Grant Huberman has taken a leading role in assisting First Nations to enforce the  Crown’s legal obligations to consult and accommodate when authorizing the use of lands and resources within traditional aboriginal territories in a manner that may affect Aboriginal rights or title.

Three cases successfully argued before the British Columbia Supreme Court provide good examples of how Counsel at Grant Huberman helped the Gitanyow, the Xwémahlkwu, and the Hupacasath receive appropriate consultation and accommodation. In all three cases, the Court sent the Province of British Columbia back to fulfill the Crown’s obligations by engaging in meaningful consultations with the First Nations.

During consultations that followed the Court decisions, Counsel at Grant Huberman provided legal advice, assisted in structuring the consultation processes and participated as negotiators.

In Gitxsan Nation v. British Columbia, the Court found that the Minister of Forests had undervalued the strength of the claims of the Gitanyow and of neighbouring First Nations and had wrongly assumed that a change of control of Skeena Cellulose would not interfere with their rights and titles. The court found that the Minister’s consultation efforts were at best meager and fell far short of what the honour of the Crown required.

The Court found, in Homalco Indian Band v. British Columbia, that a decision by the Minister of Agriculture, Food and Fisheries to approve an amendment to a fish farm licence allowing the raising of Atlantic salmonwithout prior face to face discussions and consultations with the Xwémahlkwu First Nation failed to uphold the Crown’s honour. .

In Hupacasath First Nation v. British Columbia, the Court found the Minister of Forests’ decision to consent to the removal of private timberlands from the Province’s Tree Forest Licence regime, without any formal consultation with the Hupacasath First Nation, breached the Crown’s duty to consult and accommodate. This is a very significant decision as the Crown argued  that there was no duty to consult with respect to decisions affecting private lands was rejected by the Court.

Links

Court Finds Funding Required for Consultation: May, 2007 [pdf]

Cases

Gwasslam v. British Columbia (Minister of Forests),
Gitxsan Nation v. British Columbia (Minister of Forests), 2002 BCSC 1701
Link to Case here

Gitxsan Nation v. British Columbia (Minister of Forests),
2004 BCSC 1734
Link to Case here

Hupacasath First Nation v. British Columbia (Minister of Forests),
2005 BCSC 1712
Link to Case here

Homalco First Nation v. British Columbia (Minister of Agricutlure, Food and Fisheries),
2004 BCSC 1764
Link to Case here

Homalco First Nation v. British Columbia (Minister of Agricutlure, Food and Fisheries),
2005 BCSC 283
Link to Case here