The Duty to Consult--Ignore the Elephant

By Bruce McIvor

Case Comment on Chartrand v. The District Manager, 2013 BCSC 1068

Reconciliation and treaty implementation are difficult to achieve when governments ignore the obvious. The B.C. Supreme Court’s recent decision in Chartrand exemplifies many of the historical and contemporary challenges First Nations across the country face in their ongoing struggle to have provincial and federal governments implement treaties and respect Aboriginal title and rights.

What it is about

In 1851 Governor James Douglas sought to secure access to coal deposits in the Port Hardy area of Vancouver Island for the Hudson’s Bay Company by signing two treaties with the Kwakiutl First Nation. While the other Douglas Treaties may have included a surrender of all of the territory of the First Nation signatories, the two Kwakiutl treaties were clearly limited to a two-mile wide strip along the coast.

For over 150 years Kwakiutl rights, both in and out of the treaty area, have been largely ignored by successive provincial and federal governments. While the Kwakiutl struggled to have their treaties implemented and their rights respected, Western Forest Products acquired either fee simple title or tree farm licences to about half of Kwakiutl territory.

In 2007 the Province agreed to allow Western Forest Products to remove over 14,000 hectares of privately owned forest lands from its tree farm licence and to approve the company’s new forest stewardship plan. In 2012 the province extended the stewardship plan for a further five years. The Kwakiutl challenged all three decisions alleging that the Province had failed to consult and accommodate them.

In addition to the usual request that the decisions be set aside, the Kwakiutl asked the Court to order the federal government to be involved in future consultation on the basis that at Confederation Canada had assumed the Crown’s responsibility for the treaties and therefore Canada was its treaty partner, not the Province. The Kwakiutl proposed a two-step process for tripartite consultation between itself, the Province and Canada in order to finally realize the solemn promises made to the Kwakiutl by Governor Douglas in 1851.

What the Court said

The central issue before the Court was whether the Kwakiutl were entitled to be consulted about their Aboriginal title and rights outside their treaty area, or, as the Province argued, whether Kwakiutl interests were limited to treaty rights over the two-mile wide strip of land identified in the 1851 treaties.

The Court concluded that the Kwakiutl had a credible claim for unextinguished Aboriginal title and rights outside their treaty area and that the Province was wrong to deny that it had an obligation to consult on decisions that might affect those rights. But, despite the Province’s position of denial, the Court also found that the Kwakiutl had failed to take advantage of opportunities to address their concerns by not specifying exactly how the decisions would affect their interests. Consequently, the Court concluded the Province had adequately consulted the Kwakiutl even though it had refused to recognize that it had an obligation to consult.

As for the demand that the federal government be ordered to participate in consultation as part the recognition and fulfillment of the Kwakiutl treaties, the Court adopted the reasoning of the Ontario Court of Appeal in the recent Keewatin decision regarding Treaty 3. The Court concluded that involving Canada would be awkward and unworkable as well as being contrary to the Province’s exclusive control of lands and forests. Nonetheless, the Court did encourage Canada and the Province to engage with the Kwakiutl on both their treaty rights and their unrecognized Aboriginal title and rights with a view to the negotiation of a treaty.

Why it matters

For First Nations with historical treaties, the decision underlines how difficult it is to get Canada, their treaty partner, to step up and play its role. The provinces resist any involvement by Canada, the federal government would rather not be involved and the courts are reluctant to order that Canada play an active role in treaty implementation.

The Court’s conclusion that the Province must consult and accommodate the Kwakiutl regarding decisions affecting their Aboriginal title and rights outside the area of the 1851 treaties is important. Equally important is the Court’s expectation that the Province and Canada will finally engage with the Kwakiutl to implement their treaties.

The fact that the Kwakiutl had to go to court to get these results exemplifies the struggle First Nations across the country face to have governments recognize the obvious. Too often First Nations are forced to channel their limited resources into litigation to prove what governments should readily acknowledge. Long gone are the days of Calder when the Province admitted the Nisga’a had occupied their territory since time immemorial so that the parties, and the Court, could spend their time on the real issues of contention instead of confirming the presence of the elephant in the room.

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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