First Nations - Recent Legal Victories

Recent court decisions in favor of First nations have ratcheted up pressure for sustainable land reform.

These cases create leverage because they potentially invalidate many resource tenures in BC and increase "uncertainty" about a host of other "strategic" decisions such as logging levels (AAC),  land use plans and permitting processes.

• Haida Nation v. British Columbia and Weyerhaeuser,  In November, 2004 Canada's Supreme Court affirmed that the Crown has a duty to consult and accommodate First Nations, even before Title or Rights are proven.

The Court ruled that the Crown’s duties are grounded in the honour of the Crown, which are now protected in the Canadian Constitution. The Crown's duty arises whenever the Crown knows of the potential existence of an Aboriginal interest in land, and is considering conduct that might adversely affect that interest.

The Court upheld the decision of the BC Court of Appeal in favour of the Haida, holding that the Crown has a duty to consult the Haida regarding tenure decisions, setting the stage for disrupting companies right to operate if First Nations are not meaningfully brought into decision-making.

• Delgamuukw v. British Columbia In 1997, Canada’s Supreme Court confirmed that: 

(a) In most of B.C., Aboriginal title and rights have never been ceded or extinguished by treaties;

(b) Aboriginal Title still exists, thus the federal and provincial governments have independent duties to consult with and accommodate First Nations within their territories.

• Haida Nation v. British Columbia In 2001 the BC Court of Appeal held that tenures granted or replaced without adequate consultation and accommodation of affected First Nations could be struck down as invalid (“contain a fundamental legal defect”).

The Supreme Court of Canada upheld this decision and were silent on the issue of the validity of tenure meaning the Court of Appeals ruling remains the law of the land.The Supreme Court overturned the portion of the Court of Appeals decision which imposed a duty on third parties.

• Yal v. Ministry of Forests & Skeena Cellulose Inc. In the fall of 2002, the B.C. Supreme Court invalidated the transfer of a logging tenure because no consultation or accommodation of 6 First Nations had taken place before the transfer.

Dogwood Initiative is working with First Nations partners to challenge specific tenures and then use the resulting liability to create pressure in the financial markets for land reform.