Those of nations lacking membership of the Commonwealth may find the title strange but the Supreme Court of Canada this week did a good job of reminding us what it is all about - in a ruling arising from the Haida's claim that the government has to include it in land development planning where relevant. From the lazy lawyer's best pal, the case's headnote:

The government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously. While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Consultation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to the honourable process of reconciliation that s. 35 of the Constitution Act, 1982, demands.

There is little use in speaking of honour as an abstract when each instance requiring its application has not been attended to. Interesting is the quick business the Court made in responsing to the bleat of the Province of British Columbia which had argued that the Crown in the right of each province was not equally bound to honour. At paragraph 59 the Court writes:

the Provinces took their interest in land subject to "any Interest other than that of the Province in the same". The duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows that the Province took the lands subject to this duty. It cannot therefore claim that s. 35 deprives it of powers it would otherwise have enjoyed. As stated in St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 A.C. 46 (P.C.), lands in the Province are "available to [the Province] as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title" (p.59). The Crown's argument on this point has been canvassed by this Court in Delgamuukw, supra, at para. 175, where Lamer C.J. reiterated the conclusions in St. Catherine's Milling, supra. There is therefore no foundation to the Province's argument on this point.

The honour of the Crown, Federal and Provincial, arises primarily from the Royal Proclaimation of 1761, offering as it does at a minimum the protection of a fiduciary, but also the treaties and agreements which came before and after that date 243 years ago. The Provinces - other than Nova Scotia perhaps - are accordingly all relative newcomers to the issue. And were Nova Scotia to claim that it would still be required to answer to the Treaty of 1722 which, to be fair, it has been for some years now on a moderately co-operative and healthy way. Would that the others take up the path of participation rather than litigation.