No Duty to Consult with First Nations Before Issuing Development Permits

In Neskonlith Indian Band v. Salmon Arm (City), 2012 BCSC 499, a decision released April 4, 2012, the Supreme Court of British Columbia held that local governments do not have a legal and constitutional duty to consult with and accommodate First Nations when considering development permit applications, even where the proposed development may adversely affect aboriginal rights or title.

The case involved the issuance of a development permit under section 919.1(1)(b) of the Local Government Act [protection of development from hazardous conditions].  The developer wished to construct a shopping centre on private lands within the Salmon River delta and floodplain.  The Band opposed the development because of concerns that flood mitigation measures might be required in future to protect the development from flooding, and that those measures might have a negative impact on the Salmon River delta.  Evidence was presented confirming that the delta was an area of high cultural and ethnobotanical importance to the Band.  The Salmon River delta and a part of the floodplain were located within the boundaries of the Neskonlith Indian Reserve.

The Band made its concerns known after the developer submitted an application to amend the City’s Official Community Plan and to rezone the property.  Following the adoption of the bylaws, the developer applied for a development permit, and that permit was issued in October 2011.  The Band sought to quash the permit, basing its case on the constitutional obligation of the provincial Crown to consult with First Nations when contemplating decisions that may affect aboriginal rights and title (as discussed in decisions of the Supreme Court of Canada such as Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73).  The Band argued that where the Province delegates its authority to local governments to make decisions that may affect aboriginal rights and title, the statute delegating that authority must be interpreted in a manner that is consistent with the honour of the Crown.  The Band also argued that the Province’s “honour of the Crown” responsibilities in relation to the protection of aboriginal rights and title, which rights are recognized under section 35 of the Constitution Act, 1982, should apply to local governments in the same way that, as delegated bodies, local governments are subject to the Canadian Charter of Rights and Freedoms.

For its part, the City argued that it had a limited discretion in relation to the issuance of a development permit, and would be in violation of its statutory obligations to the developer if it were required to consult about matters not included in the applicable development permit guidelines.  The City also argued that local governments cannot stand in the shoes of the provincial Crown for the purposes of fulfilling the Crown’s duty to consult and accommodate a First Nation.

The Court agreed with the City’s position, and rejected the Band’s argument that the duty to consult vests automatically with any tribunal or subsidiary body that is empowered to make decisions affecting aboriginal rights.  Decisions of the Supreme Court of Canada such as Haida and Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council have held that the honour of the Crown cannot be delegated, and that the final responsibility for consultation rests at all times with the Crown.  However, as noted in Rio Tinto Alcan, procedural aspects of the Crown’s duty to consult may be delegated to an administrative tribunal. In order for the Crown to do so, the power to consult must be expressly or impliedly conferred by statute. The Court referred to previous decisions that have touched upon the limited role of local governments in relation to consultation with First Nations: Gardner v. Williams Lake (City); Musqueam Indian Band v. Richmond (City); and Adams Lake Indian Band v. British Columbia (Lieutenant Governor in Council). The Band itself agreed that there was no express or implied statutory language in the Local Government Act requiring or empowering the City to engage in consultation beyond that required in connection with the adoption of the Official Community Plan, under section 879.  The Band’s analogy to the Canadian Charter of Rights and Freedoms was rejected, as the purpose of section 35 of the Constitution Act, 1982 is substantially different from the Charter.

Although the case deals specifically with the issuance of development permits, the same reasoning should apply to the exercise of other local government powers, including the exercise of the zoning power and other Part 26 powers. As the court noted, it is open to the Province to impose a duty to consult under the governing legislation, but thus far the courts have not been persuaded that local governments have an obligation to consult under the Local Government Act or Community Charter except in the very limited case where this is set out in express terms.

While local governments may not have a duty to consult and accommodate that parallels the Crown’s, consultation with First Nations remains an important fact of life for local governments in British Columbia where local government concerns intersect with the exercise of provincial powers, for the reasons referred to in our Winter 2012 edition of LoGo Notebook.