On July 30, 2008, the Federal Court issued its decision in Tzeachten First Nation v. Canada (Attorney General), 2008 FC 928 (“Tzeachten”), and on August 22, 2008, the British Columbia Supreme Court issued its decision in Wii'litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139 (“Gitanyow”). Both of these decisions deal with the duty of the Crown to consult First Nations potentially impacted by its decisions. However, the reasoning of the two courts demonstrate divergent approaches to the duty to consult. It will be for later courts to clarify these apparent inconsistencies.
The Gitanyow decision considers a petition brought by the Gitanyow First Nation (“Gitanyow”) for judicial review of the decision of the Regional Director of the Minister of Forests (“MoF”), approving six forest licence (“Licence”) replacements pursuant to s. 15 of the Forest Act, R.S.B.C. 1996, c. 157, covering portions of Gitanyow traditional territory. The Gitanyow alleged that the Crown failed to adequately perform its duty to consult and accommodate its aboriginal interests in approving the Licence replacements, as set out in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.
The Crown argued that the Regional Director and the MoF did engage in meaningful consultations with Gitanyow and provided adequate accommodations.
Madam Justice Neilson reviewed the law regarding the duty to consult and accommodate as set out in Haida and discussed findings by the Supreme Court of Canada with regards to aboriginal rights, as held in R. v. Vanderpeet,  2 S.C.R. 507.
Neilson J. then set out the following issues: (a) whether the Crown correctly or reasonably assessed its duty to consult and accommodate Gitanyow interest, (b) whether the consultation process was reasonable, and (c) whether the Crown reasonably accommodated Gitanyow’s aboriginal interests.
The Gitanyow claim aboriginal title and rights to approximately 6,500 square miles of land in northwestern B.C.
The Crown has permitted logging on this territory and Gitanyow’s aboriginal right to the timber has been a long-standing source of dispute.
The six Licence replacements under the Forest Act are on land within Gitanyow’s territory. Many of these same Licenses had led to previous litigation between the Crown and Gitanyow in 2002 and 2004. In the earlier cases, Justice Tysoe found that the Crown had failed to meet its duty to consult Gitanyow and accommodate its interests.
Negotiations continued after this litigation in an attempt to reach a forestry accommodation agreement. The four concerns of Gitanyow were:
1) recognition of Gitanyow aboriginal rights and title;
2) sustainability of forest resources within Gitanyow traditional territory, including reforestation and silviculture;
3) implementation of joint land use planning; and
4) economic accommodation through revenue sharing or other means.
These concerns were addressed through the forming of a joint land use plan (“LUP”) drafted by members of Gitanyow and the government, which has been used by licensees on a voluntary basis since 2005, and the creation of a Joint Resource Council (“Council”) to administer the plan, involving members of Gitanyow and the government.
In 2005, the Regional Director informed Gitanyow that the MoF wished to replace the Licences and requested Gitanyow’s input in an effort to meet the Crown’s duty to consult. In 2006, the Council met and Gitanyow presented its concerns with respect to the replacement of the Licences.
In August 2006, the parties negotiated the Gitanyow Forestry Agreement, a forestry accommodation agreement with a five-year term (the “GFA”). As part of the GFA, the parties agreed to communicate and consult on the replacement of the Licences through the Council.
The Council developed a list of recommendations for the replacement of the Licences (the “Recommendations”). The Recommendations were: to include a clause recognizing Gitanyow territory and Wilp (House) boundaries in the body of the Licence replacements; to encourage the licensees to work with Gitanyow in respect of land use planning under the LUP; to require the Regional Director to update Gitanyow on silviculture liabilities; and to acknowledge and encourage revenue sharing initiatives that had been entered into by Gitanyow and the MoF.
The MoF was of the opinion that its duty to consult Gitanyow had been satisfied at this stage. However, on February 21, 2007, Gitanyow indicated to the MoF that in the absence of a review of the Council Recommendations by the Hereditary Chiefs, the consultation process was not complete.
