The Nations’ concern was that the OCP set a fixed number of “bed units”, which limited the amount of accommodation-related development that could occur in Whistler. The Nations’ position was that the OCP would undermine their ability to develop lands in the Whistler area to which they claimed Aboriginal rights and title.
The OCP was developed by Whistler and required the Province’s approval. Whistler engaged with the Nations through the public consultation process for creating an OCP required by s. 879 of the Local Government Act. Whistler refused to change the bed unit limit, asserting that the Nations’ right to develop Crown lands within its boundaries was a matter for the Province to deal with . The Province took the position that it could rely on Whistler’s consultation procedure to satisfy the duty to consult. The Province required Whistler to provide a record of its engagement with the Nations, which it would review to determine whether there were any potential impacts that would trigger the duty to consult [54-55]. The Province determined that the duty to consult fell on the low end of the spectrum [e.g. 99]. After making small efforts to consult with the Nations, the Province approved the OCP without altering the bed unit limit.
Was there a duty to consult?
The OPC triggered the duty to consult even though was a policy rather than a regulatory document. Haida Nation states that the duty applies not only to new laws or regulations, but to Crown conduct or decisions. Sambaa K’e Dene Band v Duncan, 2012 FC 204 held that non-legally binding decisions may create “momentum” towards a particular course of action .
There was a duty to consult even though the former OCP established bed unit limits. The Nations were not attempting to litigate “past wrongs,” but challenged a new plan that was capable of triggering the duty to consult. The former OPC had been developed without consulting the Nations, and made little reference to their interests [138-139].
The fact that the OCP could be amended did not mean there was no duty to consult. The duty arises whenever a decision has the potential to adversely affect asserted Aboriginal rights or title. Additionally, it was unlikely that the Province would be involved in amendments to the OCP. Given that municipalities do not have a duty to consult, the Province’s approval of the OCP may have been the only opportunity that the Nations had to consult with the regarding the OCP’s impacts. It was therefore the time when consultation should have occurred [140-144].
The approval of the OCP triggered the duty to consult because it was a strategic, higher level decision that could potentially affect land use decisions, and would remove the Province’s control over future OCP amendments or zoning decisions. Decisions to maintain the status quo of land use still trigger the duty to consult, as they may affect Aboriginal peoples’ use of land such as to exploit their economic interests [151-152].
What was the scope of required consultation?
There is conflicting authority on the standard of review regarding the determination of the scope of consultation. Cases such as West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247 and Halalt First Nation v British Columbia, 2012 BCCA 472 held that the standard of review is correctness, while others such as Klahoose First Nation v Sunshine Coast Forest District (District Manager), 2008 BCSC 1642, Huu-ay-aht First Nation et al v Minister of Forests et al, 2005 BCSC 697, Dene Tha’ First Nation v Canada (Minister of Environment), 2006 FC 1354 and Dene Tha’ First Nation v British Columbia (Minister of Energy and Mines), 2013 BCSC 977 held that deference is required if the determination of the scope of consultation is premised on findings of fact. As the former cases are more recent decisions coming from the British Columbia Court of Appeal, they should apply. The standard of review is therefore correctness.
The Nations had a strong prima facie claim for Aboriginal title [169-170]. The approval of the OCP had a moderate impact on the Nations’ interests protected by s. 35, namely the ability to develop land in an area where developable land is scarce and strictly defined . The level of consultation required therefore falls at the medium level . The Province was incorrect in determining the decision fell at the low end of the spectrum.
Was consultation adequate?
The Province was “solely focused” on approving the OCP before the upcoming election . The timing of the election led the Province to bring consultation to a close. The Crown may not conclude a consultation process because of external timing pressures when there are outstanding issues to be discussed [213-214].
The consultation carried out by Whistler was not the same as was required by the duty to consult. The Province could not delegate the duty to consult to Whistler, nor could Whistler fulfill that duty. The Province was entitled to rely on Whistler’s engagement record to a degree, but the duty ultimately rested with the Province. The Province failed to clarify the difference between the two consultation processes and caused frustration because the bed unit issue did not reach the decision-maker with the proper authority until late in the process [205-209].
The Province relied almost exclusively on Whistler’s engagement record, and made little effort to engage in its own consultation. It did not hold face to face meetings with representatives of the Nations, made no attempts to involve any other Ministry with whom the Nations dealt in other ongoing negotiations, and denied requests for further consultation because of time constraints imposed by the upcoming election. The Province was “locked into its position from the beginning” [210-212].
JFK Law Corporation gratefully received the BC Civil Liberties Association’s award for excellence in legal advocacy by a law firm on June 19, 2014. JFK Law and BCCLA joined forces to challenge the “Management Protocol”, a federal policy that allowed female prisoners to be subjected to indefinite periods of solitary confinement. JFK and BCCLA represented a courageous woman, Bobby Lee Worm, who was held for three and a half years in solitary confinement under the policy. Shortly after her challenge was commenced, the Management Protocol was cancelled. This case was an important step in challenging the unconstitutional uses of administrative segregation in Canada, and JFK Law is proud to have been a part of this effort alongside our colleagues at BCCLA.