Kwakiutl First Nation v British Columbia

The British Columbia Court of Appeal released a decision on July 29, 2015 in Kwakiutl First Nation v. British Columbia (Forests, Lands and Natural Resource Operations) (sub nom Chartrand v. British Columbia), allowing British Columbia’s appeal from a declaration that they have an ongoing duty to consult and accommodate the Kwakiutl First Nation (KFN). The Court also allowed in part KFN’s cross-appeal of the dismissal of its petition.


In 1851, the KFN’s ancestors, the Queackar and Quakeolth Tribes, entered into treaties with James Douglas, acting as agent for the Hudson’s Bay Company (HBC), so that HBC could secure access to coal deposits on the northeast coast of Vancouver Island. The substantive terms of KFN’s treaties are similar to 12 other Vancouver Island treaties executed between HBC and Indigenous peoples on Vancouver Island in the 1850s. However, KFN’s treaties appear to have been limited in scope to coastal areas “extending two miles into the interior of the island”.

KFN asserts not only treaty rights under its Douglas treaties but also unextinguished Aboriginal rights and title over lands outside the scope of these treaties but within its traditional territory. In 1997, KFN filed a territorial claim in the treaty negotiation process administered by the BC Treaty Commission. KFN has also been party to or supported litigation aimed at establishing that unoccupied territory was not surrendered through its Douglas treaties and has sought relief for breaches of its rights to carry on fisheries as formerly under its treaties.

This litigation commenced with KFN’s judicial review of three land management and forest stewardship decisions of the Province that KFN argued had taken place without appropriate consultation. First, the provincial Minister of Forests and Range signed an agreement with a private forestry company to remove private lands from a tree farm licence. Second, the District Manager of the Central Coast Forest District approved a forest stewardship plan for this same company. Third, this company’s forest stewardship plan was extended for an additional five-year period.

KFN argued that the Province was obliged to consult with it in good faith with respect to all three of these decisions due to their potential impact upon KFN’s claims to both treaty rights within and outside its treaty territory and unextinguished Aboriginal rights, title and interests within its traditional territory. While the Province engaged in some consultation prior to each decision, it did not offer to consult KFN with respect to its claims to unextinguished Aboriginal rights and title in addition to treaty rights. KFN also noted that due to the Province’s position on KFN’s Aboriginal rights and title claims, KFN was not able to negotiate the type of accommodation agreement regarding forestry that was available to First Nations in BC without historic treaties (known as Forest and Range Opportunities Agreements). KFN sought orders quashing the three decisions, declaring the Province had breached its duty to consult, and compelling the federal government to engage in consultations with respect to land management and forest stewardship decisions affecting KFN’s asserted Aboriginal and treaty rights.

BC Supreme Court’s decision

KFN’s petition was initially dismissed by a chambers judge of the BC Supreme Court.

The chambers judge found that the Province had failed to treat KFN’s claims to unextinguished Aboriginal rights, title and interests seriously and had failed to even begin the process of performing a preliminary evaluation of the strength of those claims. Instead, the Province maintained a “rigid and unyielding position” on the meaning and effect of KFN’s treaties and held fast to its own view that there was no duty to consult regarding decisions that may affect land beyond KFN’s treaty lands.

Yet the chambers judge’s finding that the Province had misapprehended the merits of KFN’s Aboriginal rights and title claim did not end its analysis. It went on to find that it was unclear whether the decisions would have any “actual impact” on KFN’s asserted rights. It also found that KFN had entered the consultation process equally inflexibly as it refused to engage in the consultation process fully until the Province would acknowledge its claims to unextinguished rights warranted consultation. KFN also declined offers of technical assistance from the Province on the basis that the resources offered were not sufficiently independent. The chambers judge found that the Province’s consultation was adequate in these circumstances.

The chambers judge also rejected KFN’s request for an order or direction requiring the federal government to engage in consultation under court supervision with respect to the three impugned decisions. It held that it would be inappropriate to issue such a remedy because “consultation does not go beyond the proposed decisions and engage the larger issue of how outstanding issues related to the existence of Aboriginal rights and title should be negotiated”.

Finally, the chambers judge issued a declaration in favour of KFN stating that the Province has an ongoing duty to consult with them in good faith and endeavour to seek accommodations “regarding their claim of unextinguished Aboriginal rights, titles and interests in respect of the KFN Traditional Territory”.

