## Facts

- The Haida Nation asserted Aboriginal title to Haida Gwaii and surrounding waters for over a century, and asserted an Aboriginal right to harvest red cedar; the claims were not yet legally proven.
- British Columbia issued Tree Farm Licence 39 (TFL 39) in 1961 and later replaced it multiple times (including in 1981, 1995, and 2000).
- In 1999, the Minister authorized transfer of TFL 39 to Weyerhaeuser Company Ltd.
- The licence replacements and transfer proceeded without the Haida’s consent or consultation.
- The Haida challenged the Crown’s decisions, arguing that ongoing logging could significantly prejudice their unresolved rights and title claims.
- A chambers judge found only a moral, non-enforceable obligation to negotiate; the British Columbia Court of Appeal reversed and imposed legal consultation obligations on both the Crown and Weyerhaeuser.

## Issues

1. Whether the Crown has a legal duty to consult with, and where appropriate accommodate, Indigenous peoples before decisions that may adversely affect asserted but unproven Aboriginal rights or title.
2. What triggers that duty and how its scope and content are determined.
3. Whether the duty to consult extends to third parties such as a forestry licence holder/transferee.

## Decision

- The Supreme Court of Canada unanimously held the Crown has a legal duty to consult and, where indicated, accommodate when it has real or constructive knowledge of a potential Aboriginal right or title and contemplates conduct that may adversely affect it.
- The duty arises before rights or title are proven in court or settled by treaty.
- The content of consultation is variable and must be meaningful, assessed on a sliding scale keyed to the strength of the claim and the seriousness of potential adverse effects.
- The duty rests with the Crown and is not owed independently by third parties, although procedural aspects of consultation may be carried out by industry participants under Crown direction.
- Disposition: the Crown’s appeal was dismissed; Weyerhaeuser’s appeal was allowed.

## Legal Principles

- The duty to consult and accommodate is grounded in the honour of the Crown and serves the constitutional objective of reconciliation reflected in s. 35 of the Constitution Act, 1982.
- Trigger test: (1) Crown knowledge (real or constructive) of the potential existence of an Aboriginal right or title, and (2) contemplated Crown conduct that may adversely affect the claimed right or title.
- Scope test: consultation obligations increase with (1) the strength of the claimed right or title and (2) the seriousness of potential adverse effects.
- Consultation must be meaningful and conducted in good faith; it is not a veto, but may require changes to Crown plans where warranted by the strength of the claim and the risk of harm.
- The Crown retains ultimate legal responsibility; third parties do not bear an independent constitutional duty to consult, though they may be involved to implement the Crown’s process.

## Conclusion

The Court recognized a binding, pre-proof constitutional duty requiring the Crown to meaningfully consult and, when warranted, accommodate Indigenous peoples before authorizing actions that may harm asserted Aboriginal rights or title, while confirming that the legal duty is the Crown’s alone even if industry assists procedurally.


Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (Can. 2004)