Neskonlith Indian Band v. The City of Salmon Arm and Salmon Arm Shopping Centres Inc.: Do Municipalities Have a Duty To Consult?

Transcription

1 December 2012 Aboriginal Law Section Neskonlith Indian Band v. The City of Salmon Arm and Salmon Arm Shopping Centres Inc.: Do Municipalities Have a Duty To Consult? M. Jill Dougherty* In the recent case of Neskonlith Indian Band v. The City of Salmon Arm ( Neskonlith Indian Band ) 1, the British Columbia Court of Appeal provided the first comprehensive analysis by a Canadian appellate court of whether the Crown s duty to consult and, where indicated, accommodate Aboriginal interests extends to municipal corporations. The principles relating to the Crown s duty to consult Aboriginal communities have been developed and articulated in a series of decisions of the Supreme Court of Canada. 2 In Haida Nation v. British Columbia (Minister of Forests) ( Haida ), 3 the Supreme Court of Canada held that third parties are not subject to the duty to consult, noting that the duty is rooted in the honour of the Crown and flows from the Crown s assertion of sovereignty over lands that were previously occupied by Aboriginal peoples. However, the Supreme Court of Canada subsequently held in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council ( Rio Tinto ) that at least procedural aspects of the duty to consult may be delegated by the legislature to a tribunal, provided that it does so expressly or by implication, by means of statutory authorization. 4 Municipal corporations, like tribunals, are creatures of statute and the analysis in Haida, Rio Tinto and previous cases raised the prospect that municipalities, unlike private third parties, might have a duty to consult, as a level of government exercising legislative and decision-making authority. In Neskonlith Indian Band, the British Columbia Court of Appeal rejected the existence of any automatic municipal duty to consult. It held that: The ultimate legal responsibility for consultation and accommodation rests with the Crown and the honour of the Crown cannot be delegated BCCA 379, aff'g 2012 BCSC Including Delgamuukw v. British Columbia, [1997] 3 SCR 1010; Wewaykum Indian Band v. Canada (Attorney General), [2002] 4 SCR 245, 200 SCC 79; Haida Nation v. British Columbia (Minister of Forests) ( Haida ), [2004] 3 SCR 511, 2004 SCC 73; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550, 2004 SCC 74; and Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council ( Rio Tinto ), [2010] 2 SCR 650, 2010 SCC SCC 73, [2004] 3 S.C.R Rio Tinto, supra footnote 2.

2 2 Any tribunal (and, by analogy, any municipality) to which the obligation to consult and, if appropriate, accommodate was delegated would require sufficient remedial powers, which have not been granted to municipalities. Municipal governments lack the practical resources to consult and accommodate. It would be impractical to devolve the Crown s duty to consult to municipalities, since doing so would bog down the day-to-day licensing, permit, zoning and planning decisions with which municipalities are concerned. The case involved a petition for judicial review by the Neskonlith First Nation (the Neskonlith ) seeking to quash an Environmentally Hazardous Area Development Permit issued by the City of Salmon Arm under its Official Community Plan with respect to the construction of a shopping centre on privately owned lands. The lands were partly within the Salmon River flood plain and adjacent to Neskonlith Reserve No. 3, which the Neskonlith regarded as part of its traditional territory. All parties agreed that the Neskonlith had a strong claim to Aboriginal title with respect to those adjacent lands. The Neskonlith objected to the site of the proposed shopping centre under the permit and raised concerns about the impact of possible flood control measures (such as channeling and dyke construction) to deal with potential future flooding. The Neskonlith argued that the development permit had been issued without meaningful consultation and should be quashed. In particular, they argued that the municipality, along with assuming decisionmaking authority over land use decisions within flood plains, also assumed the provincial Crown s constitutional obligation to consult with Aboriginal communities about the impact of those decisions on asserted but unproven Aboriginal rights and title. Mr. Justice Leask, in Chambers, rejected the petition, and the Neskonlith appealed. 5 The Court of Appeal (on a standard of correctness) held that Leask J. was correct in determining that in issuing the permit the City of Salmon Arm was not subject to a duty to consult. 6 In so doing, the Court of Appeal rejected the Neskonlith s argument that the duty to consult is a core constitutional principle, and that a generous and purposive application of the honour of the Crown requires consultation whenever government authorizes activities which interfere with Aboriginal rights or title (whether that authorization comes from the Province or from local governments exercising delegated provincial authority). This argument was central to the Neskonlith s position, which treated the duty to consult as automatically attaching to and running with any delegation of Crown authority over a particular matter to any government body (including a tribunal or a municipal corporation). Put differently, the Neskonlith s argument was (in part) that as a level of government exercising powers delegated by the province, a municipal corporation was not a third party and not therefore caught by the prohibition (articulated in Haida and refined in Rio Tinto) against the delegation to third parties of the Crown s honour. 7 5 Neskonlith Indian Band, supra footnote 1, at paras Ibid., at paras , Ibid., at paras ,

