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Articles Of Interest > Indigenous Consultation Prerequisites

An Illustration Of The Canadian Experience
27 Aug 2005

 

"Must municipalities confer with First Nations?

 

Are local governments required in law to consult with First Nations prior to making administrative decisions or bylaws that have an impact on aboriginal rights in traditional territories outside First Nation reserves?

 

There are no B.C. Court decisions on this point. On the basis of a recent decision of the B.C. Court of Appeal, however, it appears that if a municipal permit, licence or bylaw infringes aboriginal or treaty rights, there is probably a legal requirement for the municipality to consult fully with the affected First Nation.

 

If the consultation is inadequate, a court will probably quash the permit, licence or bylaw.

 

In B.C., First Nations are challenging municipal bylaws and administrative decisions on the basis of inadequate consultation. For example, in its May 1999 newsletter, the Sierra Legal Defence Fund reports that it is representing a First Nation opposing a Vancouver Island Regional District Official Community Plan. The basis for the opposition is apparently that the environmental provisions in the OCP infringe aboriginal rights, and there was no consultation with the First Nation.

 

If the lawsuit proceeds, it appears the First Nation will argue that the OCP is of no force and effect because it is inconsistent with the First Nation’s constitutionally guaranteed aboriginal rights.

 

Another example is the June 1998 lawsuit commenced by the Cowichan First Nation against the Cowichan Valley Regional District and the provincial Crown. The First Nation is challenging a Waste Management Plan submitted by the Regional District and approved by the Minister of Environment Lands and Parks in connection with the establishment of a landfill site for municipal solid waste within the Cowichan First Nation’s traditional territory.

 

In its statement of claim, the First Nation alleges that the Crown failed to consult with it. Accordingly the First Nation claims that the Waste Management Plan is an infringement of its aboriginal rights as guaranteed by section 35(1) of the Constitution Act. It seeks a court order quashing the plan and related permits and licences.

 

In Halfway River First Nation v. B.C., an August 1999 decision of the B.C. Court of Appeal, the Court concluded that a Ministry of Forests district manager’s decision to approve a cutting permit on lands outside and adjacent to the First Nation reserve infringed the First Nation’s treaty rights to hunt.

 

This infringement was unjustified because the Crown had not conducted adequate consultation with the First Nation.

 

The Court therefore quashed the cutting permit.

 

Halfway related to treaty rights on lands near Fort St. John within the boundaries of Treaty 8. The case is also probably applicable to areas of southern Vancouver Island subject to treaties. The Court relied on principles of interpretation in Sparrow, an aboriginal fishing rights decision of the Supreme Court of Canada in 1990.

 

The principles in the Halfway decision, therefore, also probably apply to aboriginal rights to hunt and other aboriginal rights on non-treaty lands in the rest of the province.

 

Following Halfway, municipal administrators issuing permits and licences affecting aboriginal traditional territories should probably consider that impact and ensure that there is adequate consultation with affected First Nations. Provincial line ministries now must comply with detailed government consultation guidelines. They routinely compile detailed records to document the consultation process undertaken before Crown decisions involving traditional territories.

 

In this regard, it should be remembered that all non-treaty lands in B.C., including privately owned and municipally owned lands, are potentially subject to aboriginal title. (Delgamuukw v. B.C.)

 

This duty to consult may be complicated in some urban areas, such as the Lower Mainland, where several First Nations have overlapping claims to traditional territories.

 

It will probably be necessary to determine with which First Nation to consult, or alternatively, in an abundance of caution, to consult with all overlapping claimants.

 

There is another aspect of Halfway of potential concern to municipal governments.

 

The Court of Appeal apparently requires administrators and administrative tribunals to determine the existence of aboriginal rights as part of their decision-making.

 

In addition, however, the Court appears to be saying also that there is now an unlimited right of appeal on these aboriginal legal issues to the B.C. Supreme Court.

 

This is unlike normal judicial review of administrative action in which the court’s review is usually restricted to questions of the administrative tribunal’s jurisdiction.

 

This means that environmental or other groups challenging administrative decisions (and this probably includes municipal administrative decisions) with aboriginal law impacts now probably have a right of full and unrestricted appeal from those decisions. Such appeals may add delay and expense to the conduct of local government administration, as appears to be the case with provincial government natural resource and land management.

 

Municipal governments should therefore confer with their legal and other expert consultants to develop First Nation consultation guidelines. It will also be helpful to identify First Nations with traditional territory claims within municipalities and regional districts. Adequate consultation may well prevent aboriginal legal challenges.

 

It would probably be prudent risk management also to instruct officials and employees to make careful records of their consultation activities.

 

These documents may be useful if municipal decisions and bylaws are challenged in court on the basis that they infringe aboriginal or treaty rights.

 

For more information about these cases and aboriginal/municipal law,

please consult Derek A. Brindle (left) or J. M. (Tim) Mackenzie."

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