Paper: From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult - 2000

(Vol. 79 Canadian Bar Review p. 252)

The judiciary has repeatedly called on First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements. It has also held that the Crown is under a duty to consult with a First Nation when it proposes to engage in an action that threatens to interfere with existing Aboriginal or treaty rights recognized and affirmed by s. 35( I) of the Constitution Act, 1982. In this Article, the authors argue that the duty to consult requires the Crown, in most cases, to make good faith efforts to negotiate an agreement specifying the rights of the parties when it seeks to engage in an action that adversely affects Aboriginal interests.

De far;on repetee, la magistrature a fait appel aux Premieres Nations et 11 la C ouronne pour ne pas la surcharger par des litiges sur leurs differends, mais pour essayer plutot d' arriver a des reglements negocies. Les tribunaux ont aussi decide que la Couronne a le devoir de consulter une Premiere Nation quand elle projette de s' engager dans une action qui menace d' entrer en con flit avec des droits des Autochtones ou des droits resultant de traites reconnus par [' article 35, par. I de [' Acte constitutionnel de 1982. Dans cet article les auteurs soutiennent que le devoir de consultation implique que la Couronne, dans la plupart des cas, doit de bonne foi faire des efforts pour negocier une entente specifiant le.s droits des parties, quand elle cherche a s' engager dans une action qui peut affecter les interets des Autochtones.

*Sonia Lawrence, LL.B., M.S.W., University of Toronto, Toronto. Ontario.

** Patrick Macklem. of the Faculty of Law, University of Toronto, Toronto, Ontario.
 
  The full paper is available via pdf download at the bottom of this page.

l. Introduction

In northern British Columbia, about 50 kilometres south of Prince Rupert, lies Kumealon Lake, a pristine body of water which, together with its surroundings, abounds with fish, other marine life and wildlife. Prior to European contact, ancestors of the Kitkatla First Nation known as the Gitkaxaala people, along with other Aboriginal peoples, used Kumealon Lake and its surrounding lands for activities and practices necessary for its sustenance and survival. To this day, the Kumealon Lake region continues to provide important economic, cultural and spiritual resources to the Kitkatla First Nation in its efforts to maintain its distinctive indigenous identity.

In 1994, International Forest Products Ltd. (Interfor) began to log the Kumealon Lake region under a forest license and several permits conferred by the Government of British Columbia pursuant to the provincial Forestry Act. In 1997, after the Supreme Court of Canada decision in Delgamuukw v. British Columbia,1. the Kitkatla commenced litigation seeking to enjoin Interfor from logging the area. Since commencing its legal action, the Kitkatla have received no less than eleven judgments from the British Columbia Supreme Court and the British Columbia Court of Appeal. Most recently, the Kitkatla was ordered to pay Interfor's costs after they appealed the dissolution of an ex parte injunction and the refusal of the British Columbia Supreme Court to issue another injunction against Interfor's logging in the Kumealon watershed. As of August, 1999, although the Kitkatla have an appeal pending, they do not have an injunction protecting the Kumealon. 2

The Supreme Court of Canada's landmark decision in Delgamuukw v. British Columbia appeared to many observers to establish new constitutional benchmarks in the relationship between the Crown and First Nations. It held that Aboriginal title is protected as a matter of constitutional right, and affirmed that the Crown is under a duty to consult with a First Nation before undertaking action that might interfere with a First Nation's Aboriginal title. The Court's affirmation of the Crown's duty to consult is especially significant in light of repeated judicial calls for First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements. Perhaps the most well-known expression of this sentiment is Lamer C.J.'s statement in Delgamuukw that "[u]ltimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve. ..the basic purpose of s. 35( 1 )-'the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.'"3

But Delgamuukw's call for negotiated settlements and its affirmation of the Crown's duty to consult appear to have had little impact on disputes like the one involving the Kitkatla First Nation and Interfor. In fact, the Kitkatla litigation suggests that the duty to consult has produced the very effect that it was designed to minimize, namely excessive reliance on the judiciary to reconcile competing interests of the parties. Consultation processes, by and large, have not led to lasting settlements. Instead, consultations increasingly serve as a kind of pre-trial discovery process, closely resembling the litigation they were intended to forestall, and constituting the first step in protracted legal disputes.4

