The Kenney Dam was built in Northwest British Columbia in the
1950s. The dam and reservoir altered the water flow to the Nechako
River, to which the Carrier Sekani Tribal Council First Nations
("CSTC") have a land claim. The CSTC was not consulted on
the building of the dam. In 2007 B.C. Hydro, a Crown corporation,
entered into an agreement with Alcan, the owner of the dam, to
purchase the excess power created by the dam. This agreement
required approval by the British Columbia Utilities Commission (the
"Commission"). The CSTC made submissions to the
Commission that the B.C. government should be obligated to consult
the CSTC on the agreement as it would adversely affect its claims
The Court held that the duty to consult arises where: (1) the
Crown has knowledge, actual or constructive, of a potential
Aboriginal claim or right; (2) there is contemplated Crown conduct;
and (3) the contemplated conduct may adversely affect an Aboriginal
claim or right. While the first two branches of the test were
easily met here, the third branch was more difficult. The claimant
must show a causal relationship between the proposed conduct and
the potential for adverse impacts on Aboriginal claims or rights.
Past wrongs, including past breaches of the duty to consult, do not
suffice. Neither will mere speculative impacts satisfy this
The fact that the B.C. government had breached its duty to
consult in the 1950s did not satisfy this requirement. The duty
will only be triggered where a contemplated Crown action puts
current claims and rights in jeopardy. The Court rejected the
argument that a failure to consult on the initial project means
that any further development requires consultation. Because the
water levels would not be affected by the agreement, and because
Alcan would sell its excess power to another party if not to B.C.
Hydro, no duty to consult arose.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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