Canada: Historical Infringements Do Not Trigger Current Consultation Duty

Copyright 2010, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Aboriginal Law/Energy, November 2010

In its recent decision in Rio Tinto Alcan v. Carrier Sekani Tribal Council, the Supreme Court of Canada held that the BC Utilities Commission is required to consider aboriginal consultation in determining whether the sale of electricity is in the public interest. The Court reaffirmed the duty to consult Aboriginal Peoples when the Crown contemplates conduct that may adversely affect an aboriginal claim or right. Importantly, the Court declined to extend that duty to situations where the Crown permits the continuation of a long-established activity that is predicated on a historical impact on aboriginal interests, without new adverse effects on aboriginal use of land or resources. The Court's reasoning is significant for users of land and resources across Canada whose activities could affect aboriginal or treaty rights.

Background

The case arose from the 1950s construction by Alcan, now Rio Tinto Alcan, of a dam on the Nechako River. The dam diverts water from the Nechako River, through a powerhouse, and into the Kemano River system to power Alcan's Kitimat aluminum smelter. The Carrier Sekani First Nations assert aboriginal rights and title in the area, including the right to harvest salmon from the Nechako River. They were not consulted when the dam was built, and claim that the dam affects their rights.

Alcan has been selling excess power from the dam to BC Hydro, the provincial electrical utility, since 1961. In 2007, Alcan entered into a long-term Energy Purchase Agreement with BC Hydro. The Agreement was subject to review by the BC Utilities Commission, to determine whether it was in the public interest. The Carrier Sekani urged the Commission to find that the Agreement was not in the public interest because it would negatively affect their rights, and they had not been consulted.

The Commission determined that the Agreement would not affect water levels in the Nechako River. With or without the Agreement, Alcan operates the dam to optimize power generation, and is obligated to ensure water levels for fish and other non-power uses in accordance with its water licence and a 1987 reservoir management agreement. The Commission concluded that the 2007 Agreement would have no new adverse effects on the Carrier Sekani's asserted aboriginal rights, and thus there was no need to further consider the duty to consult.

The Court of Appeal overturned the Commission's decision, holding that the Commission had prematurely truncated its consideration of the duty to consult issue (see our February 2009 Blakes Bulletin on Aboriginal Law/Energy). Alcan and BC Hydro appealed to the Supreme Court.

The Supreme Court Decision

The Supreme Court of Canada restored the Commission's decision. After reviewing the Commission's key factual conclusions on the potential impacts to the Carrier Sekani's rights, the Court concluded that the Commission acted reasonably in addressing the duty to consult.

The Court reaffirmed the analysis set out in its 2004 decision in Haida Nation v. British Columbia. The duty to consult arises when the Crown has knowledge, actual or constructive, of a potential aboriginal claim or right, and contemplates conduct that might adversely affect that claim or right. The Court affirmed numerous cases decided since Haida Nation which applied the consultation duty to "strategic, higher-level" Crown decisions where the potential impact was not immediate. Thus, even the design of the process to review the environmental impact of the proposed Mackenzie Valley Project required consultation, as did an inquiry into provincial electricity transmission infrastructure and capacity requirements. These are advanced planning decisions about the structure of resource management, well in advance of any Crown decisions permitting physical effects, yet consultation was still necessary.

With respect to the Carrier Sekani claim, the Court affirmed the Commission's conclusion that the 2007 Agreement would not bring about any "organizational, policy or managerial changes" that might impact resource management and, thus, the rights of the First Nations. The Court also rejected the First Nations proposition that consultation was triggered by negative impacts on their ability to negotiate a better water management regime. On this point, the Court stated that the duty to consult may serve "as a tool to achieve longer term compensatory goals", but its purpose cannot "be reduced to giving one side in the negotiation process an advantage over the other."

Likewise, the Court denied the Carrier Sekani claim that the dam's historical and continuing impacts on their interests should affect the analysis. "To trigger a fresh duty of consultation", the Court held, "a contemplated Crown action must put current claims and rights in jeopardy." A "past wrong" in and of itself does not give rise to a duty to consult. However, the Court confirmed the availability of other remedies, including damages, for historical breaches of aboriginal rights and the duty to consult.

The Court held that it was within the Commission's jurisdiction to review the consultation issue, as a matter of law and within the Commission's "public interest" consideration of the 2007 Agreement between Alcan and BC Hydro. The Commission was not legislatively mandated to undertake consultation to discharge the Crown's duty to consult. Having considered the potential effects of the Agreement, the Commission correctly concluded that it would not affect the water resource or its management. Further, the Agreement provides for a Joint Operating Committee involving BC Hydro representatives, who would have to consult Aboriginal Peoples before the Committee makes decisions potentially affecting their rights.

The Court also took the opportunity to speak generically about the role of regulatory tribunals in consultation. Reiterating that a tribunal only has those powers expressly or implicitly conferred on it by statute, the Court held that tribunals considering resource issues touching on aboriginal interests may have a duty to consult, a duty to assess the adequacy of consultation, or no duty at all. The legislated powers of the tribunal to consider questions of law and to take remedial action are relevant to determining the contours of its jurisdiction.

Impacts of the Court's Decision

For current or prospective owners of resource operations in aboriginal territory, the Court's decision means three things. First, if the development activity involves a historical impact on aboriginal interests, for example, via a fixed structure built long ago, a duty to consult will only be triggered by a new adverse impact, not the continuation of the prior impact. Existing pipelines, mines, roads and other infrastructure would likely fall into this category. Similarly, impacts on aboriginal interests that are strictly economic, where there is no physical impact on aboriginal use of land and resources, do not require consultation.

Second, the duty to consult will be triggered by high-level strategic decisions concerning resource management and proposed industrial operations with potential adverse impacts on aboriginal interests, even when those decisions are made at the earliest planning stages. Where the development is only at a preliminary planning stage, it will be important to tailor consultation to the available information, and ensure that consultation evolves along with project planning. While this principle is not new, its affirmation by the Supreme Court enforces its importance for those subject to government decisions on proposed developments.

Third, the Court has clarified that regulatory decision-makers may be legislatively empowered to engage in consultation, to assess the adequacy of consultation, both, or neither. It will be important for governments and parties involved in resource development to identify which decision-makers are responsible for each task. Boards and commissions like the BC Utilities Commission, even if not experienced with considering aboriginal issues in the past, will be increasingly called upon to do so in order to uphold their jurisdictional responsibilities. The Supreme Court emphasized that consultation is a process to "effect compromise and do whatever is necessary to achieve reconciliation of divergent Crown and Aboriginal interests" – a resounding reminder that the purpose of consultation is to implement ongoing reconciliation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

12 Nov 2018, Other, Toronto, Canada

Stories aren’t falsehoods. Stories are the root of all effective human communications: they motivate, animate and clarify. If you aren’t telling stories, you probably aren’t getting your point across.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions