BCCA Overturns Finding of Inadequate Consultation with Adams Lake Indian Band in Respect of the Incorporation of Sun Peaks Resort

On August 9, 2012, the BC Court of Appeal released its decision in Adams Lake Indian Band v. Lieutenant Governor in Council, 2012 BCCA 333 in which it reversed the BC Supreme Court's finding that consultation by the Province with the Adams Lake Indian Band in respect of the incorporation of Sun Peaks Mountain Resort as a municipality was inadequate. On appeal, the Province argued that the Chambers Judge had erred in including in her assessment of consultation not only the narrow issue of incorporation, but also ongoing consultation in respect of future related issues like land-use and past development impact issues. The BCCA agreed. It found that "the adequacy of consultation on any matters other than incorporation was not properly before the court." (para. 63) The BCCA further noted that consultation on "more important and more fundamental issues" (which in this case included future land-use and impacts from past developments) continued after incorporation, but it was "not generally the role of the court to supervise ongoing consultations and provide directions as to how they are to be conducted." (para. 63) In so finding, the Court reiterated and relied on the Supreme Court of Canada's reasons in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 that the focus of consultation is the currently contemplated Crown conduct, other mechanisms exist for dealing with past development impact issues. The BCCA found that the impact of incorporation was more formal than substantive and at best minimal. As to the issue of adequacy, the Crown's duty to consult fell at the low end of the consultation spectrum and the process in this case met the requisite level.