Premier David Eby has announced a special task force on “AI in the council chamber”. The twelve-person group is made up of leaders from the governance and technology sectors in BC and, of course, Silicon Valley. Its marching orders, set out in terms of reference released along with the official government announcement, include: review best practices and experiences from other jurisdictions; consider and make recommendations on allowing chat-bots to serve as council members in British Columbia municipalities.

The task force will have one year to complete its work and report back to the Ministry of Housing and Municipal Affairs, so we can expect to learn more on April 1st, 2027.

Guy Patterson

(1) DRIPA incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the domestic law of British Columbia, as an interpretive aid; 

(2) the Crown has a statutory mandate under DRIPA to ensure that laws in British Columbia are consistent with UNDRIP; and 

(3) in certain circumstances, courts can determine whether a law of British Columbia is consistent with UNDRIP. 

While a court will not invalidate or strike down a law based on inconsistency with UNDRIP – which is an international human rights instrument first adopted by the United Nations General Assembly – it can issue a declaration stating the inconsistency. Such a declaration would form a basis for informing the Crown’s statutory obligation to consult in respect of the consistency of its laws. 

Gitxaala arose from a judicial review of the Province’s decision to operate an automated online registry system in respect of mineral rights. Under this system, “free miners” are able to register claims to mineral rights on Crown land prior to any constitutional consultation taking place between the Crown and an affected First Nation. The two First Nations at issue, Gitxaala and Ehattesaht, argued both that the Crown breached the duty to consult by maintaining these decisions, and that the Mineral Tenure Act was inconsistent with UNDRIP. In the Supreme Court of British Columbia, the Nations were successful on the first issue, but not the second. On the UNDRIP issue, the BC Supreme Court found that nothing in DRIPA indicated that a court should adjudicate the issue of consistency between UNDRIP and a law of British Columbia. 

A majority of the Court of Appeal disagreed with this conclusion, holding that DRIPA – and in particular sections 2 and 3 – imposes a positive obligation on the Crown to “take all measures necessary” to ensure that all the laws of British Columbia are consistent with UNDRIP. Compliance with this obligation may require legislative, executive, or administrative action. In the context of the case, the Court of Appeal found that the Crown could potentially comply with this duty either through the tabling of amendments to the Mineral Tenure Act or through policy changes regarding the “free miner” system. 

The majority also confirmed that section 8.1 of the Interpretation Act, which requires that all laws of British Columbia be interpreted in a manner that is consistent with UNDRIP, has significant effects. This provision means that all laws will be construed as consistent with UNDRIP unless they show a contrary intention. Applying this principle, the majority found that the Mineral Tenure Act was inconsistent with article 32(2) of UNDRIP, which states: 

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Notably, the Province did not advance the position on appeal that the Mineral Tenure Act was consistent with UNDRIP and instead relied wholly on the position that relief of the kind sought by the Gitxaala and Ehattesaht was unavailable on a reading of DRIPA. Accordingly, the Court did not engage in a detailed consideration of Article 32(2) or other articles of UNDRIP.

While Gitxaala arose in relation to the effects of a provincial statue on Crown land, the effects of the decision are broader than this and will certainly be felt by local governments in British Columbia. While local governments are not bound by section 3 of DRIPA, because they are not the “government” and therefore do not have to “take all measures necessary” to align their laws with UNDRIP, a First Nation wishing to challenge a local government decision may now argue that the decision is incompatible with an UNDRIP-consistent interpretation of the statutory provision under which it is made, including for reasons of the local government’s failure to properly consult the First Nation in accordance with UNDRIP before making it.  Alternatively, the First Nation may seek a declaration that the statutory provision is simply inconsistent with UNDRIP and must therefore be dealt with by the Legislature.  How a court would adjudicate such challenges would be specific to the applicable facts of the case and the articles of UNDRIP that are engaged. 

