The B.C. Supreme Court dismissed an application by the plaintiff Songhees Nation for an order directing Canada and British Columbia to negotiate a resolution of this matter.

The underlying action involves a claim by the Songhees Nation and the Esquimalt Nation that the Crown breached the terms of a treaty signed in 1850 with their ancestors relating to land near Cadboro Bay. The plaintiffs allege that the Crown failed to fulfil a term of the treaty allowing their ancestors to retain their village sites and enclosed fields. A lengthy trial is scheduled to begin in November 2014. A two-week judicial settlement conference was held before Mr. Justice Pearlman in May 2014 but no resolution was reached. Counsel for the Songhees Nation advised the Court that Canada was prepared to discuss settlement but only on the condition that British Columbia participate, whereas British Columbia was not willing to participate as it denies any liability.

The Songhees Nation argued that Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 stands for the proposition that the Crown has a “duty to negotiate”. This duty would include an obligation to make a reasonable settlement offer in this action. They further argued that older authorities, such as Gitanyow Nation (1999) and Uukw v. British Columbia (1986), were effectively over-ruled by Tsilhqot’in.

The application was dismissed. Both Haida and Tsilhqot’in Nation deal with the duty to consult, not a duty to negotiate. The honour of the Crown does not compel the defendants to negotiate a claim when liability is disputed. Bracken J. concluded:

Tsilhqot’in must be read in the context of what was at issue in that litigation. In my view, the court did not create a new principle of general application compelling negotiation in all aboriginal litigation. Rather, it commented that the honour of the Crown required the Crown to consult and accommodate those claims in a manner proportionate to the strength of the case supporting the existence of the right or title claimed.


Scott Kerwin


Aboriginal Law