19 November 2010

The Crown’s Duty to Consult First Nations: A Short Quiz on Canadian Legal History

The Supreme Court of Canada’s recent decisions, first, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council and, second, in Beckman v. Little Salmon/Carmacks First Nation, serve to mark how far the Canadian judiciary’s thinking on the Crown’s duty to consult has advanced since – and since before - the Court’s watershed decision in Haida Nation in 2004.  But now as lawyers, political leaders, pundits, and others begin turning their minds to what these most recent decisions mean, some larger perspective and, thus, some proper sense of proportion may be gained by pausing to acquaint oneself with and reflect on the duty’s legal history.

As a step in this direction, I ask you to consider the following (lightly retouched) statements regarding the Crown’s duty to consult First Nations, after which I will ask a single multiple choice question:

  • “There should be reasonable consultation….  A right of consultation does not include a veto, or any requirement for consent or agreement, although such is much to be desired.”
  • “… whether any proposed or resulting interference offends unduly upon aboriginal activities and brings the honour of the Crown into question will in large measure depend upon the nature of the aboriginal activity sought to be protected and the extent it is ordinarily exercised; the reasonable alternatives available to all parties; the nature and extent of the interference; its duration; and a fair weighing of advantages and disadvantages both to the Crown representing all the citizens and to the [aboriginal people in question] ….”
  • “… conflicts may well arise from time to time, and they must be resolved honourably and reasonably. A reasonable decision is usually an honourable decision.”
  • "Proper planning and appropriate consultation with [the aboriginal people] …,  and reasonable accommodation on all sides, should make [endless or successive legal proceedings and their toll] … unnecessary.”
  • “The operating word must be reconciliation….”
Here, then, is the question.  Who was the judge who made the foregoing statements?  You have five possible answers to choose from. As an aid, I’ve added the court to which the judge belonged, the case, and the year in which his or her judgment was released.

(a)                Mr. Justice Lance Finch, BC Court of Appeal, Halfway River First Nation v. British Columbia, 1999;
(b)               Mr. Justice Douglas Lambert, BC Court of Appeal, Haida Nation v. British Columbia (Minister of Forests), 2002;
(c)                Chief Justice Beverley McLachlin, Supreme Court of Canada, Haida Nation v.  British Columbia (Minister of Forests), 2004;
(d)               Chief Justice Alan McEachern, BC Supreme Court, Delgamuukw v. British Columbia, 1991; or
(e)                Mr. Justice Louis-Philippe Pigeon, Supreme Court of Canada, Calder v. Attorney General of BC, 1973.

I should expect that persons acquainted with the Supreme Court of Canada’s decision in Haida Nation would generally ascribe the statements above – in which emphasis is given to the honour of the Crown, appropriate consultation, reasonable accommodation, no veto, and reconciliation – to Chief Justice McLachlin.

I should also expect that if such persons had to pick an alternative answer and had some acquaintance with the BC Court of Appeal’s decision in Haida Nation and/or some familiarity with his aboriginal rights jurisprudence, they would generally pick answer (b), that is, that former Justice Lambert is their author.

Finally, I should further expect that the majority of those acquainted with the reputation of former Chief Justice McEachern in the area of aboriginal rights would choose answer (d) only after the other four answers had been eliminated.  Probably very few people are aware that the statements are his.

But what is most noteworthy for legal historical purposes is that McEachern’s much – and not always unfairly – criticized decision in Delgamuukw (1991), and with it his remarks on the honour of the Crown and the duty to consult and accommodate, marks the beginning in the line of cases on the Crown’s duty to consult that culminates in the Supreme Court of Canada’s decision in Haida Nation (2004).  Indeed key passages in Chief Justice McLachlin’s reasons for judgment in Haida Nation strongly echo the former BC Chief Justice’s remarks.

For those wishing to verify what I’ve said, here are few of the early cases in the line of cases that I claim begins with McEachern’s decision in Delgamuukw and culminates in the Supreme Court of Canada’s decision in Haida Nation:

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