Supreme Court of Canada –  2 S.C.R. 650
This decision confirmed that First Nations can obtain compensation for lack of consultation. Any effect on an Aboriginal right must be harmful and novel in order to trigger a duty to consult. If the resource was modified a long time ago and the government action poses no new threat, the obligation is to compensate and not to consult.
[…] the duty to consult arises when: (1) the Crown has knowledge, actual or constructive, of potential aboriginal claims or rights; (2) the Crown proposes conduct or a decision; and (3) that conduct or decision may have an adverse impact on the Aboriginal claims or rights. This requires demonstration of a causal connection between the proposed Crown conduct and a potential adverse impact on an Aboriginal claim or right. (para. 51 of the decision)
Is the British Columbia Utilities Commission (the “Commission”) required to consider the issue of consultation with the CSTC First Nations in determining whether the sale of excess power from a dam to a Crown corporation is in the public interest? Does the duty to consult apply in situations where a land claim is pending?
The Commission was correct in not considering the possibility of consultation with the CSTC First Nations. Although the duty to consult can apply in situations where a claim or right has not yet been proven, it cannot be triggered as a remedy for a previous failure to consult. The sale of excess power to the British Columbia Hydro and Power Authority (“BC Hydro”) does not present any new risk of harm to Aboriginal interests and so there is no new duty to consult (unanimous decision).
Between: Rio Tinto Alcan Inc. and British Columbia Hydro and Power Authority
And: Carrier Sekani Tribal Council (CSTC)
Interveners: Canada, Ontario, British Columbia, Alberta, British Columbia Utilities Commission, Mikisew Cree First Nation, Moosomin First Nation, Nunavut Tunngavik Incorporated, Nlaka’pamux Nation Tribal Council, Okanagan Nation Alliance, Upper Nicola Indian Band, Lakes Division of the Secwepemc Nation, Assembly of First Nations, Standing Buffalo Dakota First Nation, First Nations Summit, Duncan’s First Nation, Horse Lake First Nation, Independent Power Producers Association of British Columbia, Enbridge Pipelines Inc. and TransCanada Keystone Pipeline GP Ltd.
The Nechako River in Northwest British Columbia is crucial to the fishing and sustenance activities of the Carrier Sekani Tribal Council (CSTC) First Nations. In the 1950s, the Kenney dam was built without their consultation. The dam affected the timing and amount of water flows into the Nechako River, which had an impact on existing fisheries on lands claimed by the CSTC First Nations.
In 1987, Rio Tinto and the government entered into an agreement to allow the release of waters to regularize the water flow and preserve the fish stock. Since 1961, the excess electricity generated by the dam has been sold to the Crown corporation, BC Hydro. In 2007, Rio Tinto entered into an Energy Purchase Agreement (“EPA”) with BC Hydro, in which it committed to selling excess power generated from the dam. The CSTC First Nations claim the Nechako Valley as their ancestral homeland, as well as the right to fish in the Nechako River.
Rio Tinto Alcan: The duty to consult with regards to the 2007 EPA does not exist. As such, there is no obligation for the Commission to consider the possibility of consultation.
Carrier Sekani Tribal Council: The issue of consultation should have been heard before the Commission. The duty to consult applies because the 2007 EPA is part of a larger hydro-electric project which has a continuing impact on Aboriginal rights.
The British Columbia Utilities Commission: Dismissed the CSTC’s application to reconsider the decision to exclude the consultation process on the grounds that the 2007 EPA would not introduce new adverse effects on the pending claims or rights of the CSTC First Nations. The failure to consult on the initial project of building the dam was not sufficient to trigger a duty to consult.
The B.C. Court of Appeal: The honour of the Crown obliged the Commission to consider the possibility of consultation. A contract made in violation of the Crown’s constitutional duty could not possibly be in the public interest.
McLachlin, Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein, Cromwell
Power of the Commission
The Crown decided to delegate a part of its duty to consult to the Commission. Its enabling act therefore permits to determine if the Aboriginal peoples affected had been properly consulted. The Commission, however, does not have jurisdiction to carry out the consultation itself, in the instance where the obligation exists.
Duty to consult – Conditions for existence
During the treaty claims process, the Crown has an implicit duty to consult with the Aboriginal groups when there is a chance of adverse effects on their treaty or Aboriginal rights, with the intent of accommodation. The purpose of consultation is to protect unproven or established rights from irreversible harm as the settlement negotiations proceed.
The magnitude of the duty to consult depends on the strength of the Aboriginal claim on a first glance, as well as the gravity of the impact that the decision may have. The remedy in the case of breach also depends on the situation, with the general rule being the awarding of damages.
In order for there to be a prospective duty of consultation, the Crown must have real or constructive knowledge of a credible land claim or right that stands to be affected by the proposed government action.
In this case, the CSTC First Nation’s claims were well-known to the Crown. The contract is about the purchase of extra power by BC Hydro, a Crown corporation of the Province of British Columbia, but there is no appreciable harm that could potentially be caused as a result of the sale. As a general rule, the impact need not be immediate; however, there must be a causal relationship between the proposed government action and the potential for adverse impacts on pending Aboriginal claims or rights.
A duty to consult cannot be triggered as a remedy for a prior failure to consult, as in this case. In and of itself, the failure to consult the CTSC First Nations in the 1950s before the construction of the dam is not sufficient to trigger a duty to consult. There must be a risk of a novel adverse impact on a present claim or existing right. The present government decision to buy extra power generated by the existing dam does not have any further impact on the resource. The proper remedy would therefore be to negotiate compensation for the prior lack of consultation, instead of a requiring that a consultation process be started anew.
The constitutional dimension of the duty to consult gives rise to a special public interest. In this case, however, there is no reason for there to be a duty to consult.
In recognizing a prospective duty to consult, the Court created an alternative way of reconciling Crown and Aboriginal interests, instead of stopping development by court order until a time-consuming lawsuit runs its course. The duty to consult is not a means of redressing past injuries. It is meant to pre-empt irreversible harm through interim protection of unproven Aboriginal interests.
The Court also found that the impact on an Aboriginal right need not be physical, and could be of an organizational, policy or managerial nature.
The duty to consult applies to situations where a Crown corporation is involved. Unfortunately, the Court failed to specify exactly which government bodies are bound by this obligation.
The Court also distinguished between the capacity to determine whether consultation has taken place, and the Crown capacity to consult. The job of the courts is to determine whether the Crown has fulfilled its constitutional obligation, and not to carry out that obligation themselves.
Carver, Peter. 2012. Comparing Aboriginal and Other Duties to Consult in Canadian Law. Alberta Law Review 49 (4): 855-891.
Lavoie, Natasha et Leboeuf, Sylvain. 2011. Les arrêts Rio Tinto Alcan Inc. et Little Salmon/Carmacks : précisions sur le principe de l’honneur de la Couronne et sur l’obligation de consulter les communautés autochtones. XIXe conference des jurists de l’état. En ligne: http://www.conferencedesjuristes.gouv.qc.ca/textes-de-conferences/pdf/2011/ . Consulté le 26 juin 2013.
Sanderson, Chris W., Keith B. Bergner and Michelle S. Jones. 2012. “The Crown’s Duty to Consult Aboriginal Peoples: Towards an Understanding of the Source, Purpose, and Limits of the Duty.” Alberta Law Review 49 (4): 821-853.