In a recent case concerning the duty to consult in BC, Chartrand v. The District Manager1, the Supreme Court has upheld the province of British Columbia's consultation with the Kwakiutl First Nation regarding forest management decisions.
In this case, the Kwakiutl First Nation sought judicial review of the province's decisions to allow a forestry company to remove its private lands from a tree farm licence and to approve (and later extend) a forest stewardship plan. The Kwakiutl First Nation objected to these decisions, citing effects on its asserted aboriginal rights and title.
The Kwakiutl First Nation's ancestors had entered into a treaty whereby it surrendered much of its traditional territory, receiving money and retaining only its village sites and enclosed fields for its own use, as well as a promise that such lands would be surveyed. The Kwakiutl First Nation treaty is one of the fourteen Vancouver Island "Douglas" treaties. Proper surveying never occurred, and lands were not set aside until over 30 years after the treaty was signed. The Kwakiutl First Nation had initiated litigation concerning alleged breaches of the treaty by the Crown, asserting aboriginal rights and title to its entire traditional territory beyond those conveyed in the treaty.
The province took the position in this case that consultations with the Kwakiutl First Nation would be restricted to how its decisions would impact the Kwakiutl First Nation's treaty rights and lands only. The Kwakiutl First Nation's position was that all of its traditional territory must be considered, not just those subject to treaty. Ultimately, the province approved the removal of the private lands by the forestry company and the forest stewardship plan based on the narrower scope of consultation. The Kwakiutl First Nation applied to the Court to set aside the decision on the basis of lack of consultation.
In concluding that the consultation with the Kwakiutl First Nation was adequate, the Court made several findings of note:
- Contrary to the province's argument that the Kwakiutl First Nation's aboriginal rights and title were not determinable in a judicial review setting, even on a prima facie basis, the issues raised by the Kwakiutl First Nation were appropriate for the forum. The Court was required to only consider, but not decide, issues of aboriginal rights and title.
- Expert and oral history evidence concerning the Douglas treaties was admissible to support the Kwakiutl First Nation's case, even though the evidence was not before the original provincial decision-makers. The Court found that the expert and oral evidence was admissible only for the limited purpose of determining whether the duty to consult had been met.
- The applicable standard of review regarding the existence and nature of the duty to consult is correctness, and the standard for the review of the adequacy of the consultation process is reasonableness.
- The province had a duty to consult regarding the Kwakiutl First Nation's entire asserted territory beyond the lands conveyed to it in the Kwakiutl First Nation treaty, rather than – as the province had argued – simply the treaty lands themselves. This finding is contrary to an earlier BC decision which stated that the aboriginal rights of a Douglas treaty First Nation were extinguished except for those conveyed in the treaty. In this case, the specific, unique language of the Kwakiutl First Nation treaty was an exception to that earlier principle.
- The potential adverse impacts of the province's decisions in this case were noted to be significant and the Court commented that "the removal of private lands from TFL 6 would potentially affect access to old growth cedar, fishery streams, create a risk of harm to cultural, archaeological and spiritual sites, harvesting forest plants for food, medicinal and ceremonial purposes and the ability to continue hunting and trapping traditions."
- Despite the finding that the province did not consider the entire traditional lands of the Kwakiutl First Nation to be subject to the duty to consult, the Court held that the province satisfied its duty to consult in the circumstances. Regarding the potential impacts to the Kwakiutl First Nation's asserted and treaty rights, the Court noted that a condition of the province's decision to allow the private lands to be removed from the tree farm licence required the Kwakiutl First Nation be provided with the ability to continue to access the subject lands.
- The Court commented that both the Kwakiutl First Nation and the province engaged in the consultation process "equally inflexibly, without balance or compromise," but it nonetheless found that the consultation provided in respect of the treaty lands, regardless of the Crown's insistence that it did not need to consult in respect of the Kwakiutl First Nation's interests beyond the treaty lands, did not result in the process being inadequate. The Court cited the Kwakiutl First Nation's refusal to meaningfully engage in the consultation process available and provide specific information about any impacts that the decisions would have on its asserted or treaty rights as being a factor in the decision to uphold the adequacy of the level of consultation.
- Though a discussion of remedies was unnecessary given that the duty to consult had been met, the Court commented on the Kwakiutl First Nation's detailed submissions regarding a proposed framework for requiring the involvement of the federal Crown in consultation processes concerning treaties. The Court declined to make an order setting out such a framework, citing established jurisprudence holding that the duty to consult regarding provincial decisions falls upon the provincial Crown. Citing a recent decision of the Ontario Court of Appeal, the Court also dismissed the proposition that the federal Crown has a residual role in the operation of provincial authority on lands subject to treaty claims. The Court commented that the setting out and supervision of a consultation framework is not the role of the judiciary. Finally, the Court noted that there is no constitutional basis for the federal Crown's involvement in the provincial forestry regime.
The Court dismissed the majority of the relief sought by the Kwakiutl First Nation, with the exception of a declaration that the province has an ongoing duty to consult the Kwakiutl First Nation and seek accommodations regarding its claim of aboriginal rights, title and interests in respect of its traditional territory, including the lands beyond the treaty lands.
A number of points in this decision are noteworthy, including the following:
- The Court once again confirmed the importance of reciprocal responsibilities in carrying out the duty to consult on behalf of both the Crown and First Nations, stating that "reasonable consultation is a two-way street". First Nations can satisfy this responsibility by expressing "interests and concerns in a meaningful and substantive way."
- The Court's declaration that the province has an ongoing duty to consult the Kwakiutl First Nation and seek accommodations regarding its claim of aboriginal rights, title and interests beyond just the treaty lands and interests means that, practically speaking, the existence of a treaty per se cannot be used to justify a narrow scope of consultation. Whether this determination will have application to other cases involving First Nations covered by treaties remains to be seen.
- The Court's refusal to make an order setting out consultation process involving the federal Crown signals an unwillingness to dictate and supervise consultation, as opposed to determining its adequacy, and is consistent with the guidance of the Court of Appeal in Adams Lake Indian Band v. Lieutenant Governor in council et al.2