Supreme Court of Canada Clarifies (some of) the Limits of the Duty to Consult
This post was submitted by Lawson Lundell guest author Keith Bergner.
On October 28, 2010, the nine justices of Supreme Court of Canada issued a unanimous judgment in Rio Tinto Alcan Inc. and British Columbia Hydro and Power Authority v. Carrier Sekani Tribal Council, 2010 SCC 43. Lawson Lundell LLP (Chris Sanderson, Q.C., Keith Bergner and Laura Bevan) represented the successful appellant, BC Hydro.
The decision represented the Supreme Court’s first detailed discussion of the law regarding the Crown’s duty to consult Aboriginal groups since the Court’s 2004/2005 “trilogy” of Haida, Taku River and Mikisew. The decision is important for what it says about (i) when the Crown duty to consult with Aboriginal groups is triggered—and when it is not; and (ii) the role of administrative tribunals.
The Background to the case is as follows:
- In the 1950s, Alcan (now Rio Tinto Alcan) dammed the Nechako River in northwestern British Columbia for the purposes of power development in connection with aluminum production. Since 1961, however, Alcan has sold its excess power to BC Hydro, a Crown Corporation, under Energy Purchase Agreements (“EPAs”). The 2007 EPA is the latest such agreement.
- The CSTC First Nations claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River. As was the practice at the time, they were not consulted about the 1950s dam project. They asserted, however, that the 2007 EPA for the purchase and sale of the power generated by the project should be subject to consultation.
- The 2007 EPA was subject to review before the Commission, which was charged with determining whether the purchase of electricity was in the public interest. The Commission had the power to declare a contract for the sale of electricity unenforceable if it found that it was not in the public interest.
- The Commission held a hearing and concluded that the EPA would not affect water levels in the Nechako River. The Commission assumed the historic infringement of Aboriginal rights, Aboriginal title, and a failure by the government to consult, but concluded that “more than just an underlying infringement” was required. Since the CSTC had failed to demonstrate that the 2007 EPA would “adversely affect” their Aboriginal interests, the Commission concluded the duty to consult was not triggered and that it need not consider further evidence on consultation.
The British Columbia Court of Appeal allowed the appeal. Alcan and BC Hydro appealed to the Supreme Court of Canada. A record number of eighteen interveners also made submissions.
