On November 18, 2004 the Supreme Court of Canada (SCC) handed down its decisions for two highly contentious cases involving resource-use battles and the government's duty to consult with Indian bands before developing land that Indian groups claim to own.

Both cases, which originated in British Columbia, stem from the fact that most of the province does not have signed treaties with the Indians of BC. In 1997 the Supreme Court of Canada ruled in the Delgamuukw case, that aboriginal title exists in BC and that aboriginal people with pending land claims must be consulted prior to development on Crown land. Regrettably the high court did not specify the type of land title nor what constitutes "consultation" therefore, these two cases resulted.

The first case involved Atlin's Taku River Tlingit opposition to the construction of a 160 kilometre road through wilderness to the Tulsequah Chief mine in northwest BC. The Tlingit Indians, who claim title to a large area in north-western BC, stated the road would interfere with their hunting, fishing and gathering activities and the aboriginal title they claim to the land.

The SCC's ruling declared federal and provincial governments have a legal duty to consult, and if appropriate, accommodate Indian bands before developing land that is under land claim dispute. But, this duty is limited because it does not mean the government must obtain the consent of affected Indian bands, nor does it mean there is a duty to agree.

Chief Justice Beverley McLachlin wrote, "As for aboriginal claimants, they must not frustrate the Crown's reasonable good faith attempt." In other words, Indian bands do not have a veto over whether or not resource development occurs.

The Supreme Court of Canada's unanimous rulings shed more light on the type and amount of consultation governments must perform. For example the high court ruled that because the Taku River Tlingit band was involved in a $10-million three year environmental assessment this satisfied the Crown's duty to consult.

The second case is a Haida challenge to the BC government's transfer and extension of Tree Farm Licence 39 to Weyerhaeuser. The BC Court of Appeal in 2002 ruled that the private company (and all private companies) has the same fiduciary responsibility towards Indian people as do the provincial and the federal governments.

Great news for private companies; the SCC ruling on the duty to consult does not apply to private companies.

If the SCC had included companies it would have been devastating for the natural resource sector. Companies would have had to hire lawyers and consultants to work with Indian band councils. This would have created costly delays and higher costs that would ultimately have been passed on to consumers and taxpayers.

These rulings bring a degree of clarity to what is meant by a duty to consult. Hopefully this will allow for more investment and progress in the natural resource sector. However, until land claims disputes are settled, the scope of development will remain uncertain.