Chartrand cases establishes important principles but demonstrates shortcomings of Aboriginal consultation cases

A decade of decisions since the seminal Haida case make it clear that the “duty to consult and accommodate” is not a panacea that cures all ills in the relationship between the Crown and First Nations.  Two classic shortcomings of Aboriginal consultation disputes rear their heads in the BC Court of Appeal’s recent decision in Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations.  The case shows a trend of courts being reluctant to quash Crown decisions (though they are willing to issue declarations that the duty to consult and accommodate was breached).  And in many cases, including the Chartrand case, enforcing the duty to consult is an expensive proposition for First Nations who are inadequately resourced to participate or to bring legal challenges.

In Chartrand, the Kwakiutl First Nation persevered despite these financial challenges, and won an important victory establishing that First Nations can refuse to participate in a flawed consultation process, that Aboriginal consultation is just as necessary at the strategic as the operational level and that treaty rights claims are presumed to occupy the high end of the spectrum of claims demanding deep Crown consultation with First Nations.

Background

The Kwakiutl First Nation (“the KFN”) is based on Vancouver Island and holds both established treaty rights and asserted Aboriginal rights and title within its traditional territory.  In Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations, 2015 BCCA 345, the KFN challenged three decisions of the B.C. Crown:

1. The 2007 removal of private lands from Western Forest Products’ (“WFP”) tree farm license (“License”), which meant those lands would no longer be subject to provincial forestry management.

2. The 2007 approval of the North Island Forest Stewardship Plan, which gave WFP a five-year renewable authorization to conduct commercial forestry operations within the bounds of the License.

3. The 2012 renewal of the North Island Forest Stewardship Plan, which meant a five-year renewal of the authorization to conduct commercial forestry operations.

All three decisions had the potential to impact both KFN treaty rights and asserted Aboriginal rights.   The 2007 removal decision, for instance, meant that WFP’s private lands could be sold to third parties for development or fenced off so that KFN members could no longer access those lands to exercise their rights.  The WFP private lands formed 8% of the lands that KFN asserted to be its traditional territory and included culturally and spiritually sensitive areas.  The removal decision clearly had the potential to impact both KFN’s proven treaty rights and its title claim.

The B.C. Crown offered to consult with the KFN about how the decisions would affect their treaty rights only.  It refused to consider the impact on KFN’s claimed title and Aboriginal rights.  The Crown also rejected the KFN’s request for financial assistance and for independent consultants to advise on the impacts of the two decisions related to the North Island Forest Stewardship Plan.  KFN staff were unable to evaluate the impact of the Plan on KFN rights, due to the abstract and technical language in the documents.

The KFN met with the Crown twice to discuss the decisions.  After this, the KFN withdrew from the process because their lack of financial and technical capacity rendered the consultations meaningless.

The Initial B.C. Supreme Court Decision

Before the Supreme Court, the KFN sought an order quashing the decisions, declaring that the Provincial Crown breached its obligation to consult, and compelling the Federal Crown to engage in the consultations.

In cases involving the duty to consult and accommodate, the first step is to prove that the Crown had the duty to consult with respect to the particular decision at issue.  The duty is “triggered” when the Crown is aware of proven or asserted rights and makes a decision that has the potential to adversely impact those rights.  The B.C. Supreme Court agreed that the duty was triggered for all three decisions and that the basis for the duty was both the KFN’s treaty rights and the KFN’s asserted rights.

Once it is established that the duty is triggered, courts evaluate whether the Crown breached its duty.  There is a “spectrum” of consultation that will be considered sufficient, from mere notice where claims are highly speculative or the impacts negligible to deep consultation where there is a strong claim or the potential for serious impacts.  The Crown has a duty to treat asserted rights seriously and evaluate their strength to determine the scope of consultation required.  This step is particularly emphasized in B.C. cases, as most of the province isn’t covered by treaty and so consultation and accommodation is often based on asserted Aboriginal rights.

In this case, the chambers judge held that “a failure to consider the strength of the claim or the degree of infringement represents a complete failure of consultation” [BCCA reasons at para. 38].  The Crown completely refused to consider the KFN’s asserted Aboriginal rights and on the chambers judge’s reasoning, this should have meant that the duty to consult was breached.  However, the judge held that the duty to consult was met, despite this failure.  He found that the KFN had also approached consultation inflexibly in refusing to participate in the process offered by the Crown and that “perfect satisfaction” of the duty was not required.  Even though the Crown offered a flawed process, he found that the process gave the opportunity to the KFN to present its concerns related to both its title and treaty lands.

The chambers judge refused the relief requested but instead he granted a declaration that the Crown had an ongoing duty to consult and accommodate the KFN in relation to their unextinguished Aboriginal rights, title and interests in their traditional territory.

B.C. Court of Appeal overturns decision

The Court of Appeal rejected the chambers judge’s approach.  It held that deep consultation was required for both the established treaty rights and asserted Aboriginal rights and that a flawed process does not satisfy the duty to consult.  The Court provided guidance on several key points.

