Canada: The Court Of Appeal For British Columbia Confirms That Consultation By The Province On Decision To Incorporate Municipality Was Adequate

Last Updated: August 15 2012
Article by Charles F. Willms

Overview

In Adams Lake Indian Band v. British Columbia, the Supreme Court of British Columbia found that the Province failed to adequately consult with the petitioner, Adams Lake Indian Band, prior to creating the Sun Peaks Mountain Resort Municipality by an Order in Council. The Supreme Court made a declaration that the Province did not fulfill its duty to consult with the petitioner with respect to the incorporation, and ordered the Province to engage in deep consultation with the petitioner regarding the incorporation decision. The Supreme Court decided it was not appropriate to dictate terms of reference for further consultation.

On August 9, 2012 the BC Court of Appeal allowed the appeal from the Supreme Court decision and dismissed the Petition, finding that the Province discharged any consultation duty it had to the Adams Lake Band in relation to the incorporation of the Sun Peaks Resort Municipality.  The Court of Appeal also held that the other matters taken into account in relation to past Crown conduct or continuing Crown conduct by the Supreme Court Judge were not proper matters for consideration on the Petition.

Facts

The petitioner, the Adams Lake Indian Band, is a member of the Secwepemc Nation, which claims a traditional territory covering close to 180,000 square kilometres.  The Sun Peaks ski area, located 40 km north of Kamloops, is located within the territory claimed by the Secwepemc Nation.

Sun Peaks was a small ski hill known as Tod Mountain until the 1990s. In 1993, the Provincial government entered into a master development agreement with Tod Mountain Development Ltd. (now Sun Peaks Resort Corporation) that contemplated a phased expansion of the ski hill by the development of resort facilities and other recreational improvements. This facilitated rapid expansion of the ski resort, and in turn, created increased conflict with the Secwepemc Nation and its members. In the midst of this ongoing conflict, the residents of Sun Peaks sought to attain status as an incorporated municipality.

The process towards incorporation began in 2005 when a group of volunteers from the community developed a feasibility study. The Province first became involved in the incorporation process in December 2006, when it provided a grant to cover the costs of the study and the public meetings on the subject.

In January 2007, one of the members of the Secwepemc Nation wrote to the Regional District and to Sun Peaks Resort Corporation expressing opposition to the incorporation and asking for a meeting to discuss the situation. From that point onward, the parties engaged in consultation regarding the incorporation, and related topics such as the Sun Peaks master development agreement.

In July 2009, the Province advised certain members of the Secwepemc Nation that its position was that consultation was complete, as the questions posed by the bands had been answered.  The Province's position was that any issues raised by the bands had been accommodated by the creation of a municipal First Nations Advisory Committee, and by a requirement for the Provincial government to approve the municipality's land use plan and by-laws. The Province emphasized that the primary concern it had heard from the bands was the development of Sun Peaks resort, and that this would be addressed through the ongoing consultation process with respect to the master development agreement. The Secwepemc Nation rejected this position. The Supreme Court found that after July 2009, the Province "was only going through the motions" to complete the incorporation consultation, and that the bands involved legitimately lost interest in participating.

The Order in Council incorporating the municipality was signed on March 25, 2010.

Supreme Court Decision

Orders in Council and the Duty to Consult

The Supreme Court held that the duty to consult does apply to the exercise of a statutory power (such as incorporation of a municipality by Order in Council).  The Supreme Court found that all steps leading up to the decision to incorporate engaged the honour of the Crown, and that there was no justification for insulating the Order in Council from the duty to consult because it had a legislative character.

The Crown's Strength of Claim and Impacts Assessments

The Supreme Court found that the Province did not conduct a preliminary assessment of the strength of claim for the petitioner, and accordingly that the Province failed to adequately fulfill the first stage of the consultation process.

With respect to impacts, the Province's position was that the incorporation had no significant impact because it maintained the status quo, and the petitioner's real concern was the development of the resort. The Supreme Court found that the Province misconceived the impacts of the incorporation on the petitioner's rights and title. In particular, the Supreme Court found, among other things, that the incorporation resulted in the municipality exercising control over many aspects of local government that would be subject to a duty to consult with First Nations if exercised by the Crown, but that the municipality did not have a duty to consult.

The Adequacy of Consultation

The Supreme Court found that the petitioner had a strong claim and faced highly significant potential adverse impacts as a result of the incorporation of the municipality, and therefore the duty to consult with the petitioner was at the level of "deep consultation".

