In late October, leave to appeal a case that may revolutionize the conduct of the natural resource industry was filed with the Supreme Court of Canada.

In Haida Nation v. B.C. and Weyerhaeuser, the British Columbia Court of Appeal made the radical decision that Weyerhaeuser, a private logging corporation, owed a duty to consult with and accommodate aboriginal peoples in relation to forestry activities on land subject to aboriginal interests. For the first time, the duty to consult with and accommodate aboriginal peoples has been extended beyond the provincial and federal governments.

This decision follows closely on the heels of another groundbreaking B.C. Court of Appeal case, Taku River Tlingit First Nation v. Ringstad (2002). In this case, the court found that the government obligation to consult with and accommodate aboriginal peoples arises when a "plausible claim" of aboriginal rights or title to land has been asserted though not yet proven. Prior to this decision, it was widely believed that the legal duty to consult and accommodate only arose when aboriginal peoples had proven their aboriginal rights and title.

In the Haida case, aboriginal rights and title had not been proven, but the court followed its thinking in Taku Tlingit and imposed a duty to consult and accommodate. The court found that there was a reasonable probability that the Haida will be able to establish aboriginal title to at least some of the lands in question.

Taken together, this means that, in some scenarios, private corporations will have a legally enforceable duty to consult with, and accommodate, aboriginal interests. This occurs where there is a plausible claim to rights or title in an area in which the corporation seeks to exploit resources. Corporations will no longer be able to confidently rely on the government effectively acting as the intermediary between aboriginal interests and the interests of private business, and will need to be vigilant on their own.

For example, in the Haida case, the court stated that Weyerhaeuser's duties to the Haida arose in circumstances where Weyerhaeuser knew or should have known that the government was in breach of its duties to the Haida people in granting the timber licence. The court concluded that Weyerhaeuser was "unquestionably a party" to every one of the government's transgressions, short of passing the Forest Act.

As a result, Weyerhaeuser was on the receiving end of a fundamentally defective lumber licence. The judges concluded that, short of declaring the licence invalid, the defect could only be cured by the government and Weyerhaeuser returning to consult with and accommodate the Haida.

There is yet another noteworthy element to the Haida decision. The question of whether or not Weyerhaeuser had an obligation to consult and accommodate the Haida was not initially before the court. Even the Haida did not argue this point. Nonetheless, the court decided to utilize its powers to rule on this question, concluding that justice could not be done absent a declaration against Weyerhaeuser as well as the government.

The broader impacts of this unexpected decision remain to be seen. Leave to appeal the decision in Taku Tlingit has recently been granted by the Supreme Court, and it is likely that the request for leave to appeal the decision in Haida will also be successful.

However, one thing is certain.

The terrain of aboriginal rights and title has become increasingly challenging for governments to navigate, despite employing large bodies of specialized expertise on aboriginal issues. Governments are grappling with what exactly the "duty to consult and accommodate" entails, on a sliding scale from reaching full agreement to having had meaningful discussions. It is even less clear, given its newness, what exactly the criteria are for having a "plausible claim" of aboriginal title or rights.

Should the B.C. Court of Appeal decisions in Taku Tlingit and Haida not be overturned by the Supreme Court, private corporations in the resource industry will need to rapidly bring their organizations up to speed on consultation issues. No longer able to rely entirely on the government, they will need to develop guidelines and protocols to ensure effective consultation where "plausible" aboriginal interests are involved.

© Michelle Mann