On September 23, 2012, the B.C. Court of Appeal (2012 BCCA 379) upheld the decision of Mr. Justice Leask (2012 BCSC 499) in Neskonlith Indian Band v. Salmon Arm (City), concluding that local governments do not hold an independent duty to consult.

The Chambers Judge Decision

The Neskonlith Indian Band, part of the Secwepemc (Shuswap) Nation, brought a petition seeking to quash a permit issued by the City of Salmon Arm granted to Salmon Arm Shopping Centres Ltd. for the construction of a large shopping centre on private land on the Salmon Arm delta and floodplain, next to Neskonlith Indian Reserve #3. The permit at issue was an “environmentally hazardous area development permit” which the City had no discretion to deny if the applicant satisfies the requisite statutory guidelines.

The Neskonlith were concerned the proposed shopping centre was at risk of flooding, and any flood-control measures that would have to be implemented will cause harm to the Band's interests. The Neskonlith alleged that the City held a constitutional obligation to consult the Band before issuing the permit.

Relying on Haida and Rio Tinto, the chambers judge concluded: (i) the honour of the Crown is non-delegable and at all times rests with the province (or Canada); (ii) a municipality, a creature of statute, has no independent duty to consult; and (iii) procedural aspects of the duty to consult can be delegated to third parties (including municipalities), but this authority must be expressly or impliedly conferred by statute. On this final point, the chambers judge applied the Supreme Court of Canada's decision in Rio Tinto – that a tribunal will be responsible for conducting consultation activities only if that power is found in its governing statute – generally to third parties and specifically to municipalities.

The chambers judge dismissed Neskonlith's petition.

Court of Appeal Decision

Local Governments have no independent duty to consult

The Court of Appeal upheld the chambers judge conclusion that a local government does not have an independent duty to consult for both legal and practical reasons. The Court found that placing a duty to consult on municipalities as the government decision-maker is “clearly contrary to Haida and Rio Tinto” which expressly state the “ultimate legal responsibility for consultation and accommodation rests with the Crown” (para. 66).

Although in Rio Tinto, the Supreme Court of Canada found the legislature may delegate the duty to consult to tribunals, this power must be expressly or impliedly conferred by statute, and a mere ability to consider questions of law is insufficient to confer the duty. In order to engage in consultation, the tribunal must possess the remedial powers necessary to do what it is asked to do in connection with consultation (para. 67, citing paras. 59-60 of Rio Tinto). Applying this reasoning, the Court noted municipalities have not been granted such remedial powers, noting municipal councils are not in a position to, for example, suspend the application of bylaws, amend the terms of its “official community plan”, grant benefits to First Nations or consider any matter outside its statutory parameters. Local governments, the Court concluded, “lack the authority to engage in the nuanced and complex constitutional process involving ‘facts, law, policy and compromise’ referred to in Rio Tinto” (para. 68).

The Court also commented that municipalities lack practical resources to consult and accommodate Aboriginal groups. Local governments vary greatly in size and tax-base and are generally concerned with the regulation of privately-owned land through the issuance of licences and permits, and the application of zoning restrictions and local bylaws. The Court observed: “Daily life would be seriously bogged down if consultation – including the required ‘strength of claim’ assessment – became necessary whenever a First Nation ‘might be’ affected” (para. 72).

Adverse effect of issuing the permit and the adequacy of consultation

Although not necessary because of the Court’s conclusion that the City had no duty to consult the Neskonlith, the Court chose to consider the adverse impact of the permit on the Band’s asserted rights and title. The potential adverse impact alleged by the Neskonlith was not the actual construction of the shopping centre, but possible flood control measures that might be adopted at some future time. The Court concluded any adverse effect to the Neskonlith’s rights, at this stage, is “uncertain, indirect, and at the far end of the spectrum of adverse effects posited in Haida” (para. 83).

The Court also opined on the adequacy of the consultation that took place, and found the City’s efforts to be reasonable. The Neskonlith were informed of all applications and amendments relevant to the permit and to the development generally, they were given opportunities to express their concerns, and their objections and the opinion of their expert were taken seriously and did lead to modifications in the planning. Although the City did not conduct a strength of claim assessment, the Court found this was not determinative of whether adequate consultation took place, relying on Beckman where the Crown’s actions were sufficient to fulfill the duty to consult even though it did not regard itself as carrying out consultation.

Implications

The Court of Appeal has made a clear statement that, in the absence of a statutory delegation, local governments do not have an independent duty to consult, and that duty rests with the Crown. More broadly, the Court appears to conclude that in order for the Crown to delegate the duty to consult, the body seeking to engage in consultation must possess the necessary remedial powers to do what is asked of it in connection with the consultation, an often complex constitutional process. Any legislation delegating the duty to municipalities would presumably have to contain a delegation of such remedial powers as well.

Although not binding as it was said in obiter, the Court also chose to emphasize two other points: (i) as stated in Haida, speculative impacts are not sufficient to trigger the duty to consult, and in this case the impacts asserted were merely speculative; and (ii) although the City may not have considered that it was engaging in consultation, its actions would nonetheless have amounted to reasonable consultation. In particular, and in keeping with its recent decision in Adams Lake, the Court specifically noted that failure to conduct a strength of claim assessment is not necessarily fatal to adequate consultation.