Turtle Talk

In Adams Lake Indian Band v. British Columbia (Lieutenant Governor in Council), [2011] B.C.J. No. 363, the British Columbia Supreme Court allowed a petition by the Adams Lake Indian Band, which was resisting the actions of a ski resort seeking status as an incorporated municipality. 

The Band claimed that the area in question is part of their traditional territory and that the provincial government failed to adequately consult it about the formation of a new municipality.

The province maintained there was adequate consultation and accommodation of the Band’s concerns and interests.  The court disagreed.

Adams Lake Indian Band was one of three bands that formed the Lakes Division of the Secwepemc Nation, which claimed as part of their traditional territory a large area of British Columbia’s south central interior plateau. Their traditional territory included a parcel of land known as the Sun Peaks Controlled Recreation Area (“Sun Peaks”). The Secwepemc Nation claimed aboriginal rights and title to the lands encompassing Sun Peaks and had made its claims known to the federal and provincial governments since 1860. Sun Peaks was a mountain resort that included developed areas at the base of the resort lands and recreational ski areas at higher altitudes. Until the 1990s, Sun Peaks was a small ski hill operated under the name of Tod Mountain. In 1993, the Provincial government entered into a master development agreement (MDA) with Tod Mountain Development Ltd. (now Sun Peaks Resort Corporation) that contemplated a phased expansion of the ski hill by the development of resort facilities and recreational improvements. To facilitate this expansion, the MDA permitted the purchase of Crown lands within the traditional areas claimed by the Lakes Division and the Band in particular. The MDA brought about a rapid expansion of the ski resort, and with the expansion came increased conflict with the Lakes Division bands, who claimed that the MDA was inconsistent with their title to the land and with their traditional use and occupation of Sun Peaks. The absence of consultation with the surrounding aboriginal bands regarding the expansion of the ski resort inflamed the relationship between the Lakes Division bands and the Provincial government. In the midst of this climate of mistrust and acrimony, the residents of Sun Peaks sought to attain status as an incorporated municipality. The process towards incorporation began in 2005 when a committee of volunteers, who were residents of Sun Peaks, formed the Sun Peaks Incorporation Study Committee (the Governance Committee) to investigate the feasibility of incorporation as a mountain resort municipality. Incorporated status was granted to Sun Peaks by the issuance of Letters Patent pursuant to Order in Council No. 158/2010 on March 25, 2010. From June 28, 2010 onward, Sun Peaks became Sun Peaks Mountain Resort Municipality (the Municipality). The Band claimed that incomplete and inadequate consultation with the Band preceded the Lieutenant Governor in Council’s decision. The Provincial government maintained that there was adequate consultation and accommodation of the concerns identified by the Band through the consultation process.

HELD: Petition allowed. The Province did not fulfill its constitutional duty to consult with the Band with respect to the incorporation of the Municipality prior to the issuance of Order in Council 158/2010 by the Lieutenant Governor in Council. The Province was ordered to engage in a consultation process with regard to the incorporation of the Municipality to uphold the honour of the Crown and in a manner that reflected the strength of the claims and the serious impact on the Band’s interests. The Province did not conduct a preliminary assessment of the strength of the claim for aboriginal rights and title advanced by the Band for the purpose of its consultation about the incorporation of the Municipality. Nor did the Province provide the Band with an opportunity to comment on its preliminary assessment of the strength of its claims regarding Sun Peaks. Furthermore, the Province did not make inquiries of the Band in regard to the nature and scope of the aboriginal rights and title they were advancing as part of the Secwepemc Nation. Accordingly, the Province failed to adequately fulfill the first stage of the consultation process. The Province misconceived the significant potential impact a change in local government might have on the aboriginal interests claimed by the Band. Incorporation of the Municipality had a direct and significant impact on the Band’s ability to effectively consult with the Province about proposed municipal decisions, and the enhanced influence and control of Sun Peaks Resort Corporation on Municipal policies changed the character of the decision maker to their detriment. The Province was required to engage in meaningful, deep consultation when addressing amendments to the MDA. The Province failed to uphold the honour of the Crown in its dealings with the Band during the incorporation consultation. While the government continued to engage the bands in a consultation process with regard to the MDA and the transfer of the timber administration, it announced that the incorporation consultation was complete and ignored the bands’ concerns that the incorporation would further entrench the power and influence of the Sun Peaks Resort Corporation over the new local government and was thus intimately connected with these other issues. This was not a reasonable consultation process.