Canada: Can First Nations Claim Aboriginal Rights And Title As Well As Treaty Rights?

Yes, said the Court of Appeal for British Columbia (Court) in its recent decision in Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations). The Court found that the provincial Crown had not adequately consulted the Kwakiutl First Nation regarding provincial decisions between 2007 and 2012 to remove private lands from a Tree Farm Licence and to approve and renew a Forest Stewardship Plan in Kwakiutl traditional territory. The Crown consulted the Kwakiutl regarding their Douglas Treaty rights, but ignored their asserted aboriginal rights and title claims. The Court held that this was the wrong approach.

This case challenges provincial policy regarding the Douglas Treaties and expressly leaves open the question of whether the Douglas Treaties extinguished aboriginal rights and title.


In 1851, James Douglas was the chief agent for the Hudson's Bay Company on Vancouver Island. Shortly thereafter he became governor of the colony of Vancouver Island, and later still of the colony of British Columbia. Seeking to secure coal deposits on the northeast coast of Vancouver Island for the company, he entered into treaties with the Queackar and Quakeolth Tribes, predecessors of the Kwakiutl. These treaties were virtually identical to 12 other Vancouver Island treaties negotiated by Douglas between 1850 and 1854 — now known as the Douglas Treaties. The treaties provided that, in exchange for the "sale" of their land, the First Nation signatories would retain their "village sites and enclosed fields" for their own use, and they could "hunt over the unoccupied lands" and "carry on [their] fisheries as formerly". Previous court decisions have upheld the treaty rights of Douglas Treaty First Nations.

In addition to their Douglas Treaty rights, the Kwakiutl assert claims of aboriginal title and rights over lands within their territory, which they say were not ceded by the treaties. The Province has taken the position that the Kwakiutl, like other Douglas Treaty First Nations, are only entitled to consultation and accommodation on the basis of their treaty rights. Accordingly, the Province has not entered into a Forest and Range Opportunities Agreement with the Kwakiutl, as the Province views these agreements as appropriate accommodation of aboriginal rights claims but not Douglas Treaty rights.

The Kwakiutl sought to set aside the Decisions on the basis that the Province was obliged to consult with it in good faith because of their potential impact upon Kwakiutl treaty rights and asserted aboriginal rights and title. At the trial level, the B.C. Supreme Court declared that the provincial Crown has an ongoing duty to consult with the Kwakiutl and must endeavor to seek accommodation of the Kwakiutl claim to unextinguished aboriginal rights, titles and interests.


The Court found that the Decisions affected the regulatory regime in a manner that threatened to reduce the Kwakiutl's ability to participate in decision-making that would have an impact upon its access to land, its exercise of hunting and fishing rights and the protection of cedar trees. The Kwakiutl were only required to demonstrate that the Decisions would lead to a reduction in their ongoing ability to affect policy and would have an impact upon decision-making in relation to lands and resources over which they were actively advancing claims. Critically, the Kwakiutl were not required to provide evidence that the Decisions would have any specific impacts on their rights. The Court then considered the nature of the Kwakiutl rights. First, the Court determined that the Kwakiutl's treaty rights "occupy the high end of the spectrum of claims demanding deep consultation". Second and most importantly, the Court held that the Kwakiutl have a legitimate claim that the Douglas Treaties did not extinguish Kwakiutl's aboriginal rights and title. The Crown made the Decisions on the basis that the only Kwakiutl rights deserving of consultation were the Douglas Treaty rights. As such, the Province did not provide a meaningful consultation process and hence did not adequately consult the First Nation.


The Court concluded that the Crown had a constitutional duty to consult with the Kwakiutl in relation to the Decisions; however, the Court left the parties to engage in "the broadest consideration of appropriate arrangements, without further direction from the Court." In particular, the Court declined to order the Province to engage in consultation with the federal Crown regarding the Kwakiutl rights, given that the Province could not bring about that engagement on its own.

The Court's decision to expressly leave open First Nations' claims to aboriginal rights and title, in addition to Douglas Treaty rights, is significant. It puts into question long-standing provincial policy to the contrary. It may also open the door to a similar challenge by First Nation signatories to the Numbered Treaties (Treaty 1 through Treaty 11), which cover much of Ontario, the Prairies, northeastern B.C. and portions of the Territories.

In its 2014 decision in Grassy Narrows First Nation v. Ontario (Natural Resources) (see our July 2014 Blakes Bulletin: Ontario Can "Take Up" Lands Under Treaty 3 Without Seeking Federal Approval), the Supreme Court of Canada (SCC) held that by signing Treaty 3, the "Ojibway yielded ownership of their territory, except for certain lands reserved to them." While it may not have been expressly argued, there was no suggestion in the SCC's reasons that the Ojibway could continue to hold aboriginal rights and title interests. If the same reasoning were applied to Douglas Treaties, one might have expected the Kwakiutl assertion of aboriginal rights and title to have failed.

Until this issue is resolved, it may be necessary for the Crown (and proponents seeking Crown decisions) to consult Douglas Treaty First Nations regarding their treaty rights and aboriginal rights and title claims. Even those dealing with First Nations in other treaty areas may be affected.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions