Case information

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Aboriginal law - Fiduciary duty - Duty to consult - Aboriginal title - Land claims - Does the duty to consult include a concomitant and substantive duty to accommodate where consultation indicates that accommodation is required - If there is a duty to accommodate, does the failure to reach an agreement on appropriate accommodation relieve the Crown of its duty to accommodate - If there is a duty to accommodate, does the fact that the transfer of contested land can in theory be compensated for at some future, undetermined time (at the end of treaty negotiations or aboriginal title litigation or a specific claims process) relieve the Crown of any present obligation to accommodate in respect of present infringements of asserted aboriginal interests in the land.

The Applicants have reserves within the municipal boundaries of Chilliwack, B.C., and are among a group of Sto:lo Nation communities claiming an interest in the area formerly occupied by CFB Chilliwack, including parts adjacent to the Tzeachten First Nation reserve. The Crown announced its intention to close CFB Chilliwack in 1995, and there were approximately 26 meetings between representatives of the Crown and the Applicants. The Applicants rejected all Crown proposals, arguing that their pressing need for additional land for housing and community purposes; their unresolved specific claim and their unresolved claim of Aboriginal title to the CFB Chilliwack lands, made it just and appropriate to restore the lands to them. No solution was reached, and in 2000, an Order-in-Council authorized the transfer of a parcel to the Respondent Canada Lands Company CLC Limited (“CLC”). Some other parcels were to be held back for 2 years to allow for treaty land selection negotiations. After the two years passed without negotiations, the Chief Federal Negotiator advised the Sto:lo negotiator that the Minister of National Defence was seeking authority to dispose of the held back lands. Indian and Northern Affairs had no interest in acquiring any of the land for possible use in treaties. In 2003, the Crown authorized the sale of the held back parcels to CLC, and the transfer was completed March 31, 2004. The Applicants commenced an application for judicial review of that decision, by which time 14 acres of the lands adjacent to the reserve had been sold to the Chilliwack School District.