Breathing Life Back into the Duty to Consult

By Bruce McIvor

Case Comment on Chartrand v. British Columbia, 2015 BCCA 345

Since the Supreme Court of Canada’s Rio Tinto decision in 2010 a growing number of court decisions have relied on a narrow interpretation of governments’ obligations to consult and accommodate First Nations. In Chartrand, the British Columbia Court of Appeal pointedly rejects this approach by reminding everyone of some of the most important duty to consult decisions to come out of British Columbia over the last fifteen years.

What it is about

In the early 1850s the Hudson’s Bay Company, on behalf of Britain, negotiated treaties with Indigenous Peoples on Vancouver Island. Two of the treaties were with the predecessors of the Kwakiutl First Nation. They agreed to grant the HBC certain rights to a strip of land extending inland for two miles from the coast excluding their village sites and enclosed fields. They were also guaranteed the right to hunt on unoccupied lands and to carry on their fisheries as formerly.

For over 150 years the Kwakiutl have struggled for recognition of their treaty rights and of their Aboriginal title and rights outside the two-mile wide strip of land covered by their treaties.

In 2007 British Columbia removed private lands owned by Western Forest Products from the company’s tree farm licence and approved a new forest stewardship plan in Kwakiutl territory. In 2012 the forest stewardship plan was extended for an additional 5 years. While the province consulted with the Kwakiutl about the effect of the decisions on the First Nation’s treaty rights, it refused to consult in regards to the Kwakiutl’s claims to Aboriginal title and rights outside the two-mile wide treaty area.

The Kwakiutl filed a judicial review of the decisions on the basis that British Columbia had not properly consulted and accommodated them for the effect of the decisions on their Aboriginal title, rights and treaty rights.

In 2013 the British Columbia Supreme Court decided against the Kwakiutl, concluding that the province’s efforts to consult in relation to the forestry decisions had been adequate and that, therefore, it had fulfilled its legal obligations. However, the Court did grant the Kwakiutl a declaration that the province was under an ongoing duty to consult with them in regards to their Aboriginal title and rights.

Both parties appealed to the B.C. Court of Appeal. The Province’s position was that the lower court erred in granting the declaration of an ongoing duty to consult in regards to asserted Aboriginal title and rights. The Kwakiutl argued that the lower court erred in not concluding that the province had breached the duty to consult and in not ordering the province to involve the federal government in decisions affecting their Aboriginal title, rights and treaty rights.

What the Court said

On the issue of the declaration granted by the lower court, the Court of Appeal agreed with the province. The Court concluded that the lower court had gone too far in granting the declaration. The Court held that the declaration inappropriately and unnecessarily sought to describe the duty to consult and address issues that were not before the court.

On the question of the adequacy of consultation, the Court agreed with the Kwakiutl. The Court held that the lower court had taken an overly narrow and technical approach to evaluating the adequacy of the province’s consultation.

Importantly, the Court differentiated between judicial reviews of run-of-the mill government decisions and judicial reviews of government decisions that trigger the duty to consult Aboriginal peoples. The latter must be informed by the honour of the Crown and the importance of promoting reconciliation. In those situations the courts should not simply ask whether a decision was fair but more fundamentally whether the Crown’s constitutional duty to consult and accommodate Aboriginal peoples had been fulfilled.

As an example of the lower court’s problematic approach, the Court of Appeal concluded the judge had taken an overly narrow view of the type of impacts required to demonstrate an adverse effect on the Kwakiutl’s interests. It was sufficient for the Kwakiutl to demonstrate that the province’s decisions affected their ability to participate in decision-making and their ongoing ability to influence government policy that affected their lands and resources.

Similarly, the Court of Appeal held that the lower court erred in concluding that the Kwakiutl were not entitled to ‘deep consultation’ because there was a shortage of evidence of specific effects on their rights. The Court held that high-level effects on decision-making can be sufficient to trigger government obligations for deep consultation.

Finally, the Court held that the Kwakiutl could not be faulted for failing to participate in a consultation process premised on the erroneous assumption that their interests were limited to their treaty rights because fundamentally inadequate consultation processes do not preserve the honour of the Crown.

Why it matters

The Court of Appeal’s decision is important for several reasons. First, it dispenses with the dubious argument that it is impossible for Treaty First Nations to also claim Aboriginal title and rights. The so-called ‘historical treaties’ were negotiated at different times, in different places, for different reasons and with different outcomes. There is no legal or principled reason to assume that, given the circumstances, a First Nation’s Aboriginal title and rights could not have survived the finalization of a treaty.

Second, the decision is another example of the courts rejecting a site-specific assessment of impacts on Aboriginal title, rights and Treaty rights. The Court confirmed that high-level, strategic decisions can not only trigger the duty to consult but can also necessitate deep consultation.

Third, the decision speaks to First Nation jurisdiction over their lands. The duty to consult includes First Nation participation in decision-making and policy development.

Fourth, the decision is a welcome reminder that when it comes to the duty to consult, not just any consultation process will do. Consultation processes must proceed from the correct basis and must include the possibility of accommodating legitimate Aboriginal concerns. First Nations cannot be faulted for refusing to participate in a bankrupt consultation process.

Last, and perhaps most importantly, the decision is a much needed check to a growing tendency by some courts to take a narrow view of governments’ obligations to consult and accommodate Aboriginal peoples. Relying on earlier decisions from British Columbia, the Court reiterated that because the duty to consult is a constitutional obligation, governments must be held to a high standard.

Read the full decision.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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