On September 25, 2012, the BC Court of Appeal released its reasons in Neskonlith Indian Band v Salmon Arm (City), 2012 BCCA 379 dismissing an appeal by the Neskonlith Indian Band (the “Neskonlith”) seeking, inter alia, a declaration that the City of Salmon Arm (the “City”) had a duty to consult with the Neskonlith. The case involved a judicial review brought by the Neskonlith challenging the City’s decision to issue an Environmentally Hazardous Area Development Permit (the “Development Permit”) on the basis of inadequate consultation. Salmon Arm Shopping Centres Inc., a local developer, was seeking the Development Permit in order to develop a shopping mall on privately-owned land neighbouring the Neskonlith Reserve #3. Neskonlith objected to the issuance of the Development Permit because in their opinion the permit allowed the shopping mall to be constructed at an elevation which could have adverse impacts on the Neskonlith’s interests during flood season.

This is the first time the Court of Appeal has considered whether municipalities hold a constitutional duty to consult Aboriginal peoples. Interestingly, despite the nature of the issues involved, the Province of British Columbia chose not to participate in the appeal or the proceedings below.

In the proceedings below, the Chambers Judge dismissed the judicial review. He found that the honour of the Crown rests with the Crown and is non-delegable. While he acknowledged that the caselaw supported that procedural aspects of the duty could be delegated to third parties, he found that in this case the necessary express or implied statutory conferral was not present.

On appeal, the Neskonlith argued that the duty to consult arose “upstream” of the statutory provisions by which a municipality or local government is created and attaches automatically as a result of the potential of the decisions made to adversely affect Aboriginal interests. The Neskonlith further argued that an analogy could be drawn with the various decisions of the Supreme Court of Canada holding that statutory authorities, including municipalities, are subject to the Charter of Rights and Freedoms.

The Court of Appeal found that the language utilized by the Supreme Court of Canada in Haida and Rio Tinto ran contrary to the Neskonlith’s position. In particular, the Court noted the passages in Rio Tinto that a tribunal only has those powers that are expressly or implicitly conferred on it by statute (para. 67) and found that these were a complete answer to the Neskonlith’s arguments. The Court further noted that a body charged with the duty to consult would require “remedial powers” and those powers had not been granted to the City in this case.

Although the Court found the City did not have a duty to consult, it went on to address whether a duty to consult arose in the case and if so, whether it was met. On the first issue, the Court noted that the Haida trigger for the duty to consult required “Crown conduct” and that none of the parties contended that the City was an agent of the Crown. The Court ultimately found that irrespective of this issue, the potential affect identified by the Neskonlith was “uncertain, indirect and at the far end of the spectrum of adverse effects posited in Haida” (para. 83). Finally, the Court found that even if the duty to consult was triggered, the consultation that had taken place, which included notice, provision of all relevant information, opportunities to express concerns, and serious contemplation of objections by the City, was reasonable.