In its decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, released October 28, 2010, the Supreme Court has provided new guidance on key questions surrounding the duty to consult and accommodate Aboriginal groups. That duty, pursuant to the landmark Haida Nation decision in 2004, provides that the Crown must consult and in some circumstances accommodate Aboriginal interests whenever the Crown has real or constructive knowledge of the potential existence of an Aboriginal right or title, and contemplates conduct that might adversely affect it.

The salient issues addressed by the Court in the Rio Tinto case include (1) when the duty to consult is triggered; and (2) the role of administrative/statutory tribunals (such the B.C. Utilities Commission) in addressing Aboriginal consultation and accommodation issues.

Prior and Ongoing Breaches Do Not Trigger the Duty to Consult

The Court has clarified that the Crown’s duty to consult and accommodate is not triggerred retrospectively to deal with prior, existing or ongoing infringements. The duty arises from new proposed Crown action with the potential for creating new adverse impacts. There must be a causal connection between the proposed Crown action and a novel potential impact on the Aboriginal claim or right. In this case, the approval of an Energy Purchase Agreement (EPA) between Rio Tinto Alcan and B.C. Hydro (an agent of the Crown) would not create any new adverse impacts in relation to land claimed by the Carrier Sekani Tribal Council First Nations. The adverse impacts, arising from flooding approved in the 1950s without consulting the affected First Nations to allow for a hydro-electric power generating plant, were historical as well as ongoing. These impacts remained to be addressed by way of a claim for compensation. However, the approval of a new EPA in 2007 did not alter those impacts and therefore did not trigger the duty to consult.

The Court stated:

An underlying or continuing breach, while remedial in other ways, is not an adverse impact for the purposes of determining whether a particular government decision gives rise to a duty to consult… The question is whether there is a claim or right that potentially may be adversely impacted by the current government conduct or decision in question. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right.

The Court also stressed that “mere speculative impacts… will not suffice” and that there must be an “appreciable adverse effect on the First Nations’ ability to exercise their aboriginal right.”

The Court was careful to underscore that the type of Crown decision or conduct that can give rise to the duty to consult is not confined to those which have an immediate impact on lands and resources. The potential for adverse impact suffices, and this may include “strategic, high-level decisions.” Examples given for such higher-level decisions included the approval of a multi-year forestry plan (Klahoose First Nation v. Sunshine Coast Forest District), establishment of a review process for a major pipepline (Dene Tha’ First Nation v. Canada), the conduct of a comprehensive inquiry into a province’s infrastructure and capacity needs for electricity transmission (Re B.C. Electricity Transmission Infrastructure Inquiry) . The Court expressly left open the question as to whether or not contemplated legislative action could give rise to a duty to consult.

The Duty to Consult and Administrative Tribunals

The Court has also provided guidance as to the proper role of administrative tribunals in relation to Aboriginal consultation matters. A degree of uncertainty has persisted in this regard: is the role of such bodies, as tribunals, to assess whether or not the Crown has met its obligation of consultation and accommodation, or, as emanations of the Crown, to conduct consultation and accommodation? The Supreme Court in Rio Tinto has ruled is that it may be either, or neither, and that the answer must be gleaned from the statute that creates the tribunal. In other words, it is open to Parliament or to the Legislature to confer either an adjudicative or a consultative role on an administrative tribunal in such matters, but that it must do so expressly or by necessary implication in the tribunal’s governing legislation.

The Court noted:

The duty to consider consultation and the scope of that inquiry depend on the mandate conferred by the legislation that creates the tribunal…

The legislature may choose to delegate to a tribunal the Crown’s duty to consult. As noted in Haida, it is open to governments to set up regulatory schemes to address the procedural requirements of consultation at different stages of the decision-making process with respect to a resource.

Alternatively, the legislature may choose to confine a tribunal’s power to determinations of whether adequate consultation has taken place, as a condition of its statutory decision-making process. In this case, the tribunal is not itself engaged in the consultation. Rather, it is reviewing whether the Crown has discharged ist duty to consult with a given First Nation about potential adverse impacts on their Aboriginal interest relevant to the decision at hand.

The decision serves as a reminder that project proponents and private sector entities – particularly those engaging in resource development, real estate development and energy projects and transactions -- must always be mindful of the potential impact of the Crown’s duty to consult and accommodate where there is the potential for an adverse impact on a claimed Aboriginal right or interest. Failure to get it right can lead to significant delays as well as potential litigation and reputational costs.