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.

WHAT TRIGGERS THE DUTY TO CONSULT?

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 ROLE OF ADMINISTRATIVE TRIBUNALS

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.

Comments

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.

Footnote

^{1 2010 SCC 43.}

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