In the recent case of Hupacasath First Nation v. The Minister of Foreign Affairs Canada and the Attorney General of Canadathe Federal Court of Appeal enunciated a test to determine when the effect of governmental action on a right claimed by Aboriginal people is “speculative”, with the result that no duty to consult is triggered. The test may be seen by some as an unexpected limitation on the duty to consult.

The applicant, the Hupacasath First Nation, sought judicial review in respect of the Government of Canada’s proposed ratification of a treaty between China and Canada dealing with investments in each country by investors from the other country. The First Nation claimed that the treaty, if brought into force, had the potential to infringe on its Aboriginal rights. As the Supreme Court of Canada has held, in Rio Tinto Alcan Inc. v. Carrier Sekami Tribal Council,2 MikisewCreeFirstNation v. Canada (Minister ofCanadianHeritage),3 and Haida Nation v. British Columbia(Ministerof Forests),4 where proposed governmental action has the potential to infringe on rights claimed by Indigenous peoples, a duty to consult the Indigenous people arises. That duty arises when the Crown has real or constructive knowledge of the Aboriginal claim, and there is a “possibility that the Crown conduct may affect the Aboriginal right”. As the Supreme Court held in Rio Tinto, the potential for that effect must be one of “appreciable adverse effect” – “possible” effects qualify; “mere speculative impacts, however, will not suffice”.5

The issue as framed by the Federal Court of Appeal was whether the potential impacts on Aboriginal rights asserted by the First Nation were of sufficient probability that they were more than merely speculative. Stratas J.A., writing for the Court, held that the impacts were merely speculative and, as a result, no duty to consult was triggered. He wrote:

The appellant defines “speculative” as situations where “there is no reasonable basis to conclude that an impact might occur.” Applying that definition in this case, the appellant says that there is a reasonable basis for concluding that an impact caused by the Agreement might occur.

What is missing from the appellant’s definition of “speculative” is the idea of assumption, conjecture or guesswork. A conclusion is not speculativewhen it is reached by way of a chain ofreasoning all of whose links are proven factsand inferences, joined together by logic. Aconclusion is speculative when it is reached byway of a chain of reasoning where one or moreof the links are assumptions, conjecture orguesses or where assumptions, conjecturesor guesses are needed to join them.

This may well be the first attempt to enunciate the boundary between a potential effect on claimed rights which gives rise to a duty to consult and a potential effect which does not. The Supreme Court of Canada will not be given an opportunity to say whether the Federal Court of Appeal got it right – no application for leave to appeal has been filed, and the time has expired. Some may say that the definition is too restrictive – that when a conclusion is the result of a chain of reasoning where all of the links are “proven facts and inferences, joined together by logic” the conclusion is necessarily probable, not just possible. The Supreme Court clearly said that a mere possibility, albeit one which is not speculative, is sufficient to trigger a duty to consult. The decision, however, gives a basis for those who wish to limit the situations which give rise to a duty to consult.