On February 28, 2007, the Regional Director sent offers of replacement of the Licences to the licensees. The cover letters indicated recognition of Gitanyow title and rights and recommended the licensees in the Cranberry/Kispiox area licensees work with Gitanyow under the LUP. On March 8, 2007, the Regional Director wrote to Gitanyow to explain his rationale for proceeding with the replacement Licences. Licence replacements are for 15-year terms, commencing September 1, 2007.
The BC Supreme Court’s Analysis
In analyzing the Crown’s duty to consult and accommodate, Justice Neilson first considered whether the Crown had reasonably assessed the scope of its duty, reviewed Gitanyow’s interest in the territory, and examined the adverse impacts of the Licence replacements to the Gitanyow. At para. 147, Neilson J. found that the analysis of the strength of claim had to happen at the “outset of the proposed consultation” and that there was “nothing to indicate that the Crown made such an assessment before embarking on the consultation with Gitanyow with respect to the Licence replacements.”
Justice Neilson found that the Regional Director invited Gitanyow to advise of the scope of its interests, and when Gitanyow did so, he simply replied by stating that Gitanyow had “significant interests” with respect to the Licence replacements, without addressing the nature of the interests and the adverse impact of the Licence replacements.
In terms of Gitanyow’s interest in the territory, Justice Neilson found, at para. 156, that the Regional Director, “unreasonably minimized the strength of Gitanyow’s claim by placing too much weight on the fact that its claim of aboriginal title had not been formally proven, instead of recognizing that the context for his assessment was the strength of asserted, rather than established, claims.” With respect to the adverse impact of the Licence replacements, the Court found that the allowable cut was significant and that the silviculture obligations, coupled with “a long and troubled history of over-logging and unfulfilled silviculture obligations on Gitanyow traditional territory”, were also significant.
The MoF felt that Gitanyow’s concerns would be dealt with at future, operational stages with respect to the Licence replacements, when forest stewardship plans and cutting permits were approved. The Court found that measures to protect aboriginal interest at later, operational stages were discretionary and subject to complex legislative procedures and that there was no guarantee that Gitanyow’s interest would be addressed at that stage.
The Court therefore held that the strength of claim and degree of impact of the decision to replace these Licences mandated that the scope of consultation be at the high end of the spectrum described in Haida, with “deep consultation aimed at finding a satisfactory interim solution” required.
Justice Neilson went on to analyze whether the consultation process was reasonable, in that it was both substantively and procedurally adequate.
In terms of procedural adequacy, the Court held that the Consultation Protocol outlined in the GFA set out an acceptable framework for reasonable consultation. The Court found that the Crown fulfilled its obligation to consult within a reasonable procedural framework, as both parties exchanged extensive amounts of information, Gitanyow’s interests were identified, and these interests were addressed through exchange of correspondence and meetings.
Next, Justice Neilson turned to the question of whether substantive adequacy, defining substantive in terms of whether meaningful consultation produced reasonable accommodation. In analyzing the reasonableness of the accommodation, Justice Neilson addressed each of the items intending by the MoF to address adequate accommodation. She held that:
a) the Regional Director had no input into future operational decisions, many of which are discretionary;
b) the JRC Recommendations were still under negotiation and the MoF was not entitled to rely on them as accommodation based on meaningful consultation; and
c) the GFA did not refer to the replacement of Licences regarding what accommodations had been agreed to.
The Court held that despite the extensive consultation between the parties, the Crown had not modified its position to accommodate Gitanyow’s interests. At para. 220, the Court held:
[T]he Crown must demonstrate that, in balancing the competing interests at work in the decision to replace the FLs [Licences], it listened to Gitanyow’s concerns with an open mind, and made a good faith effort to understand and address them, with a view to minimizing the adverse effect of that decision on Gitanyow’s interests and providing reasonable interim accommodation.
