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 the further consultation.
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.
The Threshold Question - Orders in Council and the Duty to Consult
The Supreme Court’s analysis begins with a consideration of whether the issuance of an order in council was Crown conduct that could trigger 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 Supreme Court found that the Province’s failure to establish a strength of claim assessment, and to understand the potential adverse impacts, caused it to ignore the petitioner’s concerns and to fail to adequately engage. One of the primary pieces of evidence the Court relied on in finding that the Province did not meet the requirements of consultation at the deep end was a proposed framework consultation agreement provided by the Province to the petitioner. The Supreme Court noted that the agreement only promised to provide “available” information that might help the bands determine potential impacts, and to meet and discuss in person any identified impacts. The agreement stated that thereafter the Province would “undertake a full and fair consideration of any views presented by the Band”. The Supreme Court noted that conspicuously absent from this proposed agreement was any commitment to provide capacity funding, to prepare a strength of claim analysis, and to accommodate the interests of the bands where possible. The Supreme Court found that this proposal clearly demonstrated that the Province was proceeding on the understanding that it was only required to consult at the low end of the spectrum.
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.
The municipality argued that the Supreme Court had no jurisdiction to quash the Order in Council because it is a legislative act. The Surpeme Court noted that there are conflicting authorities on whether a Court may quash a legislative act on the ground of failure to consult. However, the Supreme Court did not decide that issue. Instead, the Supreme Court noted that it always has a discretion with respect to remedies under the Judicial Review Procedure Act, and in the circumstances, it was not appropriate to quash the Order in Council. The Supreme Court found that quashing would “invite chaos” on the municipality as it would undo the election of mayors and counsellors, and make all the bylaws they had passed a nullity.
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.
There is now a difference of opinion between the Alberta Courts and the B.C. 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 Supreme Court confirmed that municipal governments do not have a constitutional duty to consult with aboriginal groups in exercising their powers under provincial legislation. This implies that if decisions taken by local governments may affect asserted aboriginal rights, the duty of consultation in relation to those decisions still lies with the Crown.