This bulletin has not reviewed the reasons of the dissenting judge, but we simply note that the presence of a dissent in our Court of Appeal (which is rare) indicates the controversy attached to this matter. Also indicative of this controversy, as well as the far-reaching consequences of the ruling, are statements made by both the Premier and the leader of the opposition. Premier Eby, who introduced the legislation as Attorney General in 2018, has indicated that the government will review the decision and “if necessary, amend the Declaration Act”.  Meanwhile, the new Conservative leader, Trevor Halford, has stated that the BC Conservatives will “work co-operatively” to repeal the legislation completely. 

Reece Harding and Nick Falzon 

However, the more remarkable component of the case is the fact that, for the first time in Canadian legal history, a court found that Aboriginal title exists in respect existing fee simple titles. The Court held that Cowichan Tribes’ Aboriginal title invalidated the fee simple titles of Canada and Richmond and that its Aboriginal title also at least co-existed with the fee simple titles of private owners who had not been notified of the proceedings. Those are findings are both unprecedented in Canadian legal history. 

The analysis that led the Court to these conclusions is lengthy, complex, and deserving of careful thought and attention. The purpose of this paper is not to provide a comprehensive review of every issue canvassed in the judgment. Rather, our goal is to give readers a foundation in the core concepts behind the decision and to explain, in brief, the outcome. 

Section 35 of the PLA allows the court to cancel charges against land on five grounds.  Two of those grounds were engaged in the Watermark case: (i) the charge was obsolete, and (ii) cancellation of the charge would not injure the person entitled to its benefit.  The covenant in question had been registered in 2007 as a condition of rezoning and subdivision approval and prohibited construction of buildings to protect a portion of a corridor for a future roadway project extending from Kelowna’s downtown to the Okanagan campus of UBC, and comprising three segments. Construction of Segment 1 (closest to the downtown) was included in the OCP and Transportation Management Plan (TMP), both of which had 20-year planning horizons out to 2040.  For Segment 2, the cost of land acquisition (but not construction) was also included in the OCP and TMP.  The final leg, Segment 3, which included the portion covered by the covenant over Watermark’s lands, was not included in the OCP or TMP.  Watermark argued that this amounted to abandonment of that portion of the road project by Kelowna, rendering the covenant being obsolete.

The appeal court observed that the project had evolved in scope (going from a four-lane road with interchanges to two lanes) and been much delayed from its 2007 vision when it was anticipated that Segments 1 and 2 would be completed within the next 3 years; progress since had been “glacial” in the words of the Court.  However, there had been no express abandonment of Segment 3. Nor had there been any actions or expressions of interest that could constitute “effective abandonment”, the Court noting steps taken more recently by Kelowna to protect other portions of the road corridor in Segment 3.  While acknowledging that these steps did not amount to a commitment to proceed with completion of Segment 3, and that the plan was subject to future budgeting and feasibility studies, that was “different from being abandoned” and thus did not satisfy the properly understood definition of “obsolete” under s. 35.

Addressing the chambers judge’s more specific observations going to the finding of obsolescence, the appeal court stated that:

1. the length of the timeframe for realizing the project was irrelevant, as long as “the plan remains in play”, rejecting the lower court’s reliance on a case where a no-build covenant had been cancelled just 4 years after registration as establishing a benchmark for an excessive timeframe;
2. the fact that the eventual construction of Segment 3 was uncertain did not render its future a matter of “pure speculation” in the context of the City’s sequential planning of the three segments; and
3. the lower court’s finding that the City had abandoned the historical vision of the road project in favour of a “patchwork extension” was a palpable and overriding error; the purpose underlying the protection had not been abandoned; the three segments were always seen as sequential sections of a planned continuum. 

Summing up, the appeal court accepted that planning beyond 2040, with no funding having been committed, could be described as “speculative”.  However, the kind of road project at issue involved “planning long into the future”. So long as the prospect of proceeding with Segment 3 “remains realistically in contemplation”, the protection of the corridor was not obsolete within the meaning of s. 35 of the PLA. 

With respect to the further ground that cancellation of the covenant would not injure the City, the chambers judge was found to have erred by balancing the interests of the City with those of the landowner. Properly interpreted, s. 35(2)(d) does not involve a balancing of interests.  Depriving the City of its legal right under the covenant would have serious consequences by adding significant expense to the project, equating to a real injury to Kelowna.

