Wednesday, October 3, 2012

Municipalities do not have a duty to consult to accommodate Aboriginal interests

Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379 considers the duty to consult. In Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73 ruled that while the "processes of negotiation" towards reconciliation between First Nations and the Crown are being pursued, the honour of the Crown "may require it to consult and, where indicated, accommodate Aboriginal interests."  This "duty to consult" was said to arise 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".  (Para. 35.)  Does this duty require municipalities to consult?  

[66]        These are all strong arguments.  There are, however, even more powerful arguments, both legal and practical, that in my view militate against inferring a duty to consult on the part of municipal governments.  First, the Neskonlith's position seems to run clearly contrary to Haida and Rio Tinto.  In Haida, the Court stated expressly 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."  (Para. 53.)  While it is true that this statement was made in a particular context, the Court did not limit or qualify its words.  It rejected the notion that third parties who are in a position to provide an 'effective remedy' should for that reason alone be held to the duty; and in any event, it was not persuaded the Crown in right of the Province lacked the ability to provide "sufficient remedies to achieve meaningful consultation and accommodation" in that case.  As I will explain below, municipalities do lack that ability.
[67]        In Rio Tinto, the Court made an apparent exception to its statement in Haida, observing at para. 56:
The legislature may choose to delegate to a tribunal the Crown's duty to consult. As noted in Haida Nation, it is open to governments to set up regulatory schemes to address the procedural requirements of consultation at different stages of the decision‑making process with respect to a resource.
Whether the Court intended that only "procedural aspects" could be delegated is debatable, but the Court clearly rejected the notion that "every tribunal with jurisdiction to consider questions of law has a constitutional duty to consider whether adequate consultation has taken place and, if not, to itself fulfill the requirement regardless of whether its constituent statute so provides."  The Chief Justice stated for the Court:
... The reasoning seems to be that this power flows automatically from the power of the tribunal to consider legal and hence constitutional questions.  Lack of consultation amounts to a constitutional vice that vitiates the tribunal's jurisdiction and, in the case before us, makes it inconsistent with the public interest.  In order to perform its duty, it must rectify the vice by itself engaging in the missing consultation.
This argument cannot be accepted, in my view.  A tribunal has only those powers that are expressly or implicitly conferred on it by statute.  In order for a tribunal to have the power to enter into interim resource consultations with a First Nation, pending the final settlement of claims, the tribunal must be expressly or impliedly authorized to do so. The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere power to consider questions of law.  Consultation itself is not a question of law; it is a distinct and often complex constitutional process and, in certain circumstances, a right involving facts, law, policy, and compromise. The tribunal seeking to engage in consultation itself must therefore possess remedial powers necessary to do what it is asked to do in connection with the consultation.  The remedial powers of a tribunal will depend on that tribunal's enabling statute, and will require discerning the legislative intent: Conway, at para. 82.  [At paras. 59-60; emphasis added.]
[68]        It seems to me that the Court's reasoning provides a full answer to Mr. Underhill's argument on behalf of the Neskonlith that the duty to consult may arise "upstream" of the statutory provisions by which a municipality or local government is created and attaches not because the duty has been delegated, but "automatically" because the municipality is making a decision said to affect Aboriginal rights or interests.  It also, with respect, disposes of the notion that the duty to consult is analogous to the duty to apply theCharter.  The Court in Rio Tinto was mindful of the fact that any "tribunal" charged with the obligation to consult and if indicated, accommodate, would require "remedial powers".  Such powers have not been granted to municipalities, just as they have not been granted to quasi-judicial tribunals.  As the third order of government, municipal councils are simply not in a position to, for example, suspend the application of bylaws or the terms of OCPs, grant benefits to First Nations or indeed to consider matters outside their statutory parameters.  (See Westfair Foods Ltd. v. Saanich (District) 1997 CanLII 3686 (BC CA), (1997) 49 B.C.L.R. (3d) 299 (B.C.C.A.); 511784 B.C. Ltd. v. Salmon Arm (District)2001 BCSC 245 (CanLII), 2001 BCSC 245, 19 M.P.L.R. (3d) 232 at paras. 49, 56;Yearsley v. White Rock (City) 2009 BCSC 719 (CanLII), 2009 BCSC 719, at paras. 25-6, 28; 0742848 B.C. Ltd. v. Squamish (District) 2011 BCSC 747 (CanLII), 2011 BCSC 747, 84 M.P.L.R. (4th) 1 at paras. 13-8.)  A fortiori, local governments lack the authority to engage in the nuanced and complex constitutional process involving "facts, law, policy and compromise" referred to in Rio Tinto.
[69]        The Supreme Court in Rio Tinto also adverted to the argument that the Crown might avoid its duty to consult by limiting the statutory mandate of a tribunal.  This argument did not prevail in the face of the factual reality that the Utilities Commission did not have the statutory authority to discharge a duty to consult.  In the result, the First Nations were left with their legal remedies against the Crown in right of the Province.  The Chief Justice stated:
... The fear is that if a tribunal is denied the power to consider consultation issues, or if the power to rule on consultation is split between tribunals so as to prevent any one from effectively dealing with consultation arising from particular government actions, the government might effectively be able to avoid its duty to consult.
As the B.C. Court of Appeal rightly found, the duty to consult with Aboriginal groups, triggered when government decisions have the potential to adversely affect Aboriginal interests, is a constitutional duty invoking the honour of the Crown.  It must be met.  If the tribunal structure set up by the legislature is incapable of dealing with a decision's potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts:  Haida Nation, at para. 51.  [At paras. 62-3, 75; emphasis added.]
[70]        By virtue of Haida and Rio Tinto alone, then, it seems to me this appeal must fail as a matter of law.  It is not for this court to create an exception to or modification of the very clear statements the Supreme Court has made.  And while it is true that First Nations may experience difficulty in seeking appropriate remedies in the courts in cases like this one, it is also true that 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 the day-to-day operational decisions that are the diet of local governments.
[71]        I also suggest that despite the aspirational wording of s. 1 of the Community Charter noted earlier, municipal governments lack the practical resources to consult and accommodate.  Such governments (of which there are 191 in British Columbia) range greatly in size and tax-base, and are generally concerned with the regulation of privately-owned land and activities thereon.  Crown land and natural resources found thereon remain within the purview of the Province.  It is precisely because the Crown asserted sovereignty over lands previously occupied by Aboriginal peoples that the Crown in right of the Province is now held to the duty to consult: see Haida at paras. 26, 32 and 59.
[72]        Finally, I consider that 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. 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.


Anonymous said...

I hope this goes to the Supreme Court of Canada, because the Crown is indivisible, and includes municipalities. The "honour of the Crown" is something akin to our unwritten constitutional law.
I think this construes the honour of the Crown too narrowly, given the context of the issue.

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