The Haida decision represents the Supreme Court of Canada's
seminal discussion on the Crown's duty to consult with and
accommodate First Nations who claim Aboriginal rights or title, but
have yet to establish those rights or title in court or through
treaty. A recent decision of the BC Supreme Court indicates that,
ten years on, we are still muddling our way through the
Moulton Contracting Ltd. v. British Columbia concerned
various claims that the plaintiff logging contractor advanced
against the Province of British Columbia, the Fort Nelson First
Nation (the "Band"), and particular members of the Band.
The dispute concerned two Timber Sale Licenses (TSLs) that the
Province had awarded to the plaintiff, but that the plaintiff was
unable to harvest on account of a blockade that various Band
members erected upon an access road. The blockade reflected the
Band members' unhappiness over the Province's consultation
efforts with respect to a major amendment made to a forest
development plan on account of the TSLs.
Critically, the Province failed to advise the plaintiff that
Band members were not satisfied with the Province's
consultation, or that these members had threatened to take action
that would to prevent logging under the TSLs. Since the plaintiff
was unaware of this threat, it did not pursue other work normally
available to it until it was too late.
The plaintiff's claims against the Band and members were
dismissed. The court also dismissed the plaintiff's claim that
the Province was obliged to provide access to the roads and
cutblocks: the TSLs included a standard clause that exempted the
Province from any liability that might arise due to a First Nations
The court was left to consider whether the Province had breached
either of two implied terms of contract found to exist in the TSLs.
The first implied term was an obligation on the Province to
discharge its duty to consult with First Nations. The second was an
obligation on the Province to inform the plaintiff in a timely
manner if any First Nations people were dissatisfied with the
Province's consultation and threatened interference with the
plaintiff's logging operations.
Ultimately, the court found that the Province was liable to the
plaintiff for a breach of the second implied term, and awarded
damages to the plaintiff in the amount of $1.75 million. In
essence, the Province's breach took away the plaintiff's
opportunity to pursue other sources of revenue aside from the TSLs.
While the court did not find the Province liable to the plaintiff
in damages on account of the first implied term due to the
exemption clause discussed above, and due to concerns about the
existence of a causal relationship between any breach and the
plaintiff's losses. The court nevertheless did find that the
Province's consultation efforts did not maintain "the
honour of the Crown" and, therefore, that the Crown had
breached this contractual obligation. The court was critical of the
Province's failure to accommodate the limited capacity of the
Band to evaluate the Province's forestry proposals.
While the court clarified that this "is not to say ... that
the Province was under an obligation to provide funding for
improved capacity," one gets the impression that the court
made this statement with a wink of the eye. The court went on to
say that if consultation owed to the Band was not completed in a
timely manner "the Province owed a duty to delay posting the
TSLs for sale." In other words, the message that the court
appears to have delivered to the Province is: "while
you're not necessarily obliged to fund a First Nation's
evaluation of any forestry proposal, it could be a long wait if you
don't". An appeal of this decision was filed in the BC
Court of Appeal.
Previously published in The Legal Perspective
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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