Are Municipalities Subject to the Duty to Consult? The BCCA in Neskonlith Indian Band v Salmon Arm (City)
November 20th, 2012
In Haida Nation v British Columbia (Minister of Forests),  3 SCR 511 [Haida], the Supreme Court of Canada (“SCC”) set out the framework for the duty to consult, holding that this duty arises “whenever the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.” The Court further articulated that, while the Crown may delegate “procedural aspects” of consultation, the “ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated” [emphasis added].
Six years later, in Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council,  2 SCR 650 [Rio Tinto], the SCC elaborated on Haida. It held that the Crown may delegate its duty to consult to a tribunal, but only if the duty were conferred onto the tribunal by legislation.
On September 24, 2012, the British Columbia Court of Appeal (“BCCA”) released its decision in Neskonlith Indian Band v Salmon Arm (City), 2012 BCCA 379, which asks whether the duty to consult extends to municipal governments.
Pave Paradise, Put Up a Shopping Mall
The legal action in this case stems from a municipal permit granted to a developer to build a shopping mall on privately owned land. This land borders the Neskonlith Indian Reserve #3. It is regarded by the Neskonlith as being their traditional territory, even though no treaty negotiations nor claims for Aboriginal title have been initiated.
The land in question was not “paradise” per se; the decision describes it as previously being used for “a slaughterhouse, an RV sales centre and a scrapyard.” It is presently home to “a significant amount of debris, including old cars, trailers, discarded oil drums, construction debris and other waste.” What is important, however, is that the Salmon River runs through the property, flowing downstream to the Neskonlith Reserve.
The owners of the property applied for a permit from the City of Salmon Arm to build a shopping mall on the property. The Neskonlith objected to this development, particularly because they felt the mall was going to be built at too low of an elevation. As such, it could potentially cause flooding on the Neskonlith Reserve. Further, the Neskonlith contended that the positioning of the development may require modifications to the river channel in the event of future flooding.
The owners of the property applied for their first permit, which was denied in 2008 after extensive public consultations and environmental assessments. The application for the permit was then amended to reflect a development on a smaller area of land and broader environmental protections. This permit was granted in 2009.
The “Third Order” Creatures of Statute
After the permit for development was granted, the Neskonlith made a petition for judicial review, with the single goal of quashing the permit. In its decision, the British Columbia Supreme Court (“BCSC”) addressed only the question of whether the City of Salmon Arm had a duty to consult with the Neskonlith regarding the development. The Court held that the honour of the Crown is non-delegable and rests at all times with the provincial or federal government. It also found that, while the “procedural” aspects of the duty to consult may be delegated to third parties (as stated in Rio Tinto), the authority to consult must be expressly or impliedly conferred by statute. In this case, the BCSC found that the Local Government Act, RSBC 1996, c 323, had not conferred to the municipality the adequate powers to engage in consultation or accommodation of Aboriginal interests. Therefore, it was decided that the City of Salmon Arm was under no legal or constitutional obligation to consult with the Neskonlith before issuing the permit.
The BCCA’s decision raises some interesting questions about the broader political question of the place of municipalities within Canada’s system of governance. As Madam Justice Newbury points out, municipalities are created by provincial legislation, rendering them “creatures of statute.” Therefore, the provincial governments are expected to delegate powers to municipal governments.
The Neskonlith argue that as one level of government (municipal), the duty to consult has not been delegated to them expressly, but rests with them implicitly as they carry out their legislated authority. As is stated in the Neskonlith’s submission:
A generous and purposive application of the honour of the Crown requires consultation whenever government authorizes activities which interfere with Aboriginal rights and title, whether that authorization comes directly from the Province or from local governments exercising delegated provincial authority…The honour of the Crown therefore “imposes a constraint on the exercise of authority delegated by the Province. If it were otherwise, the Province would be in a position to eliminate or avoid this core principle by delegating the decision to its statutory creature, a local government. Such avoidance would not be consistent with the honour of the Crown.
The Neskonlith also made an interesting argument with respect to the jurisprudence surrounding the application of the Charter to municipal governments. As municipal governments are subject to the Charter, the Neskolith contend that this is analogous to municipal governments being subject to the duty to consult. In Godbout v Longueuil (City),  3 SCR 844, the SCC held that “[s]ince the Canadian Charter clearly applies to the provincial legislatures and governments, it must…also apply to entities upon which they confer governmental powers within their authority. Otherwise, provinces could…simply avoid the application of the Charter by devolving powers on municipal bodies.” Thus, the Neskolith contend that, if the duty to consult does not flow down to municipalities, the Crown is basically able to shirk their duty to consult with regard to any decisions made by municipal governments.
The Big Question: Was the City of Salmon Arm Subject to a Duty to Consult?
The Neskonlith argue that the duty to consult should attach automatically to any governmental body exercising the authority of the Crown. Moreover, they argued that it makes “practical sense” for municipal governments to possess this duty, as local governments are often in the best position to assess the effect of decisions on Aboriginal groups.
However, these arguments were not accepted by the BCCA. Justice Newbury found that, while the Neskonlith’s arguments are “strong,” there are “even more powerful arguments, both legal and practical, that…mitigate against inferring a duty to consult on the part of municipal governments.”
For example, the BCCA stated that municipalities lack the ability to provide “sufficient remedies to achieve meaningful consultation and accommodation.” By contrast, in Haida, the SCC found that provincial governments do have sufficient remedies. As is stated in the decision, “as creatures of statute, municipalities do not in general have the authority to consult with and if indicated, accommodate First Nations as a specific group in making day-to-day operational decisions that are the diet of local governments.”
Lastly, Justice Newbury explained: “The 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 licenses, permits, zoning restrictions and local bylaws, would be completely impractical.”
At the end, the BCCA concluded that the City of Salmon Arm was under no duty to consult with the Neskonlith in regard to the issuing of the building permit.
This decision leaves a large gap in the reconciliation between the Crown and Aboriginal groups that is supposed to be filled by the duty to consult. The decisions made by municipal governments may be “mundane” in an administrative sense, but they have very real consequences and often immediate effects on people’s lives. Zoning permits and municipal bylaws shape the way in which people interact with their surroundings, and decisions about how to plan municipalities have significant implications on the day-to-day lives of the municipality’s inhabitants.
I have to agree with the Neskolith that it is at the municipal level that governments have the greatest understanding of the effects of their decision-making on Aboriginal groups. The assertion in Haida that the honour of the Crown cannot be delegated was meant to protect Aboriginal groups by holding the Crown accountable at all times. However, this may not be what has happened in practice, leaving Aboriginal groups with few tenable remedies.[filed: List of cases]