In 2012, the British Columbia Court of Appeal (BCCA) demonstrated a new-found willingness to:

  • follow the Supreme Court of Canada’s (SCC) lead in circumscribing Aboriginal rights;
  • adopt a more balanced approach to Aboriginal claims; and
  • consider the impacts of Aboriginal claims on third party interests.

The BCCA rendered three decisions in 2012 that ruled against the Aboriginal groups involved. One of the cases involved a significant claim for Aboriginal title, and the other two cases involved the obligation to consult when decisions are being made that may result in an adverse impact on claimed Aboriginal rights.

While none of these cases specifically involved mining interests, they are nonetheless relevant to industry in the province of British Columbia because of the manner in which they have circumscribed the scope of Aboriginal claims and remedies in the province.

William v. British Columbia (William)

The William case began as a challenge to the issuance of a forest licence and cutting permit issued under the British Columbia Forest Act, but over time it morphed into a marathon lawsuit (339 court days over five years) in which the Tsilhqot’in First Nation sought, amongst other things, a declaration that it had Aboriginal title over approximately 450,000 hectares of west-central British Columbia (Claim Area) and a declaration that it had Aboriginal rights to hunt and fish, as well as to capture and use wild horses in the Claim Area.

In a 458-page decision, the trial judge dismissed the Tsilhqot’in’s claims to Aboriginal title to the Claim Area, but accepted its claims to Aboriginal rights and held that the Province of British Columbia had infringed those rights through its management of forestry in the Claim Area. The trial judge’s dismissal of the claims for Aboriginal title was made without prejudice to the First Nation’s ability to advance title claims to specific areas within the Claim Area.

For the most part, the BCCA upheld the decision of the trial judge.

The most important aspect of this case from industry’s perspective is the rejection of claims for Aboriginal title to “territories.” In doing so, the BCCA followed the SCC’s decisions in Delgamuukw v. British Columbia (Delgamuukw) and R. v. Marshall; R. v. Bernard. The trial judge and the BCCA held that Aboriginal title could only be established where there was proof that, at the time the Crown asserted sovereignty over the land, the Aboriginal group occupied the land to the exclusion of others, and the piece of land in question was of central significance to the Aboriginal group’s culture. This suggests that an intensive presence at a particular site is required to establish Aboriginal title. The trial judge and the BCCA further held that Aboriginal title cannot be established based on a limited presence in a broad territory. Rather, it must be established on a site-specific basis defined by a particular occupancy of the land (such as village sites or enclosed or cultivated fields) or on the basis that a defined tract of land was the subject of intensive use (such as specific hunting, fishing, gathering or spiritual sites).

In instances where traditional use and occupancy was less intensive, a finding of Aboriginal rights less than title may be sufficient to preserve an Aboriginal group’s traditional activities, lifestyle and culture and therefore is all that is required to be recognised in order to satisfy section 35 of the Constitution Act, 1982.

Following this decision, which essentially reinforces the SCC’s decision in Delgamuukw, proponents of resource development in British Columbia will not, for the most part, need to overcome claims to Aboriginal title and the exclusivity of occupation that such could entail. Rather, proponents can focus their efforts on consultation with a view to addressing more limited issues such as claims to the right to fish and hunt.

The Tsilhqot’in First Nation was granted leave to appeal to the SCC in January 2013.

Adams Lake Indian Band v. Lieutenant Governor in Council

This case addressed, amongst other things, whether the Province of British Columbia had failed to adequately consult with the Adams Lake Indian Band in respect of the incorporation of a new resort municipality at the Sun Peaks ski resort in the interior of the province. The lower court held that the creation of a municipality had changed the governance structure potentially impacting on Aboriginal rights and that the Crown had failed to adequately consult the First Nation in respect of such changes.

The BCCA overturned the lower court’s decision on the basis that the impact on the Adams Lake Indian Band from the incorporation of the new municipality was insubstantial and that the consultation that had occurred with the Adams Lake Indian Band was satisfactory in light of that finding. Of most importance in this case is the BCCA following the guidance from the SCC in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (Rio Tinto) in holding that it was appropriate to limit the consultation to what was required to address the impact from the specific decision before the Crown (the incorporation of the municipality). In respect of that limited decision, it was not necessary to enter into broad consultation to address all of the other outstanding issues between the band and the province.

It may seem trite that the BCCA chose to follow the SCC’s precedent in this case, but in a previous case from 2011, West Moberly First Nations v. British Columbia (Chief Inspector of Mines) (West Moberly), the BCCA had disregarded the guidance provided by the SCC in Rio Tinto. In determining the scope of consultation required in that case, the BCCA took into consideration the potential impacts from possible future decisions that were well beyond the potential impacts from the decision under review. For more information respecting the West Moberly decision, please see last year’s Mining in the Courts, Vol. II publication.

Adams Lake Indian Band was denied leave to appeal to the SCC on April 11, 2013.

Neskonlith Indian Band v. The City of Salmon Arm (Neskonlith)

The last of this trilogy of 2012 BCCA decisions is the decision in Neskonlith. In this case, the Neskonlith Indian Band (Band) had sought to set aside an environmental hazard development permit issued by the City of Salmon Arm for a shopping centre development on the basis that the Band had not been adequately consulted.

In this case, the developer advanced the following positions before the British Columbia Supreme Court (BCSC):

  • Municipalities do not owe a constitutional duty to consult Aboriginal groups.
  • Even if a municipality could owe a duty to consult, it was not triggered in the circumstances because the potential harm alleged by the Band was speculative.
  • Even if such a duty was triggered, there had been adequate consultation with the Band.

The BCSC dismissed the Band’s petition on the basis that municipalities do not owe a stand-alone constitutional duty to consult First Nations. As this ruling was dispositive of the Band’s claims, the court declined to rule on the second and third position advanced by the developer.

The Band appealed to the BCCA and attempted to limit the issues on the appeal to the single question answered by the lower court judge. In a unanimous decision, the BCCA dismissed the appeal and ruled on all of the positions raised by the developer as follows:

  • The city did not owe a constitutional duty to consult the Band.
  • The potential harm alleged by the Band was speculative and indirect.
  • Even if a duty to consult was owed, the City had satisfied the duty to consult.

On this last point, the BCCA relied on the decision of the SCC in Beckman v. Little Salmon/Carmacks First Nation. That decision also involved a situation where the decision-maker had operated on the assumption that it did not owe a duty to consult, but it consulted nonetheless and such consultation was held to be adequate.

While the ruling that municipalities do not owe a duty to consult is of significant importance for some sectors, the aspects of this decision dealing with whether a duty was triggered on the technical facts before the court, and whether the duty to consult was in fact satisfied, should provide the mining sector some solace going forward. This case adds to the growing jurisprudence that debunks the myth that consultation with First Nations requires, in all circumstances, something more than a decision-maker providing the First Nation with all relevant information and opportunities to voice its concerns, and then bona fide taking such concerns into consideration in arriving at a decision.

The Band has not applied for leave to appeal to the SCC.

For another 2012 BCCA decision in which the court was satisfied that consultation was adequate, please see: Halalt First Nation v. British Columbia, 2012 BCCA 472, leave to appeal to the SCC denied.