On June 4, 2014 the British Columbia Supreme Court (the “Court”) released its decision in the Squamish Nation case. In this case the Squamish Nation and Lil’wat Nation (the “Nations”) challenged the Province’s decision to approve the Resort Municipality of Whistler’s (the “Municipality”) 2011 Official Community Plan (the “Plan”).
The Nations argued that the Plan poses potential adverse impacts on their economic interests in the lands by virtue of their Aboriginal title and previous accommodation agreements with the Province, and that the Province failed to fulfill its duty to consult them.
The Court held that the Province incorrectly assessed the scope of consultation that it owed to the Nations and failed to adequately fulfill its duty to consult the Nations. The Court quashed the Province’s decision to approve the Plan. In its Reasons for Judgment, the Court clarified that the duty to consult and accommodate extends to economic interests and impacts, and that the Crown may not rely exclusively on third party engagement to fulfil its duty to consult.
Giving Effect to the Economic Component of Aboriginal Title
The Nations asserted shared Aboriginal title. In applying the Haida framework, the Court made a preliminary assessment of the strength of claim and was of the view, based on evidence of village sites, sacred places and cultural sites, that the Nations had a strong prima facie claim to Aboriginal title.
The Court rejected the Province’s argument that because the Plan limits future development and conserves the current state of the land, there was no potential for adverse impacts to the Nations’ rights. The Court reasoned that this argument ignores the “inescapable economic component” of Aboriginal title. Irreversible or irreparable harm to lands and resources is not necessary to find adverse impact, and the duty to consult is not limited to the goal of preserving lands for traditional use. Thus, although the Plan would not deplete resources or cause damage to the lands, it could potentially infringe on the Nations’ economic interests in a serious way by restricting the Nations’ ability to develop lands. This potential economic impact triggered a duty to consult. The Court concluded that in this case, the potential adverse effects were moderate because only certain types of development were restricted, and that the Crown was therefore required to consult with the Nations at the mid-range of the Haida spectrum.
The economic component of title is now confirmed to be an aspect of a First Nation’s prima facie claim to title that triggers the Crown’s duty to consult. Squamish Nation is the second recent decision from the Court to find that a duty to consult is triggered when there is a potential for a First Nation’s economic interests in land to be adversely impacted (See also: Ehattesaht First Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 849). These cases confirm that the Province is wrong when it says that the duty to consult only arises when there are adverse impacts on “traditional uses”.
Reliance on Third Parties to Consult Does Not Fulfil the Duty
In deciding whether to approve the Plan, the Province relied primarily on engagement with the Nations undertaken by the Municipality under the Plan process. The Province reviewed the Municipality’s efforts and provided the Nations with a limited comment period in which they were asked to identify any impacts that they had not identified to the Municipality.
The Court noted that municipalities cannot fulfill the Crown’s duty to consult. The Province can delegate procedural aspects of consultation to third parties such as developers or municipalities, but it cannot rely exclusively on such consultation. The Court found that the Province made little attempt to engage in its own consultation. The Crown was intransigent, wanting to approve the Plan before the writ dropped for the provincial election.
The Court also held that the Province was obligated to make the consultation process transparent. The Province failed to do this by not clarifying the roles and obligations between itself and the Municipality.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers practicing in Government-To-Government Relationships.