Aboriginal Rights, Resource Development, and the Source of the Provincial Duty to Consult in Haida Nation and Taku River

Abstract

The main issues dealt with by the Supreme Court of Canada in its decisions in Haida Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director/ were the nature and scope of the provincial Crown's duty to consult with First Nations and accommodate their interests before authorizing resource development on lands subject to unestablished Aboriginal title claims. Those issues will not, however, be the focus of this article. Instead, I am going to discuss what, in my opinion, is a major preliminary issue lying largely hidden in both cases, namely the source and extent of provincial jurisdiction to infringe Aboriginal title for the purposes of resource development. In Haida Nation and Taku River, the Court assumed that British Columbia has authority to infringe Aboriginal title in appropriate circumstances for the purposes of forestry and mining, thereby triggering a duty to consult with the Aboriginal nations concerned. However, although logically that provincial authority to infringe must be present before the duty to consult can arise in these circumstances, its source was not explained or even identified.

Keywords: First Nations, Haida Nation v. British Columbia, Taku River Tlingit First Nation v. British Columbia, resource development, lands, Aboriginal title claims, provincial jurisdiction, duty to consult, Supreme Court of Canada

JEL Classification: K39