Court dismisses Neskonlith band appeal

By Martha Wickett – Salmon Arm Observer

September 24, 2012

An appeal launched by the Neskonlith Indian Band regarding the SmartCentres shopping development has been dismissed by the BC Court of Appeal.

In a decision rendered today at the Vancouver Law Courts, Madam Justice Newbury, Mr. Justice Hall and Madam Justice D. Smith agreed that arguments put forth by the Neskonlith were not sufficient to overturn a decision made in April by Justice Peter Leask in BC Supreme Court.

At that time, Justice Leask dismissed the Nesklonlith’s request for a judicial review. The band had argued that the City of Salmon Arm had a legal or constitutional obligation to consult with the band before issuing the environmentally hazardous areas development permit for the SmartCentres site. The site is adjacent to the Salmon River, which borders Neskonlith land to the west.

Leask concluded that the duty to consult, when decisions may affect aboriginal rights or title, rests with the province.

The band had argued that because the province had delegated some land-use decisions to municipalities with no oversight from the province, then the duty to consult also transfers to municipalities. Its argument included the concern that the property will flood, requiring flood control measures. Those flood-control measures would then do damage to the environment and the interests of the band.

Following the decision issued Monday, Sept. 24, a SmartCentres’ spokesperson told the Observer that next steps haven’t been decided yet.

In an email, Sandra Kaiser, vice-president of corporate affairs for SmartCentres, wrote: “Our lawyers are in the midst of digesting the decision to provide us with a fulsome understanding of the implications of the decision. Once this has happened we will consider the next steps regarding our site.”

Mayor Nancy Cooper said city council will be reviewing the decision with the city’s lawyers, but “it is positive for Salmon Arm and, indeed, for all local governments.”

She explained by saying that if the appeal had been upheld, it would have far-reaching ramifications.

“If it was the other way around, it would call into question any decision that any municipality or local government made.”

Nonetheless, Cooper said she is thinking about the Neskonlith band and hopes to be in touch with Chief Judy Wilson later this week.

“I will be contacting the Neskonlith band through their Chief Judy Wilson, just to see how we can move forward together.”

Wilson told the Observer the band is also discussing the decision with its lawyers and will be commenting on it later.

Named in the appeal were respondents the City of Salmon Arm and Salmon Arm Shopping Centres Inc. while the Union of BC Municipalities was granted intervenor status. The status was granted because the decision could potentially have had far-reaching effects for municipalities.

Justice Newbury addressed three questions in reaching her decision: 1) Was the City of Salmon Arm subject to the Crown’s duty to consult and, where appropriate, accommodate with respect to the issuance of the development permit? 2) Was the issuance of the permit conduct that might adversely affect the assumed aboriginal rights or title claims of the Neskonlith and 3) If the city was subject to a duty to consult, was that consultation adequate in this case?

She referred throughout her decision to a 2004 case involving the Haida Nation versus the BC Minister of Forests, as well as a 2010 case featuring Rio Tinto Alcan Inc. versus the Carrier Sekani Tribal Council. Among other things stated in the 38-page document, she wrote, with regard to the first question, that municipal governments lack the practical resources to consult and accommodate First Nations.

“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.”

She also wrote that it would be “completely impractical” for municipal governments to do so.

“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.”

As to whether issuance of the permit might adversely affect the Neskonlith, she writes that the effect is “uncertain, indirect, and at the far end of the spectrum of adverse effects” mentioned in the Haida case.

She states that the Neskonlith’s expert on flooding makes a number of important assumptions: “That the development would experience flood conditions (which Shopping Centres says is doubtful given that it will be building only on the portion of the property that has been occupied in the past); that the flooding would be of such a level and of such duration that there would be an ‘imperative demand’ for flood protection; that the public authorities would respond to such demand; and that they would do so either by modifying the river channel or constructing a dike along the river and below the Highway #1 bridge. It is far from certain that all of these would come to pass.”

Regarding adequacy of consultation, Justice Newbury writes: “I conclude that the process in this case was reasonable; that the Neskonlith were fully and promptly informed of all the applications and amendments relevant to the permit and to the development generally; that they were given several opportunities to express their concerns; that their objections (and those of others) were taken seriously and did lead to material modifications of the planned development; and that the city’s decision itself lay within the range of reasonable outcomes.”

Read the court decision here:

http://www.courts.gov.bc.ca/jdb-txt/CA/12/03/2012BCCA0379.htm

Here is the conclusion to the decision:
[90]         The Neskonlith submit that “Even the lowest form of consultation demands substantive engagement and discussion” with the First Nations, and that that has not occurred in this case.  In the absence of any statute or case law that requires a particular form of consultation, I cannot agree.  I conclude that the process in this case was reasonable; that the Neskonlith were fully and promptly informed of all applications and amendments relevant to the permit and to the development generally; that they were given several opportunities to express their concerns; that their objections (and those of others) were taken seriously and did lead to material modifications of the planned development; and that the City’s decision itself lay within the range of reasonable outcomes.

Disposition

[91]         For all these reasons, I would dismiss the appeal.