected to the Province of British Columbia's replacement and transfer of a Tree Farm Licence to Weyerhaeuser Company Limited.

The Supreme Court of Canada held that the Crown has a legal duty to consult with Aboriginal peoples and accommodate their interests prior to making decisions that might adversely affect their as yet unproven Aboriginal rights and title claims.

This duty is grounded in the honour of the Crown and applies to both federal and provincial governments.

However, the Court found that third parties, such as Weyerhaeuser, do not owe an independent duty to consult or accommodate.

The Province of British Columbia granted a project approval certificate to a mining company to reopen a mine, which included building an access road through the traditional territory of the Taku River Tlingit First Nation (TRTFN).

The TRTFN objected, arguing their unproven Aboriginal rights and title claims were not adequately accommodated.

The Supreme Court of Canada held that the Crown has a duty to consult and, where indicated, accommodate Aboriginal peoples prior to proof of rights or title claims, grounded in the honour of the Crown.

However, the Court found that the environmental assessment process engaged in by the Province fulfilled this duty, as the TRTFN was consulted and its concerns were reasonably accommodated in the project approval conditions.

The appellant First Nation challenged the constitutionality of provisions in British Columbia's Heritage Conservation Act that allowed the Minister to issue permits authorizing the alteration or destruction of aboriginal heritage objects, specifically culturally modified trees.

The appellants argued the provisions were ultra vires the province as they intruded on the federal power over Indians and lands reserved for Indians.

The Supreme Court of Canada held that the impugned provisions were valid provincial legislation falling within the province's jurisdiction over property and civil rights.

The Court found the legislation did not single out aboriginal peoples or impair their status, but rather established a balanced scheme for heritage conservation that applied generally across the province.