The Court then considered the adequacy of accommodation on each of the issues raised by Gitanyow when it entered discussions regarding the replacement Licences and concluded that the Crown failed to meet its duty to meaningfully consult and adequately accommodate Gitanyow’s aboriginal interests. No relief has been granted to date as further submissions relating to relief were required due to the third party rights that would be affected.
The Tzeachten decision considers a petition by First Nation members of the Sto:lo First Nation, (the “Sto:lo”) for judicial review of the decision of the Treasury Board of Canada to transfer lands claimed by the applicant First Nations to the Canada Lands Company (“CLC”), to be developed and potentially sold. CLC is a Crown corporation and agent of the Crown. Just as in Gitanyow, the Sto:lo argued that the Crown had failed in its duty to consult. The Crown argued that it had fulfilled its duty to consult with the Sto:lo in their extensive consultation prior to reaching a decision to transfer the lands. The Crown further argued that no additional consultation was necessary between the decision to transfer the lands and the actual authorization to transfer the lands, nearly three years later.
Although the context of Tzeachten is different from that facing the court in Gitanyow, the issues are similar: the case turned on whether the Crown fulfilled its duty to consult the Sto:lo in respect of potential adverse effects on aboriginal rights and title.
The lands at the center of the dispute were originally transferred by the Province of British Columbia in the 1880s to the Government of the Dominion of Canada. Between 1892 and 1915, Canada issued Crown grants for these lands to private individuals. In 1942 and 1943, Canada re-acquired a portion of these lands.
In 1988 and 1997, the Sto:lo communities submitted a land claim that alleged, in part, that the lands forming part of two Indian Reserves created in 1864 were unlawfully reduced and then conveyed to Canada. In 1995, Sto:lo communities filed a statement of intent to negotiate a treaty with the Crown. These negotiations included a claim with respect to traditional territories.
Between 1995 and 2000, Canada met with the Sto:lo communities approximately 26 times, never reaching an agreement with respect to the lands.
In 2000, a disposal strategy was formed by Canada and approved by the Treasury Board (the “Disposal Strategy”). The Disposal Strategy consisted of a plan to retain parts of the land in dispute for various purposes while transferring other parts to CLC. Part of the land to be retained was retained for the express purpose of allowing the Chief Federal Treaty Negotiator the opportunity of engaging in treaty land selection negotiations with the Sto:lo. The Disposal Strategy was challenged by the Sto:lo. During this dispute, CLC began the process of selling part of the land.
In 2003, the Federal Government authorized the sale of the remainder of the surplus lands to the CLC. This transfer was completed in 2004, at which time the CLC informed the Sto:lo that it would not consult any further on any matter relating to the lands in question on the basis that the Treasury Board was satisfied that extensive consultation had already occurred. In 2005, CLC transferred part of the land to the City of Chilliwack to serve as a park buffer.
The Federal Court’s Analysis
Applying the principles of Haida to the case at bar, the court examined the scope and content of the duty to consult in the context of the Sto:lo. In addition to recognizing that the duty to consult exists along a spectrum, the court also recognized the need for an individual and flexible approach. Quoting Haida, the court stated at para. 30 that “the level of consultation required may change as the process goes on and new information comes to light”.
The court went on to consider the strength of the Sto:lo claim for aboriginal title. Relying on the decision of the Supreme Court of Canada in R v. Marshall; R v. Bernard, 2005 SCC 43, the court noted that evidence of occasional or seasonal entry and use will not suffice to establish aboriginal title, although such evidence may be capable of establishing aboriginal rights. Based on the oral history evidence, evidence relating to their specific claim to reserve lands and an archaeological analysis report of past activity, the court concluded that the Sto:lo claim for aboriginal title was one of moderate strength.
The court further considered the seriousness of the potentially adverse effect. CLC argued that the transfer of land involved no fresh infringement because the infringement, if any, occurred a century ago when the Crown first issued grants of land. The court disagreed, stating at para. 47:
It is true that given that the applicants have not used the land in over a century, the sale to CLC does not entail a loss of any right which they had been previously enjoying. However, downplaying the infringement by suggesting that it forms part of a long history of previous infringement is not consistent with the honour of the Crown which requires reconciliation.
