Canada: Tribunals To Decide Adequacy Of Crown´s Duty To Consult And Accommodate

Two significant decisions were released on Thursday, February 19, 2009 by the British Columbia Court of Appeal. These cases are significant to natural resource developers as they confirm that project approvals are at risk if regulatory tribunals fail to take into account, and make decisions about, whether the Crown's duty to consult and accommodate Aboriginal interests has been adequate. Full consideration within regulatory proceedings of whether the Crown's duty has been met represents both new risks and new opportunities for project proponents.

In Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) (Carrier Sekani Decision), 2009 BCCA 67, the court found that the British Columbia Utilities Commission (Commission) has both the jurisdiction and the obligation to decide the constitutional question of whether the Crown's duty to consult (and, if necessary, accommodate) exists and, if so, whether that duty has been discharged.

In the second companion decision, Kwikwetlem First Nation, et al v. British Columbia (Utilities Commission) (Kwikwetlem First Nation Decision), 2009 BCCA 68, the court relied on the Carrier Sekani decision to rule that the adequacy of consultation must be assessed at the initial stage of crown decision making (i.e., when an application for a certificate of public convenience and necessity for an electricity transmission project has been made), even though a subsequent decision-making process (the environmental assessment) made specific provision for the consideration of Aboriginal consultation and accommodation.

Carrier Sekani Decision

In 2007, B.C. Hydro entered into an Energy Purchase Agreement (EPA) with Rio Tinto Alcan Inc. (Alcan) to buy electricity produced from Alcan's Kemano Power Plant. The plant was constructed in the 1940's and comprises a large-scale hydro-electric dam and reservoir. Construction required the permanent reversal and diversions of major watercourses, resulting in significant implications for fish and wildlife. Water licenses issued to Alcan and construction of the Plant took place without consultation by the Crown with member tribes of the Carrier Sekani Tribal Council about the plant's impacts.

Since the plant first began its operations, generated power was used for Alcan's local smelter requirements. Alcan also generated power in excess of its requirements and sold this power to others, including BC Hydro.

The EPA was the latest commercial agreement for the purchase and sale of excess power. Section 71 of the Utilities Commission Act (UCA) required the Commission to determine whether the EPA was in the public interest. This determination must take into account several considerations, including: the government's energy objectives; the quantity, availability and price of the power; and the price and availability of other alternative energy sources.

During a public hearing process into the section 71 application, the Carrier Sekani had sought to be heard on whether the Crown had fulfilled its duty to consult with them before B.C. Hydro entered into the EPA. The Commission, however, ruled that it did not need to decide whether B.C. Hydro had a duty to consult since there were no new physical impacts arising from the power produced and sold under the EPA and that triggered the duty. The Commission's decision also meant that it did not need to consider whether historical infringements of aboriginal interests had taken place since the Kemano Power Plant was first constructed.

The court disagreed with the Commission's ruling and observed that the Commission's error to assess the Crown's duty of consultation had an "institutional dimension," suggesting the Commission had "demonstrated in several cases an aversion to assessing the adequacy of consultation" by having deferred the consultation question to the environmental assessment process. Applying the Supreme Court of Canada decision in R. v. Paul, 2003 SCC 55, the court found that because the Commission was a quasi-judicial body with authority to decide questions of law, it had the necessary jurisdiction and was competent to decide the constitutional question of whether the duty to consult was triggered and, if so, whether it was discharged. Notably, the court ruled that it is not necessary to find an explicit grant of power in the statute to consider constitutional questions. The court also ruled that because section 71 of the UCA mandates review of the EPA according to the public interest, the Commission had the jurisdiction to assess the adequacy of Aboriginal consultation by a Crown agent, in this case the purchaser of the power under the EPA, B.C Hydro.

Of significance is that the court went on to rule that the Commission not only has the ability to decide the consultation issue, it also is the appropriate forum to decide the issue in a timely manner. Furthermore, as an administrative tribunal and Crown actor, the "honour of the Crown" concept that was developed in the seminal Supreme Court of Canada decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, obliges the Commission to do so. While the Commission is a quasi-judicial tribunal bound to observe the duty of fairness and to act impartially, it is also a creature of government, subject to government direction on energy policy. The honour of the Crown therefore requires the regulatory tribunal to decide any consultation dispute that arises within the scheme of its regulation.

The court also noted that the honour of the Crown entitles Aboriginal groups to early consultation. The court clarified that the logical extension of this principle is the timely assessment of the adequacy of consultation. On the facts before it, the court found that it was an error of law for the Commission to dispose of the consultation issue on a preliminary basis given the significant nature of the historical allegations of continuing infringement of aboriginal title and rights.

