The B.C. Supreme Court determined that a School District Board satisfied its duties of procedural fairness when making a decision to close schools. Even if the Board owed a heightened duty to consult the petitioner First Nation, due to the historical Aboriginal experience in the educational system, the administrative law duty was met in this case. The Crown’s duty to consult did not arise, and could not inform the content of the duty of procedural fairness in this case.

The Snuneymuxw First Nation (SFN), a signatory to a Douglas Treaty in 1854, holds a reserve land base consisting of four small reserves on Vancouver Island and two small reserves on Gabriola Island. Approximately two-thirds of the SFN’s members reside off reserve. Some of the SFN’s children attend an elementary school located on their reserve and operated by the SFN. The remainder attend one of four schools that fall within the jurisdiction of School District #68.

The respondent Board receives funding from the Ministry of Education for students of Aboriginal ancestry, and additional funding is provided by the SFN for children who are resident on its reserve but attend one of the Board’s schools pursuant to Local Education Agreements. The Board maintains a regularly convening Aboriginal Education Leadership Council.

On June 26, 2013, the Board passed bylaws providing for the closures of several schools, to be replaced by a single large secondary school and a single large elementary school. This decision had been preceded by a consultation process with the public that had begun during the 2007-2008 school year. A meeting took place between the District Principal and an Aboriginal Council Executive Committee. A consultant hired by the Board prepared a proposal for a Ten Year Facilities Plan but did not consult the SFN. The Plan was adopted and formed the basis for the Board’s decision.

The SFN sought on order quashing the bylaws and returning the matters to the Board for further consideration.  They alleged that the duties of procedural fairness had not been met.

The Court held that the Board owed a common law duty to the SFN in regards to the school closure decision. The Local Education Agreements (although there was not one in existence at the time) and the Board’s policies created a legitimate expectation of consultation on matters affecting SFN children. Applying Baker v. Canada, the Court held that the duty of fairness had been met in this case. The Board’s failure to adhere to its own policy does not necessarily determine whether or not the Board fulfilled its duty.

As part of this analysis, Chief Justice Hinkson held that the SFN could not rely upon the United Nations Declaration on the Rights of Indigenous Peoples. The UN Declaration has not been endorsed as having legal effect by Parliament. The Federal Government has stated that its purpose is merely aspirational, and the document is too general to provide real guidance to courts.

The SFN asserted that the Board owed them a greater duty to consult than would be owed to the general population. They argued that both the historical Aboriginal experience in the educational system and the systemic problems affecting First Nations students led to such a duty. Hinkson C.J.S.C. noted the principle set out in Elliot v. Burin Peninsula School District No. 7, 161 D.L.R. (4th) 112 (Nfld. C.A.) that “the right to procedural fairness is not a group right. The duty of procedural fairness is by nature a duty owed to individuals”. However, he declined making a determination on whether a “heightened duty” was owed to the petitioners. Due to his other findings in the case, Chief Justice Hinkson assumed that such a duty arose, but concluded that it had been satisfied.

Referring to the Neskonlith case, the SFN conceded that the “duty to consult” rests with the Crown, and not with the Board. The Board had neither the authority nor the ability to exercise the duty of the Crown to consult with a First Nation. Nevertheless, the SFN argued that the Crown’s duty to consult “should help inform the content of the duty of fairness”. Hinkson C.J.S.C. rejected this argument. Even if the Board could exercise the Crown’s duty to consult, it would be under no obligation to do so in this case. The bylaws “in no way infringe upon the treaty or Aboriginal Rights of the petitioners” and, in consequence, the duty to consult does not even arise. Referring again to Neskonlith, Hinkson C.J.S.C. stated:

Second, even if the duty to consult would have meaningful content in the circumstances of this case, it would be inappropriate to oblige the respondent to meet a standard that cannot be reasonably expected of an administrative decision maker. …

The respondent is responsible for making the myriad decisions that flow from running the education system for the entire school district. Should it be forced to meet the standard expected of the Crown in consulting with the SFN, its ability to effectively carry out its legislative mandate would be impaired to the point of administrative paralysis. It would therefore be inappropriate to rely on the duty to consult to inform my analysis of the respondent’s common law obligations here.

Hinkson C.J.S.C. held that even if the SFN was owed a relatively robust duty of procedural fairness, it would not rise to the level asserted by the SFN. While greater consultation was preferable, the SFN’s interests were adequately considered and the process was fair.

The petition by the SFN to quash the Bylaws was therefore dismissed.


Scott Kerwin


Aboriginal Law