First Nations with historic treaties will be interested in a recent decision from the BC Court of Appeal. In Chartrand v. British Columbia (Forest Lands, and Natural Resource Operations), 2015 BCCA 345 the Court left open the possibility that Treaty First Nations may still have a claim to Aboriginal rights and title; but this will depend on the text of the treaty. The Court also made helpful comments regarding the Crown’s duty to consult, which may make Crown decision makers take a close look at their consultation policies. This post will discuss each of these issues in turn.
The Kwakiutl First Nation is located on the north east coast of Vancouver Island. In 1851, the Kwakiutl’s predecessors signed two treaties with Governor James Douglas; they are two of 14 nearly identical treaties. The text of the treaties states that the First Nation signatories:
consent to surrender, entirely and for ever, to James Douglas, the agent of the Hudson’s Bay Company in Vancouver Island, that is to say for the Governor, Deputy Governor and Committee of the same, the whole of the lands situated and lying between McNeill’s Harbour and Hardy Bay, inclusive of these ports, and extending two miles into the interior of the Island.
The treaty goes on to confirm that the First Nations were to keep their village sites and enclosed fields, and that they “are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.” The Kwakiutl assert Aboriginal rights and title claims throughout its traditional territory, not all of which was included in the Douglas Treaty.
In the mid 2000s, the Province made three forestry decisions (to remove private land from a tree farm licence, to approve a forest stewardship plan, and to extend that same forest stewardship plan). The Province maintained throughout the consultation process that it need only consult the Kwakiutl about their treaty rights, and that the treaty extinguished their Aboriginal rights and title throughout their entire traditional territory, even those areas outside the treaty boundaries. The Kwakiutl brought a judicial review application of those decisions, arguing that the Crown failed to properly consult them, particularly in regards to their Aboriginal rights and title claims. The Court of Appeal agreed with the Kwakiutl, concluding:
There was no consultation with a view toward accommodation of the Aboriginal title claim. The KFN ought not to 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. It cannot be said that offering the KFN an opportunity to participate in fundamentally inadequate consultations preserves the honour of the Crown.
The relationship between treaty and aboriginal rights
While this decision leaves it open for certain Treaty First Nations to also assert Aboriginal rights and title claims, the extent to which this is possible will depend on the treaty itself. In this case, the Court was careful to note that the surrender in the Kwakiutl treaty does not cover their entire traditional territory: it only extends two miles into the interior of the Island. The Court noted that this distinguished the Kwakiutl treaty from other Douglas Treaties, which do not include such a specific limitation. However, it may remain possible for other Douglas Treaty First Nations to assert Aboriginal rights and title claims where they too can show evidence that the treaty did not cover all of their traditional territory. (The debate as to whether the Douglas Treaties are effective surrenders in light of the circumstances of how they were concluded is not squarely in issue in this decision).
What does this decision mean for First Nations who have signed other treaties? Again, this will depend on the treaty text itself. Take, for example, Treaty 8, which sets out the surrender as follows:
the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands included within the following limits, that is to say:
[geographic description setting out the boundaries of Treaty 8]
AND ALSO the said Indian rights, titles and privileges whatsoever to all other lands wherever situated in the Northwest Territories, British Columbia, or in any other portion of the Dominion of Canada.
Given Treaty 8’s vast geographic scope and the comprehensive surrender terms, it would be difficult for a Treaty 8 First Nation to advance Aboriginal title claims, unless they could clearly establish that some part of their traditional territory extended beyond the treaty boundaries.
The duty to consult in these circumstances
The consultation dispute in this case appeared rooted in the fact that the Province would only offer to consult the Kwakiutl about the impact of its forestry decisions on treaty rights. This ultimately led the parties to disagree about a number of procedural and substantive matters. The Court makes some of its most significant comments on the subject of consultation.
- The Court does not explicitly find that First Nations with a Treaty are necessarily able to establish Aboriginal rights or title (this was not argued); rather that where such claims are credible in the circumstances, the Crown must consult about them.
- The Crown’s preliminary evaluation of the strength of the rights claimed is important to establishing the right at stake – here the Province did not complete one and did not have a clear understanding of the rights at stake (para 66).
- Where the Crown misunderstands the right at stake or excludes worthy claims; consultation will not meet the duty to consult (paras 84-85).
- Consultation processes must be meaningful; an opportunity to provide input where the Crown misunderstands the rights asserted will not be meaningful (para 77).
- A First Nation is not obligated to demonstrate site specific impacts when the decision in question is strategic or high-level: it logically follows that the impacts would also be strategic or high level (paras 70-71).
- A First Nation cannot be faulted for declining to consult with the Crown where the Crown has offered “inappropriately limited consultation” (such as by refusing to consider an asserted right). Such a process will not be meaningful (paras 76-79).
The Court also offers reminders about what meaningful consultation looks like, and acknowledges the Kwakiutl’s concern that financial hardship had prevented them from obtaining independent advice to understand the issues in the consultation process. Courts have observed and commented on the disparity of resources between Crown and First Nations in consultation. This is particularly an issue in places where there are no broad mandates for Crown capacity funding, such as British Columbia.
This decision reaffirms for Crown decision makers and courts what first nations have been emphasizing for decades: the aboriginal perspective is important in understanding Aboriginal rights, and in informing consultation. Chartrand should also encourage Crown decision makers to do a clear and thorough strength of claim assessment and take seriously all asserted claims; if they do not, they risk a consultation process that is ill-informed, misconceived, and does not uphold the honour of the Crown.