In its 2003 judgment in Haida Nation v. British Columbia (Minister of Forests), the Supreme Court of Canada held that the when the provincial and federal Crown contemplate conduct that may adversely affect aboriginal right or title, they have a duty to consult with first nations. This duty is apart from any statutory requirement, and arises when they have knowledge, real or constructive, of the potential existence of the aboriginal right or title.
The court found that the scope of the duty to consult is proportionate to a preliminary assessment of the strength of the first nation’s claim or case that supports the existence of the treaty right or title, and to the seriousness of the potentially adverse effect of the Crown’s actions on that right or title. In other words, the stronger the claim and the greater the impact of the Crown’s actions on first nation title or rights, the broader the Crown’s duty to consult.
This common law duty to consult is based on the concept of the “honour of the Crown” which flows from the Crown’s assertion of sovereignty over lands and resources formerly held by first nations and the historical relationship between the provincial crown, the federal Crown and first nations.
While local governments also make decisions that affect aboriginal title and rights, particularly in the context of land use planning, the 2006 Court of Appeal decision in Gardner v. Williams Lake (City) suggests that this duty to consult does not extend to municipalities. However, as the Gardner case did not deal specifically with aboriginal title or rights, this cannot be considered a definitive statement of the law.
Regardless, section 879 of the Local Government Act creates a limited statutory duty for all local governments to consult:
879(1) During the development of an official community plan, or the repeal or amendment of an official community plan, the proposing local government must provide one or more opportunities it considers appropriate for consultation with persons, organizations and authorities it considers will be affected. [emphasis added]
Local governments are further required to specifically consider whether consultation is required with, among others, first nations (s. 879(2)(b)(iv)).
In the Gardner case, the BC Court of Appeal said that the degree to which local government must consult under section 879, is a matter for the local government council or board to decide. This can be distinguished from the broad scope of the duty imposed on the Crown in the Haida case. The court went on to define the local government’s duty saying that consultation, as a minimum, involves bi-lateral communication in which the person (i.e. the first nation) that is being consulted has the opportunity to question, to receive explanation and to provide comment to the local government upon the proposal. The consultation must also be meaningful; that is, the local government must do more than pay lip service to the requirement to consult. Finally, the court suggested that consultation includes such things as informal communications, meetings, open houses, delegations and correspondence.
Again, as this case did not consider aboriginal title or rights, the court’s ruling cannot be considered a definitive statement on the scope of the duty in the aboriginal context. Given the ever-changing legal landscape of the duty to consult, it would be prudent, if not good legal practice, for all local governments to engage in some form of meaningful consultation as described in Gardner before making decisions that may affect aboriginal title or treaty rights.
This practice becomes more important in light of the New Relationship between the Province of British Columbia and First Nations, represented by the First Nations Leadership Council. These parties are currently in the process of drafting legislation and creating institutions to formally recognize and accommodate aboriginal title and rights in the province without the need for formal proof. One of the purposes of this proposed legislation is to enable shared decision-making in regard to planning, management and tenure of lands and resources.