Neskonlith Indian Band v. Salmon Arm (City)

The B.C. Court of Appeal has upheld the lower court ruling in Neskonlith Indian Band v. Salmon Arm (City).  The lower court’s ruling was the topic of our April, 2012 client bulletin.

As noted in our client bulletin, the lower court held that the City of Salmon Arm was not under a legal duty to consult with the Neskonlith Indian Band in relation to the issuance of a development permit over lands adjoining the Salmon River, upstream of the Band’s reserve.  The development permit authorized the development of a shopping centre.  The Band was concerned that if flood protection works were eventually constructed to protect the shopping centre from potential flooding, damage to environmentally sensitive areas on the Band’s lands  would result.

The Court of Appeal agreed with the lower court that Supreme Court of Canada decisions such as Haida Nation v. British Columbia (Minister of Forests) and Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council make it clear that delegates of the provincial Crown do not owe a legal duty to consult or accommodate First Nations, in the absence of having statutory authority to do so.  The Court of Appeal referred to passages from the Rio Tinto case which indicate that tribunals and other bodies subsidiary to the Crown can only be found to have the power to consult where they possess the remedial power necessary to “accommodate” First Nations interests.  As the Court of Appeal noted: “…. municipalities do not in general have the authority to consult with and if indicated, accommodate First Nations as a specific group in making the day to day operational decisions that are the diet of local governments”.  The Court also noted that municipal governments lack the practical resources to consult and accommodate.  Finally, the Court noted that if the Crown’s duty to consult were indeed to be “pushed down” to local governments, such that consultation and accommodation were to be “thrashed out” in the context of licensing, permitting, zoning and bylaw decisions, the result would be completely impractical.  As the Court noted:

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 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.  In the 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.

Whether this case will be appealed to the Supreme Court of Canada remains to be seen, however in the meantime the Court of Appeal’s decision provides much needed clarity on the law concerning the duty to consult and accommodate First Nations.