British Columbia’s Court of Appeal has endorsed a significant loophole in the constitutional duty to consult Aboriginal peoples by confirming that the grant of powers to municipalities by provinces does not automatically carry with it the power and duty to consult.

In Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379, Neskonlith asserted that the City owed them a constitutional “duty to consult” in connection with the issue of a development permit required for the construction of a shopping centre on privately-held land that borders the Neskonlith Reserve, part of the Band’s traditional territory.

Their petition for judicial review was dismissed on the basis that the municipal government had not been given any authority to consult on behalf of the Crown and thus had no duty to do so. The Court of Appeal dismissed the appeal.

In its reasons, released on September 24, 2012, the Court of Appeal upheld the decision of the lower court, that the City has no duty to consult Neskonlith. Alternatively, the “adverse effect” was highly speculative, requiring consultation at the low end of the spectrum, and the consultation that had taken place was sufficient. Neskonlith’s objections had been taken seriously, they had been heard at various public meetings, their experts’ views had been considered and the proposed project had been modified to meet expressed concerns.

The Court rejected what it acknowledged were strong arguments for the Indian Band to the effect that

• The powers of a municipality are delegated to it by the province. The honour of the Crown imposes a constraint on the exercise of that authority.  If it were otherwise, the province could eliminate or avoid its constitutional duty to consult by delegating the decision to its statutory creature, a local government
• Municipalities are “government”, subject to the Canadian Charter of Rights and Freedoms, just like federal and provincial legislatures. If they were not, provincial government could sidestep the Charter by devolving powers on municipalities (see the decision of the Supreme Court  of Canada in Godbout v. Longueuil (City) [1997] 3 S.C.R. 844) The same reasoning must apply to the duty to consult

The Court held instead that it was bound by the Supreme Court’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (2010 SCC 43, [2010] 2 S.C.R. 650) that a tribunal with power to adjudicate whether a duty to consult exists does not, without express or implied statutory authority, have the power and duty to carry out consultation. A “tribunal” charged with the obligation to consult and accommodate, would require “remedial powers” that municipalities, like quasi-judicial tribunals, do not have.

We comment as follows on the Court’s decision

• The decision appears to permit provincial and municipal governments to sidestep the duty to consult in the exercise of significant development approval powers apparently without recourse for affected Aboriginal communities
• If the Court is correct that the duty to consult does not attach to the grant of powers to a municipality, where does it attach? Can the approval of the municipality be stayed pending consultation by the province? Is the enabling municipal statute constitutionally flawed because it has not made adequate provision for consultation?
• When a province grants powers to a municipality, those are powers that the province could otherwise have exercised itself and to which constitutional duties, such as the duty to consult, attach. It is difficult to see why these duties do not automatically pass to the Municipality together with the power. The remedial power is surely inherent in the ability for the municipality to withhold the approval or grant it on conditions?
• The creation by a province of a tribunal with adjudicative powers does not lend itself so readily to the same analysis. A tribunal is usually created to provide independent adjudication rather than to duplicate a function that the province itself would otherwise have performed

We wait, with interest, to see if this decision is appealed to the Supreme Court.

To read the full text of the Court of Appeals’ reasons, click here.