The Court of Appeal’s decision in Watermark is a welcome acknowledgement of the realities facing local governments in planning for future infrastructure projects.  Orderly planning and delivery of such projects would be adversely affected if protective charges could be cancelled by courts applying a watered-down standard of “effective abandonment” arising out of long timeframes for project realization.

Hopefully, the decision will assist in maintaining the effectiveness of no-build and other protective covenants as useful planning tools.

Barry Williamson

Aboriginal Title Declared Over Fee Simple Lands in Landmark Decision: Reece Harding, Gregg Cockrill & Nick Falzon
Legal Notations - When to Pay Attention: Jacob Lewin
Legislating Within Limits: Recent Case Law on Provincial Authority: Jack Wells
A Lesson in Justification - 667895 B.C. Ltd. v. Delta (City), 2025 BCCA 279: Lynda Stokes & Rubal Kang
Stairway to Litigation?: Guy Patterson & Serge Grochenkov
Bill 11 - Sick Notes No Longer Needed for Short-Term Medical Absences: Amanda Scott
Regulating Short-Term Rentals: A Novel Constructive Taking Claim to Lookout For: Ramon Dabiryan
Procedural; Fairness and Municipal Codes of Conduct: Nick Falzon & Nate Ruston
Look For Your Lawyers

Fee simple title is, in general terms, as close to absolute ownership as exists in the Canadian system of property law. As homeowners know, fee simple title carries with it a right of exclusive use and occupation. While fee simple titles are subject to regulation by the government, and the exercise of rights on fee simple titles is also limited by common law principles like the law of nuisance, fee simple title has always been reliable, secure, and constant. 

Aboriginal title is a concept that courts have found to be recognized by section 35 of the Constitution Act, which states that “the existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognized and affirmed”. Aboriginal title, like fee simple title, is a form of land ownership that carries with it an exclusive right of use and occupation. However, unlike fee simple, which is registered in a land title system created provincially, Aboriginal title has been called by Canadian courts a sui generis interest. This means that Aboriginal title is “of its own kind, or “unique”. Canadian courts have said that Aboriginal title is a collective form of title that attaches to a particular indigenous body. It carries with it three things: (1) the right to exclusive use and occupation of the land; (2) the right to determine the uses to which the land is put; and (3) the right to enjoy the economic fruits of the land. 

Until the Cowichan Tribes decision, no court had ever directly grappled with a circumstance in which fee simple title was challenged as being invalid on the basis of a claim for Aboriginal title. That was exactly what was put to the Court in this case. Among other findings, the Court found that the Province of British Columbia has no jurisdiction to extinguish Aboriginal title through the granting of fee simple interests. 

While the decision is very lengthy and complex, and is being appealed, its implications could be far-reaching if upheld. If indigenous bodies can prove Aboriginal title to a fee simple parcel in British Columbia, then a Court may invalidate that title. The Court also appears to contemplate certain circumstances in which Aboriginal title and fee simple title might co-exist, with Aboriginal title as a “burden” on fee simple estates that were granted by the Province. How such titles could co-exist is not a question that the Court answers, as the specific remedy granted in relation to Richmond’s title allowed the Cowichan Tribes’ title to overcome and displace that of Richmond.

We will continue to report on this landmark case as we come to understand other implications that affect BC local governments.

Reece Harding, Gregg Cockrill & Nick Falzon

In Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, the Supreme Court of Canada had to decide whether the same access regime applies to wireless telecommunications infrastructure, specifically “5G small cell antennas.” The Court concluded it did not and that to install small cell equipment on local government infrastructure, telecom carriers must secure the local government’s agreement. 

