In Snuneymuxw First Nation v. Board of Education, School District No.68 (Nanaimo Ladysmith), the BC Supreme Court recently held that the Board met its duty of fairness to the Snuneymuxw First Nation (SFN) when considering and passing school closure bylaws.
In June 2013, the Board passed resolutions approving bylaws that provided for the closure or repurposing of three schools. Some members of the SFN attended the schools which were set for closure. The SFN opposed the closure of the schools and argued that the Board’s consultation process, with respect to the closures, was inadequate. In particular, the SFN argued that in addition to its statutory obligations, the Board owed the SFN, as a First Nation, a heightened common law duty of fairness, which required that a face to face meeting between the SFN and the Board take place.
The Board’s public consultation process leading up to the passage of the school closure bylaws began in 2012. This process included extensive public consultation regarding the development of a strategic plan for the District, which identified facilities renewal as one of three key strategic goals; and extensive public consultation regarding a draft Ten Year Facilities Plan developed by an outside consultant, including public meetings, school visits and public forums, online feedback, and the ability to provide written input by letter or email.
The Board also sent a letter to the SFN advising them of the plan for future school closures and invited the SFN to meet to discuss the plan. While this invitation was accepted, the meeting never occurred due to scheduling conflicts.
The Board held a public meeting regarding one of the school closures. The Chief of the SFN attended and expressed his concerns about the closure of the school and the lack of participation in the process by the SFN. No other input was provided by the SFN. The Board then passed the bylaws providing for the closure of the three schools.
In considering the consultation process implemented by the Board, the court rejected the argument that the Board did not meet its duty of fairness to the SFN. The court held that even if the Board owed the SFN a heightened duty as a First Nations group, the Board had met that duty. In particular, the court noted that prior to the passage of the bylaws, the views of the SFN were communicated to the Board and the SFN’s interests were adequately considered. Moreover, the SFN was invited, as early as May 2012, to provide input regarding the district strategic plan, the Ten Year Facilities Plan, and the bylaws.
This decision provides important guidance to Boards of Education with respect to consultation requirements during the school closure process. These decisions are complex, and Boards must consider a range of factors in reaching their conclusions. The decision suggests that a Board’s duty to consult with First Nations can be satisfied through a robust public consultation process.
Questions relating to the content in this article should be directed to Michael Hancock.