Haida Nation v British Columbia (Minister of Forests)

Haida established that the Crown's duty to consult and accommodate is triggered before Aboriginal rights or title are proven. The duty arises from the honour of the Crown when the Crown has knowledge of a potential right and contemplates conduct that may adversely affect it.

BC issued and renewed tree-farming licences over Haida Gwaii without consulting the Haida Nation, who asserted but had not yet proven Aboriginal title and rights to the area.

When is the Crown obliged to consult Aboriginal peoples about decisions affecting asserted rights?

Duty exists. BC breached. Duty also extends to Crown conduct, not to private third parties as primary duty-holder.

The duty to consult arises when the Crown has actual or constructive knowledge of the potential existence of an Aboriginal right or title, and contemplates conduct that might adversely affect it. The scope of the duty is proportionate to the strength of the case for the right and the seriousness of the potentially adverse effect — a spectrum from notice and information sharing through to deep consultation and possibly accommodation.

McLachlin CJ grounded the duty in the honour of the Crown, recognising that to require proof of title before any consultation would render the s.35(1) constitutional protection hollow. The duty is the Crown's alone, although procedurally the Crown may delegate aspects to proponents.

Spawned the modern law of consultation. Reshaped natural-resource project approval. Mikisew Cree (2005), Rio Tinto Alcan (2010), Clyde River (2017), and Mikisew Cree (2018) refine its application across legislative and executive contexts.

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511.

McLachlin CJ, Major J, Bastarache J, Binnie J, LeBel J, Deschamps J, Fish J