The accommodation provided by the Province in respect of the concerns raised by the petitioner was a requirement that the municipality establish a First Nations Advisory Committee. The Supreme Court found that this accommodation was not responsive to the concerns raised by the petitioner. For example, the Supreme Court noted that the municipality is not required to consult with the Advisory Committee, and the Committee did little to redress the balance of power and influence as between the bands and the Sun Peaks Resort Corporation.

As a result, the Supreme Court found that the petitioner was not adequately consulted regarding the decision to incorporate the municipality.

Remedy

The Supreme Court made a declaration that the Province did not fulfill its duty to consult with the petitioner with respect to the incorporation, and ordered the Province to engage in deep consultation with the petitioner regarding the decision to incorporate. The Supreme Court decided it was not appropriate to dictate terms of reference for the further consultation beyond what was expressly set out in the reasons for decision.

Court of Appeal Decision

Orders in Council and the Duty to Consult

The Court of Appeal did not disturb the conclusion of the Supreme Court Judge that the Province had a duty to consult with the Petitioners in relation to the incorporation of the municipality.

The Crown's Strength of Claim and Impacts Assessments

The Court of Appeal decided that in light of the conclusion of the Supreme Court Judge that:

... the change in local government from a regional district/improvement district form of governance to an incorporated municipality on its face placed the Band in no worse position tha[n] it was before incorporation.

it was not necessary for the Province to provide a strength of claim assessment.  The Court of Appeal said:

... that it was not necessary in this case for the Ministry of Community or the court to do an analysis of the strength of the claim to Aboriginal rights and title.  As will become clear, the impact of incorporation on the Bands' claim to rights and title was and remains insubstantial.  This is so regardless of the strength of the claim that would have been revealed by a strength-of-claim analysis.

The Court of Appeal also confirmed that the only relevant Crown conduct to be considered in relation to the duty to consult was the incorporation of the municipality.  The Court of Appeal noted, with respect to allegations of prior failures to consult and failure to discharge ongoing consultation obligations:

[69]        These passages and others show that the chambers judge included in her analysis the continuing land-use issues and the issues advanced by the Bands as to the past development of Sun Peaks.  Continuing land-use issues involve the proposed amendments to the MDA and the changes to timber resources supervision, the subjects of ongoing consultation.  Past development impact issues remain to be addressed in a final judicial or negotiated determination of the claim to Aboriginal title and rights – see Rio Tinto at para. 49

The Adequacy of Consultation

The Court of Appeal conclusion that consultation was adequate was succinct:

[78]        In my view, it follows that the consultation with respect to the issue of incorporation of the Municipality as described above was adequate.  The Ministry of Community provided information about the structure of the intended mountain resort municipality and the legal effects of incorporation.  It also gave the Bands more than sufficient opportunity to respond.  The process was as thorough and as comprehensive as the circumstances required.  I disagree with the conclusions of the chambers judge to the contrary.  Those conclusions were coloured by broader consultation considerations than were appropriate or necessary.  The judge erred by not analyzing the adequacy of consultation with respect to the incorporation matter alone. 

[79]        I also consider that the accommodation made by the Province was reasonable.  As the chambers judge noted, there was a requirement that the Municipality form a First Nations advisory committee, at least until the end of 2014, a First Nations role that did not exist under the existing form of local governance. 

Remedy

The Court of Appeal allowed the appeal and dismissed the Petition

Implications

There is still a difference of opinion between the Alberta Courts and the BC Courts on whether a duty to consult applies to a legislative act such as the issuance of an Order in Council. The Supreme Court of Canada declined to resolve this issue in Rio Tinto. At some point, it is likely that the issue will have to be resolved by the Supreme Court of Canada.

The Court of Appeal has made it clear that:

1.         Allegations of past Crown conduct, or continuing Crown conduct, on which consultation was or is allegedly inadequate are not relevant to the determination of the question of whether consultation on the impugned Crown conduct is adequate.

2.         Where the impacts of the Crown conduct on the asserted rights is insubstantial, there is no requirement for the Crown, or the Court, to consider the strength of claim of the First Nation, and

3.         "[63] ... It is not generally the role of the court to supervise ongoing consultations and provide directions as to how they are to be conducted.  It is only where there has been a breach by government of the duty to consult that a legal remedy might be sought, usually by way of a petition for the suspension or quashing of a government initiative.  Pleadings define the issues before the court and the inquiry by the court should be limited thereby.  The court should avoid involvement in ongoing consultations."

Link to Decision

www.fasken.com

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