THE CROWN'S DUTY TO CONSULT AND ACCOMMODATE ABORIGINAL PEOPLE: THE SUPREME COURT OF CANADA'S DECISIONS IN HAIDA NATION V. B.C. AND WEYERHAEUSER AND TAKU RIVER TLINGIT FIRST NATION V. B.C.
| Jurisdiction | Derecho Internacional |
(Apr 2005)
THE CROWN'S DUTY TO CONSULT AND ACCOMMODATE ABORIGINAL PEOPLE: THE SUPREME COURT OF CANADA'S DECISIONS IN HAIDA NATION V. B.C. AND WEYERHAEUSER AND TAKU RIVER TLINGIT FIRST NATION V. B.C.
Thomas Isaac
McCarthy T§trault LLP - Aboriginal Group
Vancouver, British Columbia, Canada
Anthony Knox is a partner in the Vancouver office of McCarthy T´cmb;etrault practising in the Business Law Group, the Aboriginal Law Group and the Mining Law Group. Mr. Knox has experience in the area of aboriginal law acting for government, industry and aboriginal clients. He has been involved in aboriginal litigation in the Supreme Court of Canada and has acted in respect of major projects involving aboriginal commercial fishing resources, environmental review and large industrial developments involving reserve lands. He has also worked in the financing of aboriginal economic development. He has designed and implemented a highly successful long-term vehicle to manage a major financial settlement involving local communities of aboriginal and non-aboriginal people. He has designed successful strategy for allocation of economic benefits among stakeholders in respect of a resource mega project. He has considerable experience in negotiating with aboriginal groups as well as a useful understanding of aboriginal politics. He has a profound grasp of the law relating to consultation and accommodation. Mr. Knox's published work on the law of consultation and accommodation has been quoted with approval in the Supreme Court of Canada. His recent publications include: Canadian Aboriginal Law: Creating Certainty in Resource Development, University of New Brunswick Law Journal, Vol. 53, 2004; The Crown's Duty to Consult Aboriginal People, Alberta Law Review, Vol. 41, No. 1, July 2003; Canadian Aboriginal Law - Creating Certainty in Resource Development presented to the Rocky Mountain Mineral Law Foundation - April 2003; Canadian Aboriginal Law in the Mining Journal - March, 2003; Placing Limits on the Crown's Fiduciary Relationship with Aboriginal People: Wewaykum Indian Band v. Canada (Supreme Court of Canada) - February, 2003; British Columbia's Amended Aboriginal Consultation Policy - December, 2002; Industry and the Crown's Duty to Consult Aboriginal People: Additional Reasons by the B.C. Court of Appeal in Haida Nation v. B.C. (August 19, 2002) - September, 2002; Traditional Constitutional Analysis and Aboriginal Interests: Kitkatla Band v. B.C. (Min. of Small Business, Tourism and Culture) - June, 2002; The Crown's Duty to Consult Aboriginal People presented to the Canadian Petroleum Law Foundation - June, 2002; Industry and the Crown's Duty to Consult Aboriginal People: Haida Nation v. B.C. (B.C. Court of Appeal, February 27, 2002) - March, 2002; and Aboriginal Title and Mineral Development in Canada and Australia presented to the Rocky Mountain Mineral Law Foundation - July 2000. Recent experience includes: advising a major Canadian international mining corporation on the acquisition of a major South American mining property from a major European international mining corporation, a transaction requiring dealing with foreign domestic law, international law and corporate finance from another foreign jurisdiction; advising a major foreign international mining corporation upon the setting up of a joint venture with a corporation from another foreign jurisdiction in a foreign country with respect to the exploration and development of mineral properties in that foreign country, including a very complicated corporate governance structure satisfying the corporate legislation of two jurisdictions and other aspects of the law of two other jurisdictions. Mr. Knox joined the firm in 1981. He received his B.A. (Honours) from the University of Victoria (1969) and his Ph.D. from Cambridge University (1974). He completed two years of legal studies at Cambridge University (1975) and received his LL.B. from Dalhousie University (1976). He was called to the Ontario Bar in 1978 and the British Columbia Bar in 1981. Mr. Knox is a former Chairman of both Committee 3 (Indigenous Peoples and Development) of the International Bar Association and the Business Law Section of the British Columbia Branch of the Canadian Bar Association. Mr. Knox appears in the 2004 edition of the International Who's Who of Mining Lawyers (London, UK) as one of the world's leading lawyers in the mining area.
On November 18, 2004, the Supreme Court of Canada ("SCC") released its decisions in Haida Nation v. B.C. and Weyerhaeuser ("Haida") 1 and Taku River Tlingit First Nation v. B.C. ("Taku"). 2 Haida and Taku are landmark decisions setting out more clearly than ever before the parameters of the Crown's duty to consult and, where appropriate, accommodate Aboriginal peoples.
Tom Isaac represented the B.C. Cattlemen's Association as an intervener in Haida arguing that (a) no duty to consult and accommodate Aboriginal peoples should be placed on private parties, and (b) the Crown's duty to consult and accommodate is best understood as existing on a spectrum, that it varies with circumstances and that it does not constitute an Aboriginal "veto" over resource development. In Haida, the Court cited, with approval, a 2003 article written by Tom Isaac and Tony Knox, 3 adopting their "spectrum approach" based on the "honour of the Crown," that Aboriginal consultation and accommodation are about fair processes, that common law principles of administrative law form the basis of the duty to consult and, where appropriate, accommodate, and that the standard of reasonableness, rather than correctness, is the appropriate standard to be applied when dealing with matters relating to Aboriginal consultation and accommodation.
Both decisions give substantive guidance to governments, Aboriginal peoples and businesses respecting the nature of the Crown's duty to consult and...
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