July 29, 2015

Duty to consult: Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations)


The Chartrand case addressed the duty of the Provincial Crown to consult with the Kwakiutl First Nation (“KFN”) [phonetic: Kwog-you-tul], where KFN’s predecessors had signed treaties (the “KFN Treaties”) which surrendered a portion of the coastline of Vancouver Island, extending two miles into the interior (with the exception of village sites), but which preserved the right to hunt over the unoccupied lands, and to carry on their fisheries “as formerly”. KFN asserts, however, Aboriginal rights and title over lands within their traditional territory and outside the treaty area.

KFN sought judicial review of three land management and forest stewardship decisions of the Provincial Crown based on inadequate consultation.

KFN asserted a duty of the Provincial Crown to consult in relation to potential impacts on both treaty rights asserted by KFN both within and outside the treaty territory, and asserted Aboriginal rights and title.

The Provincial Crown offered to consult with KFN on impacts, but only on treaty rights; it “clung to the view that there was no duty to consult regarding decisions affecting lands outside the KFN treaty lands.” [66]

The nature of duties to consult: In finding that the Provincial Crown had not met its duty to consult, and in reversing the decision of a chambers judge, the Court of Appeal found the chambers judge had, among other errors, erred by asking if the Provincial Crown had provided an adequate “opportunity” to identify, understand and address the potential risks of the decisions. [66(c)] As a preface to the conclusion that the Provincial Crown did not offer any consultation in relation to KFN’s asserted Aboriginal title, the court held that the chambers judge “ought to have approached the task of judicial review with the attitude” that the duty to consult was

  • a free-standing constitutional duty different from the administrative duty of fairness,
  • not to be construed narrowly or technically, and
  • a matter of the Crown complying with a pre-requisite to a decision, rather than a review of the decision.

The Court of Appeal decided that the duty to consult could not be met by the Provincial Crown offering KFN an opportunity to participate in consultations “premised on the assumption that they [KFN] had no rights other than those protected by the KFN Treaties,” and therefore an opportunity to participate in “fundamentally inadequate consultations” [69].

Strength of Aboriginal rights claim: In concluding that the Provincial Crown had a duty to engage in “deep” consultation, the Court of Appeal assessed the strength of the claims to non-treaty lands by looking to the fact of the KFN treaties, and in particular, the fact of its signatories recognizing KFN’s predecessors “as the owners of at least the lands purchased”. [73] That fact, combined with an arguable case that the KFN treaties had not extinguished KFN’s claims to the balance of their traditional territories, meant that KFN’s claims were strong enough to not be “dubious or peripheral.”

The duty of First Nations to engage in consultation: An important finding in Chartrand involves KFN’s refusal to participate in a proposed consultation that would not involve any consultation about impacts on Aboriginal rights not covered by the KFN treaties – rights that the Provincial Crown steadfastly refused to recognize. The chambers judge found that all the Provincial Crown had to do was provide an opportunity for some degree of consultation that was not wholly flawed (such as where the Provincial Crown was willing to consult about rights under the KFN treaties but not respecting other asserted Aboriginal rights). The Court of Appeal decided that KFN could not be faulted for failing to participate in “fundamentally inadequate” consultations premised on a wrong assumption that KFN had no rights outside of the KFN treaties.

The content of consultations: Another noteworthy aspect of Chartrand is the Court of Appeal affirming both a need for the Crown to provide information necessary to engage in consultation, and content beyond merely an opportunity to exchange information.

Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345

Lisa C. Fong and Michael Ng