In Neskonlith Indian Band v. Salmon Arm (City), 2012 BCSC 499, the Supreme Court of British Columbia dismissed the Neskonlith Indian Band's petition to quash a development permit issued by the City of Salmon Arm permitting the construction of a shopping centre development on private lands. In dismissing the petition, the Court held that:
a. the relevant Crown has the obligation to uphold the honour of the Crown, and cannot delegate that obligation;
b. procedural aspects of the Crown's duty to consult can be delegated to third parties, but for this to be done, the authority must be expressly or impliedly conferred by statute; and
c. a municipality, even though it is a creature of the Crown, has no independent constitutional duty to consult.
The Neskonlith Indian Band brought a petition to the Court seeking to quash an environmentally hazardous area development permit issued by the City of Salmon Arm. The permit allows the developer, Salmon Arm Shopping Centres Limited, to construct its proposed shopping centre development on private land on the Salmon Arm delta and floodplain. In addition, the Neskonlith sought a declaration that the City owed a constitutional and legal duty to consult with the Neskonlith in good faith and endeavour to seek workable accommodations prior to the issuance of any development permit. The parties before the Court were the Neskonlith, the City and the developer. The basis of the Neskonlith's claim was that the City had a constitutional obligation to consult with the Band before making decisions that could adversely affect its Aboriginal rights or title.
The proposed development area had been designated a floodplain by the Province. The developer had to obtain a hazardous area development permit before commencing construction as the floodplain was designated an environmentally hazardous area under the City's Official Community Plan ("OCP"). The environmentally hazardous area designation means that there is a risk of the environment harming a development. Thus, in the permit approval process, the City had to determine whether the proposed development was likely to flood.
The Neskonlith took the position that the real risk was in the future, and that this was precisely why consultation should occur before large investments had been made. The Neskonlith was concerned that the property would flood, and that when the property flooded, flood-control measures would be necessary. These flood control measures, it is argued, would cause damage to the environment and to the interests of the Neskonlith. The Neskonlith's Reserve bordered on and was located downstream from the development.
On October 24, 2011, the City authorized the hazardous area development permit and the permit was issued on October 25, 2011.
The Neskonlith submitted that Part 26 of the Local Government Act had the effect of delegating certain land-use decisions to municipalities, with no oversight by the Province. The Neskonlith argued that in doing so, the Province, as a matter of constitutional law, also necessarily delegated the responsibility to consult with Aboriginal peoples when making decisions that might affect their interests. The Neskonlith stressed that the duty to consult must attach to the actual decision maker, which, in this case, was the municipality.
The City and the developer submitted that municipalities can have no duty to consult and that the duty to consult rests at all times with the Crown. They argued that this flows from the principles that the duty to consult is grounded in the honour of the Crown and that the honour of the Crown is non-delegable.
The Court reviewed the Supreme Court of Canada's seminal decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, as well as that court's more recent decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, which provide the foundation for the honour of the Crown and when the duty to consult may arise. Additionally, the Court reviewed a number of cases dealing with whether or not municipalities can owe a duty to consult, including the recent case of Adams Lake Indian Band v. British Columbia, 2011 BCC 266, in which the Court found that the Province failed to adequately consult with the petitioner prior to creating a municipality by an Order in Council (our bulletin on this case can be found online here).
From these cases, the Court extracted the following principles:
a. The honour of the Crown is non-delegable and rests at all times with the Province.
b. Procedural aspects of the duty to consult can be delegated to third parties, but for this to be done, the authority must be expressly or impliedly conferred by statute.
c. A municipality has no independent constitutional duty to consult. It is possible that, in fulfilling its duty to consult, the Province can delegate aspects of consultation to municipalities. But in all cases where consultation is inadequate, First Nations retain a remedy against the Crown as the honour of the Crown, and thus the final responsibility for ensuring that adequate consultation occurs, rests with the Crown.
The Court held that there was no express or implied statutory language in the Local Government Act requiring or empowering the City to engage in Haida consultation or in any consultation beyond that required by the Act (which requires the municipality to consider whether consultation with First Nations is required when developing its official community plan).
The Neskonlith drew an analogy to Charter jurisprudence, arguing that since the Charter had been held to apply to all actors carrying out governmental functions, it followed that s. 35 of the Constitution and the duty to consult applies equally to anyone making land-use decisions in the Province that might affect Aboriginal interests. The Court rejected the Neskonlith's link to the Charter and the consequent argument that the duty to consult vests automatically with whoever is empowered to make decisions affecting Aboriginal rights. It noted that the Charter exists to protect individuals from governmental action while s. 35 of the Constitution exists to protect the "existing Aboriginal and treaty rights" of the Aboriginal peoples of Canada.
For these reasons, the Court held that the municipality had no obligation to consult with the Neskonlith before issuing the impugned development permit and accordingly dismissed the Neskonlith's petition.
The Supreme Court has again confirmed that municipal governments do not have an independent constitutional duty to consult with Aboriginal groups in exercising their powers under provincial legislation. It is possible that, in fulfilling its duty to consult, the Province can delegate aspects of consultation to municipalities. However, where consultation is inadequate, First Nations retain a remedy against the Crown as the honour of the Crown, and thus, the final responsibility for ensuring that adequate consultation occurs rests with the Crown.
This case was unusual in that the Provincial Crown was not a party, even in the alternative. It should be noted that, because of its decision regarding the municipality, the Court did not find it necessary to decide whether the Crown would owe a duty to consult in these circumstances. As a result, this decision does not provide the practical process by which the Crown would discharge any duty to consult that may have arisen under these circumstances. The answer to that question, important as it is, has been left to another day.
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