Our premise in this Article is that the reason why the duty to consult is failing to accomplish its purpose is because it has been widely misunderstood- by parties, by counsel, and by courts. This misunderstanding arises from a tendency to regard the duty as a legal requirement that assists in determining whether the Crown is constitutionally justified in engaging in a particular action that infringes on an existing Aboriginal or treaty right of a First Nation. That is this one of its functions is no doubt true, but characterizingthe Crown's duty in this manner obscures the extent to which it also operates ex ante to minimize reliance on litigation as a means of recognizing and affirming Aboriginal and treaty rights. Properly understood, the duty to consult also acts as a prelude to a potential infringement of an Aboriginal or treaty right. Consultation requirements ought to be calibrated according to the nature and extent of Aboriginal interests and the severity of the proposed Crown action in order to provide incentives to the parties to reach negotiated agreements. In most cases, the duty requires the Crown to make good faith efforts to negotiate an agreement with the First Nation in question that translates Aboriginal interests adversely affected by the proposed Crown action into binding Aboriginal or treaty rights. By realizing the duty's ex ante possibilities, the judiciary will have more success in its efforts to promote reconciliation between First Nations and the Crown.


1. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

 2. Kitkatla Band v. British Columbia (Minister of Forests), [ 1998] B.C.J. No. 2667 (B.C.S.C.) (June 18, 1998); Kitkatla Band v. British Columbia (Minister of Forests), [1998] B.C.J. No.1652 (B.C.C.A.) (June 24, 1998); KitkatlaBandv.British Columbia (Minister of Forests), [1998] B.C.J. No. 1598 (B.C.C.A.) (June 25, 1998); Kitkatla Band v. British,Columbia (Minister of Forests), [1998] B.C.J. No. 1616 (B.C.S.C.) (June 25, 1998); Kitkatla Band v. British Columbia (Minister of Forests). [1998] B.C.J. No. 1599 (B.C.C.A.) (July 3, 1998); Kitkatla Bandv. British Columbia (Minl.ftl'r nfForl'.ft.f), fl9981 B.C.J. No.1600 (B.C.C.A.) (July 6, 1998); Kitkatla Band v. British Columbia (Minister of Small Business. Tourism and Culturl'),lI99MI B.C.J. No.2440 (B.C.S.C.) (October 21, 1998); Kitkatla Bandv. British Columbia ( Minister of Small Business. Tourism and Culture ), [ 1998] B.C.J .No.3041 (B.C.S.C.) (December 15, 1998); Kitkatla Band v. British Columbia ( Minister of Small Business . Tourism and Culture), [1999] B.C.J. No. 177 (February 2,1999); Kitkatla Band v. British Columbia (Minister of Forests), [1999] B.C.J. No. 1074 (B.C.C.A.) (May 7 , 1999); Kitkatla Band v. British Columbia (Minister of Small Bu.finess. Tourism and Culture), [1999] B.C.J. No. 1684 (B.C.C.A.) (June 15, 1999).

3. Delgamuukw" supra at 1123-24 (quotingR. v. Van der Peet, [1996] 2 S.C.R. 507, at 539). See also R. v. Marshall (unreported decision of the Supreme Court of Canada rendered November 17, 1999), at para. 22 ("the process of ...accommodation ...may best be resolved by consultation and negotiation of a modem agreement for participation in shared resources ...rather than by litigation").

4. See J. Woodward and R.J.M. lanes Fulfilling the Promise of Consultation: Strategies and Tactics in First Nations, The Environment and Development: The Emerging Duty to Consult (Canadian Bar Association -Ontario, 1999 Institute of Continuing Legal Education Conference, January 28-30, 1999). See also J. Woodward, First Nation Empowerment Over Traditional Territories: An End to False Consultation, in Pacific Business & Law Institute, Environmental Law and Canada's First Nations (Conference Proceedings, November 18-19, 1999).

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