The decision turned on the Court’s interpretation of the term “transmission line” (which is undefined in the Telecommunications Act), because the CRTC’s authority to grant access to telecom carriers under the Act only applies to transmission lines. If the term “transmission line” included wireless transmission infrastructure, then telecom carriers could use the CRTC access regime to install 5G small cell antennas on local government property; if it did not, then carriers would have to negotiate with local government. The Court held that wireless telecom infrastructure is not included within the ordinary meaning of “transmission line,” which is instead limited to transmission of intelligence along physical linear pathways. Antennas, which emit radio waves that travel through space, did not fit naturally within the ordinary meaning of transmission line. 

The carriers argued that the term “transmission line” ought to be read in harmony with Parliament’s broader policy objective of facilitating the “orderly development” of telecommunications. They said a broad interpretation of “transmission line” that includes antennas would best accord with Parliament’s objective by ensuring the efficient deployment of 5G infrastructure across the country. 

 A broader interpretation would clearly be favourable to telecom carriers because it would allow them to seek a CRTC order for access, despite any local government objections. However, the Court was not convinced. The Court noted that Parliament had no issue placing other limits on the scope of the telecom access regime and that the existence of a procedure for installing antennas under the Radiocommunications Act signalled Parliament’s intention to maintain a distinction between how wireless and wireline equipment ought to be treated. The Court concluded that Parliament intended to leave access to public property sites up to good faith negotiation between carriers and the relevant public authorities, including local governments. 

The Supreme Court’s ruling makes clear that until Parliament says otherwise, telecom carriers do not have the same right of access to install wireless infrastructure on local government land as they do for wired technology. Because the CRTC does not have jurisdiction to set the terms of access for small cell antenna installations, local governments can refuse to allow telecom carriers to use their infrastructure for 5G small cell antennas unless the carriers offer satisfactory terms, and the CRTC cannot interfere.

Nick Falzon has also written about this case in the firm's June 2025 Newsletter.

Ramon Dabiryan & Lynda Stokes

Prior to passing the resolutions, Council was provided with a staff report that contained information on the potential censure and sanction of the Mayor “for his actions in distributing/promoting” the book. The report set out four bullet points describing what were defined as the “Events” underlying the report – they were:

1. The distribution of the book by the Mayor’s wife;
2. The fact that the CAO informed the Mayor that the Lhtako Dene Nation was upset about the actions of the Mayor’s wife;
3. The fact that the Mayor said he had seen the book at his home but had not opened it; and
4. A report in local media that the Mayor himself attempted to distribute the book at a Regional District meeting.

The Mayor argued the resolutions were procedurally unfair because the staff report was ambiguous and did not clearly indicate that censure and sanctions would be decided, and that the staff report failed to provide specific details and evidence about the alleged misconduct. 

In response, the City argued the staff report provided sufficient information for the Mayor to understand the issues, and that the decision to censure and sanction was based on the Mayor’s leadership and accountability, not on the factual issues with respect to whether the Mayor was actually promoting the book.

The Court found that the staff report was not a clear and unambiguous document setting out the allegations that would underlie a motion of censure and sanction – that is the “case to be met” [at para. 164]. The first two Events underlying the report related to actions of persons other than the Mayor, and the third (the fact that he had seen the book but not opened it) was uncontroversial [at para. 167]. The Court recognized that the Mayor “personally attempt[ing] to distribute the book at a Regional District meeting” was a “substantive and active allegation,” but noted that Council proceeded on a different basis than this allegation. In its decision to adopt the resolutions, Council appeared to have “pivot[ed] to a new theory of the case against the Mayor – that the book does not matter, but that something had to be done to improve the relationship with the Lhtako Dene Nation and other Indigenous bodies that deteriorated as a result of the Mayor’s actions” [at para. 174]. In summary, the Court found that the City failed to observe procedural fairness by purporting to censure and sanction the Mayor based on a staff report that was “at best ambiguous and confusing” and deciding to censure and sanction the Mayor based on alleged misconduct different from the “Events” that were set out in the staff report.

