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 rejected arguments for the Neskonlith that the municipality is “government”, subject to the duty to consult and that its powers are delegated by the province and contrained by the honour of the Crown.
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, and dismissed the appeal. 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 felt itself bound by a decision of the Supreme Court of Canada on the powers of a tribunal to carry out consultation. Like tribunals, the court concluded, a municipality lacks the necessary remedial powers and therefore the jurisdiction to carry out consultation.
Paul Manning of Manning Environmental Law, writing in his firm blog, comments:
• 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 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.
Originally published in Manning Environmental Law, http://manningenvironmentallaw.com/,