First Nations Consultation

The Canadian courts have said that the federal and provincial governments owe a special duty to First Nations.  This duty arises because the historic relationship between First Nations and the governments of Canada, and the fact that the federal and provincial governments exercise control over the traditional territories of the First Nations. 

One of the most tangible ways in which land use decisions must reflect this duty is the obligation of government to consult First Nations. 

Common Law duty to Consult

The Courts have said that the government must consult about any decision that is likely to affect aboriginal rights.  This consultation must be meaningful.  If the government fails to do so the decision that is made without consultation can be set aside by the courts, and the government ordered to start again, this time with adequate consultation. 

Until recently it was assumed that this duty to consult belonged to government alone.  However, a recent decision of the BC Court of Appeal suggests that where a private company has been granted rights by the government that clearly can impact on aboriginal rights, the company may also have a duty to consult the First Nation. 

It is not always clear how extensive consultation with First Nations needs to be.  Can the government just invite written comment and then ignore it?  What is adequate consultation will be decided on a case-by-case basis. 

The consultation must be “meaningful”, and that will ordinarily mean that there must be a good faith duty to try to accommodate concerns of the First Nation.  The extent of consultation required will vary according to the types of aboriginal rights asserted (aboriginal title being one of the strongest) and the strength of the evidence that those rights exist. 

The First Nation itself can help define what is meant by meaningful consultation.  However, it cannot refuse to participate in consultation at all and then object because of lack of consultation.  As a practical matter many First Nations find it difficult to respond to all the invitations for consultation that they receive. 

Consultation is required before a government decision is made that may affect First Nations rights.  However, adequate consultation is also one of the factors that the courts will look to when evaluating whether the infringement of an aboriginal right is “justified”.  Consequently, some First Nations are reluctant to participate in consultations for fear that the will be ignored, and their participation will be used to justify the eventual decision. 

Government Policy and Consultation

Not all government decision-makers can be well versed in their constitutional obligation to consult First Nations.  Consequently the provincial government has developed the “Provincial Policy for Consultation with First Nations” to set out what decision-makers should do.  It sets out a five-part consultation process:

·         Pre-Consultation Assessment

·         Stage 1 - Initiate Consultation

·         Stage 2 - Consider the impact of the decision on aboriginal interests

·         Stage 3 - Consider whether any likely infringement of aboriginal interests could be justified in the event that those interests were proven subsequently to be existing aboriginal rights and/or title

·         Stage 4 - Look for opportunities to accommodate aboriginal interests and/or negotiate resolution bearing in mind the potential for setting precedents that may impact other Ministries or agencies.

Individual ministries may have more detailed policies about how they will consult First Nations.  However, the provincial policy should apply to all BC Government decision-makers. 

Related Guide Pages:

·         Aboriginal Rights and Title.

·         Infringement of Aboriginal Rights.

For more information about First Nations Consultation:

·         Provincial Policy for Consultation with First Nations, developed by the Province’s Ministry of Sustainable Resource Management;

·         “Aboriginal Rights and Title” section of the B.C. Ministry of Forests Policy Manual.