Motions of censure have long been used by all levels of government to express disapproval of a member’s conduct. In the municipal context, the courts have affirmed that councils are entitled to use this procedure to respond to the conduct of their members, sourced from the relatively broad powers in sections 4 and 114 of the Community Charter for municipalities and their councils to control their own processes [Dupont v. Port Coquitlam (City), 2021 BCSC 728; Barnett v. Cariboo Regional District, 2009 BCSC 471; Skakun v. Prince George (City), 2011 BCSC 1796]. However, the power to censure for misconduct is one which must be exercised with great care and discretion. Municipal staff should ensure that staff reports prepared for these decisions provide an unambiguous factual record and a clear indication of the consequences at stake for the affected party. Councils should ensure that the misconduct they are voting to censure is in line with the information on the record before them and proceed on the basis outlined in the staff report. Failure to do so may attract criticism from the courts for improper observance of procedural fairness.

Jack Wells, Nick Falzon & Reece Harding

Local governments will likely recall completing a survey in September of 2024 for the OIPC – this survey was the foundation of the Report and asked questions targeting three main categories of FOI processes: (1) the administration of the application fee; (2) proactive disclosure; and (3) records made available for purchase. The OIPC identified four specific issues in the Report, and provided corresponding recommendations to improve upon FOI processes. The first three are aimed directly at local governments, while the last one requires clarity from the provincial government.

1. Local governments should have telephone or online payment options when administering application fees

The OIPC found that local governments vary in how they administer application fees for an FOI request, including for waivers of fees and for the fee payment options made available. Local governments, on average, provided at least six different payment options, with some providing ten or more. Some, however, had no options for applicants to pay application fees by telephone or online (such as by credit card or e-transfer). The OIPC noted that online and digital payment options are commonplace nowadays, and far more convenient for applicants, providing greater expediency and accessibility. Conversely, limiting forms of payment to those that require applicants to pay in person, or via regular mail, may create barriers to the right of access. As such, the OIPC recommended that all public bodies that administer an application fee should have fee payment options that allow applicants to pay by telephone or online.

2. Local governments should provide mandatory and more comprehensive routine training to staff

The OIPC noticed a discrepancy between several local governments’ proactive disclosure practices and what their staff actually knew about their proactive disclosure practices. Nearly a quarter of municipalities reported that they did not proactively make records available to the public. The OIPC reviewed the official website for each municipality and found that, in all cases, those municipalities did, in fact, proactively release records to the public. The OIPC described this as “concerning”, suggesting municipal staff are either unaware that their municipality routinely releases records or do not understand the requirements of section 71 of FIPPA, potentially having a substantial impact on the public’s access to records. As such, the OIPC recommended that municipalities should provide mandatory routine training to all staff on:

• FIPPA and their responsibilities under FIPPA;
• municipal routine disclosure and FOI policies and processes; and
• how and where to locate records available for routine disclosure

3. Local governments should publish meaningful categories for routine disclosure

FIPPA requires the head of a public body to establish categories of records available to the public without an FOI request, but the survey data showed that local governments differ in the volume and types of records made available. Many local governments established categories of records that were generally well-documented, descriptive, and meaningful, while others reported they had not established any categories. In other circumstances, the OIPC found that established categories were overly broad, not descriptive, and less meaningful (such as simply categorizing records as “routine release”). As such, the OIPC recommended that municipalities publish meaningful categories for routine disclosure, meaning they:

• regularly consider their records and establish meaningful categories for routine disclosure;
• publish the records in an easily accessible and highly visible location; and
• ensure that staff direct people to the records without delay upon request.

4. The provincial government should establish clear criteria to determine when a record is excluded from FIPPA

Finally, the OIPC found inconsistencies across local governments about which records are made available for purchase, and whether obtaining a record for purchase still requires an FOI request and staff intervention. Section 3(5) of FIPPA sets out certain records that are not subject to the access provisions in Part 2 of FIPPA, including records available for purchase or records that do not relate to the business of the public body. The OIPC acknowledged that further guidance is needed on this section and that the absence of clear criteria has led to a broad application of this provision. As such, the OIPC directed its final recommendation toward the provincial government to establish clear criteria that would help local governments, and other public bodies, determine which records should be provided for purchase as opposed to for proactive disclosure or regular FOI processes, along with the associated costs.

Amy O’Connor & Jack Wells