3 3 The Court of Appeal acknowledged the strength of the Neskonlith s arguments but rejected them as inconsistent with Haida and Rio Tinto. Firstly, the Court observed that the ultimate legal responsibility for consultation and accommodation rests with the Crown. Although the Crown may delegate at least procedural aspects of consultation, the honour of the Crown (on which the duty to consult is based) cannot be delegated. 8 Citing Rio Tinto, the Court of Appeal noted that a statutory tribunal (or, by analogy, a municipality created by statute) cannot be regarded as having a duty to consult simply by reason of having jurisdiction to consider questions of law and therefore constitutional questions, or by reason of having the power to make a decision said to affect Aboriginal interests. 9 The Court also declined to treat the duty as analogous to the duty to apply the Charter of Rights and Freedoms (and as therefore automatically flowing with and attaching to the grant of power to deal with various matters (such as the issuance of development permits). In order for a tribunal or municipality to have a duty to consult, it would be necessary for that authority to have been delegated by the legislature, expressly or by implication. 10 The Court noted that the Crown can delegate procedural aspects of the duty to consult, and implied that Rio Tinto could be construed to allow the delegation of other aspects of the duty. 11 However, it is implicit in the Court s decision that it found no such delegation of aspects of the duty to consult to the City of Salmon Arm in respect of issuance of the permit. It is worth noting that the Neskonlith had not argued on appeal that there was such a legislative delegation. Rather, they argued that the duty to consult automatically flowed with the general grant of legislative authority to issue the permit in question. 12 While the Court reviewed the legislative framework for the issuance of the permit and the Official Community Plan amendments and rezoning that preceded it, the Court emphasized that the Neskonlith challenged neither the official plan amendment nor the rezoning. In that context, the Court of Appeal commented (in obiter) on the Local Government Act provisions regarding the adoption and variation of official plans, 13 which required the consideration of applicable provincial guidelines and whether consultation is required with First Nations. 14 With respect to the latter, the Court stated: This court has held that s. 879(2) does not engage the honour of the Crown vis-à-vis First Nations: see Gardner v. Williams Lake (City) 2006 BCCA 307 [ Gardner ]. 15 This appears to be a broad application of the Gardner case, which did not involve any claimed Aboriginal or treaty rights. In Gardner, the city contemplated by-law amendments regarding a parcel of land to accommodate the building of a retail store. An area resident claimed that the statutorily mandated consultation process prior to the bylaw change was inadequate and argued that the content of appropriate consultation with 8 Ibid, at para Ibid, at paras Ibid., at paras Ibid., at para Ibid, at para Local Government Act, RSBC 1996, c. 323, s Neskonlith Indian Band, supra footnote 1, at paras Ibid., at para. 9.

4 4 the general public should be determined with reference to the Haida principles. The Court in Gardner rejected that approach, referring to the scope of the duty to consult with respect to Aboriginal rights, stating that Local governments are the creatures of the provincial legislature, bound by their provincial enabling legislation. This case, therefore, does not engage the honour of the Crown or the heightened responsibility that comes with that principle in cases engaging Aboriginal questions. 16 The Court in Neskonlith Indian Band also held that if a tribunal or municipality had a duty to consult it would require the remedial powers necessary, where indicated, to accommodate the Aboriginal community. The Court concluded that municipalities lack those remedial powers: As the third order of government, municipal councils are simply not in a position to, for example, suspend the application of by-laws or the terms of OCPs, grant benefits to First Nations or indeed to consider matters outside of their statutory parameters a fortiori local governments lack the authority to engage in the nuanced and complex constitutional process involving facts, law, policy and compromise referred to in Rio Tinto. 17 In addition, the Court of Appeal held that municipal governments lack the practical resources to consult and accommodate. It observed that municipal governments within British Columbia range greatly in size and tax base and are generally concerned with the regulation of privately owned lands and activities on those lands, with Crown lands and natural resources located within municipal boundaries remained within the purview of the province. 18 Lastly, the Court concluded that imposing the Crown s duty to consult would be impractical: [T]he push-down of the Crown s duty to consult, from the Crown to local governments, such that consultation and accommodation would be thrashed out in the context of the mundane decisions regarding licences, permits, zoning restrictions and local by-laws, would be completely impractical. These decisions, ranging from the issuance of business licences to the designation of parks, from the zoning of urban areas to the regulation of the keeping of 16 Gardner v. Williams Lake (City) 2006 BCCA 307, 54 BCLR (4th) 225 at para Neskonlith Indian Band, supra footnote 1, at para Ibid., at para. 71.