The Carrier Sekani Decision is authority for the proposition that regulators, such as the Commission, must consider and make determinations about whether the Crown has adequately fulfilled its duty to consult and accommodate. That much is clear. What is not clear, however, is the process the courts are expecting regulators to follow to fulfill these obligations. In this case, recall that the relief sought before the Commission concerned an approval regarding the economic reasonableness of the power sold under the EPA. The terms of that agreement did not involve the construction of new generation facilities. The plant had been in place for many decades. But, the reasoning in the Carrier Sekani Decision casts significant doubt on how asserted historical and prospective infringements should be considered and addressed before a regulator. Regulators may very well find it necessary to err on the side of caution and implement a broader inquiry process. That approach is likely to lead to lengthier regulatory hearings and more complex evidentiary records. Whether or not such an inquiry actually promotes the Crown's honour for all, and leads to better decision-making by tribunals in the matters that are expressly within their area of expertise (i.e. in this case, energy regulation), remains uncertain.

Kwikwetlem First Nation Decision

This appeal examined an application under section 45 of the UCA for a Certificate of Public Convenience and Necessity (CPCN) for a transmission line project proposed by the British Columbia Transmission Corporation. A new transmission line was to be built along an existing right of way which would be widened to accommodate the new line and which lay within the traditional land of the Kwikwetlem. An EA process, with a ministerial decision, follows the issuance of a CPCN before a transmission project can proceed. That process specifically contemplates assessing the adequacy of Aboriginal consultation. The Commission therefore determined that it should defer this assessment to the Ministerial EA determination.

The Kwikwetlem appeal argued that this deferral precluded consideration of alternatives to the transmission project. The court relied on the Carrier Sekani Decision to rule that the Commission should have considered whether the Crown's constitutional duty of consultation had been fulfilled concerning the subject matter of the application. Thus, before it certified the project as necessary and convenient in the public interest, the Commission was required to determine when the Crown's duty to consult with that project arose, the scope of that duty and whether that duty had been fulfilled.

Implications for Proponents

The possibility that the government may fail in its obligations to Aboriginal communities represents a significant risk to resource developers. Therefore, developers have a vested interest in effectively managing the consultation process to reduce this risk. While such a risk has been apparent for some time now, the assessment of the adequacy of the Crown's consultation has generally been played out once project approvals have been received. The result can be delay at a time when the costs of delay are the greatest.

The time for assessing the adequacy of the Crown's duty to consult has now been brought into the regulatory process. This may be the better forum for such an assessment, as the tribunal is best placed to determine impact and whether Aboriginal interests have been accommodated. Regardless of the forum, however, it is now more important than ever that a strong consultation record be brought forward at the application stage. Accordingly, the following steps are advised:

1. Involve the Crown Early in the Project Planning Process - As the adequacy of Crown consultation is now an issue for energy regulators to assess and determine, proponents need to plan and work with the Crown early in the process to ensure roles and responsibilities are well defined and understood. Both parties need to carefully plan and consider how the Crown's evidentiary record of consultation and the assessment process used by the Crown may be put before a regulator, explained and tested through any cross-examination process.

2. Effectively Manage the Consultation Process – As the proponent is usually in the best position to share project information and assess the potential impacts from its projects, the proponent is well-advised to have the procedural aspects of Crown consultation expressly delegated to it and then to carry those aspects out. Substantive responsibilities, however, cannot be delegated; they must remain with the Crown. Those substantive roles and responsibilities can be facilitated by having the Crown remain a part of the project planning process. The Crown may then be able to make informed assessments about potential impacts upon asserted rights and the project's proposed mitigation and accommodation measures.

3. Take Action to Avoid, Mitigate or Accommodate Impacts – It is not sufficient to learn about Aboriginal interests and how those interests may be impacted but then not take substantive measures to eliminate or reduce those impacts. Proponents must develop a reasonable strategy that specifically addresses identified impacts.

4. Thoroughly Document the Consultation Process – No matter what the outcome of the consultation process, project proponents must thoroughly document their own Aboriginal consultation and accommodation efforts, any efforts on the part of the Crown, any issues raised, and the responses and mitigation measures provided. This consultation record will provide the evidence required by the board or tribunal to effectively assess whether the duty to consult has been fulfilled.

The consultation process does not always result in a mutually satisfactory solution, despite the corresponding obligation of Aboriginal communities to act in good faith and to participate in that process. Therefore, project proponents that are able to effectively navigate consideration of the Crown's duty within their regulatory and EA processes will ultimately be successful at mitigating this risk.

Shawn Denstedt is a partner in the firm's Calgary office. Gord Nettleton is a partner with Osler, Hoskin & Harcourt LLP practising in the Calgary office's Litigation Department.

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.