Local Government and First Nations: The Duty to Consult

In 2004, we presented a paper at this seminar entitled “The Duty to Consult First Nations: Is Local Government Next?”. At that time this truly was an open question as our B.C. Court of Appeal (“BCCA”) had issued reasons in a case known as Haida Nation v. B.C., 2002 BCCA 147 where a duty to consult was applied to a third party where a prima facie aboriginal title existed. At the time we speculated that a third party could include a local government.

In the intervening 8 years, our Courts have clarified the duty to consult and how it relates to non-Crown entities, or third parties, such as local governments.

In this paper we will review several landmark cases explaining the Crown’s duty to consult First Nations. Once the duty to consult is explained, we will review how this legal principle has been applied in several recent B.C. cases dealing specifically with local government. Finally, a discussion of how local governments are affected, or may be affected, by this expanding jurisprudence will be undertaken.

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