5 5 animals, require efficiency and certainty. Daily life would be seriously bogged down if consultation including the required strength of claim assessment became necessary whenever a right or interest of a First Nation might be affected. To that end, I doubt that it would be in the interests of First Nations, the Crown or the ultimate goal of reconciliation for the duty to consult to be ground down into such small particles, obscuring the larger upstream objectives described in Haida. 19 The extent to which the Court in Neskonlith Indian Band gave weight to these practical considerations in deciding whether the duty to consult should be imposed upon municipalities contrasts with the Supreme Court of Canada s approach in imposing upon administrative tribunals the obligation to apply the Charter of Rights and Freedoms. In that context, the Supreme Court of Canada has been reluctant to give effect to arguments that constitutional jurisdiction should not be conferred on administrative tribunals because of limitations on tribunal resources or the risk that tribunal processes and the discharge of the tribunal s statutory mandate would become bogged down by dealing with constitutional issues. 20 Although the Court concluded that the City of Salmon Arm did not have a duty to consult, it nevertheless considered whether the circumstances of the case would be sufficient to trigger the Crown s duty and whether the City s consultation efforts were adequate to meet the Crown s duty. The Court determined that the potential adverse effect of the permit on the Neskonlith was only speculative and did not trigger a duty to consult. While a potential for adverse impact may be sufficient to give rise to a duty to consult, there must be an appreciable adverse effect and mere speculative impacts will not suffice. The Court of Appeal concluded that in this case, the potential adverse impact was uncertain, indirect and at the far end of the spectrum of adverse affects posited in Haida. 21 The Neskonlith s concern was about the potential impact of possible flood control measures which might in future be necessary if there was flooding. However, the Court observed that if flood control measures were necessary in the future, those measures would require various Crown permits and approvals which would at that time have a duty to consult the Neskonlith. While consultations at that point would be useful, the Court held that current consultation about possible flood-control measures in respect of flooding that might or might not occur at a future date would be purely hypothetical. 22 The Court concluded that the City s efforts to consult the Neskonlith were reasonable in the circumstances. Citing Taku River Tlingit First Nation v. British Columbia (Project 19 Ibid., at para See, for example, Nova Scotia (Workers Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 SCR 504 and Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 SCR Neskonlith Indian Band, supra footnote 1, at para Neskonlith Indian Band, supra footnote 1, at paras

6 6 Assessment Director), 23 the Court first observed that even if the City did not conduct an assessment of the strength of the Neskonlith Aboriginal claim and did not proceed based on a belief that it was subject to the Crown s duty to consult, the City might nevertheless have engaged in adequate consultation to fulfil the Crown s obligation. The Neskonlith s concerns had been taken seriously by the City, which had treated the Neskonlith respectfully, provided copies of all relevant materials to them, heard the submissions of the Neskonlith at various meetings and resolved the matter based on scientific assessment by qualified professional engineers. In the absence of any statute or case law requiring a particular form of consultation, the Court rejected the argument that the consultation undertaken was insufficient. The Court concluded that the process was reasonable, that the Neskonlith were fully and promptly informed of all applications and amendments relevant to the permit and to the development generally, that they were given several opportunities to express their concerns, that their objections (and those of others) were taken seriously and that they led to material modifications of the planned development. The Court held the City s decision itself lay within the range of reasonable outcomes. 24 The Court s approach in applying the standard of reasonableness to the City s consultation efforts interestingly combines two different approaches applied by the Supreme Court in Haida and Beckman v. Little Salmon/Carmacks First Nation ( Beckman ). 25 In Haida, the Court held that the consultation process itself should be examined on a standard of reasonableness; the question should be whether the regulatory scheme or government action viewed as a whole accommodates the collective Aboriginal right in question and whether every reasonable effort has been made to inform and consult. In Beckman, the Court suggested that the standard of review with respect to the adequacy of consultation is correctness and that a decision maker who proceeds on the basis of inadequate consultation errs in law. However, if the consultation is adequate, the resulting decision is to be reviewed on a standard of reasonableness. The latter approach is similar to the approach taken by the courts in reviewing decisions of administrative tribunals for procedural fairness. Where the issue is the tribunal s compliance with the duty of fairness, the tribunal s process is reviewed without deference and on a standard of correctness to determine whether it in fact complied with the requirements of procedural fairness. However, the substantive decisions of administrative tribunals on matters within their jurisdiction are generally reviewed on a standard of reasonableness. In Neskonlith Indian Band, the Court of Appeal applied the reasonableness standard to both the procedural and substantive aspects of the City s decision, looking at the reasonableness of the consultation process followed and also the reasonableness of the resulting decision to issue a development permit. 26 * Jill Dougherty is a partner at WeirFoulds LLP. She has over 25 years experience acting on behalf of both private and public sector clients. She appears regularly as counsel before trial and appellate courts and administrative tribunals in many aspects of public law. 23 [2004] 3 SCR 550, 2004 SCC Neskonlith Indian Band, supra footnote 1, at paras [2010] 3 SCR 103, 2010 SCC Neskonlith Indian Band, supra footnote 1, at paras. 60,