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In a decision that provides welcome clarity on the Crown’s obligation to consult and set the proper stage for meaningful consultation to take place, the BC Court of Appeal overturned the decision of the BC Supreme Court, finding that the Province breached its duty to consult with the Kwakiutl First Nation (“KFN”) regarding the decisions to remove private lands from a Tree Farm Licence and to approve and renew a Forest Stewardship Plan in KFN’s Traditional Territory (the “Decisions”).  The Court of Appeal rejected the BC Supreme Court’s conclusion that KFN did not meet its obligation to avail itself of opportunities to consult; First Nations cannot be faulted for not participating in consultation when the scope of consultation offered by the Crown is inappropriately narrow.

The Court of Appeal determined that KFN’s Treaty rights “occupy the high end of the spectrum of claims demanding deep consultation” and upheld the finding of the BC Supreme Court that there is a prima facie claim that the Douglas Treaties did not extinguish KFN’s Aboriginal rights and title.  The Court made it clear that the Crown must proceed on a correct basis regarding the rights at issue, and provide a meaningful consultation process, before a First Nation can be faulted for not engaging.  The Court also made it clear that in consultation regarding high-level decisions, First Nations need only demonstrate that the decisions would impact their decision-making in relation to their claimed lands; they need not provide evidence of specific on the ground impacts.  Lastly, the Court noted that BC had wrongfully denied economic accommodation to KFN that had been provided to non-Douglas Treaty First Nations, and that this limited KFN’s ability to engage in consultation.

Facts

In 1851, James Douglas, acting as an agent for the Hudson’s Bay Company, entered into treaties with the Queackar and Quakeolth Tribes (the predecessors to KFN) in order to secure coal deposits on their lands (the “Treaties”).  The written text of the Treaties stated that the First Nations sold a two mile strip of land to the Crown, that the First Nations’ village sites and enclosed fields were to be kept for their own use, and that the First Nations were at liberty to hunt over the unoccupied lands and to carry on their fisheries as formerly.

This judgment concerns three decisions by the Province in KFN’s Traditional Territory and Treaty lands:  (i) the approval of the removal of private lands held by Western Forest Products (“WFP”) from Tree Farm License 6 (“TFL 6”); (ii) the approval of a North Island Forest Stewardship Plan (“FSP”) for TFL 6; and (iii) the approval of the extension of the FSP.

KFN asserted Aboriginal title and rights and Treaty rights over the lands subject to the decisions, and sought negotiation and accommodation.  The Province offered to consult, but not regarding KFN’s Aboriginal title and rights.  With limited capacity, KFN had difficulty understanding and analyzing the information the Crown provided, and sought funding from the Province, but the Province refused.

While the Province enters into economic accommodation agreements regarding forestry with First Nations with Aboriginal rights and title claims, the Province did not offer KFN any type of interim economic accommodation because the Province took the position that KFN’s Aboriginal rights and title had been surrendered or extinguished through the Treaties.

With respect to both decisions, the Court summarized the consultation as follows:

[T]he Provincial Crown offered to consult with the KFN on the impact of the decisions on its treaty rights but denied the funding to do so, and the KFN asserted both its Aboriginal and treaty rights over the lands and communicated its inability to garner requested funding to enable it to participate in consultation.

The Province and KFN met on two occasions where KFN expressed its concerns over the decisions, including that forestry operations would damage cultural and archaeological resources from KFN’s village sites and enclosed fields, and stated that it needed technical capacity to respond to issues raised by the proposed decisions.

BC Supreme Court Judgment

KFN challenged the decisions before the BC Supreme Court, seeking orders that the decisions be quashed; that it be declared that the Province breached its duty to consult; and directing BC and Canada to engage in consultations.

The BC Supreme Court found that the Province had failed to treat KFN’s Aboriginal rights and title claims seriously because it took the position they had been extinguished by the treaties.  The Province steadfastly maintained that KFN was bound by the Province’s interpretation of the Treaties.  However, the Court found that it was unclear that the decisions would have any actual specific impacts on KFN’s rights and that, as a result, deep consultation was not required.  Moreover, the Court found that KFN failed to avail itself of reasonable assistance offered by the Crown (the Crown would not provide funding, but offered technical assistance).  The Court stated that the consultation need not necessarily proceed on the correct basis; in its view the inquiry should be focused on whether an adequate opportunity to consult was provided to KFN.  In this case, the Court concluded that the Province had provided an adequate opportunity for consultation and so its duty to consult was met.

