Canada: Recent Supreme Court of Canada Decision on the Duty to Consult Aboriginal Peoples

When does the duty to consult Aboriginal Peoples arise? What roles can administrative tribunals play in the consultation process? These two questions were examined by the Supreme Court of Canada in Rio Tinto Alcan v. Carrier Sekani Tribal Council.1 In this case, British Columbia was asking the British Columbia Utilities Commission (the "Commission") to approve a contract for the sale of excess power between Rio Tinto and BC Hydro. The dam producing the electricity was built in the 1950s without consulting the Tribal Council. The Supreme Court had to determine whether the Commission had jurisdiction to consider the Crown's obligation to consult affected First Nations before approving this contract and whether it had correctly determined that there was no such obligation under the circumstances.


The Court began by pointing out that the duty to consult is prospective and derives from the need to protect Aboriginal interests while land and resource claims are ongoing or when an action proposed by the Crown may infringe on an Aboriginal right. If the Crown does not perform its duty, it may face an injunction to halt the threatening activity, the payment of compensation or an order forcing it to consult the Aboriginal party before proceeding with the project.

The Court then went on to say that the duty to consult arises when three elements are met: 1) the Crown has real or constructive knowledge of a potential Aboriginal claim or right; 2) Crown conduct is contemplated; and 3) this conduct may have an adverse impact on the claim or right.

The Court also explained that the conduct is not confined to the exercise of statutory powers or to conduct which has an immediate impact on lands and resources, but also extends to strategic decisions. However, the Court did not decide on the question of whether government conduct includes legislative action.

With respect to the last element, the Court decided that the Aboriginal party must prove that its claim or right stands to be affected by current Crown conduct. An underlying or continuing breach does not give rise to a duty to consult unless the Crown is contemplating a new decision which may have an adverse impact on a claim or right. However, the Aboriginal party can negotiate or claim compensation for the lack of adequate consultation.


The Court held that the legislature may delegate the Crown's duty to consult Aboriginal Peoples to an administrative tribunal. It may also confine the tribunal's power to determinations of whether adequate consultation has taken place under the circumstances. In this situation, the administrative tribunal does not take part in the consultation, but simply determines whether the Crown has discharged its burden to consult Aboriginal Peoples. To determine whether the tribunal can play one or the other of these roles or both, the powers that are expressly or implicitly conferred on it by statute must be examined. The Court added that if the tribunal structure set up by the legislature is incapable of dealing with a decision's potential adverse impacts on Aboriginal interests, then the Aboriginal party may seek appropriate remedies in the courts.

In Carrier Sekani, the Court found that the Commission has the power to consider whether adequate consultation has taken place, but it could not itself engage in consultations and discharge the Crown's constitutional obligation. It also found that the Commission's decision was correct since the evidence did not show that the contract for the sale of excess power would adversely affect Aboriginal interests. According to the Court, an underlying infringement of a claimed right is not in itself an adverse impact triggering a duty to consult. As the hydroelectric works had been built a long time ago and the contract for the sale of excess power did not have an impact on the resource, the Court encouraged the parties to negotiate compensation for lack of adequate consultation in the past.


This case clarifies two important elements concerning the consultation process with Aboriginal Peoples:

  • To the extent allowed by law, an administrative tribunal may determine whether the Crown has discharged its duty to consult and may itself engage in consultation on behalf of the Crown; a decision on whether the constituent legislation confers such jurisdiction on it will have to be made on a case-by-case basis.
  • The duty to consult is confined to the adverse impacts flowing from the specific current Crown conduct, not to larger adverse impacts of the project of which the conduct is a part.

This being said, the Court has opened the door to remedies based on lack of adequate consultation in the past, even for projects carried out many years ago. The Court mentioned that Aboriginal Peoples may request compensation in such cases. In Carrier Sekani, the dam which gave rise to the dispute was built in the 1950s. Should this type of remedy be subject to rules of prescription? The Supreme Court did not address this matter.

Some may consider this approach a bit surprising since in Haida the Supreme Court explained that the purpose of the duty to consult is to protect potential rights pending their recognition. One might have expected the Court to reason that no action can be brought for past breaches of the duty to consult and to require the Aboriginal party to meet the Sparrow test, thereby proving the existence of an Aboriginal right or treaty right and not simply the existence of a credible claim. Such actions will most certainly come before the trial courts in the near future.


1 2010 SCC 43.

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, Calgary and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at

Ogilvy Renault joins Norton Rose Group on June 1, 2011.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.