November 26, 2010

The duty to consult First Nations on matters arising from projects built without consultation

Aboriginal Law

The Supreme Court of Canada affirmed a finding of the BC Utilities Commission that British Columbia did not have a duty to consult the Carrier Sekani Tribal Council First Nations about a modern agreement for the sale of energy generated by a dam and reservoir already existing on the Nechako River, which project had been built in the 1950s without consultation, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (October 28, 2010).

BACKGROUND: In the 1950s, British Columbia authorized a power-generating dam project altering the amount and timing of water flows to the Nechako River, an area claimed by the Carrier Sekani Tribal Council First Nations, without consulting the First Nations. Since 1961, BC Hydro has purchased excess energy and electricity from Alcan (now Rio Tinto Alcan Inc.) under Energy Purchase Agreements (EPAs). When approval of an EPA was sought in 2007 from the Commission, the First Nations asserted a right of consultation. The Commission accepted jurisdiction to consider the adequacy of the consultation process, but found that the EPA would not adversely affect any First Nations interest. The BC Court of Appeal ordered the Commission to decide if the duty to consult existed, and if it had been met, but on an appeal from that decision by Rio Tinto Alcan Inc. and BC Hydro, the Supreme Court of Canada found the Commission reasonably concluded that the consultation issue could not arise because the 2007 EPA did not have the potential to adversely impact the claims or rights of the First Nations (para. 83).

THE DUTY TO CONSULT: The duty to consult is grounded in the honour of the Crown (para. 32) and arises when: (1) the Crown has knowledge, actual or constructive, of a potential First nations claim or right; (2) the Crown engages in contemplated conduct; and (3) the Crown’s contemplated conduct may adversely affect a (potential) First Nations claim or right (para. 31). While the claim is ongoing, the Crown has a duty to consult with the First Nations claimants and to accommodate interests with a view to furthering the goals of reconciliation between the First Nations and the Crown (para. 32, 34). The nature of the duty to consult varies with the circumstances, namely the strength of the prima facie claim and the seriousness of the impact on that claim by Crown’s contemplated conduct (para. 36), as do the remedies available in the event of a breach of the duty (para. 37). The duty to consult, however, is confined “to adverse impacts flowing from the specific Crown proposal at issue – not to larger adverse impacts of the projects of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration” (para. 53, emphasis in original). The court stated that the Commission was correct in concluding that “an underlying infringement in and of itself would not constitute an adverse impact giving rise to a duty to consult. […] The issue then is not consultation about the further development of the resource, but negotiation about compensation for its alteration without having properly consulted in the past” (para. 83).

THE COMMISSION’S JURISDICTION TO DECIDE ON ADEQUACY OF CONSULTATION: The Commission, in determining if an EPA was in the public interest, had the power to decide questions of law, including constitutional issues (para. 69). The Commission had the jurisdiction to assess the adequacy of consultation, and assess if a consultation issue existed in the circumstances.  The Administrative Tribunals Act, S.B.C. 2004, c. 45, which specifies that tribunals do not have jurisdiction over any “constitutional question,” did not apply, as a “constitutional question” was defined narrowly to cover challenges to the constitutional validity or constitutional applicability of any law, or are application for a constitutional remedy. The provision did not cover a “rescoping” order to address consultation issues (paras. 71-72).

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (October 28, 2010)