First Nations can refuse to participate in flawed consultation processes

A frequent concern in Aboriginal consultation cases is what to do about a flawed consultation process. First Nations often find themselves participating in flawed processes so that they do not lose out entirely.  By refusing to participate in a flawed process, First Nations risk their rights not being considered or accommodated or a court rejecting their application for relief, as the KFN experienced at the Supreme Court.  This case will strengthen the hand of First Nations who are faced with a choice between inadequate consultations or no consultation at all.  The Court of Appeal held:

[69]        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. …

Also of note is the Court of Appeal’s indication that consultation should proceed “with a view toward accommodation.”  The Crown should not assess the duty to consult and accommodate with a view toward the minimum effort required to satisfy the duty, but rather, with the understanding that accommodation of some kind will likely be required when there is evidence of potential impacts on known or asserted rights.

Consultation is just as necessary at the strategic as the operational level

Another issue that frequently comes up in consultation cases is the extent to which consultation and accommodation is required at the “strategic level” of decision-making.  It’s generally accepted that the duty is triggered when higher level decisions are made, but whether deep consultations should to be held at the strategic or operational level is a live issue.  For example, to what extent should a First Nation be consulted when a Tree Farm License is being granted versus when an actual cutting permit is issued for the area that License covers?

The chambers judge found that the duty to consult wasn’t breached in part because?  it was unclear that the decisions would have an actual impact on their rights.  In other words, the decisions were “strategic” and actual impacts wouldn’t occur until further decisions were made.  The Court of Appeal rejected this approach and confirmed that “consultation at the high level of forest planning is as necessary as consultation at the operational level to protect Aboriginal interests.”

A reduced ability to participate in decision-making is an impact

On a related note, the Court of Appeal confirmed that a decision which removes First Nations from the table can be a decision that impacts Aboriginal rights.  Strategic-level decisions that have no more effect than to reduce a First Nation’s ability to influence policy can trigger deep consultation:

[70]        The evidence of adverse impact to the KFN was that the Decisions affected the regulatory regime in a manner that threatened to reduce the KFN’s ability to participate in decision-making that would have an impact upon its access to land, its exercise of hunting and fishing rights and the protection of cedar trees. In the circumstances, in my view, the KFN ought not to have been obliged to demonstrate any impact other than the reduction in its ongoing ability to affect policy. High-level decisions might be expected to have high-level effects. …

Treaty claims demand deep consultation … and so can title claims

The Court of Appeal confirmed at paragraph 72 that “Treaty claims rightly occupy the high end of the spectrum of claims demanding deep consultation.”  It did not expressly state that the KFN’s asserted title claims also demanded deep consultation, but did find that the chambers judge erred in finding that deep consultation was not required.  The Court noted that the title claims were not so “dubious or peripheral” so as to only attract a duty of notice.

This case may be helpful for historic treaty nations with title claims, as it supports the view that decisions affecting such claims may attract a deep level of consultation and accommodation.  At the very least, it sends a message to the Crown that title claims in historic treaty areas cannot simply be ignored in the consultation process:

[84]        Even if the Crown did, in fact, have a full and clear understanding of what the KFN Treaties meant, in my view, it cannot discharge its constitutional duty by engaging in meaningful consultation while steadfastly denying claims worthy of consideration. …

No need to involve the Feds

The KFN sought a declaration that the Province’s failure to engage Canada was a breach of the duty to consult.  The KFN similarly sought relief at the Supreme Court level that would bring the Federal Crown into the consultation process.  Both levels of court denied the requested relief involving the Federal Crown.  This is in line with previous cases that have held the Federal Crown does not need to be involved in consultations about a Provincial Crown decision.

A good outcome but…

In the end, the Court of Appeal found that consultation was inadequate and set aside the Supreme Court declaration that the Crown had an ongoing duty to consult and seek accommodation.  Chartrand is a valuable case.  It supports the consultation and accommodation rights of First Nations with both historic treaties and title claims and strengthens the right of First Nations to opt out of consultation processes that are fundamentally flawed.  Chartrand confirms that the Crown simply cannot ignore an asserted right and that a failure to evaluate the strength of an asserted right can lead to a breach of the duty to consult and accommodate.  Lastly, Chartrand confirms that deep consultation can be required for both asserted and known rights at the strategic level and that an impact on a First Nation’s ability to participate in decision-making can trigger deep consultation.  Chartrand sets an important precedent, but is it an unqualified win?

The duty to consult and accommodate is not a panacea.  Two of its shortcomings rear their heads in Chartrand.  One is that courts are generally reluctant to quash Crown decisions.  They are much more comfortable issuing a declaration that the duty to consult and accommodate was breached than they are with quashing a decision made in breach of that duty.  In Chartrand, the KFN sought to quash the decisions before the Supreme Court and this relief was denied.  The KFN dropped the request on appeal.

The second, and related, shortcoming of the duty is that enforcing it is an expensive proposition.  The KFN were unable to adequately participate in the flawed consultations offered because they lacked financial capacity.  The KFN also had difficulty funding the judicial review proceedings.  It took five years to bring the judicial review to a hearing and in the meantime, decisions were being made that affected their Aboriginal and treaty rights.  On the First Nation side, there is always a cost-benefit analysis to be performed, as to whether the time and expense of going to court to enforce the duty to consult and accommodate is worth the likely outcome: a declaration that the duty was breached and a return to the negotiation table.  The hope is that decisions like Chartrand will encourage parties to engage in good faith “consultation with a view toward accommodation” from the start.

By Andrea Bradley