A British Columbia Supreme Court justice has delivered a stinging rebuke to the provincial government, ruling that its consultation with a First Nation over a forest licence transfer—conducted solely through letters and emails—was insufficient. The decision, released this week, sets aside the transfer and orders the province back to the drawing board.
Judge Orders Province to Reconsider After Proper Consultation
In a ruling with significant implications for resource management, B.C. Supreme Court Justice F. Matthew Kirchner set aside the government's transfer of a forest licence and sent the matter back to the Ministry of Forests. The judge mandated that the ministry must "reconsider after proper consultations" with the Gitanyow Hereditary Chiefs.
The case centred on timber-cutting rights left in limbo after the bankruptcy of Skeena Sawmills. While the company's assets were acquired by the Kitsumkalum First Nation, which sought the forest tenure transfer, the Gitanyow Hereditary Chiefs strongly opposed it. They argued the forest area covered by the licence was within their traditional territory, over which they have an ongoing Aboriginal title claim. The Gitanyow also pointed to prior provincial commitments to secure their own access to a viable timber supply.
'Deep Consultation' Requires More Than Correspondence
The court's 33-page decision dedicates substantial analysis to the Crown's duty to consult and accommodate Indigenous nations when transferring land and resource rights. The province's defeat was compounded by its lawyers' assurances to the court that it had engaged in "deep consultations" with the Gitanyow.
Justice Kirchner dismantled this claim decisively. He wrote that deep consultation imposes "a positive obligation to consider and proactively explore potential accommodations through meaningful two-way dialogue." He noted the surprising fact that, despite both parties agreeing to consult at a "deep/complex" level, no face-to-face meetings ever took place.
"Their dialogue, such as it was, occurred only through an exchange of letters and emails," the judge observed. "Letters are important for framing each parties’ interests and maintaining a record of communications, but they tend to cause each party to become entrenched in its position." He concluded it was difficult to understand how genuine mutual understanding could be achieved without any direct discussions.
Another Legal Setback for B.C. on Indigenous Rights
This ruling marks another courtroom loss for the B.C. government in its dealings with Indigenous nations. The decision underscores a growing judicial insistence that the Crown's duty to consult be substantive and interactive, not a procedural box-ticking exercise conducted remotely.
The court has now clearly stated that for matters at the complex end of the spectrum, relying solely on written correspondence is inadequate. The province must now re-engage with the Gitanyow Hereditary Chiefs in a manner that meets the standard of "deep consultation" as defined by the court—a process that will likely require direct, good-faith dialogue to bridge the positions of both parties.
