Yes, said the Court of Appeal for British Columbia (Court) in its recent decision in Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations). The Court found that the provincial Crown had not adequately consulted the Kwakiutl First Nation regarding provincial decisions between 2007 and 2012 to remove private lands from a Tree Farm Licence and to approve and renew a Forest Stewardship Plan in Kwakiutl traditional territory. The Crown consulted the Kwakiutl regarding their Douglas Treaty rights, but ignored their asserted aboriginal rights and title claims. The Court held that this was the wrong approach.

This case challenges provincial policy regarding the Douglas Treaties and expressly leaves open the question of whether the Douglas Treaties extinguished aboriginal rights and title.

BACKGROUND

In 1851, James Douglas was the chief agent for the Hudson’s Bay Company on Vancouver Island. Shortly thereafter he became governor of the colony of Vancouver Island, and later still of the colony of British Columbia. Seeking to secure coal deposits on the northeast coast of Vancouver Island for the company, he entered into treaties with the Queackar and Quakeolth Tribes, predecessors of the Kwakiutl. These treaties were virtually identical to 12 other Vancouver Island treaties negotiated by Douglas between 1850 and 1854 — now known as the Douglas Treaties. The treaties provided that, in exchange for the “sale” of their land, the First Nation signatories would retain their “village sites and enclosed fields” for their own use, and they could “hunt over the unoccupied lands” and “carry on [their] fisheries as formerly”. Previous court decisions have upheld the treaty rights of Douglas Treaty First Nations.

In addition to their Douglas Treaty rights, the Kwakiutl assert claims of aboriginal title and rights over lands within their territory, which they say were not ceded by the treaties. The Province has taken the position that the Kwakiutl, like other Douglas Treaty First Nations, are only entitled to consultation and accommodation on the basis of their treaty rights. Accordingly, the Province has not entered into a Forest and Range Opportunities Agreement with the Kwakiutl, as the Province views these agreements as appropriate accommodation of aboriginal rights claims but not Douglas Treaty rights.

The Kwakiutl sought to set aside the Decisions on the basis that the Province was obliged to consult with it in good faith because of their potential impact upon Kwakiutl treaty rights and asserted aboriginal rights and title. At the trial level, the B.C. Supreme Court declared that the provincial Crown has an ongoing duty to consult with the Kwakiutl and must endeavor to seek accommodation of the Kwakiutl claim to unextinguished aboriginal rights, titles and interests. 

COURT OF APPEAL DECISION

The Court found that the Decisions affected the regulatory regime in a manner that threatened to reduce the Kwakiutl’s ability to participate in decision-making that would have an impact upon its access to land, its exercise of hunting and fishing rights and the protection of cedar trees. The Kwakiutl were only required to demonstrate that the Decisions would lead to a reduction in their ongoing ability to affect policy and would have an impact upon decision-making in relation to lands and resources over which they were actively advancing claims. Critically, the Kwakiutl were not required to provide evidence that the Decisions would have any specific impacts on their rights.

The Court then considered the nature of the Kwakiutl rights. First, the Court determined that the Kwakiutl’s treaty rights “occupy the high end of the spectrum of claims demanding deep consultation”. Second and most importantly, the Court held that the Kwakiutl have a legitimate claim that the Douglas Treaties did not extinguish Kwakiutl’s aboriginal rights and title. The Crown made the Decisions on the basis that the only Kwakiutl rights deserving of consultation were the Douglas Treaty rights. As such, the Province did not provide a meaningful consultation process and hence did not adequately consult the First Nation.

CONCLUSION AND IMPLICATIONS

The Court concluded that the Crown had a constitutional duty to consult with the Kwakiutl in relation to the Decisions; however, the Court left the parties to engage in “the broadest consideration of appropriate arrangements, without further direction from the Court.” In particular, the Court declined to order the Province to engage in consultation with the federal Crown regarding the Kwakiutl rights, given that the Province could not bring about that engagement on its own.

The Court’s decision to expressly leave open First Nations’ claims to aboriginal rights and title, in addition to Douglas Treaty rights, is significant. It puts into question long-standing provincial policy to the contrary. It may also open the door to a similar challenge by First Nation signatories to the Numbered Treaties (Treaty 1 through Treaty 11), which cover much of Ontario, the Prairies, northeastern B.C. and portions of the Territories.

In its 2014 decision in Grassy Narrows First Nation v. Ontario (Natural Resources) (see our July 2014 Blakes Bulletin: Ontario Can “Take Up” Lands Under Treaty 3 Without Seeking Federal Approval), the Supreme Court of Canada (SCC) held that by signing Treaty 3, the “Ojibway yielded ownership of their territory, except for certain lands reserved to them.” While it may not have been expressly argued, there was no suggestion in the SCC’s reasons that the Ojibway could continue to hold aboriginal rights and title interests. If the same reasoning were applied to Douglas Treaties, one might have expected the Kwakiutl assertion of aboriginal rights and title to have failed.

Until this issue is resolved, it may be necessary for the Crown (and proponents seeking Crown decisions) to consult Douglas Treaty First Nations regarding their treaty rights and aboriginal rights and title claims. Even those dealing with First Nations in other treaty areas may be affected.