However, the court went on to take note of the fact that the Sto:lo had tabled a counter-offer during negotiations that involved compensation for the lands rather than possession. The court held at para. 49 that “[t]his casts doubt upon the unique importance of the land beyond a propriety interest, to the applicants”. Thus, while the court accepted that the transfer represented a new infringement of the Sto:lo’s potential Aboriginal title, it also found that any damage would be compensable.
Based on the strength of the Sto:lo’s claim and the potentially adverse effects of the Crown’s actions, the court held at para. 51 that the Crown’s duty to consult was “more than minimal and lies between the two extremes of the spectrum”. This duty required the Crown to engage in good faith consultation as well as a process aimed at addressing the Sto:lo’s concerns.
The court then went on to assess whether the Crown had fulfilled this duty. The Sto:lo argued that separate consultation was necessary for the 2000 Disposal Strategy and the 2003 authorization to transfer. The court rejected this argument and agreed with the CLC that the 2003 transfer was simply the operationalization of the 2000 Disposal Strategy. The court stated at para. 53:
Despite the applicants’ arguments to the contrary, the 2000 and 2003 authorizations were essentially two stages of the same decision. There was no change in the context and no new information which arose between the relevant dates which would require an additional round of consultation.
Based on the extensive consultation that had occurred prior to the 2000 Disposal Strategy decision, the court held that the Crown had fulfilled its duty to consult. The court noted that this consultation at times rose to the level of deep consultation, such as when the Sto:lo were permitted to make submissions to the Treasury Board. The court noted with approval the flexible approach to consultation undertaken by the Crown at para. 55:
During the period of consultation, Canada attempted to address Aboriginal concerns in the various proposals tabled that would either see portions of the lands in question retained by the Crown, or have the applicants comanage a portion of those lands. These policy changes were consistent with the Supreme Court of Canada’s ruling in Haida Nation, above, at para. 46, that “[m]eaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations” (see and Taku, above, at para. 25). In my view these were attempts made by Canada “to harmonize conflicting interests and move further down the path of reconciliation” (Haida Nation, above, at para. 49).
Despite these efforts by the Crown, no agreement was ultimately reached between the parties as the Sto:lo refused to agree to the transfer of any portion of the land to CLC.
The Crown argued that the failure of the Sto:lo to accept this transfer indicated a failure to fulfill its reciprocal obligation in consultation. The court rejected this argument, holding that this belief was not a “position” that the Sto:lo were required to change in order to fulfill their reciprocal duty.
Consequently, the court held that both parties had fulfilled their reciprocal duties to consult. The court noted that, as stated in Haida, the duty to consult does not include a duty to agree.
The Gitanyow and Tzeachten decisions are both recent decisions regarding the duty of the Crown to consult with First Nations. However, they represent divergent approaches to the application of that duty.
In Tzeachten, in keeping with the Supreme Court of Canada’s decision in Haida Nation, the Federal Court emphasizes the need for flexibility in analyzing the scope of the duty to consult and recognizes that the emergence of new information may alter the scope of the duty to consult.
Conversely, in Gitanyow, the British Columbia Supreme Court states that the Crown must determine the scope of the duty to consult at the outset. This approach represents a departure from the approach taken in Haida and inserts an unnecessary element of rigidity to the duty to consult. It would be inconsistent with the honour of the Crown for the Crown to disregard additional evidence or information as it came to light based on a previous analysis of the scope of their duty to consult. Additionally, this approach is unlikely to promote the goal of reconciliation between First Nations and the Crown which has been endorsed in numerous decisions of the Supreme Court of Canada. The Crown has already issued a notice to appeal from the Gitanyow decision. It remains to be seen whether this decision is overturned or modified, or whether it will fall to subsequent cases to reconcile this divergence.