On May 14, 2014 the British Columbia Supreme Court released its
decision in Ehattesaht First Nation v
British Columbia (Forests, Lands and Natural Resource
Operations), 2014 BCSC 849. The case concerned an
application for judicial review of a Ministerial decision
(Decision) to allocate timber undercut within a Tree Farm Licence
(TFL) held by Western Forest Products Inc. (Western) on the west
coast of Vancouver Island. The Decision reduced the
unharvested volume potentially available to the Ehattesaht. The
Crown did not consult the Ehattesaht regarding this Decision. The
Court recognized that a duty to consult extends to this situation
where the government decision may have a potential adverse effect
on a First Nation's economic interests, as opposed to an
The Ehattesaht First Nation (Ehattesaht) asserts Aboriginal
rights and title to an area within a TFL held by Western. The
Minister's Decision retained 25% of timber undercut in the TFL
and returned the remaining 75% to the TFL inventory, thereby
capping the portion of undercut that could be allocated to
Ehattesaht at 25%. Ehattesaht was not notified that the matter was
under consideration. The issue before the Court was whether the
province had a duty to consult Ehattesaht in respect of the
Decision. The province and Western argued that there was no duty to
consult because the affected Aboriginal interest was an economic
interest as opposed to an Aboriginal right.
Since 2005, Ehattesaht has had the opportunity to harvest timber
within the TFL through Forestry Accommodation Agreements with the
province. The licences issued pursuant to these agreements began to
expire in December 2012. During negotiations for a new tenure
agreement, Ehattesaht advocated that the province should provide
interim accommodation of its Aboriginal rights and title through
the reallocation of TFL undercut to Ehattesaht.
The Forest Act, RSBC 1996, c 157, governs the
harvesting of Crown timber in British Columbia. While the holder of
a TFL has the exclusive right to harvest timber in the TFL area,
the holder must obtain further authorizations to undertake
harvesting activities. At the end of a cut control period, any
undercut is returned to the Crown and cannot be harvested by the
licensee. The undercut may be disposed of by way of certain types
of tenure agreement specified under the Forest Act.
In assessing whether there was a duty to consult in respect of
the Decision, the Court applied the three conditions established by
the Supreme Court of Canada in Haida Nation v British Columbia
(Minister of Forests): (1) the Crown's knowledge, actual
or constructive, of a potential Aboriginal claim or right; (2)
contemplated Crown conduct; and (3) the potential that the
contemplated conduct may adversely affect an Aboriginal claim or
With respect to the first condition, it was not disputed that
the Crown had knowledge of Ehattesaht's claims of Aboriginal
right and title to the lands within the TFL. This was demonstrated
by Ehattesaht's interest in the allocation of the TFL undercut.
As to the second condition, the events preceding the Decision
clearly constituted "contemplated Crown conduct." The
Ministry had engaged in extensive consultation with Western prior
to making the Decision; however, there was no consultation
whatsoever with Ehattesaht. Regarding the third requirement, the
Court held that the Decision had the potential to adversely affect
Ehattesaht's interest because it capped the portion of the TFL
undercut that could be allocated to Ehattesaht at 25%. As a result,
it would be impossible for Ehattesaht to be allocated any of the
undercut that was returned to the inventory of the TFL. Based on
these findings, the Court concluded that the Crown had a duty to
consult Ehattesaht prior to making the Decision. In the result, the
Decision was quashed.
The Court appears to focus on the fact that there was no
consultation whatsoever in the circumstances of this case.
Additionally, the Court noted that consultation may be triggered
regarding strategic, higher level decisions and conduct "that
sets the stage for further decisions that will have a direct
adverse impact on the lands" (para. 59) and that government
decisions triggering the duty to consult are not limited to solely
those decisions causing physical effects. Further, this case
highlights the risks that may be encountered when there is a
complete lack of consultation between the Crown and a First Nation,
regardless of the legal arguments being relied upon.
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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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