Two cases provide broad guidelines for the negotiation and definition of Aboriginal title in BC.
In Haida v. British Columbia (2004) and Taku River Tlingit First Nation v. British Columbia (2004), the Supreme Court of Canada ruled that due to the Honour of the Crown, the government has a duty to consult and possibly accommodate Aboriginal interests even where title has not been proven. This established a general framework for the duty to consult and accommodate Indigenous peoples across Canada.
The duty to consult arises from the need to address Aboriginal rights prior to those rights being addressed through a treaty or court decision. In Haida and Taku, the court ruled that First Nations do not have a veto over what can be done however, the consultative process must be fair and honourable, and government is entitled to make decisions even in the absence of consensus.
This decision affirmed that the goal of treaty making is to reconcile Aboriginal rights with other rights and interests and it is not a process to replace or extinguish rights. The courts stated, “[r]econciliation is not a final legal remedy in the usual sense.” It said “just settlements” and “honourable agreements” are the expected outcomes.