Nonetheless, given that the Province failed to recognize KFN’s claims to Aboriginal rights and title, the Court issued a declaration that the Provincial Crown has an ongoing duty to KFN to consult with them in good faith and to endeavour to seek accommodations regarding their claim of unextinguished Aboriginal rights, title and interests in respect of KFN Traditional Territory.

BC Court of Appeal

The Province appealed the declaration issued by the BC Supreme Court that the Province had an ongoing duty to consult with KFN about its Aboriginal rights, title and interests.  The Province did not challenge the finding of the Court that KFN had a credible claim that the Treaty had not extinguished KFN’s Aboriginal rights and title, but challenged the propriety of the declaration issued by the Court as being unnecessary and inappropriately broad.

KFN cross-appealed, seeking declarations that the Province had breached its duty to consult, and that the Province was required to engage Canada in consultations because of the potential interference with Treaty rights and the unfulfilled Crown obligation under the Treaty to protect village sites and enclosed fields for KFN use.

The Appeal

The Court of Appeal agreed with the Province that the declaration was inappropriate because it aimed to direct future consultation, and a court ought not make declarations on the duty to consult for future decisions that are not before the Court.  Also, to the extent that the declaration describes the state of the law (requiring consultation on Aboriginal rights and title, not just treaty rights), the Court held that it was unnecessary.

The Cross Appeal

The Court of Appeal concluded that the analysis of the court below regarding the duty to consult was flawed because the Province failed to provide consultation with a view toward accommodation of the Aboriginal title claim.  Because no adequate consultation process was provided by the Province, KFN cannot be faulted for failing to participate in “consultations premised on the assumption that they had no rights other than those protected by the KFN Treaties.”

The Court of Appeal found that KFN provided sufficient evidence to demonstrate adverse impacts on KFN rights from the decisions.  Contrary to the court below, which had insisted that KFN was required to provide evidence of specific impacts, the Court of Appeal held that in the context of high-level decisions, KFN was only required to demonstrate that the decisions would lead to a reduction in its ongoing ability to affect policy and would have an impact upon decision-making in relation to lands and resources over which KFN was actively advancing claims.

The Court of Appeal also found that deep consultation was required.  The Court noted that KFN’s claims were strong:  KFN’s treaty rights required deep consultation because “treaty claims rightly occupy the high end of the spectrum of claims demanding deep consultation.”  Additionally, the Court noted that the KFN’s Aboriginal title claim was not dubious or peripheral:

Unsettled Aboriginal claims do not uniformly require deep consultation, but it must be said in this case that in negotiating the KFN Treaties, the Governor, Deputy Governor and Committee of the Hudson’s Bay Company recognized the Queackar and Quakeolth tribes as the owners of at least the lands purchased …

The Court of Appeal found that the court below erred by faulting KFN for not participating, holding that it was not sufficient for the Crown to provide a consultation process; the process must be meaningful.  In this case, the process was not meaningful because the Province did not treat KFN’s claims to Aboriginal rights and title seriously and adopted a rigid and unyielding position on the meaning of the Treaties.  The Crown must proceed with consultation on a correct basis and, in this case, it failed to do so.  The Crown could not meet the duty to consult by consulting only about Treaty rights.  Moreover, had the Crown recognized KFN’s claims to Aboriginal rights and title, KFN would have been eligible for funding through a Forests and Range Opportunities Agreement which might have significantly improved KFN’s ability to engage in meaningful consultation.

KFN had also sought a declaration that the Province breached its duty to consult by failing to engage Canada in accommodation about the decisions.  KFN argued that Canada’s participation was necessary in order to provide accommodation regarding unsurveyed village sites and enclosed fields protected by the Treaties.  However, the Court disagreed, finding that the duty to consult fell on the Province in this case, and that the order sought would require “the Provincial Crown to engage in a specific form of consultation which the Province might not be able to bring about” because the federal Crown would not be compelled to participate.

Nonetheless, the Court found that the Decisions required the Province to engage in deep consultation with KFN about its Treaty rights and claims to Aboriginal title and rights.  The Court’s finding that BC breached its duty to consult with respect to the Decisions calls into question WFP’s tenures on KFN’s Traditional Territory.  Ultimately, the Court concluded that “the parties should be left to engage in ‘the broadest consideration of appropriate arrangements’ without further direction from the Court.”

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.