LOCAL GOVERNMENTS DO NOT HAVE DUTY TO CONSULT WITH FIRST NATIONS

Most First Nations in this province fall within a Local government area whether it is a Regional District or a Municipality.  These local governments give permits with respect to different types of developments within their boundaries.  The province still issues major permits under their laws but the Local Government Act in Schedule 1 sets out what authorities a local government has to issue development permits.

First Nations and local governments may or may not have good relations depending on what area of the province you are in.  I always think that a Local Government or a First Nation should not have to go to court to argue whether they the Local Government has a duty to consult, but should work together to address each parties concerns.  When you live side by side, it makes imminent sense that you get along. There are many First Nations that have Memorandums of Understanding or other agreements with Local Governments on how they will work together.    When you don’t see eye to eye, developing a process for dispute resolution would be in everyone’s best interests.  Since, we don’t live in a perfect world, there are courts that determine who has what duty.

On September 24, 2012, the BC Court of Appeal again decided in the case of Neskonlith Indian Band v. the City of Salmon Arm (http://www.courts.gov.bc.ca/jdb-txt/CA/12/03/2012BCCA0379.htm) that Local Governments do not have to consult with First Nations.  Considering that some decisions that Local Governments do make that can impact on aboriginal rights, establishing a relationship with the Local Government may be the best course of action. Or ensuring that consultation occurs with the Province in whatever approval authority they may have over the Local Government is another option especially when the duty to consult lies with the Province.

Neskonlith has a reserve that is just upriver from the city of Salmon Arm.  The city of course is located in an area that is important to the First Nation for their traditional use within the delta and floodplain of the Salmon River and access a minimum of 70 different culturally important plants.  Development in the floodplain could also affect flooding within the reserve.

The city was asked to provide an Environmentally Hazardous Area Development Permit which is required under their Official Community Plan (OCP) to locate a shopping centre on privately owned lands within the delta and floodplain area.  The Neskonlith First Nation did appear at public hearings and provided their expert report that the shopping mall should be at least 1.5 metre higher than the city was requiring.  There were responses of the city’s expert to the First Nation’s expert and more dialogue.

The City required the approval of the Province on the Riparian Areas regulations (RAR) Assessment that was put together by the developer.  The fifth Assessment was finally approved by the province and the City then issued the Hazardous Area Development Permit.  What is missing from the judgement and probably should have been argued is that the Province should have consulted with the Neskonlith Indian Band on the RAR assessment.  This is where the actual duty to consult lay.  There is no evidence that Neskonlith was consulted by the province on this.  But this was not the issue that was before the court.

The Court ruled that the duty to consult is with the Crown and the honour of the Crown cannot be delegated to anyone else.  These principles have already been established in other cases.Third parties may be given “procedural aspects” of consultation but only if their enabling statute explicitly or impliedly gives them such powers.  In the case of local governments, there are no such powers given in any legislation and more importantly do not have remedial powers to accommodate First Nations.  Third parties may be in a position to provide effective remedies but this does not mean they have a constitutional duty to do so.

The court was very clear that local governments lack the “practical resources” to consult and accommodate.  That many of their decisions are mundane regarding licenses, permits, zoning restrictions and local by-laws.  And that the daily life of the local government would be seriously bogged down if consultation was to occur whenever a right or interests of a First Nation “might be” affected. And further that “ 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. (para 72.)

The court also in paragraph 71 states that Local governments are “generally” concerned about the regulation of privately-owned land and activities thereon. Crown and natural resources remain within the purview of the province.  It is because the Crown has asserted sovereignty over lands previously occupied by Aboriginal peoples that the Crown has a duty to consult.
Lots of flags go up on the reasoning of the court.  The court seems to forget that aboriginal title remains on privately owned lands as was recognized in the Hupacasath v. Ministry of Forestry decision.  But what if a municipal decision had the effect of destroying or negatively impacting an aboriginal right and the province had no role with the Water Act, Fish Protection Act, etc., could a duty to consult be found with a municipality?  This decision says no.

The goal of reconciliation is to make sure First Nation rights are not impacted before a treaty or settlement can be reached.  If local governments affect those rights, there will be no reconciliation and that is an unfortunate result of this case. First Nations are daily “bogged down” with consultations from the provincial and federal government and must consult regardless of their capacity to do so.

There are other cases at the BC Supreme Court level that came to this same conclusion that local governments do not have to consult with First Nations so this is not a new concept.  In the case of Musqueam Indian Band v. Richmond(city) 2005 BCSC 1069, the court rules that the city and casino did not have to consult with Musqueam over the proposed casino but the province did.  Also in the case of Adams Lake v. BC 2011 BCSC 266, the court again reiterated that the province had to consult with respect to the incorporation of a municipality but the municipality itself did not have any independent constitutional duty to consult with the band.

As there is now this BC Court of Appeal case that has very clearly stated municipalities do not have the duty to consult, it is the current state of the law.  As I stated earlier, it would be good for First Nations to be developing a relationship with the Local Government and negotiate an agreement with them on how decisions will be made and how input is given from each party to lands that either party has jurisdiction over. As well, ensure that the province consults with your First Nations on areas they have decision making over local governments would be important as that would be where your remedy would lie if there was not proper consultation by the province.

There are also examples of how First Nations through treaty have become part of the regional district with voting powers and it will be interesting to see how that works out as the treaties get implemented.  I did sit on the Alberni Clayoquot Regional District for four years as a non-voting member on behalf of the Nuu-chah-nulth Tribal Council.  It helped me understand the process of local governments and helped to establish relationships with the various areas around the table but a large part of their business was not applicable to First Nations.  It was important to be there to discuss possible impacts on aboriginal rights and fish farms were one of those issues or a proposed smelter in Port Alberni. Relationships with the regional districts makes sense so that possible services could be shared, business built together, strategies for tourism and marketing the region could be done effectively.  There is no end to what can be accomplished together once common goals are established and processes put in place on how decisions are made and avoid costly court cases. 
 

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