The Supreme Court of Canada released its unanimous decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 providing guidance in three areas related to the issue of consultation with First Nation, and the role of regulatory tribunals in assessing the adequacy of such consultation.
First, the Court provides some clarification on the circumstances when the duty to consult will be triggered. Second, the decision addresses the role of statutory tribunals in the assessment of consultation. Finally, the Court rules that in this specific case, the circumstances were such that the British Columbia Utilities Commission (BCUC) was not unreasonable in determining that the approval of the Purchase Agreement did not give rise to a potential adverse impact on First Nation's interests such as to trigger the duty to consult.
In 2006, Alcan announced plans to modernize and expand its smelter at Kitimat, B.C., which was powered via a large water diversion project. The Modernization Project depended on the successful conclusion of a power sale agreement with British Columbia Hydro and Power Authority. In 2007, B.C. Hydro entered in an Energy Purchase Agreement (EPA) under which it would buy Alcan's surplus electricity. Under s. 71 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, the EPA required the approval of the BCUC, a quasi-judicial tribunal with the power to decide questions of law. The Carrier Sekani Tribal Council intervened on the issue of consultation. The Tribal Council had asserted its interest in the subject water and related resources in an action for Aboriginal title and in the treaty process. On reconsideration, the BCUC found that the EPA would not affect the volume, timing or source of water flows, nor the volumes released. It dismissed the motion for reconsideration and subsequently approved the EPA. Having granted leave to appeal, the British Columbia Court of Appeal allowed the Tribal Council's appeal.
The Court of Appeal ruled that the BCUC had an obligation, arising from the honour of the Crown, to determine whether the duty to consult had been discharged in the context of accepting the EPA. It held that the BCUC had this obligation based on its jurisdiction to decide questions of law, which it presumed extended to questions of constitutional law. The Court of Appeal also referred to the public interest component of the BCUC's jurisdiction, questioning how a contract alleged to be in breach of a constitutional duty could be in the public interest. As such, this was an additional basis upon which to find that the existence and extent of a Crown duty to consult should form part of the public interest inquiry.
Refining the Duty to Consult
The Supreme Court decision reiterates the three criteria which give rise to a duty to consult. First, there must be Crown knowledge, actual or constructive, of a potential Aboriginal claim or right. Second, there must be contemplated Crown conduct. Third, that conduct must give rise to the potential that it may adversely affect an Aboriginal claim or right. On this latter point, the Court explained that a claimant must show a causal relationship between the proposed government conduct or decision, and the potential for adverse impacts on pending Aboriginal claims or rights. It commented that past wrongs, including previous or continuing breaches of the duty to consult, do not suffice to create this relationship, nor do what the Court described as "mere speculative impacts".
The Court went on to comment that adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right. This may include "high level management decisions or structural changes to the resource's management [which] may also adversely affect Aboriginal claims or rights even if these decisions have no immediate impact on the lands and resources". For example, a contract that transfers power over a resource from the Crown to a private party "may remove or reduce the Crown's power to ensure that the resource is developed in a way that respects Aboriginal interests in accordance with the honour of the Crown".
The decision suggests, therefore, that proposed government conduct or decision, which impacts the Crown's ability to ensure that a resource is developed in a way respectful of Aboriginal interests and in accordance with the honour of the Crown, will give rise to a potential consultation obligation.
In arriving at this explanation, however, the Court rejected a broader approach suggested by respondents on the case, whereby a government decision, however inconsequential, suffices to create a duty to consult because it is part of a larger project. Referring to its previous decision in Haida Nation, the Court concluded "it confines the duty to consult to adverse impacts flowing from the specific Crown proposal at issue – not to larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration".
Thus, an order compelling consultation will only be appropriate where the proposed Crown conduct, either immediately or prospectively, may adversely impact established or claimed rights. Speculative impacts, or a decision which does not reduce or remove the power of the Crown to ensure that a resource is developed in accordance with the honour of the Crown, will likely not suffice to trigger the duty to consult.
Role of Tribunals
On the issue of the place of government tribunals in consultation, the Supreme Court noted that in this case, the BCUC was not engaged in consultation, but was rather reviewing whether the Crown had discharged its duty to consult. The Court found that the legislature may choose to delegate the Crown's duty to consult to a tribunal. It was argued before the Court that every tribunal with the jurisdiction to consider questions of law has a constitutional duty to consider whether adequate consultation has taken place, and if not, to fulfill that duty itself. The Supreme Court rejected this argument, affirming that a tribunal has only those powers which are expressly or impliedly conferred on it by statute, and for a tribunal to enter into consultations with a First Nation, such express or implied statutory authority must exist. The matter of the options available to a tribunal in the event that it found inadequate consultation for a project otherwise in the public interest was not fully at issue, and the Court did not provide specific direction on this point. The decision does suggest that if the statutory powers of the tribunal do not give rise to effective remedial powers, parties will need to pursue consultation issues in the courts.
With respect to the much-awaited determination regarding the role of tribunals in assessing the duty to consult, the Supreme Court found that the BCUC's power to decide questions of law implied the power to decide constitutional issues properly before it. The Supreme Court found that the BCUC was empowered to assess the adequacy of consultation, notwithstanding that B.C. legislation expressly provided that the BCUC does not have jurisdiction over "constitutional questions", defined as questions challenging the validity or applicability of a law or being a claim for a constitutional remedy under s. 24 of the Charter or s. 52 of the Constitution Act, 1982. In the specific case, the power to consider the adequacy of consultation appears to derive at least in part from the public interest component of the decision being made.
The Supreme Court's determination raises interesting questions in relation to regulatory tribunals in Alberta. Under the Designation of Constitutional Decision Makers Regulation, the Alberta Utilities Commission and the Energy Resources Conservation Board, among others, are authorized to consider "all questions of constitutional law". The Supreme Court's decision confirms that such tribunals are empowered to rule on the adequacy of aboriginal consultation by the Crown, where such issues properly arise in applications before those tribunals.
While the impact of the Rio Tinto decision will take time to fully assess, there are arguably three clear points which emerge from the ruling.
First, not every government decision or conduct which touches a resource project will necessarily trigger the duty to consult. Speculative impacts, or decisions which do not impair the Crown's ability to ensure development in accordance with the honour of the Crown, may not attract the duty.
Second, tribunals authorized to determine questions of law have the power to assess consultation where the issue is properly before it, absent a statutory provision to the contrary. A public interest component to the decision in question may be sufficient to empower the tribunal to entertain such issues.
Third, if the tribunal does not have effective powers to remedy a consultation breach, or the issue is effectively divided among a number of bodies, a claimant may need to resort to the courts to address consultation issues.
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.