Court of Appeal’s decision

At the outset, the Court of Appeal noted “[i]t is settled law that the reconciliation of rights embedded in claims such as those made in this case by the KFN with the sovereignty of the Crown requires that those rights be determined, recognized and respected”. During the determination of those rights the Crown must consult with First Nations before making decisions that might affect their rights or claims and must accommodate these in appropriate circumstances.

The Court first addressed a ground of appeal relating to the declaration issued by the chambers judge. The Province attacked the declaratory order on the basis that the chambers judge had erroneously imposed upon the Crown an ongoing duty to consult and seek accommodations that was not tied to specific decisions. According to the Province, the duty to consult does not exist in the abstract but, rather, exists in relation to the exercise of Crown powers that may have an adverse impact on a claim or right asserted.

The Court largely accepted the Province’s arguments on this issue and set the declaratory order aside. Among other things, it held that the declaration was inappropriate as it went much further than addressing the present dispute between the parties and did not address a cognizable threat to a legal interest. The Court held that to the extent the declaration simply described the law of the duty to consult, it was unnecessary; and to the extent that it did more, it was inappropriate because it addressed questions that were not before the chambers judge.

The second ground of appeal addressed by the Court was KFN’s cross appeal of the dismissal of their application for judicial review. The Court found that the chambers judge’s analysis of whether the Province discharged its duty to consult KFN was flawed. The Province needed to engage in consultation with a view towards accommodation of KFN’s Aboriginal title claim and it did not do so. The Court held that the KFN could not be faulted for failing to participate in consultations premised on the assumption that they had no rights other than those protected under their treaties. For the Province to have offered KFN an opportunity to participate in fundamentally inadequate consultations could not be said to preserve the honour of the Crown.

Breaking this down further, the Court found that the chambers judge had erred by requiring evidence of “actual impact” on KFN’s rights. According to the Court of Appeal, KFN did not need to demonstrate any impact other than the reduction in its ongoing ability to affect policy. It would have been enough to show an impact on decision-making in relation to lands and resources over which the KFN was actively advancing claims. High-level decisions might be expected to have high-level effects and consultation with respect to such decisions requires Aboriginal interests to be recognized and accommodated at that higher strategic level.  

The Court went on to find that the chambers judge had also erred in concluding that deep consultation was not necessary in this case. This conclusion of the chambers judge appeared to have been based on his view that there was inadequate evidence of adverse effects, which the Court of Appeal firmly rejected. It also rejected the chambers judge’s conclusion that the Crown had provided an adequate opportunity to identify, understand and address the potential risks of the decisions so as to satisfy its duty to consult. The Court noted that the appropriate question to ask was whether the Crown identified the asserted Aboriginal right and addressed it in good faith. The Crown had clearly not done so in this case given its refusal to treat KFN’s Aboriginal rights and title claims seriously and its rigid and unyielding position on the meaning and effect of the KFN’s treaties.

The Court also held that the Crown did not appear to have a full and clear understanding of the KFN’s treaties based on the limited consultation it offered the KFN in this case. Past jurisprudence has concluded that hunting rights under the Douglas treaties can be exercised on unoccupied land throughout a signatory First Nation’s traditional territory, including outside treaty boundaries. Likewise, past jurisprudence has concluded that fishing rights under Douglas treaties are not limited to protection within treaty boundaries and include a right to travel to and from the fishery. Regardless of whether the Crown fully and clearly understood the treaties, the Court held that it could not discharge its duty to consult “while steadfastly denying claims worthy of consideration”. The Court also noted that there was some evidence that the Crown’s misconception of KFN’s rights and claims resulted in the KFN being offered inadequate consultation.

Finally, with respect to KFN’s cross appeal on the appropriate role of the federal government, the Court upheld the decision of the chambers judge. KFN argued that the federal government had a role in consultation and accommodation due to the presence of unsurveyed village sites and enclosed fields in the area at issue, which KFN argued should have been set aside for them as reserves under their treaties. KFN stated that the federal government needed to be involved in the process of accommodation because it has been held to be the “exclusive intermediary” for the reserve creation process in BC. Both the federal and the provincial government challenged this argument and KFN’s claim that the unsurveyed sites could be considered reserve lands as opposed to an unresolved claim. They also raised concerns regarding the provincial superior court’s jurisdiction to order a remedy against the federal government. The Court agreed and held that the order sought by KFN amounted to a requirement that the Province engage in a specific form of consultation which it might not be able to bring about. The chambers judge properly refused to make such an order.

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