Photo credit: Doane Gregory
The Supreme Court of British Columbia judge (the “Chambers Judge”) had held that the Province had not met its obligation to consult and accommodate Adams Lake’s section 35 Aboriginal rights with respect to the incorporation (including concerning the amendment of Sun Peaks’ Master Development Agreement (the “MDA”)) of the municipality. The Province was ordered to conduct further “deep” consultation about the incorporation in the context of other ongoing consultation. The Province appealed.
The main issues before the Court of Appeal were: 1) Does consultation triggered by a present decision include consideration of past and ongoing impacts where consultation was absent in related past decisions? and 2) Is the Province required in all cases to do a strength of claim assessment at the outset of the consultation process?
The Court of Appeal overturned the Chambers Judge’s decision and answered both of the above questions in the negative. Essentially, the Court found that the issue was “simply a replacement of one form of local government with another”, that there was no direct impact from incorporation, and that therefore, there was no need for a strength of claim assessment and the duty to consult was at the low end and was met.
Scope of Consultation
The Court relied on the decision of the Supreme Court of Canada (“SCC”) in Rio Tinto and held that the adequacy of consultation on matters other than incorporation was not relevant. To get the remedy it sought, Adams Lake had to show that consultation regarding incorporation, as a stand-alone decision was inadequate.
The Chambers Judge had noted that Adams Lake’s concerns were focused on the development and continued expansion of Sun Peaks. Adams Lake opposed a decision on incorporation before other issues regarding the development of Sun Peaks were resolved. The Chambers Judge linked the municipal incorporation with an increased ability of the Sun Peaks Corporation (a separate entity from the Sun Peaks Mountain Resort municipality) to influence decisions to ensure further expansion and development that could adversely impact Aboriginal title and rights. The Court of Appeal disagreed with this reasoning on the basis that the development and land use remain subject to the MDA between the Province and the Corporation, which is not affected by the municipal incorporation. The Court held that issues regarding land use and timber harvesting are properly addressed in ongoing discussions about changes to the MDA. It remains open to Adams Lake to challenge future decisions that may have an impact on their rights and that are the subject of ongoing consultation.
The Court concluded that the Province was entitled to treat municipal incorporation as a stand-alone issue in consulting with Adams Lake. Citing Rio Tinto, the Court concluded that the Province need not address “past development impact issues in the consultation related to the municipal incorporation.”
In reaching its conclusion that the duty in this case was at the low end of the spectrum and was met, the Court of Appeal relied on the SCC’s statement in Haida, that “where the potential for infringement is minor … the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice.” In this case, the Court held that the Province had to balance the interests of Sun Peaks’ residents and property owners with Adams Lake’s interests, and that it acted reasonably in the circumstances.
The Court’s decision in this appeal reflects its characterization of the issue as a simple, straightforward and discrete one. The Court of Appeal stated at the outset that it is “important to an understanding of this appeal to note that this was simply a replacement of one form of local government with another.” Later in the judgment, the Court noted that incorporation of the municipality, on its own, was a straightforward decision. Regarding the impacts of incorporation, the Court noted that incorporation did not involve any alienation of Crown lands or private property, and that Adams Lake’s involvement in local government was improved by the creation of an advisory committee as a condition of incorporation. The Court held that the Chambers Judge erred in finding that there was an impact to Adams Lake’s interests.
Photo credit: Doane Gregory
Strength of Claim Analysis
The Court of Appeal agreed with the Province, that the Province and court need not undertake a strength of claim analysis where the impact of the decision in issue is not substantial. The Court concluded that the replacement of the previous form of local government with the new municipality did not increase the likelihood of infringements. The MDA was not changed by the incorporation, and the Province will still have to meet its duty to consult prior to approving any changes to the MDA.
It should be noted that although the Court did not refer to its recent decision in Tsilhqot’in, it seemed inclined to agree with the Province’s position that the claim to Aboriginal title in this case was weak because (relying on Marshall and Bernard) the lands in question are in an alpine area that, on the evidence, was only periodically used by Secwepemc people. The Court noted that arguably, such use “is not sufficient to found a claim to title.”
Conclusion on Consultation and Accommodation
The Court concluded that the Province acted appropriately in considering municipal incorporation separately from other issues regarding the Sun Peaks development. It held that because of the insubstantial impact, incorporation only triggered consultation at the low end of the spectrum.
The Court concluded that consultation regarding the municipal incorporation was adequate. Adams Lake was provided with information about the structure and legal effects of the proposed incorporation, and was given an opportunity to respond. Further, the Court held that the accommodation (a requirement that the municipality form a First Nations advisory committee, at least until the end of 2014) was reasonable in the circumstances.
Implications and Considerations
This case is part of a trend in the case law on the duty to consult that requires First Nations to articulate specific and new impacts from a specific new decision. It suggests that it will be important for First Nations engaged in consultation to clearly articulate the impacts of the present decision, even where it is linked to other decisions that have impacted Aboriginal title and rights and proceeded in the absence of consultation. It also suggests that First Nations should consider challenging decisions made early in the development process if consultation has been inadequate, rather than await the outcome of further discussions on future decisions related to the same development.
The Court in the end found it unnecessary to do a strength of claim analysis because of its view that the potential impact was insubstantial and thus could not trigger anything more than a duty to consult at the low end of the spectrum. While the Court does not discuss how the existence of a strong prima facie Aboriginal title case would influence the need for a strength of claim analysis, in our view, in the face of a strong Aboriginal title claim, the impact arguably becomes more significant. The impact should not be divorced from the right; what is being impacted is important, and a change in who makes decisions, even if there is no immediate impact on the ground, can be seen as a significant impact where there is a strong prima facie Aboriginal title case. This is because Aboriginal title includes the right to make decisions, and in at least some circumstances, such as where a developer is given a role in decision making, the extent to which the Aboriginal right to make decisions is impacted might depend on the structure of the decision maker. Thus even where the impacts flowing from a decision appear to be insubstantial, a strength of claim assessment may be necessary when considered in the context of the particular right at stake.
The key consideration of the Court of Appeal in this case appears to be its view that there was no discernible impact from the incorporation decision. The original MDA, which set out the terms under which Sun Peaks could develop, was entered into in 1993, before the case law on the duty to consult was developed. Development of the resort continues to be governed by the MDA, and the creation of the municipality does not change this. It is the MDA that authorizes the impacts that Adams Lake is concerned about, and regardless of the makeup of the local government, the MDA governs. While amendments to the MDA could be challenged if consultation is inadequate, the MDA is in place until 2044, and according to the Court, the Crown’s failure to consult about the original MDA can only be addressed when Aboriginal title and rights are proven in court or determined through negotiations.
This case is different from the West Moberly case, where the Court of Appeal held that the impacts of a decision on a caribou herd could not be properly considered and consulted about without considering that the herd has already been placed in jeopardy by past decisions. In Adams Lake, it is the MDA that allows the development, not the incorporation. The Court viewed incorporation as having purposes other than facilitating the expanded development of Sun Peaks. The two are related but one does not depend upon the other. The MDA could be amended whether or not the municipality was incorporated.
Once again, we see how the facts of the case drive the Court’s analysis. What is required to satisfy the honour of the Crown in meeting its consultation obligations will continue to be decided on a case by case basis.
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.