Turtle Talk

Back in March, we reported on the Adams Lake Band’s successful duty to consult petition.  Recently, in that same case, the Sun Peaks Resort was successful in being added as a respondent in the appeal.  Here it is.

35          It is far from certain that Sun Peaks Resort’s rights are affected at all by this decision. But on an application such as this, I cannot make a determination about what might turn out to be the very question on the appeal. The scope and extent of the Province’s consultation duties and whether existing contractual arrangements (the MDA) are entirely immune from such consultation duties may be live issues on appeal.

36          In my view, the correct approach is (as I have said) a flexible one. Sun Peaks Resort has satisfied me that its rights may be affected, possibly significantly. Balancing the prejudice as between the parties would favour permitting Sun Peaks Resort to be added as a respondent. Any prejudice to Adams Lake may be remedied in costs. If at the end of the day, it transpires that the addition of Sun Peaks Resort was unnecessary, or unfounded, Adams Lake would presumably seek a remedy in costs. Adams Lake has expressed concern that the inclusion of Sun Peaks Resort may require the Court to consider on appeal new issues that were not considered at trial. I do not agree that this is a significant concern. As I understand the position of Sun Peaks Resort it wishes to argue that the judgment embraced an overly broad view of the Crown’s duty to consult, one that required the Crown to consult over in-place contractual arrangements with Sun Peaks Resort. That issue was a live issue at trial and will no doubt continue to be a live issue on appeal.